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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Al-Hilli (Children), Re [2013] EWHC 2190 (Fam) (22 July 2013) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2013/2190.html Cite as: [2013] EWHC 2190 (Fam) |
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This judgment is being handed down in private on 26th July 2013 It consists of 25 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 no person other than the advocates or the solicitors instructing them (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, save that all information within this judgment may be published.
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF AL-HILLI (CHILDREN)
____________________
SURREY COUNTY COUNCIL |
Applicant |
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- and - |
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(1) ZAINAB AL-HILLI -and- (2) ZEENA AL-HILLI (both through their Children's Guardian) -and- (3) FADWA AL-SAFFAR -and - (4) AHMED MAHMOOD -and- (5) THE CHIEF CONSTABLE OF SURREY -and- (6) TIMES NEWSPAPERS LTD |
Respondents |
____________________
Melanie Carew (of CAFCASS Legal) for the 1st and 2nd Respondents
James Turner Q.C. and Jane DeZonie (instructed by Gordon Dadds LLP) for 3rd and 4th Respondents
Fiona Barton Q.C. and Robert Cohen (instructed by Force Solicitor, Surrey Police ) for the 5th Respondents
Jonathan Scherbel-Ball for Times Newspapers Ltd
Hearing dates: 15th and 16th July 2013
____________________
Crown Copyright ©
This judgment is being handed down in private on 26th July 2013 It consists of 25 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 no person other than the advocates or the solicitors instructing them (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, save that all information within this judgment may be published.
The Honourable Mr. Justice Baker :
Introduction and Background
"Except where the law provides otherwise and subject to the defendant's rights, the inquiry and investigation proceedings are secret. Any person contributing to such proceedings is subject to professional secrecy under the conditions and subject to the penalties set out by articles 226-13 and 226-14 of the Criminal Code. However, in order to prevent the dissemination of incomplete or inaccurate information or to quell a disturbance to the public peace, the district prosecutor may, on his own motion or at the request of the investigating court or parties, publicise objective matters related to the procedure that convey no judgment as to whether or not the charges brought are well founded."
The Law – (1) Statutory and Regulatory Framework
"I am determined to take steps to improve access and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice. Work, commenced by my predecessor, is well under way."
"If the way that the courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be helped in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.
However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule"
"The affairs are truly private affairs; the transactions are truly transactions intra familiam; and it has long been recognised that an appeal for the protection of the court in the cases of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs."
"The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases that is to say
(a) where the proceedings
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002 or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor… "
"No person shall publish to the public at large or any section of the public any material which is intended, or is likely, to identify
(a) any child as being involved in proceedings before the High Court, a county court or a magistrates court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the Court in respect of that or any other child or
(b) an address or school as being that of the child involved in any such proceedings."
"(f) duly accredited representatives of news gathering and reporting organisations and
(g) any other person whom the court permits to be present."
"(3) At any stage of the proceedings the court may direct that persons within paragraph (2) (f) shall not attend the proceedings or any part of them, where satisfied that –
(a) this is necessary –
(i) in the interests of any child concerned in , or connected with, the proceedings;
(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
(iii) for the orderly conduct of the proceedings; or
(b) justice will otherwise be impeded or prejudiced.
(4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the person listed in paragraph (5) , and in either case having given to any person within paragraph (2)(f) who is in attendance an opportunity to make representations.
(5) At any stage in the proceedings, the following persons may make representations to the court regarding restricting the attendance of persons within paragraph (2)(f) in accordance with paragraph (3) –
(a) a party to the proceedings;
(b) a witness in the proceedings;
(c) where appointed, any children's guardian;
(d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings;
(e) the child, if of sufficient age and understanding.
…
(7) In this rule "duly accredited" refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor."
"The rights of media representatives to attend such hearings are limited only by the powers of the court to exclude such attendance under limited grounds and subject to procedures set out in paragraphs (3) to (5) of Rule 27.11"
Paragraph 2.3 provides inter alia that the rules:
"… do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court …"
and, under paragraph 2.4:
"the question of attendance of media representatives at hearings in family proceedings to which rule 27.11 and this guidance apply must be distinguished from statutory restrictions on publication and disclosure of information relating to proceedings, which continue to apply and are unaffected by the rule and this guidance":
"4.1 Media representatives will be expected to carry with them identification sufficient to enable court staff, or if necessary the court itself, to verify that they are "accredited" representatives of news gathering or reporting organisations within the meaning of the rule.
