Mr Justice MacDonald
Case No: FD18P00168
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Claire Overman (instructed by the British Broadcasting Corporation) for the Applicants
The Respondents did not appear and were not represented.
Hearing dates: 18 April 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 10 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This judgment was delivered in private. The judge has given leave for this version of the judgment, which includes the names of the parties, to be published.
INTRODUCTION
In this matter, I am concerned with an application issued on 12 February 2024 by Ms Sanchia Berg and Mr Ashley John-John-Baptiste of the BBC, represented by Ms Claire Overman of counsel, for the following:
i) Permission pursuant to FPR r. 27.9(5) to be provided with transcripts of the hearings held in the East London Family Court on 26 July 2018 and 30 August 2018 and any other hearings that addressed the applications for a deprivation of liberty order and/or a secure accommodation order in respect of Ms Zahra Codsi.
ii) Permission pursuant to FPR 12.73(1)(b) to receive copies of any orders made at the East London Family Court in proceedings for a deprivation of liberty order and/or a secure accommodation order in respect of Ms Codsi, and any position statements and/or case summaries from those hearings.
iii) Permission pursuant to FPR 12.73(1)(b) to report the contents of the foregoing transcripts and documents, if so advised.
The applications arise in the context of Mr John-Baptiste currently preparing, with the assistance of Ms Berg and her extensive experience of reporting on family law cases, a special report into the use by the family courts of Deprivation of Liberty Safeguarding Orders (colloquially known as DoLS orders) in respect of children and young people. Mr John-Baptiste has a particular interest in the care system arising out of his own experience as a looked after child.
During the course of his journalistic investigation, Mr John-Baptiste made contact with Ms Codsi in January 2024. Ms Codsi is now an adult. As a child, Ms Codsi was the subject of court orders that have had the effect of restricting her liberty. She recalls being the subject of a DoLS order before being subject to a series of secure accommodation orders pursuant to s.25 of the Children Act 1989. The orders that this court has been able to locate on the court file comprise the secure accommodation orders made pursuant to s.25 of the Children Act 1989. It has not yet been possible to locate the DoLS order that Ms Codsi recalls being the subject of.
Mr John-Baptiste considers that Ms Codsi has a compelling story to tell arising from her being under orders of the court that restricted her liberty (and a story that is not usually told from the perspective of someone who has been the subject of such orders). Ms Codsi wishes to contribute to the programme that will be produced as the result and to be identified in that programme. Ms Codsi hopes to highlight her experience of being the subject of such orders. Within this context, Mr John-Baptiste and Ms Berg contend that there is a public interest in reporting Ms Codsi's case in detail, including why the court made the orders it did. They are also anxious to ensure that the reporting of matters concerning Ms Codsi is fair and accurate, in line with the BBC's Editorial Standards as promulgated under its Royal Charter. Within this context, they seek material from the proceedings concerning Ms Codsi as summarised above.
In circumstances where the application concerns a request for disclosure from previous proceedings, on 7 March 2024 the court directed that the Court Office serve the parties to the previous proceedings, in circumstances where it is the court that holds the relevant contact information. The court further directed that any party to the proceedings who sought to oppose the applications should file a Position Statement by 4 April 2024. It has not been possible to serve Ms Codsi's parents, who were respondents to the previous proceedings, in circumstances where the court was never provided with their address or addresses. Indeed, the orders in the proceedings make clear that the whereabouts of Ms Codsi's parents remained unknown for the duration over which the court was seised of proceedings with respect to Ms Codsi (and despite the court making a disclosure order against the Secretary of State for Work and Pensions on 17 May 2018). The court has received no representations from the local authority or from Cafcass with respect to the application made by the Ms Berg and Mr John-Baptiste.
In the foregoing circumstances, in determining this application I have received written and oral submissions from Ms Overman. Ms Codsi supports the application for disclosure in circumstances that I set out in more detail below.
BACKGROUND
Ms Codsi was placed in foster care in November 2016. Ms Codsi's foster placements broke down on several occasions and she experienced multiple moves within the care system before a decision was taken to accommodate her in a residential placement. As I have noted, Ms Codsi recalls first being made the subject of a DoLS order in the context of a residential placement, before being made the subject of a series of secure accommodation orders pursuant to s.25 of the Children Act 1989, Ms Codsi being placed at one stage in a secure unit in Scotland.
The court system records three sets of proceedings with respect to Ms Codsi. The first in time were proceedings for a secure accommodation order under s.25 of the Children Act 1989, issued on 20 March 2018. These were followed by proceedings with a public law case number issued on 13 June 2018 and further proceedings, again with a public law case number, issued on 21 September 2018. Court staff have been able to locate secure accommodation orders made in respect of Ms Codsi on 21 March 2018, 13 June 2018, 15 June 2018, 28 July 2018, 30 August 2018, 20 September 2018 and 1 November 2018.
It is apparent from an order of the court dated 15 June 2018 that, during the course of proceedings, the court expressed serious concerns regarding the local authority's conduct in discharging its responsibilities towards Ms Codsi, in particular the failure to search for and locate for Ms Codsi a therapeutic placement, rather than a placement that simply acted to contain her, and the failure to provide Ms Codsi with an Education and Health Care Plan (EHCP).
Ms Codsi is now supported by a friend, Ms Verna Casey, a qualified social worker with over thirty years' experience in fostering and adoption, who currently works as a supervising social worker supporting foster carers caring for looked after children. The statement of Ms Casey relates that Ms Codsi considers that being the subject of court orders restricting her liberty as a child has had a huge and continuing impact on her life. Ms Codsi did not understand as a young person why she was placed under such restrictions, stating that no one explained this to her. Ms Codsi has further stated to Ms Casey that being the subject of such orders felt like a punishment and has created difficulties for her adjusting to life as a young adult and forming healthy relationships. In her own statement in support of the applications before the court, Ms Codsi states as follows:
“1. I am disappointed that my local authority deprived me of my liberty as a young teenager. I was vulnerable and needed therapeutic support in my area. Being placed on a Deprivation of Liberty (DoL) order and then in secure accommodation affected me terribly.
2. […]
3. I lost the opportunity to pursue my talent in performing because of the DoL order and I continue to struggle day to day with my mental health. Being deprived of my liberty didn't feel like care, and as a vulnerable child, I needed to be cared for.
4. I support the BBC's application for these court documents and I have interviewed with them because I think awareness needs to be raised on this issue.”
By a statement of evidence dated 21 March 2024, Mr John-Baptiste sets out his reasons for seeking the orders that he does. Mr John-Baptiste contends that there is a strong public interest in his being able to report on Ms Codsi's experience of being the subject of orders restricting her liberty for the following reasons:
i) Despite the marked increase in the use of DoLS orders, there is limited data available on the number of children who are the subject of DoLS orders and, importantly, less information still on individual cases. In these circumstances, very little is known publicly about the individual circumstances, ethnicity and experiences of the children who are made the subject of such orders.
ii) Many judges in the Family Division and the President of the Family Division have expressed concerns about the use of the inherent jurisdiction of the High Court to make DoLS orders and the effect those orders have on young people and, on occasion, have declined to make them.
iii) Despite strong judicial comment on the difficulties associated with the use of DoLS orders and their impact on the children who are the subject of such orders, public knowledge of DoLS orders, and the impact they have on young people and their wellbeing, education and future outcomes, remains poor and most people are unfamiliar with them.
Mr John-Baptiste contends that it is important for the public to know that the High Court is making orders restricting the liberty of children and young people in the foregoing...
