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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A (A Minor), Re  EWHC 1764 (Fam) (08 July 2011)
Cite as:  1 FLR 239,  Fam Law 1076,  EWHC 1764 (Fam),  3 FCR 176
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THE HONOURABLE MR JUSTICE BAKER
This judgment is being handed down in private on 8 July 2011. It consists of 28 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report of this judgment no person other than the advocates or the solicitors for the Respondents to the application for a reporting restriction order (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved. See: ORDER
Strand, London, WC2A 2LL
B e f o r e :
IN THE MATTER OF A (A MINOR)
AND IN THE MATTER OF THE CHILDREN ACT
IN THE MATTER OF AN APPLICATION FOR A REPORTING RESTRICTION ORDER
| A Local Authority
|- and -
|- and -
|- and -
|- and -
|A (by her children's guardian)
|- and -
|News Group Newspapers Ltd, Mirror Group Newspapers Ltd, Newsquest Ltd
||Respondents to the application for a reporting restriction order
Frances Judd QC and Margaret Pine-Coffin for the First Respondent
Douglas Taylor for the Second Respondent
Penny Howe for the Third Respondent
Stephen Cotton for the Fourth Respondent
Adam Wolanski (instructed by the Legal Deprtments of NGN Ltd, MGN Ltd and Newsquest Ld.) on behalf of the Respondents to the application for a reporting restriction order
(The names of the other solicitors are omitted in the interests of confidentiality.)
Hearing date: 21st June 2011
Crown Copyright ©
MR. JUSTICE BAKER :
"can confirm that they are investigating the sudden death of two brothers… earlier this year. The two-year-old boy died in January, and his four year old brother died in April. Post- mortem examinations were carried out on both children and proved inconclusive. Police are currently awaiting the results of further tests to establish if their death should be treated as suspicious. A report has been submitted to HM Coroner. Following the deaths, police arrested a twenty-five-year old woman… on suspicion of murder. She has been questioned by detectives from the… constabulary's major crimes department and released on police bail until August [a date] while police carry out additional enquiries and await the results of further tests."
(1) The list of persons whose names and addresses were not to be published under paragraph 3 of the order was extended to include the A's mother, father, maternal grandmother, and maternal uncle.
(2) The qualification on the publication of the names was amended so as to read as follows: "IF, BUT ONLY IF, such publication is likely to lead to the identification of the child as being the child of [the mother or father] and/or as a subject of care proceedings".
(3) The list of people from whom the seeking of information relating to the child was prohibited was extended to include "any of the child's relatives."
(1) the mother's name and age;
(2) the names of J and B;
(3) the fact that they had died and that their deaths were "unexplained";
(4) the fact that the mother was detained in a psychiatric unit;
(5) an assertion that the children had been living in a state of neglect in the mother's care;
(6) the maternal grandmother's name;
(7) an assertion that, after J's death, the mother had moved in with the maternal grandmother;
(8) the apparently erroneous assertion that B had sustained a head injury prior to being admitted to hospital;
(9) allegations by unnamed "sources" that the local authority had been informed about the family but have failed to take action – "nobody seemed to care. These children were let down by the system".
The article did not, however, name A or refer to her in any way.
(1) the fact that the mother, who was named in the article, had been arrested on suspicion of killing her sons;
(2) the address of the family flat where J had died;
(3) the fact that J had been admitted to hospital in the days before his death;
(4) the maternal grandmother's address at which B had died;
(5) some details of the events around B's admission to hospital;
(6) extensive comments from neighbours including further allegations about the state of neglect of the mother's home.
Again, the report made no reference to A, although one of the photographs included part of a dress being worn by her.
(1) He deleted the "If but only if" qualification to paragraph 3 of the order prohibiting the naming of the individuals listed in that paragraph. The effect of this amendment was to prohibit the publication of the names of A, her parents, or maternal grandmother without qualification, save as mentioned below.
(2) He added a prohibition against the publication of the surname of the deceased children.
(3) He added a prohibition against the seeking of any information from the mother or father.
(4) He did not, however, amend paragraph 7 of the order which therefore continued to provide that nothing in the order would prevent the publication of information relating to the public court hearing, or information already in the public domain. The learned judge directed that the matter be listed before me (as the judge allocated to try the care proceedings) on 27th May.
"(1) Everyone has the right to respect for his private and family life, his home and correspondence.
(i2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ….
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence."
"in the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing ….Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial … where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
"First, neither article has as such precedent of the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
"The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity in that neither article has precedence over or "trumps" the other. The exercise of parallel analysis requires the courts to examine the justification of interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test…"
"(1) This section applies if a court is considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent; or (b) there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the public interest for the material to be published, [and] (b) any relevant privacy code."
