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Home > Judgments > 2012 archive

A Council v M & Ors (Judgment 3: Reporting Restrictions) [2012] EWHC 2038 (Fam)

Application for reporting restriction order in respect of care proceedings involving four children. Order (with explanatory note) made.

These proceedings concerned a mother, M, who had adopted three children, A, B and C, from different countries. M then purchased donor sperm and made A impregnate herself in order that she might have a child which M could bring up as her own. A became pregnant and miscarried at the age of 14. She then became pregnant at the age of 16 and gave birth to a baby boy. M's behaviour in hospital gave serious concern to the midwives who alerted social services. At the time of these proceedings there were criminal proceedings pending. B was still residing with M but C was in alternative long-term foster care. A and her son, D, were living together in foster care. For the fact-finding in respect of this case, please click here, and for the welfare considerations, click here.

This judgment concerns the reporting restrictions in respect of the proceedings. Peter Jackson J had to balance the interests and rights of the children under Article 8 of the ECHR and the freedom of expression under Article 10 ECHR, taking into consideration the case law. He noted that the leading decision of Re S (A Child) (Identification: Restriction on Publication) [2005] 1 AC 593 has led to the conclusion "that the Art 8 rights of the individuals should prevail over the Art 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, though not beyond contemplation."

He found that the children were all in exceptionally unusual circumstances and were highly vulnerable to exploitation and that identification of these children would "at best be harmful and at worst disastrous".

The reporting restrictions, by contrast, were not absolute. Reporting of these proceedings and the criminal proceedings would be allowed, subject to the restriction that nothing must be published which might compromise the identity of the children.

The order, which, together with an explanatory note, is published as an appendix to the judgment, would last until 2029, at which time D would be 18 years old.

Summary by Akta Chipalkatty, barrister, Church Court Chambers
_______________________________

Reporting restrictions
A reporting restriction order was made on 17 July 2012
This judgment may be published in this form on the basis that the family members are not identified

Neutral Citation Number: [2012] EWHC 2038 (Fam)
IN THE HIGH COURT OF JUSTICE            
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 20/07/2012

Before :

THE HONOURABLE MR JUSTICE PETER JACKSON
- - - - - - - - - - - - - - - - - - - - -

Between :

A Council Applicant

- and - 

M

- and –

F

- and -

A

- and -

B, C and D Respondents
(by their Children's Guardians)  
- - - - - - - - - - - - - - - - - - - - -

Ms Mary Lazarus for the Local Authority
Ms Carol McMillan for the mother (M)
Ms Sally Bradley for the father (F)
Mr Anthony Jerman for the eldest child (A)
Ms Maria Hancock for the second child (B)
Mr Martin Downs for the Children's Guardian for B and the third child (C)
Ms Janet Oganah for the Children's Guardian for the fourth child (D)
Ms Caoilfhionn Gallagher made written submissions on behalf of the media organisations

The names of solicitors are omitted in the interests of confidentiality

Hearing date: 16 July 2012
Judgment date: 20 July 2012
- - - - - - - - - - - - - - - - - - - - -

JUDGMENT 3 (reporting restrictions)
NOTE ON REPORTING RESTRICTIONS

This judgment is the third in a series of four.  It was handed down to the parties on 20 July 2012 but was not made public to protect the children concerned and because of the pending criminal trial.  It is now handed down publicly in an anonymised form, together with the first and second judgments, so that the matter can be reported, but without identifying the family.  The fourth judgment, which will deal with the question of the legal status of the child C, will be published in due course.

Reporting restriction orders were made on 21 February 2012, 17 May 2102 and 17 July 2012.  The last of these remains in force and prevents publication of

(a)  the names and address of any of

29 the Children whose details are set out in the order;

30 the Parents, whose details are set out in the order;

(b)  any picture being or including a picture of either the Children or the Parents;

(c)  any other identifying details relating to the Children or the Parents, and in particular descriptions of them as being connected with any of the following geographical areas: [two towns]; [the county]; [the region of the country]; [foreign country X]; [foreign country Y].

IF, BUT ONLY IF, such publication is likely to lead to the Children or Parents being identified as being or having been:-

i. parties to proceedings in the Family Division of the High Court;

ii. in foster care, or provided with accommodation by a local authority;

iii. adopted from or having adopted children from X or Y;

iv. involved with artificial insemination;

v. involved in a dispute over the circumstances of conception of a child;

vi. concerned in criminal charges brought against M

The full text of the order is attached to this judgment.

