A year of greater transparency: what have we seen? XY Twins Inflicted Injury [2024] EWFC – Sian Cox
25th Feb 2025 | Blog
In January 2024 the push for greater transparency in the family justice system continued apace with the rollout of the reporting pilot into several new family court areas. This was not the only driver; in June, the President issued his Publication Guidance, setting minimum targets for judges to publish judgment and clarifying when professionals should be named. The year ended with Williams J setting forth the case for not naming the judges involved in Sara Sharif’s family law proceedings and the Court of Appeal comprehensively disagreeing in Tickle & others [2025] EWCA Civ 42. Is this the shifting of sands, the turning of the tides or [insert own cliché] for how the family justice system deals with demands for greater openness?
In my own practice, this issue came sharply into focus. For the first time since I got onto my feet in 2010, I was involved in a case in which it was decided that an intervener should be named in a published judgment. The publication of that judgment had to await the conclusion of the criminal investigation process and took place in February 2025. As such, it pre-dates the Court of Appeal’s judgment but may be seen in that vein of cases casting greater light upon the family justice system.
XY Twins Inflicted Injury (Naming Perpetrator) [2024] EWFC 414 (B)
In XY Twins Inflicted Injury [2024] EWFC 413 (B), the parents, two paid carers and the maternity nurse of two young twin babies faced allegations that they had inflicted injuries on them. The most serious injuries were skull and leg fractures to X and rib fractures to both twins. Unusually, the children were able to remain in their parents care under 24 hour supervision by professional carers.
A fact-finding hearing was held and it was determined that the maternity nurse had deliberately or recklessly caused the femoral fracture to X, either inflicted X’s skull fracture or caused it by an undisclosed accident and inflicted both X and Y’s rib fractures. The parents and two other carers were completely exonerated.
All parties were very concerned that due to the lack of regulation of maternity nurses, the intervener might seek to work with children again. The children’s guardian, supported by all parties save the intervener, applied for her to be named. HHJ Rowe KC carefully considered this application and gave judgment permitting her to be named once all criminal investigations had concluded.
HHJ Rowe KC noted that there was no published authority on all fours with the facts of this case, and the relevant case-law pre-dates the recent guidance from the President Transparency in the Family Courts Publication of Judgments Practice Guidance issued in June 2024.
She went on to consider Re S (A Child) [2004] UKHL and 47 Tickle v Herefordshire v others [2022] EWHC 1017 and the relevant paragraphs from the President’s guidance. The judgment sets out in full the arguments for and against naming the intervener, which can be summarised as balancing the need for public protection and open justice against the negative impact that being named would have on her emotional state.
HHJ Rowe KC concluded that the intervener should be named for the following reasons:
- The starting point is open justice. In his guidance the President is clear that in this regard the Family Court is in no different a position than the courts of any other jurisdiction. Ms Waters’ name would be published in criminal proceedings, and any difference in approach needs to be justified.
- The rationale for the anonymisation of cases in family proceedings is the need, as a general rule, to protect the subject children from the harm of identification. It is for this reason, therefore, that the usual practice after a fact-finding hearing is that the perpetrator is not named on publication of the judgment The perpetrator is almost always a parent or family member, friend or person linked to the child so that identification of the perpetrator would risk identification of the children. Publication of Ms Waters’ name would not risk identifying the children and therefore the usual justification for anonymity does not apply to Ms Waters.
- The guidance in the case law is clear that anonymisation of a professional witness is usually justified only to avoid the children being identified. The guidance to the effect that the court will direct anonymity for a professional witness where there is evidence of likely harassment and vilification of the witness on publication also does not apply to Ms Waters. This principle was established to protect conscientious and caring professionals, who have not been found to be at fault in any manner, and are at risk of harassment and vilification simply for doing their job. That does not apply to Ms Waters.
- There is a powerful public interest in access to information in this case, where very young children were seriously injured by a child-care professional in the course of her work – a professional wholly unregulated by any professional body. It would be difficult to explain to the public why the name of the perpetrator was hidden, without a compelling reason.
- Beyond the question of the public interest, very significant in this case in itself, publication will significantly add to the safeguards against the risk posed to children by Ms Waters. The court has already implemented such safeguards as it is able, however they are far from complete. Ms Waters may move to a different local authority area. She may take work offered through word of mouth, by parents who do not ask to see a DBS check. And the other safeguards relied on by Ms Waters as rendering publication disproportionate rely solely on her honesty and reliability to be effective. In my judgment I found her to be dishonest and unreliable leaving these elements of so-called safeguards fragile. I cannot rely on her say-so that she will not work with children again. The only way that parents unaware of – or careless of – the DBS process can carry out their own checks on Ms Waters is by an internet search. Without publication they would be unaware of the findings against her when deciding whether to allow her to care for their children. Given the serious injuries sustained by the twins in this case and the continued denial by Ms Waters of any responsibility for them other than for some of them as innocent accidents, it I difficult to find a justification for withholding that information from parents who might be looking for a maternity nurse for their newborn babies in the future.