"(i) The press must take care not to publish inaccurate, misleading or distorted information …."
Clause 3, headed "Privacy" states:
"(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
(ii) Editors will be expected to justify intrusions into any individual's private life without consent …."
Clause 5 is headed "Intrusion into grief and shock" and provides inter alia:
"(i) In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion, and publication handled sensitively. This should not restrict the right to report legal proceedings such as inquests."
The section headed "The Public Interest" provides inter alia:
"There may be exceptions to the clauses marked * [which includes the clause headed "Privacy" quoted above] where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to,
(i) Detecting or exposing crime or serious impropriety
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by an action or statement of an individual or organisation.
2. There is a public interest in the freedom of expression itself.
3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.
4. The PCC will consider the extent to which material is already in the public domain, or will become so.
5. In cases involving children under 16, editors must demonstrate an exceptional public interest to override the normally paramount interests of the child."
"once [information] has entered what is usually called the public domain (which means no more than the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it."
One judge has likened confidential information to an ice cube so that, once melted, there is no effective remedy. In another colourful metaphor, Eady J in Mosley v NGN Ltd  EWHC 687 (QB), warned (at paragraph 34) that the court "should guard against slipping into playing the role of King Canute". In recent times, however, the principle has undergone considerable refinement, for two reasons.
"There is, I think, considerable force in the point made by Mr Baker that, with the advent of the internet, and in a world where there is an almost infinite quantity of accessible information, it is impossible to see the public domain as something which has clear boundaries. As he says, although some information will be manifestly well-known so that re-publication will have comparatively little effect, other information may be obscure so that re-publication could have a very significant effect. As he also says, whereas some information, once in the public domain, will stay there permanently, other information may in reality disappear from the public domain after time, in the sense that although it remains in a cuttings file or a database it never or hardly ever sees the light of day."
"one reason why it can be important to distinguish between the was the law approaches public domain arguments in relation to commercial or state secrets, for example, and that which is appropriate to personal information. It also largely explains why it is the case that the truth of falsity of the allegations in question can often be irrelevant: see e.g. McKennitt v Ash  QB 73 ….... It is fairly obvious that wall-to-wall excoriation in national newspapers … is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the internet or in foreign journals to those, however many, who take the trouble to look it up. Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment ….... For so long as the court is in a position to prevent some of that intrusion and distress, depending on individual circumstances, it may be appropriate to maintain that degree of protection. The analogy with King Canute to some extent, therefore, breaks down."
"what is of interest to the public is not the same as what it is in the public interest to publish. Newspaper editors have the final decision on what is of interest to the public interest: judges have the final decision on what it is in the public interest to publish."
"What's in a name? 'A lot', the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria [2001) 31 EHRR 8 …. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive."
SUBMISSIONS BY THE PARTIES TO THE CARE PROCEEDINGS
"To describe a person's home, the décor, the layout, the state of cleanliness, or how the occupiers behave inside it, is generally regarded as unacceptable. To convey such details, without permission, to the general public, is almost as objectionable as spying into the home with a long distance lens and publishing the resulting photographs."
SUBMISSIONS ON BEHALF OF THE MEDIA
(1) The public interest in the freedom of the press generally, as identified and explained by Lord Woolf MR in A v B  QB 195 in particular his observation that: "any interference by the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest."
(2) The public interest being known that the police are carrying out their investigatory functions.
(3) The public interest in enabling witnesses to possible offences to come forward;
(4) The importance of exposing crime;
(5) The public interest in reporting the involvement of the local authority in cases where children have died or sustained serious injury; and
(6) The public interest in reporting the outcome of serious case reviews.
"essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
Mr Wolanksi submitted that the mother could have no reasonable expectation that information about her arrest and alleged involvement in the death of B and J would be kept private. He submitted that it was the information itself, not the consequences of the publication of that information, that was relevant to determining whether or not the article 8 rights were engaged. He pointed out that Parliament has not legislated to prevent the reporting of arrests, and further argued that the terms of sections 2 and 32 of the Data Protection Act 1998 indicated that the Parliament has expressly recognised the importance of the rights of the press to report information on the alleged commission of offences. Accordingly, submitted Mr Wolanski, the mother's article 8 rights are not engaged in this case.
"It is not, of course, possible to determine in advance what kind of public comment on pending proceedings would create a substantial risk on the course of justice will be seriously impeded or prejudiced. That is one reason why it is not commonly possible, save in… exceptional circumstances… to restrain, by injunction a threatened contempt in breach of the strict liability rule. But editors and publishers will be well advised to exercise great care and not to overstep the mark in this regard."