26 April 2013


Mr Justice Peter Jackson:
1. This is an application for a reporting restriction order ('RRO') preventing the identification of the members of a family in connection with matters which are the subject of care proceedings and criminal proceedings.  
 
2. The application for the RRO is broadly supported by the parties to the care proceedings.  It is opposed by three national media organisations: Guardian News & Media Ltd. (publishers of The Guardian and The Observer), Associated Newspapers Ltd. (publishers of The Daily Mail, The Mail on Sunday, and Metro) and Times Newspapers Ltd. (publishers of The Times and The Sunday Times). 

3. The contentious issue is not whether a RRO should be made, but what its scope should be, and in particular whether it should exceptionally prevent the naming of the defendant in criminal proceedings. 

4. The family members are

M the adoptive mother of three children from abroad

F the adoptive father of the two older children, long separated from M, and now living abroad

A a girl aged 18, living with her baby D in a foster home

B a girl aged 17, living with M

C a girl aged 7, living in a different foster home

D the son of A, aged 1

5. The children are known by M's surname, which is similar to F's.  M and B's home and the foster homes are in the same county. 

Background
6. Care proceedings in relation to the four children (A then being 17) began in August 2011, immediately after the birth of D. 

7. On 21 February 2012, I made a reporting restriction order preventing the public identification of family members.  In accordance with FPR 2010 PD 12I, the order broadly followed the standard form of order annexed to the Practice Note: Applications for Reporting Restriction Orders (18 March 2005).

8. In March 2012, a fact-finding hearing concluded, at which the local authority established that M had been the perpetrator of serious abuse.  In a judgment given at the time I found that:

a. M had made A impregnate herself with donor sperm purchased by M from abroad in order that A should bear a child for M to bring up as her own.  The programme, which took place with B's knowledge and participation, began when A was aged 14 and B aged 12.  A became pregnant at the age of 14, but miscarried.  At the age of 16 she again became pregnant, and D was born in 2011.  When M tried to take over the care of D at hospital, her behaviour alerted the midwives, who brought in social services.  A then revealed what had been going on to a family friend.  She and D were placed together in foster care.  B and C were removed from home.  B has since returned to live with M, but C remains in foster care.

b. M had mistreated C in a number of ways, amounting to cruelty.

c. M had ruthlessly excluded F from the children's lives for a decade.  He only re-established contact with the older two children after the proceedings began. 

d. The children lived an isolated life with M, having no other relatives, and a social life controlled by M's interests of the moment.  They were educated at home.

9. M denied the local authority's allegations.  In particular, she claimed that A had become pregnant as a result of sexual activity of which M was unaware, or that A must have got hold of sperm that M had bought for her own use and inseminated herself without M's knowledge.  M's stance meant that A had to give evidence, during which she was accused of being a fabricator and a fantasist by her mother.  

10. Following the fact-finding hearing, M was charged with five offences of child cruelty.  She has now been committed to the Crown Court for trial, and her first appearance there will be early next month.

11. The criminal charges are:

(1-3)  offences relating to the insemination of A

(4)  an offence of leaving C, aged 4, in the care of A, then aged 15, while she and B went on holiday abroad

(5) an offence of cruelty relating to the mistreatment of C      

12. M says that she intends to plead guilty to counts 2, 3 and 4.  She denies mistreatment of C.  

13. It is not clear whether M's plea will be accepted.  Although she now admits that her previous accounts were untruthful, her basis of plea is at variance with the facts found by this court.  In particular, she continues to assert that she herself was trying to become pregnant and will apparently say that the insemination was A's idea, and that her offence was to go along with it. 

14. Proof of the allegations rested on A's evidence, which I accepted.  It is not presently clear whether A will have to give evidence again in the criminal proceedings.

15. On 17 May, following the charging of M, I amended the reporting restriction order to prevent the naming of the family in any reporting of the criminal proceedings.   I directed that this was to be reviewed at a further hearing at the end of the care proceedings in July.  The exceptional and temporary nature of the order was emphasised in the body of the order.

16. The significant change from the February order was the omission of the conventional proviso exempting the reporting of proceedings held in public, which read: 

"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;"

17. It is the removal of this proviso that is particularly contentious.  The media organizations object to what they describe as "the width and unprecedented nature of the Order sought."  They say that it renders any story arising from the criminal proceedings "effectively unreportable".

18. Lastly, in the care proceedings, final orders in relation to B and C were made this week.  A final order will be made in relation to D in October.

