As Sir James Munby acknowledges, judges can change someone's whole life - we must have public confidence in the courts
The senior family judge in England and Wales has said that the recent "forced caesarian" case must lead to much greater transparency in the family courts and the court of protection.
Granting an order that the child's mother can be named as Alessandra Pacchieri but ordering that her 15-month-old daughter must not be identified, Sir James Munby said it was "hard to imagine a case which more obviously and compellingly requires that public debate should be free and unrestricted".
The baby girl has been placed with prospective adopters following an order made by a circuit judge in October. Munby said the child had a "compelling claim to privacy and anonymity".
"The mother has an equally obvious and compelling claim to be allowed to tell her story to the world," the judge continued. Courts should be very slow to prevent parents from expressing their views about what they saw as failings by courts and judges.
"If ever there was a case in which that right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out – and, I emphasise, to speak out, if this is her wish, using her own name and displaying her own image – would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself."
Munby has never been a judge who minced his words. Giving his reasons on Tuesday afternoon for a ruling he delivered last week, the judge said that some reports of the case had been tendentious and too many had been inaccurate – though that was "not entirely the fault of the media".
He singled out for criticism a report in the Daily Mail on 3 December, which claimed he had "demanded to know [from social workers] why the girl should not be reunited with her mother".
"That was simply not so," Munby said. "I had directed no hearing. How could I?"
He continued: "All I had done was to direct that any further application was to be heard by me. In other words, if any application was made, either in the court of protection or in the family court, I would hear it. That was all. Unhappily this canard has been much repeated in the media."
The problem, as Munby acknowledged with "honesty and candour", was that when the story broke in the Sunday Telegraph on 1 December, "none of the relevant information was in the public domain in this country".
He asked: "How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?"
His next comment went to the heart of the problem.
"This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the court of protection approach what, for shorthand, I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of high court judges; it applies also to the judgments of circuit judges."
Munby is right. When I tried to follow up the Sunday Telegraph story on the day it was published, I could find no court rulings in the case online. It was obviously implausible that a judge had "given the social workers permission to arrange for the child to be delivered" by caesarean section, as the newspaper had reported. But it was not until 4 December that full facts emerged. As Mr Justice Mostyn then explained, the application for a caesarean delivery was made to him by doctors, not social workers. It was "supported by the clear evidence of a consultant obstetrician and the patient's own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.
A QC appointed to represent the mother's interests agreed "that the proposed delivery by caesarean section was in the best interests of the patient herself who risked uterine rupture with a natural vaginal birth", Mostyn added.
Why was his judgment not published at the time it was delivered, in August 2012? First, of course, because it was delivered in the court of protection. Before Munby became president of the high court family division at the beginning of this year, judges who sat in the court of protection regarded themselves as dealing with matters that were essentially private.
In October, however, Munby said that reporters should be allowed into the court's hearings. In practice, reporters rarely get to know about urgent applications such as this and so are not likely to be in court. What's essential, therefore, is that judgments should be published in important cases – anonymised if necessary. But Mostyn's judgment, delivered off the cuff because the case was so urgent, was not even transcribed, let alone reported. Lawyers had not ordered a transcript because his ruling was never challenged on appeal. Nobody else knew about the case.
What Munby appears to be saying is that judgments must be transcribed and published unless they are unlikely to be of any public interest – for example, if the judge merely grants an adjournment. At least, that is what I hope he is saying.
Someone will have to meet the cost of the transcripts. But it's a small price to pay for greater public confidence in the family courts. And, as Munby himself acknowledges, when judges can change someone's whole life by a stroke of the pen, there is a pressing need for greater openness. Reported by guardian.co.uk 19 hours ago.
The senior family judge in England and Wales has said that the recent "forced caesarian" case must lead to much greater transparency in the family courts and the court of protection.
Granting an order that the child's mother can be named as Alessandra Pacchieri but ordering that her 15-month-old daughter must not be identified, Sir James Munby said it was "hard to imagine a case which more obviously and compellingly requires that public debate should be free and unrestricted".
The baby girl has been placed with prospective adopters following an order made by a circuit judge in October. Munby said the child had a "compelling claim to privacy and anonymity".
"The mother has an equally obvious and compelling claim to be allowed to tell her story to the world," the judge continued. Courts should be very slow to prevent parents from expressing their views about what they saw as failings by courts and judges.
"If ever there was a case in which that right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out – and, I emphasise, to speak out, if this is her wish, using her own name and displaying her own image – would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself."
Munby has never been a judge who minced his words. Giving his reasons on Tuesday afternoon for a ruling he delivered last week, the judge said that some reports of the case had been tendentious and too many had been inaccurate – though that was "not entirely the fault of the media".
He singled out for criticism a report in the Daily Mail on 3 December, which claimed he had "demanded to know [from social workers] why the girl should not be reunited with her mother".
"That was simply not so," Munby said. "I had directed no hearing. How could I?"
He continued: "All I had done was to direct that any further application was to be heard by me. In other words, if any application was made, either in the court of protection or in the family court, I would hear it. That was all. Unhappily this canard has been much repeated in the media."
The problem, as Munby acknowledged with "honesty and candour", was that when the story broke in the Sunday Telegraph on 1 December, "none of the relevant information was in the public domain in this country".
He asked: "How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?"
His next comment went to the heart of the problem.
"This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the court of protection approach what, for shorthand, I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of high court judges; it applies also to the judgments of circuit judges."
Munby is right. When I tried to follow up the Sunday Telegraph story on the day it was published, I could find no court rulings in the case online. It was obviously implausible that a judge had "given the social workers permission to arrange for the child to be delivered" by caesarean section, as the newspaper had reported. But it was not until 4 December that full facts emerged. As Mr Justice Mostyn then explained, the application for a caesarean delivery was made to him by doctors, not social workers. It was "supported by the clear evidence of a consultant obstetrician and the patient's own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.
A QC appointed to represent the mother's interests agreed "that the proposed delivery by caesarean section was in the best interests of the patient herself who risked uterine rupture with a natural vaginal birth", Mostyn added.
Why was his judgment not published at the time it was delivered, in August 2012? First, of course, because it was delivered in the court of protection. Before Munby became president of the high court family division at the beginning of this year, judges who sat in the court of protection regarded themselves as dealing with matters that were essentially private.
In October, however, Munby said that reporters should be allowed into the court's hearings. In practice, reporters rarely get to know about urgent applications such as this and so are not likely to be in court. What's essential, therefore, is that judgments should be published in important cases – anonymised if necessary. But Mostyn's judgment, delivered off the cuff because the case was so urgent, was not even transcribed, let alone reported. Lawyers had not ordered a transcript because his ruling was never challenged on appeal. Nobody else knew about the case.
What Munby appears to be saying is that judgments must be transcribed and published unless they are unlikely to be of any public interest – for example, if the judge merely grants an adjournment. At least, that is what I hope he is saying.
Someone will have to meet the cost of the transcripts. But it's a small price to pay for greater public confidence in the family courts. And, as Munby himself acknowledges, when judges can change someone's whole life by a stroke of the pen, there is a pressing need for greater openness. Reported by guardian.co.uk 19 hours ago.