In a recent case Mrs Justice Lieven dealt with Transparency Orders in care proceedings. Graeme Bentley analyses the ruling.
In the case of A Local Authority v A Mother & Ors [2025] EWHC 3498 (Fam), Mrs Justice Lieven was concerned with allegations of Fabricated or Induced Illness (FII) in respect of a child in hospital where the press was interested in the case. The issues were (1) of naming the Trust (which was ultimately named as Great Ormond Street) and (2) of whether there should be details of the treatment regime via “lines”, about which the Sunday Times was concerned.
Background
A Sunday Times reporter, Ms Dugan, has already published three articles about what is suggested to be increasing allegations of fabricated or induced illness against parents in hospitals in England and the impact of those allegations on the families. She applied for a Transparency Order as part of her research and reporting on this topic. It is set out in her witness statement that the Sunday Times argues that there is a high level of legitimate public interest in reporting of this nature [4].
The Court reminded itself that there is a balancing exercise to be undertaken between EHCR article 8 right of respect for private and family life and article 10 right to freedom of expression including press freedom [8]. After the court has first considered the headings of (1) whether the interference is prescribed by law and (2) whether it pursued a legitimate aim, the balancing exercise comes in at stage (3) [10-12].
The Court’s balancing exercise
In carrying out the balancing exercise, the Judge regarded as important the support of the Children’s Guardian for the press application. She ruled that:
- There is a public interest in transparency and naming the Trust – the weighty factor is the genuine public interest in reporting fabricated and induced illness and how it is dealt with. There is public interest in the Guidelines; in whether there has been an increase in FII cases; and in how FII cases are dealt with and considered by the courts, together with the impact that has on parents.[39]
- There is legitimate interest in the role of Great Ormond Street Hospital because of their involvement in drawing up of the Guidelines through their clinicians and how it is applied by the Trust, which deals with so many very sick children [40].
- On the facts of this case, and particularly the large number of children dealt with at Great Ormond Street, jigsaw identification, by having identified the Trust, poses a very limited risk; neither did the reference to treatment via lines increase the risk of identification of the child [41-42].
- While people closely associated such as parents, carers or professionals may be able to identify the child, or speculate which child is referred to, that in itself is not a ground to refuse the order sought. There is necessarily a judgement to be made on the facts of the individual case [43].
- Neither were any of the following reasons to withhold identification of the trust:
- The prospect of the child identifying themselves in future as they would need in any event eventually to be told something about what had happened [44].
- The prospect of the Trust becoming an intervenor in future which, if anything, was likely to increase the public interest in naming [45].
- The prospect of demonstrations outside the hospital which was speculative [46].
- While caselaw indicated that the issue was of whether the reporting went to the role of the Court, it was clear that much of the reporting is about the approach to alleged FII cases, both by professionals and in the courts, and about the court’s role in FII cases. As such it fell within the principles concerning open justice [47].
- The police, having been notified, had chosen not to attend, While the court should ensure no interference with a police investigation, this appeared in the present case to be at an early stage with no charges brought. Naming the Trust did not in itself interfere with the investigation or provide additional information to the parents [48]
The Court therefore authorised the naming of the Trust and reference to treatment via lines.
Implications for Public Bodies
Irrespective of the merits of the journalistic argument (with which the court did not seek to interfere), the case is a reminder that public bodies becoming involved in children proceedings are likely to find themselves named where there is a legitimate public interest. The standard form transparency order already provides a default of the local authority being named, while not normally naming individuals beyond senior management. The fact that a limited number of people close to the situation may be able to guess identity from naming an organisation in the reporting is not an automatic reason to withhold information from the wider public. Neither is the prospect of police investigation or speculation about wider public discord. The days (if they ever existed) of shutting down all information upon identification of the slightest risk are seemingly well behind us.
Graeme Bentley is Principal Solicitor at Invicta Law and an Accredited Member of the Law Society’s Children Panel.