The positions of the parties
19. As it happens, the original application for a RRO was brought by the local authority, while the application for a further order was made by A.  The identity of the applicant is of no more than nominal significance.   

20. The local authority, which has no history of seeking RROs and wishes to pursue the policy issues lying behind this case with vigour, seeks the fullest protection for the younger family members.  In this it is supported by all other parties to the proceedings, including the Guardians for the three children.   It is natural that these parties should take a broadly similar view, and, as ever, such unanimity reminds the court to look carefully at the arguments the other way.     

21. These have been set out by Ms Caoilfhionn Gallagher in a comprehensive skeleton argument on behalf of the media organisatons.  The thrust of her argument is that the order sought is too wide and too long, and in particular that the case for interfering with the right to report the criminal trial has not been made out.  She also raises issues about procedural matters, but by the time of the hearing acknowledged that the media organisations had had the opportunity to consider the evidence on which the application was based.    

22. For reasons of economy, the media organisations did not instruct Ms Gallagher to appear at the hearing.  This inevitably limited the court's ability to test some of her submissions, and her ability to contribute to the framing of the order, which was nonetheless approached with her submissions well in mind. 

The law
23. In the circumstances of this case, Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms 1950 are engaged. 

Article 8
Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 10
Freedom of expression

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 and regardless of frontiers.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of  the reputation  or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

24. Section 12(4) of the Human Rights Act 1998 provides that :

12(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.

25. There is no dispute that the High Court has jurisdiction to make an order restraining publicity.  The definitive statement of principle about how these issues should be approached is found in the decision in Re S (A Child) (Identification: Restriction on Publication) [2005] 1 AC 593.  As is well-known, the House of Lords held that an intense focus on the comparative importance of the competing ECHR rights under Articles 8 and 10 was required, with neither Article having presumptive weight over the other and with the proportionality test to be applied to each. 

26. The facts in Re S were that a mother was charged with poisoning a nine-year old child.  Care proceedings followed in relation to his eight-year old brother, who was placed with his father.  An application was made for an order that would have the effect of preventing the naming of the mother or deceased child in reports of the mother's trial.  It was held in each court that the Article 8 rights of the child were outweighed by the importance of open reporting of criminal proceedings – despite the distress to him, and the possible long-term impact upon his development.

27. Since Re S was decided, its analysis has been applied to all applications of this kind.  Consequently, a conclusion that the Art. 8 rights of individuals should prevail over the Art. 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, though not beyond contemplation. 

28. I have also been referred to the only reported occasion of an order being granted to restrain publication of the identity of a defendant in a criminal trial.  This was the decision of the former President, Sir Mark Potter, in A Local Authority v W [2005] EWHC 1564 (Fam).  The mother, who had two children, was charged with knowingly infecting the father of one of them with the HIV virus.  It was likely that one of the children had also been infected.  There was strong evidence that if this became known in the local community, the child's situation would become impossible.  The judge granted an order restraining publication of the identity of the mother, even though the children who were not directly involved in the trial. 

29. I have also been assisted by the decisions of the Court of Appeal in Re Trinity Mirror Plc [2008] 2 Cr. App. R. 1, and of Baker J in  A Local Authority and Others v. News Group Newspapers Ltd., Mirror Group Newspapers Ltd. and Newsquest Ltd [2011] EWHC 1764 (Fam)

30. In Trinity Mirror the Court of Appeal overturned a Crown Court order under s.11 Contempt of Court Act 1981 which, in the interests of the defendant's children, prevented the naming of a defendant who had downloaded paedophile images.

31. The decision of Baker J in A Local Authority and Others v. News Group Newspapers Ltd is a recent example of the balance falling in the other, and more common, direction.  He declined to make an order restricting the publication of the names of a surviving child's adult family members, including that of a very vulnerable mother who had been charged with the murder of another child.  An order protecting the surving child was made by agreement.  A feature (see paragraph 73 of the judgment) was the fact that there had already been substantial publicity about the case.

32. I have extracted key passages from these decisions at Annex 1 to this judgment.

The article 10 rights of the public and the media and the public 
33. There are strong arguments against any restriction being placed on the reporting of M's criminal trial:

• The importance of open justice in relation to serious criminal behaviour

• The entitlement of the public to know who is responsible for such behaviour

• The greatly reduced impact at all levels of a story without a name and a face ('a disembodied trial')

• The genuine public interest in being informed about the possible consequences of an apparently unregulated market in donor sperm

34. Moreover, although it is not an issue in the criminal proceedings, there is also a genuine public interest in being informed about a case of unregulated adoption from abroad, as occurred in C's case. 

