Doctor A & Ors v Ward & Anor

Section 12 of the Administration of Justice Act 1960 protects information relating to private family proceedings, not every fact or document placed before the court. Material is protected where it is prepared for the proceedings, emerges during information-gathering for proceedings already on foot, or is published in a way that links it to the proceedings.

Professional witnesses have no automatic anonymity. A contra mundum injunction requires a fact-sensitive proportionality assessment and a pressing need capable of outweighing the strong public interest in openness. Generic risks of criticism, harassment, recruitment difficulties and adverse effects on child protection did not justify anonymity for experts, social workers or treating clinicians.

The judgment concerned four applications arising from concluded care proceedings concerning William Ward. The care case had been dismissed after the county court found that his fractures might have been self-inflicted, that his parents’ evidence was preferred, and that there was no cogent evidence that they had injured him.

The parents sought permission to publish documents from the care proceedings and to challenge an Enhanced Criminal Records Certificate. Two expert witnesses, the hospital and primary care trusts, and the local authority sought contra mundum injunctions protecting the identities of expert witnesses, treating clinicians and social workers. The central issues were the scope of section 12(1)(a) of the Administration of Justice Act 1960 and whether the competing Convention rights justified publication restraints.

1. Section 12. The statutory prohibition concerns information relating to proceedings before any court sitting in private. It includes documents prepared for the proceedings and information gathered for proceedings already on foot. It does not extend merely because a document was filed, exhibited or annexed, or because it is otherwise confidential. A fact about a child may be published if unconnected with the proceedings, but publication of the fact that it was relied on in the proceedings, or publication in the context of an account of them, is within section 12.
2. Disclosure jurisdiction. The care proceedings had ended without an order. The State no longer had parental responsibility, and the parents were entitled to decide whether publication was in William’s interests. On the facts, the balance between the family’s Article 8 and Article 10 interests and the public interests in confidentiality favoured publication. Section 12 of the Administration of Justice Act 1960 was therefore lifted for the proposed use of the trial documents.
3. Anonymity. The court applied a parallel analysis of Articles 6, 8 and 10 and an ultimate proportionality balance. The risks of targeting, harassment, vilification and a flight from child protection work were accepted to a limited extent, but did not establish the pressing need required to outweigh the public interest in knowing who gives expert evidence in serious public law proceedings. The applications of Dr A and Dr B were dismissed.
4. The same conclusion applied to the social workers and treating clinicians. Generic recruitment and child-protection arguments did not justify exceptional restraint. The Agreement between the Trusts and the parents was valid and enforceable, but did not bind the court or justify a contra mundum injunction. All anonymity applications were dismissed.

The judgment was a first-instance decision of the High Court (Family Division). It followed an earlier judgment in British Broadcasting Corporation v Cafcass Legal and others, [2007] EWHC 616 (Fam), which dealt with interim publication and anonymity issues.