4.2 By virtue of paragraph (7) of the rule, it is for the Lord Chancellor to approve a scheme which will provide for accreditation. The Lord Chancellor has decided that the scheme operated by the UK Press Card Authority provides sufficient accreditation; a card issued under that scheme will be the expected form of identification, and production of the Card will be both necessary and sufficient to demonstrate accreditation.
4.3 A media representative unable to demonstrate accreditation in accordance with the UK Press Card Authority scheme, so as to be able to attend by virtue of paragraph (2)(f) of the rule, may nevertheless be permitted to attend at the court's discretion under paragraph (2)(g).
"5.1 The rule anticipates and should be applied on the basis that media representatives have a right to attend family proceedings throughout save and to the extent that the court exercises its discretion to exclude them from the whole or part of any proceedings on one or more of the grounds set out in paragraph (3) of the rule.
5.2 When considering the question of exclusion on any of the grounds set out in paragraph (3) of the rule the court should –
- specifically identify whether the risk to which such ground is directed arises from the mere fact of media presence at the particular hearing or hearings the subject of the application or whether the risk identified can be adequately addressed by exclusion of media representatives from a part only of such hearing or hearings;
- consider whether the reporting or disclosure restrictions which apply by operation of law, or which the court otherwise has power to order, will provide sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph (3)(a) of the rule;
- consider the safety of the parties in cases in which the court considers there are particular physical or health risks against which reporting restrictions may be inadequate to afford protection
- in the case of any vulnerable adult or child who is unrepresented before the court, consider the extent to which the court should of its own motion take steps to protect the welfare of that adult or child.
5.3 Paragraph (3)(a)(iii) of the rule permits exclusion where necessary "for the orderly conduct of proceedings". This enables the court to address practical problems….
5.4 Paragraph (3)(b) of the rule permits exclusion where, unless the media are excluded, justice will be impeded or prejudiced for some reason other than those set out in sub-paragraph (a). Reasons of administrative inconvenience are not sufficient. Examples of circumstances where the impact on justice of continued attendance might be sufficient to necessitate exclusion may include:
- a hearing relating to the parties' finances where the information being considered includes price sensitive information (such as confidential information which could affect the share price of a publicly quoted company); or
- any hearing at which a witness (other than a party) states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives.
5.5 In the event of a decision to exclude media representatives, the court should state brief reasons for the decision."
Paragraph 6, headed "Applications to exclude media representatives from all or part of proceedings" provides as follows:
"6.1 The court may exclude media representatives on the permitted grounds of its own motion or after hearing representations from the interested persons listed at paragraph (5) of the rule. Where exclusion is proposed, any media representatives who are present are entitled to make representations about that proposal. There is, however, no requirement to adjourn proceedings to enable media representatives who are not present to attend in order to make such representations, and in such a case the court should not adjourn unless satisfied of the necessity to do so having regard to the additional cost and delay which would thereby be caused.
6.2 Applications to exclude media representatives should normally be dealt with as they arise and by way of oral representations, unless the court directs otherwise.
6.3 When media representatives are expected to attend a particular hearing (for example, where a party is encouraging media interest and attendance) and a party intends to apply to the court for the exclusion of the media, that party should, if practicable, give advance notice to the court, to the other parties and (where appointed) any children's guardian, officer of the service or Welsh Family Proceedings officer, NYAS or other representative of the child of any intention to seek the exclusion of media representatives from all or part of the proceedings. Equally, legal representatives and parties should ensure that witnesses are aware of the right of media representatives to attend and should notify the court at an early stage of the intention of any witness to request the exclusion of media representatives
6.4 Prior notification by the court of a pending application for exclusion will not be given to media interests unless the court so directs. However, where such an application has been made, the applicant must, where possible, notify the relevant media organisations and should do so by means of the Press Association CopyDirect service, following the procedure set out in the Official Solicitor/CAFCASS Practice Note dated 18 March 2005. "
"The net result of all this is that, while the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of the participating witnesses (save those whose published identity would reveal the identity of the child in the case), they are not entitled to set out the content of the evidence or the details of matters investigated by the Court. Thus the position has been created that, whereas the media are now enabled to exercise a role of "watchdog" on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer."