35. The importance of open justice is epitomised by these statements by Lord Judge LCJ in Trinity Mirror:    

"In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's "birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.

It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence … If the court were to uphold this ruling so as to protect the rights of the defendant's children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional."

36. A restriction on reporting the identity of a defendant to criminal proceedings can therefore can only be contemplated where there is an "absolute necessity" and where the circumstances can properly be described as "exceptional".

The powers of the Crown Court
37. Ms Gallagher rightly argues that alternatives that are less restrictive than a RRO should be considered.

38. There are three possible powers that might be exercised by the Crown Court:

(i) s.39(1) Children and Young Persons Act 1933

(ii) s.11 Contempt of Court Act 1981

(iii) s.46 Youth Justice and Criminal Evidence Act 1999

39. S.39(1) Children and Young Persons Act 1933 allows the Crown Court to provide protection to children concerned in the proceedings:

39 Power to prohibit publication of certain matter in newspapers.
(1) In relation to any proceedings in any court… the court may direct that—

(a) no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein:

(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

except in so far (if at all) as may be permitted by the direction of the court.

(2) Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine not exceeding level 5 on the standard scale.

40. It is well-established (see e.g. R v Southwark Crown Court ex p Godwin and others [1992] QB 190) that s.39 does not empower the Crown Court to make an order that a defendant's name should not be published but that, in practice, judges may  indicate a view that identification of one person may have the effect of identifying another. 

41. Next, s.11 of the Contempt of Court Act 1981, provides that:

11. In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.

42. Lastly, s.46 of the Youth Justice and Criminal Evidence Act 1999 allows the Crown Court to restrict reports about a vulnerable adult witness in criminal proceedings.  There is a detailed statutory framework governing the making of such orders.

43. In the present case, the Crown Prosecution Service has obtained an order under s.39 CYPA in relation to C, but does not intend to apply for any other orders. 

44. My conclusion is that, in the circumstances of this case, these powers are insufficient to protect the position of the younger family members. 

• Even combined with a judicial indication, the s.39 order in relation to C is too weak a peg upon which to seek to hang the indefinite non-identification of M.  The order arises from a peripheral (though serious) count that M contests, and it is possible that the Crown Court would discharge it if the count was not proceeded with.     

• The decision in Trinity Mirror makes clear that an order under s.11 CCA is not an appropriate way of dealing with the issue and that if an order is ever appropriate it should be made by the High Court.

• An order under s.46 YJCEA may not be made, and in any event could only protect A.

• Overall, this court is in a better position than the Crown Court to assess the whole picture.

The risk of identification
45. I  find that there is a substantial likelihood that, if M's name were widely known and pictures of her published, other family members would readily be identified in their local communities.  It is likely that M's criminal trial, which will take place in the local Crown Court, will attract considerable media interest, mainly because of the extraordinary facts, but also because of the issues of public interest.  B currently lives with M and the foster placements where A, D and C live are within the county.  The younger family members bear M's surname.  The three girls have a distinctively ethnic appearance in an area of the country that is not ethnically diverse.  A and B are among the few children adopted from country X.  B is the only student from that country in her college and C is one of the very few children in the country to have been adopted from country Y.    

46. Any assessment must therefore be based on the premise that the identification of the mother will probably bring about the identification of one or more of the younger family members.

The risk of identification by other means
47. One of the matters to which the court must have particular regard  (s.12(4)(a)(i) HRA) is the extent to which the material has, or is about to become, public.

48. There has so far been no general publicity about this family. 

49. There have however been breaches of the clear terms of the RRO of 17 May 2012 – by M.  On 21 June, she accessed a website entitled "Secret World of Child Protection" and wrote a long and wilfully misleading account of the removal of the children, clearly identifying herself and C.  On 24 June, she opened a protected Twitter account entitled "Freedom for [C's initials and surname]".

50. The local authority became aware of these publications in early July and it took steps with M's co-operation to have the website posting removed and the Twitter account closed.  An internet search under M's name now produces no information of relevance about the family.

51. I conclude that the extent to which the material has become public is negligible.  The local authority only became aware of the breaches of the order as a result of contact from a member of the public who is herself aggrieved with social services, and was thus attracted to the website.  The Twitter account was discovered when a search under M's name was then made.

