Westminster City Council v H

A court may investigate matters arising during proceedings which fall outside the case previously put to a witness only if the process remains procedurally fair. The witness must have a proper opportunity to address the proposed findings, with disclosure, time for reflection, and legal support where necessary. Even where that threshold is met, the court should confine its findings to matters necessary for its judicial function. Compliance with a press code is ordinarily for the relevant regulatory body, not the Family Division.

The proceedings concerned H, a child approaching 16 and subject to an interim care order. Following an earlier judgment addressing the threshold criteria under section 31(2) of the Children Act 1989, the court considered H’s move to a specialist medical unit. During that process, evidence emerged that a Daily Mail journalist had visited H at his unit without identifying herself to staff or obtaining permission from a responsible executive.

The court investigated the circumstances of the visit and the mother’s involvement. The central issues were whether the evidence could fairly support adverse findings outside the case previously advanced and whether the court should determine alleged breaches of the IPSO Code.

1. Procedural fairness. The court considered the guidance in Re W [2016] EWCA Civ 1140 concerning significant adverse findings arising outside the known parameters of the case. Such findings require the relevant witness to be alerted to the issue, given relevant material and sufficient time to consider it, and provided with legal advice or representation where necessary.
2. The judge found that the evidential process had been sufficiently fair to permit findings about the circumstances of the journalist’s visit. The evidence established that the journalist entered a non-public area of the unit, did not identify herself as a journalist, and did not obtain permission from a responsible executive. The mother had facilitated the contact, although the court did not find it necessary to determine that she had given express permission.
3. Limits of the court’s function. Despite being satisfied that the process was fair, the court declined to make formal findings of breach of the IPSO Code. Determining such breaches was neither the purpose nor the function of the Family Division. The appropriate course was for H’s Guardian to refer the matter to the IPSO Code of Practice Committee.
4. The court therefore confined its decision to the factual findings necessary to understand the circumstances and made no formal regulatory determination.

The judgment followed an earlier judgment by the same court concerning the threshold criteria, reported at [2017] EWHC 518 (Fam). It also followed a hearing concerning H’s proposed move to a specialist medical unit. No appeal from a lower court is stated.