CONCLUSION – THE ULTIMATE BALANCING EXERCISE
REPORTING RESTRICTION ORDER
If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge the order.
1. On 21 June 2011 and 5 July 2011 the Court considered an application for a reporting restriction order.
2. The following persons and/or organisations were represented before the Court;
The local authority named in schedule 4 to this order.
The child's mother named in schedule 3 to this order.
The child's father named in schedule 3 to this order.
The child's maternal grandmother named in schedule 3 to this order.
The child named in schedule 1 to this order represented by her child's guardian.
News Group Newspapers Ltd, Mirror Group Newspapers Ltd and the publishers of the local newspaper named in schedule 5 to this order.
3. The court read the following documents;
Reporting restrictions orders made on 13 May 2011, 20 May 2011, 24 May 2011 and 27 May 2011.
Statements in support of the application by witnesses listed in schedule 6 of this order.
Articles published by The Sun and the local paper named in schedule 5 of this order.
A page from the Facebook internet site.
Psychiatric reports on the mother and father.
Position statements and skeleton arguments filed on behalf of all parties
4, The court directs that copies of the Explanatory Note and reporting restriction order be made available to the applicant and any other person affected by this order.
5. The Court acknowledging that at present the addresses of the child and her foster carers' names and addresses are not public knowledge and in the exercise of the court's inherent jurisdiction, the said names and addresses will not therefore be published in the order.
1. Subject to any different order made in the meantime, this order shall have effect until the child's 18th birthday in [a date] 2028.
2. This order binds all persons and all companies (whether acting by their directors, employees or any other way) who know that the order has been made.
3. This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of
a) the name and address of
i) the child whose name is listed in schedule 1 to this order ("the child");
ii) the child's carers whose details are set out in schedule 2 to this order;
iii) any individual having day to day care of or medical responsibility for the child.;
iv) any residential home or hospital, or other establishment in which the child is residing or being treated ("an establishment");
v) the child's mother who is named in schedule 3 to this order;
vi) the child's father who is named in schedule 3 to this order;
vii) the child's maternal grandmother who is named in schedule 3 to this order;
viii) the child's maternal uncle who is named in schedule 3 to this order;
ix) the child's deceased siblings who are named in schedule 3 to this order;
b) any picture being or including a picture of either the child or carer or an establishment;
c) any other particulars or information relating to the child,
IF BUT ONLY IF such publication is likely to lead to the identification of
(1) the child as being
a) the child of the mother and father named in schedule 3 to this order;
b) the child of a woman who has been arrested on suspicion of murdering children;
c) the sister of the deceased children named in schedule 3 to this order;
d) the sister of children who have died;
e) the subject of care proceedings;
(2) the maternal grandmother named in schedule 3 to this order as being
a) the mother of the child's mother named in schedule 3 to this order;
b) the mother of a woman arrested for murder;
c) the grandmother of the child named in schedule 1 to this order;
d) the grandmother of the deceased children named in schedule 3 to this order;
e) the grandmother and/or carer of the child who is a subject of care proceedings;
f) the grandmother and/or carer of a child whose siblings have died.
5. This order prohibits any person from seeking any information relating to the children or a carer from any of the following;
a) the child;
b) the foster carers;
c) a carer;
d) the staff or residents of an establishment;
e) the staff of a school;
f) any of the child's relatives.
6. This order further prohibits any person approaching or photographing the child's mother named in schedule 3 to this order within five hundred metres of any place at which she is having contact with the child.
7. Nothing in this order shall prevent any person from
a) publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;
b) seeking or publishing information which is not restricted by paragraph 3 above;
c) enquiring whether a person or place falls within paragraph 3 (a) above;
d) seeking information relating to the children while acting in a manner authorised by statute or by any court in England and Wales;
e) seeking information from the responsible solicitor acting for the local authority , whose details are set out in schedule 4 to this order, or any press officer employed by the authority;
f) seeking or receiving information from anyone who before making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
8. Copies of this order endorsed with a notice warning of the consequences of disobedience shall be served by the applicant (and may be served by any other parties to the proceedings):
a) by service on such newspaper and sound or television broadcasting or cable satellite or programme services as they see fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting, cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or
b) on such other persons as the parties may think fit, by personal service.
9 The parties and any person affected by any the restrictions in paragraphs 3 to 6 of this order may make application to vary or discharge it to a judge of the High Court on no less than forty eight hours' notice to the parties, reserved to the Honourable Mr Justice Baker if available.
(The order concludes with schedules setting out names and other details of the parties and witnesses, and an explanatory note in accordance with the President's Direction and Cafcass Practice Note of [a date] March 2005).