52. As to whether the material is about to become public, there is no reason to believe that the family will be identified if an order is made.  In this day and age, absolute confidentiality can never be guaranteed.  Anyone can post confidential information on the internet without taking responsibility for the consequences, but there is a world of difference between that kind of publicity and identification in the local, national and international media.  It is for that reason that the 'public domain' exception in the standard RRO is drafted in these terms:

Nothing in this Order shall prevent any person from… publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.

Self-restraint
53. Ms Gallagher says that the media organisations are advancing no positive case that they wish to identify M or any other individuals, or that they intend to cause distress to A.  I am sure that the latter point is true, and that the media would not be likely to identify B, C or D gratuitously.  But equally the media organisations would be doing no more than their duty in identifying M in the context of the criminal trial, even though this would have the consequence of identifying the younger family members in their communities.  Also, as A is now an adult, there can be no certainty that she would not be identified by some sections of the media.

54. While the court must have regard to codes of practice, if protection ought to be given to the younger family members, that is an entitlement and not a matter to be left to editorial judgment.

The Article 8 rights of the family members
The mother
55. M's rights do not count for anything in these circumstances.  As the defendant in a criminal trial, and after the findings of this court, her identity could not be withheld in its own right, but only for the protection for other family members. 

56. It has to be acknowledged that maintaining M's anonymity comes at a price, in that those with whom she has dealings in future may be deprived of information about her.  M is an articulate and determined liar, and others may be taken in.  The risk of this will, however, be reduced by the actions that the local authority is taking to bring the court's findings to the attention of official bodies who have child protection responsibilties and also to all those closely involved in the family proceedings.    

The position of A
57. A began life in foster care in country X before being adopted by M and F at the age of 5 months.  Her adoptive parents separated when she was three and  she lost contact with F when she was six as a result of M's actions.  She was home educated from the start, growing up in what Dr C describes as "a toxic cocoon" of M's making.  She was witness to M's ill-treatment of C.  She played a large part in the upbringing of C; when she had just turned 15 she was left alone to look after C (4) while M and B went on a ten-day holiday to the United States.

58. As stated above, from the age of 14 A was made to participate in the programme of self-insemination.  There were six series of attempts over two years.  She became pregnant at the age of 14, but miscarried, and ultimately became pregnant with D at the age of 16.  I have found that participation in M's plans caused A continuous anxiety, and that the physical steps she had to take were degrading, humiliating and, on occasions, painful.               

59. M made A cover up what was going on and to lie to doctors and others about how she became pregnant by describing sexual activity that A has never experienced.  When D was born, M tried to take him for her own, causing great distress to A.  When A finally told a family friend what was going on, M stopped at nothing to prove that A was a liar, causing huge additional distress to A, who was struggling as a new mother while deprived of all contact with her family.  When giving evidence, A was asked by M's leading counsel whether she realised that her evidence could lead to C not being able to go home.  Even after the findings, M's admissions continue to place significant responsibility at A's door for the circumstances of D's conception.  The abuse of A by M continues to this day.

60. A is an exceptionally sensitive, compliant and intelligent person, who feels deeply guilty about the consequence of her disclosures, which now include the fact that C will grow up outside the family.  For the past year, she has been doing very well in carrying on her own life and in looking after D, but her situation is extremely fragile.  She has no home of her own.  She is alienated from her mother and from B, who has to a large degree remained under M's influence.  She is slowly re-establishing contact with her father.  Following a life of social isolation, she is in the process of developing an independent identity at a much later age than most young people.

61. Dr C's psychological assessment of A, which I have studied, contains details that are not appropriate to repeat here, but which cause significant concern for A's wellbeing.  He advises that publicity about the details of her experiences would have serious potential repercussions in the short and longer term.   Negative reporting about M could considerably affect A, who is likely to blame herself for an adverse outcome.  Her confidence in parenting D could be affected.  Her ability to benefit from therapy could also be affected, because she would fear the consequences of further openness, and because she would also have to deal with wider issues arising from the publicity.  Publicity would make it harder for A to meet others in public and damage her ability to establish and maintain a support network, which is a crucial component of her rehabilitation. 

62. Dr C is also concerned that general knowledge of A's past could put her at risk of exploitation by people who found such matters exciting.  He described publicity as keeping the past alive for A, with the risk of creating a vicious circle for her.  Lastly, he referred to the risk that M's pleas might be accepted, in which case the media could only report a partial and distorted account of events.  He described the effect of a narrative which held A in any way responsible as immediate and devastating for her, with consequent effects on D.  Dr C is concerned that the particularly unusual circumstances may excite prurient interest in some sections of the media, particularly if A was reported to have participated in any way voluntarily.  He described this as being excessively harmful to A. 