- Even without any medical evidence of her current mental health and the impact of publication, I acknowledge that publication will have a significant impact on Ms Waters. That is regrettable. There is, however, no category of cases of which I am aware in which the name of a perpetrator which would otherwise to be published would be withheld solely due to the emotional impact of publication. I am not aware either that that consequence would cause a criminal court to direct anonymity. Sadly the impact on Ms Waters of publication of her name falls, in my judgment, into the category of the price to be paid for open justice.
Analysis: what can we learn from XY Twins Inflicted Injury (Naming Perpetrator)?
Firstly, and most importantly, we learnt about a gap in the wider systems of child protection. Despite the name, a ‘maternity nurse’ is not a nurse and is not part of a regulated health care profession. Unlike childminders and nurseries, maternity nurses are not required to register with Ofsted. Any person, regardless of qualification or experience, may hold themselves out as a maternity nurse with parents left to decide how to vet them. There is no standard approach for how parents or indeed agencies will carry out this process.
Secondly, a DBS check is not ‘live’. Even if a diligent parent requires a check to be provided, unless it is dated very recently, they have no way of knowing if there has been a subsequent update. It also remains far from clear how the DBS process adds family court findings to an individual’s check.
Thirdly, it is far from clear how the general public will understand and react to family court ‘findings’. Whilst the notion of a criminal conviction is widely understood in society, the processes and outcomes of the family court are far less well known. The media still commonly reports on family court decisions using outdated terms such as ‘custody’ and the decision-making processes are often referred to vaguely or inaccurately. Transparency should be aiming to provide a greater awareness of how the family justice system works and indeed on occasions does not work, rather than simply examining individual cases.
Fourthly, as already flagged in an article published on the Transparency Project’s website, publication of Ms Waters’ name may not have the desired effect. The media has now picked up this case with the Daily Mail and The Sun publishing articles in recent days. However, these articles concentrate mainly on the facts of the case and showing photos of Ms Waters. The issues discussed above are not analysed. Furthermore, this case is also an example of the family justice system working efficiently to establish the truth, protect children and support a family to remain together. It brought together medical and legal experts to do so. The success stories of the system should be celebrated as well as failures identified if public confidence is not to be unduly undermined.
Whilst many in the judiciary and at the Bar have welcomed the reporting pilots and indeed worked on them to promote transparency, others remain more cautious. The days of the court reporter able to spend days or even weeks in court are largely gone. The decline of the print media and its accompanying revenue stream has made the cost of such reporting prohibitive in all but the highest profile cases. Only a few consistent names appear in the newspaper bylines and law reports. Consistent themes of reporting also emerge: outdated treatment of domestic abuse by courts or professionals, extreme poor practice by local authorities, cases already garnering national attention or involving celebrities.
Whilst these are, of course, vitally important stories, many public law practitioners are concerned that the far more common cases involving neglect, drug use and poor mental health are not written about. Nor are the difficulties identified tied back to the cuts to public services that underlie many of the problems of the social care and family justice systems. And there is a further imbalance created by the fact that although care proceedings have at least three parties (the child(ren), the parent(s) and the local authority), only the parents talk to the press. Local authorities and children’s guardian are understandably unable and/or unwilling to give their opinions on individual cases. This risks the coverage of cases being similarly one sided, despite the best efforts of those writing the stories.
Finally, this is a judgment aimed at the public as well as lawyers, and as such is a useful one for anyone considering an application for or against anonymisation. As an intervener, Ms Waters straddled the categories of professional and individual. The most obvious future application of this case would be where findings are made against a childcare professional. Concerns about identification of children will continue to make naming wider family members or associates difficult.
However, the arguments in this case about how to balance the competing rights and the review of the guidance and authorities will assist practitioners in cases where these issues fall to be considered in respect of any individual.
Conclusion
It remains to be seen whether this case will form part of a body of case law naming individuals or will remain a relatively rare occurrence. If analysed more deeply by the media, it could provide a useful example of family court processes and the concept of ‘findings’. There was voracious public interest in the civil judgments from the ‘Wagatha Christie’ and Depp v Heard defamation cases. Might there be a greater public interest in the vital role that fact-finding hearings play in child protection cases where criminal prosecution is, for a variety of reasons, absent? Might there be a greater understanding of the roles that different professionals play in ensuring justice is done? Or is this case simply not dramatic enough to excite the public imagination and thus will remain known only to lawyers seeking guidance from it in future? The court has opened the window of transparency very wide in this case and it is now up to the wider public to choose whether to look in.
Sian Cox
2025
