The Court of Appeal handed down a short judgment in the case of PMC (a child by his mother and litigation friend FLR) v A Local Health Board today. The Court adjourned the appeal hearing as it hopes the Supreme Court will soon hand down its judgment in the case of Abbasi v Newcastle Upon Tyne NHS Foundation Trust and other, which will look at the balancing exercise between article 8 and article 10 rights. The Court also provided very useful guidance for practitioners to follow in the meantime until the final decision in PMC is handed down.
Delivering the judgment, Sir Geoffrey Vos, Master of The Rolls noted the submissions of Ms Greaney KC, advocate to the Court:
“It is suggested that this Court may wish to await the Supreme Court’s [the UKSC] decision in [Abbasi v. Newcastle Upon Tyne NHS Trust & Others [2023] EWCA Civ 331] before handing down judgment given that the appeal concerns the nature of evidence required to justify a departure from open justice in cases which involve a [Re S [2005] 1 AC 593] balancing exercise of Article 8 and Article 10 rights. The [UKSC’s] decision may well be pertinent to an issue in this appeal, including what sort of evidence a child or protected party must adduce in relation to potential future risks if they are not granted anonymity order and whether the Court of Appeal in [JX MX v. Dartford and Gravesham NHS Trust [2015] 1 WLR 3647] was correct that evidence as to specific risks was not required.”
The Court said it was concerned that, if it proceeded with the argument before it had the UKSC’s judgment in Abbasi, it would need to reconvene, or at least request written submissions, perhaps back and forth, once Abbasi was available.
The Court said it felt, subject to any submissions made, that it would be more satisfactory for the argument to start once it knew what the UKSC had decided in Abbasi. It suggested that such argument could take place early in the Summer term with a judgment to follow as quickly as possible after that.
Commenting in response to the judgment, Carys Lewis, Associate in our Clinical Negligence team, said:
“While the case has been adjourned pending the Supreme Court’s decision in Abbasi v Newcastle Upon Tyne NHS Foundation Trust, today’s hearing provided valuable guidance on the current approach to anonymity orders. The Court of Appeal reaffirmed that practitioners should continue following the precedent set in JXMX v Dartford and use the standard form PF10 for anonymity orders. This ensures consistency and clarity in the law, maintaining the position as it stood before the PMC decision—at least until the Court of Appeal delivers its final ruling in the case of PMC v A Local Health Board. This will be a welcome clarification for legal professionals navigating this area.”