63. The court also has the evidence of A's therapist, who reports that the stress of the family procedings had an adverse effect on A's emotional health for which she required considerable support.  This was difficult, despite A's privacy being protected.  If her privacy were compromised it would place A under enormous emotional stress and isolate her from the normality that as a young mother she has worked so hard to build up.  It would add further pressure to her ability to be emotionally available to D and make her fearful about going into the community.  This would isolate her from the support she will need when she eventually moves into the community to parent D alone.

64. Identifying publicity is also likely to make the re-establishment of the relationship between A and B more difficult.

65. It is not at this point clear whether A will be required to give evidence in the criminal proceedings. 

66. A's right to respect for her private life is squarely engaged.  The nature of the material could scarcely be more intimate.  The fact that she is a virgin who has had a baby lends itself to vivid reporting, and a label of that kind is not easily lost, for her or for her baby.  Likewise, the nature of the reporting of criminal offences is quite different from the generally benign and consensual reporting that is seen in reports of scientific advances, such as the case of Louise Brown. 

67. A's right to respect for her family life is equally engaged.  She lost her birth family in country X and she has now lost her adoptive family as a result of crime and abuse of which she was a direct victim.  In the circumstances, her claim to be protected from factors that have the potential to harm, or even destroy, her family life with D is in my view an extremely strong one.

68. It is the case that A is no longer a child, but a young person aged 18.  Understandably, the rights of children are given special consideration in any application of the HRA, but the protections offered by the ECHR apply to "everyone" and in the circumstances of this case I do not apply a significant discount to the respect due to A's rights because she has recently attained her majority. 

The position of D
69. D's welfare depends almost entirely on the wellbeing of his mother, who is his only known blood relative.  Dr C draws attention to the harm to D's upbringing if the focus were on how he was conceived rather than who he is.  Instead of being a little boy growing up in his own right, he could become an object of unhelpful interest. 

70. D's birth was the event that precipitated the crisis in the family and it will take skilled work and caring thought to devise an account of his conception for him.  This work must happen at D's pace as he grows up.   The task of creating that narrative will be complicated still further if there is a public story that, in the age of the internet, will not go away.  Dr C sees a very real risk that D will be confronted in public by information about his conception that he will not know and not be in a position to deal with.

71. These issues in relation to D's identity, and the way in which they are resolved, will have lifelong resonance for him.  He would be seriously disadvantaged if he carried any kind of stigma as a result of the extraordinary circumstances of his conception and birth.             

The position of B
72. B, who I met, will be a ward of court until her 18th birthday next year.  She is a caring young person who masks the evident stresses behind a breezy manner.  She is in an impossible situation.  She is the child who would be most immediately affected by the impact of publicity, because she is isolated and is living with M.  She has no family or other established social supports that might shield her from the effects of exposure.

73. B was adopted by M and F from an orphanage at the age of 5 months.   She experienced the same upbringing as A, but has developed differently.  She was drawn into M's abuse of R and witnessed the abuse of C.  She was recruited by M in efforts to discredit A.  The fact that she is living with M has the unfortunate consequence that she is still subject to M's influence, and echoes many of her attitudes, including antipathy to social services.  As a result of the proceedings, B is distanced from A, and is now having to come to terms with the loss of C from the family.

74. B, home-educated until the age of 16, is now making her first steps towards independence.  She has just finished the first year of a two year vocational course at a college where she is a highly visible student because of her manner and appearance.  She has also had her first tentative meetings with F, whom she had not seen for many years.  The shadow of the criminal proceedings hangs over B, with the obvious possibility of M becoming unavailable to care for her as a result of the criminal proceedings.

75. There is clear evidence about the importance to B of continuing to attend college.  It is her lifeline to the outside world.  If her contemporaries identify her with the family history, this could sabotage the start she is making on creating a social world, a career and a chance of independence: so advises Dr C.  He adds that if B were to drop out of college, that would be the worst option.  Having been home-educated, she has no formal qualifications, and it would probably lead to her becoming unemployed and forced to remain within her mother's terms of reference.   Dr C's advice is strongly echoed by evidence from an experienced independent social worker who has been working with B.  He is of the view that every possible effort should be made to keep her college life as separate as possible from the other things that are going on in her life, and he would be very concerned for her emotional welfare if this could not happen.