The Law – (2) General observations
"there is a genuine public interest in the work of this court being understood. Not only is this healthy in itself – the presence of the media in appropriate cases has a bracing effect on all public servants, where in the field of social services or the law – but it may also help to dispel misunderstandings. It is not in the interests of individual litigants, or of society at large, for a court that is by definition devoted to the protection of the welfare of disadvantaged people to be characterised…as "secretive". It is part of our natural curiosity to want to know other people's secrets, and using pejorative descriptions of this kind may stimulate interest. The opportunity, in appropriate cases, to follow a process that has welfare, not secrecy, at its heart can only help the media to produce balanced reporting, and not fall back on clichés."
"must be on their guard to ensure that their naturally protective instincts, developed through years of giving paramount consideration to the welfare of children and the best interests of vulnerable adults, do not lead them to underestimate the importance of article 10 when carrying out the balancing exercise."
The law – (3) The parallel analysis and article 2
"115. The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction …. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. ….
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case….."
"20 …. First, this positive obligation arises only when the risk is "real and immediate". The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in Re W's Application [2004] NIQB 67 at paragraph 17, where he said that: "… a real risk is one that is objectively verified and an immediate risk is one that is present and continuing." It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high …. In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to be real means that it must be objectively well-founded ….
21. Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the ECtHR stated in paragraph 116 of Osman, the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available."
"If there is not a real and immediate risk to the life of an applicant before he or she gives evidence, then ex hypothesi to reach that threshold there must be some increase in risk occasioned by giving evidence. Only if that is the case can the requirement to give evidence "give rise to" a real risk to life."
"The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain whether giving evidence would give rise to a materially increased risk to life. Having found that it did not, it did not require then to go on to consider whether such an increased risk, if found to exist, would come up to the threshold required of a real and immediate risk to life."
"Both the Secretary of State and the Court are for present purposes manifestations of the state. Both have obligations towards the claimant which derive from the claimant's Convention rights. The means by which those obligations are met, however, are very different. The Secretary of State is responsible for managing the risk, if any, to the life and well being of the claimant in custody, open or closed, and, if it should occur, on his release. He will need to assess the requirement for additional steps to be taken should disclosure of the claimant's details take place. The Court's obligation is to assess the impact of disclosure upon the ability of the Secretary of State effectively to manage any risk to the claimant's life and well being. It is, in our view, material to the question whether there is or would be a real and immediate risk to the safety of the claimant occasioned by disclosure that means are available to the Secretary of State to protect the claimant from the unwelcome consequences of disclosure. The media interveners are right, in our view, to concentrate their present submissions upon the protection available to the claimant in closed conditions and, if necessary, in a VPU environment, since those are the conditions in which the claimant will be held in the near future whether or not disclosure takes place. If the Secretary of State has the means at his disposal, by taking reasonable steps, to protect the claimant from the risks inherent in disclosure, that is a matter which the Court must consider when assessing its own obligation to take "necessary" steps."
Submissions – (1) Police
Submissions – (2) TNL
Submissions – (3) Other parties
Discussion and Conclusions
"6.4 Prior notification by the court of a pending application for exclusion will not be given to media interests unless the court so directs. However, where such an application has been made, the applicant must where possible, notify the relevant media organisations and should do so by means of the Press Association CopyDirect service, following the procedure set out in the Official Solicitor/CAFCASS Practice Note dated 18 March 2005. [emphasis added]"
"I consider that it is incumbent upon an applicant who wishes to exclude the media from a substantive hearing ab initio to raise the matter with the court prior to the hearing for consideration of the need to notify the media in advance of the proposed application, and that if this is done, the court should require the applicant to notify the media via the CopyDirect service in accordance with the procedure provided for in the CAFCASS Practice Note."
Unless the judge specifies that evidence should be served, the applicant is not in my view under an obligation to provide evidence to the media, although when giving notice he should outline the reasons for the application. It follows that, on this point, I find that the course adopted by those representing the Chief Constable was consistent with the Practice Direction as currently drafted.