76. Dr C draws attention to the risk that B might be targeted, perhaps in a predatory way, if her connection with events became known.

77. B's right to respect for her private and family life is undoubtedly engaged.  The evidence establishes that public identification would infringe her right to develop her personality and relationships without interference at a crucial and sensitive stage in her development into adulthood.  

The position of C
78. C was adopted by M from an orphanage in country Y at the age of 7 months.  She was a difficult child to care for, with the result that she was at times harshly treated by M.  A year ago she was removed into foster care, and after several months she was moved again to her current placement.  As a result of a decision taken this week, this is now to be her permanent home and all efforts are to be made to stabilise and support it, despite M's opposition.  C's position is unsteady because she is a child with strong links to M and her sisters who is now being asked to settle in a long-term foster home.  Anything that destabilises her home or her contact with her sisters would be very detrimental to C: if her foster placement broke down it would be a disaster.  

79. C demonstrates features of a psychological disorder that imposes burdens on her carers.   She knows very little about what has taken place and, like D, life story work will be very important for her.  She is due to start a new school in September.  It would be damaging for information to come to her in an unplanned way, for example from other children at her school. 

The position of F
80. F does not live in England.  His surname is similar to M's.  Having been excluded from the family, he was unware of what was going on and is now very concerned about the welfare of A and B.  He is rebuilding his relationship with them.  That process is at a delicate stage, but he has the potential to be an important source of beneficial support for them in future.

81. I accept the argument that it would raise anomalies if F was the only family member whose identity could be reported.  This would be likely to make it harder for A to see her father as a refuge and source of support, and for B to see him as someone to grow closer to.  

Decision
82. The resolution of this conflict of legitimate interests can only be achieved by close attention to the circumstances that actually exist in the individual case.  As Sir Mark Potter has said, the approach must be hard-headed and even, from the point of view of this jurisdiction, hard-hearted.

83. Rights arising under Art. 8 on the one hand and Art. 10 on the other are different in quality.  Art. 8 rights are by their nature of crucial importance to a few, while Art. 10 rights are typically of general importance to many.  The decided cases, together with s.12(4) HRA, act as a strong reminder that the rights of the many should not be undervalued and incrementally eroded in response to a series of hard cases of individual misfortune.

84. On the other hand, there is no hierarchy of rights in this context and there are cases where individual rights must prevail.  In highly exceptional cases this can even include making inroads into the fundamental right to report criminal proceedings, but only where that is absolutely necessary.  
   
85. I have concluded that this is such a case.  In such unique circumstances, the claims of Art.10 are very strong, but those of Art. 8 are even stronger.  The risks to private and family life are exceptional and the injunction sought is nothing less than an absolute necessity.  While there is no evidence of a risk to life and limb, if M is publicly identified the probable consequences for the younger family members would at best be harmful and at worst disastrous.  The wellbeing of A is inseparable from the wellbeing of D.  As sisters, the fortunes of A, B and C are also interlinked and any harm to one will be felt by the others.  If these youngsters are identified, the effect on them would be long-lasting and profound.

86. In contrast, the proposed infringement of Art. 10 is partial, not absolute.  While an order preventing the identification of a criminal defendant will deprive the story of the personal details that are so potent if it is to attract the widest audience, it will not prevent the reporting of the trial itself or of the wider issues that arise.  The events can be reported in a way that is not at the expense of young people who have already been direct victims of behaviour that takes the case outside the normal run of child cruelty cases.  These children are at an age and stage where the impact of being identified would be particularly heavy.

87. Ms Gallagher argues that Re W was a highly unusual and fact-specific case, and a creature of its time and place, meaning a time of fear and prejudice towards HIV sufferers.  I do not accept that the decision is so confined.  The issues that arose in that case have clear parallels with the situation of these children and I have found the analysis of the President helpful.  I refer in particular to his observation to the effect that the material in that case was intrinsic to the children (in that case HIV status, here the circumstances of conception), and that the material was not in the public domain: see paragraphs 58 and 67.      

88. I have given thought to the duration of the order.  The proper approach is for it to be as short as possible, consistent with achieving its purpose.  Possibilities include: the end of the criminal trial; 2013 (B's 18th birthday); 2016 (the end of B's tertiary education); 2022 (C's 18th birthday); 2029 (D's 18th birthday); an indefinite order. 

89. I note that M argues for the order to expire on C's 18th birthday in 2022, saying that it represents a restriction on her freedom of expression too.  She wishes to assert her rights and apparently intends to write a book about how the children were unfairly taken away from her.  She opposes any extension beyond the time that her children are adults.  She notes that D would be aged 11 in 2022, but "she cannot be expected to empathise with his needs and interests when she has not been given the opportunity to have a relationship with him".  M's approach underscores the need that these young people have for extensive protection.

90. It is tempting to temper the appearance of the order by selecting some near date for its expiry.  Unfortunately, with material of this kind, there is no logical point at which it could be said that the purpose of the restrictions had been achieved.  I shall link the the order to D's 18th birthday in 2029 on the basis that he should by then be equipped to deal with anything that might be said about his background.  There will naturally be liberty to apply if the order needs to be revisited in changed circumstances in the meantime.

91. I shall make an Order whose terms, together with its Explanatory Note, are set out in anonymised form at Annex 2.  It has been carefully drafted so that the restrictions are as clear and proportionate as possible.  The media organisations have made certain observations, which I have tried to accommodate.  Specfically, the order makes clear that 'disembodied' reporting of the criminal trial and of the wider issues is not prevented.  


ANNEX 1: RELEVANT AUTHORITIES


1. Re S (A Child) (Identification: Restriction on Publication) [2005] 1 AC 593
      At first instance, Hedley J said this:

"First I recognise the primacy in a democratic society of the open reporting of public proceedings on grave criminal charges and the inevitable price that that involves in incursions on the privacy of individuals.  Secondly, I recognise that Parliament has in a number of statutes qualified that right to report and, in the context of this case, most notably in section 39 of the 1933 Act; where a set of circumstances arise not covered by those provisions the court should in my judgment be slow to extend the incursion into the right of free speech by the use of the inherent jurisdiction.  Thirdly, I have to recognise that not even the restrictions contended for here offer real hope to CS of proper isolation from the fallout of publicity at this trial; it is inevitable that those who know him will identify him and thus frustrate the purpose of the restriction.  Lastly, I am simply not convinced that, when everything is drawn together and weighed, it can be said that grounds under article 10(2) of the ECHR have been made out in terms of the balance of the effective preservation of CS's article 8 rights against the right to publish under article 10. 

In the House of Lords, Lord Steyn (with whom the other members of the court agreed) made these observations on the relevant Articles, and the consequences of injunctions being granted: 

"IX.  Article 8.

24. On the evidence it can readily be accepted that article 8 is engaged.  Hedley J observed (para 18) "that these will be dreadfully painful times for the child".  Everybody will sympathise with that observation.

25. But it is necessary to measure the nature of the impact of the trial on the child.  He will not be involved in the trial as a witness or otherwise.  It will not be necessary to refer to him.  No photograph of him will be published.  There will be no reference to his private life or upbringing.  Unavoidably, his mother must be tried for murder and that must be a deeply hurtful experience for the child.  The impact upon him is, however, essentially indirect.

26. While article 8.1 is engaged, and none of the factors in article 8.2 justifies the interference, it is necessary to assess realistically the nature of the relief sought.  This is an application for an injunction beyond the scope of  section  39, the remedy provided by Parliament to protect juveniles directly affected by criminal proceedings. No such injunction has in the past been granted under the inherent jurisdiction or under the provisions of the ECHR.  There is no decision of the Strasbourg court granting injunctive relief to non-parties, juvenile or adult, in respect of publication of criminal proceedings. 

X.  Article 10.

28. Article 10 is also engaged.  This case is concerned with the freedom of the press, subject to limited statutory restrictions, to report the proceedings at a criminal trial without restriction.  It is necessary to assess the importance of this freedom.  I start with a general proposition.  In  Reynolds v Times Newspapers Limited [2001]  2 AC 127 Lord Nicholls of Birkenhead described the position as follows (200G-H):

"It is through the mass media that most people today obtain their information on political matters.  Without freedom of expression by the media, freedom of expression would be a hollow concept.  The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment."

These observations apply with equal force to the freedom of the press to report criminal trials in progress and after verdict.

29. The importance of the freedom of the press to report criminal trials has often been emphasised in concrete terms.  In  R v Legal Aid Board ex parte Kaim Todner (A firm) [1999]  QB 966, Lord Woolf MR explained (at 977):

"The need to be vigilant  arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases.  This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing.  It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court.  It also maintains the public's confidence in the administration of justice.  It enables the public to know that justice is being administered impartially.  It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses'  identity concealed.  It makes uninformed and inaccurate comment about the proceedings less likely . . .  Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it.  However Parliament has recognised there are situations where interference is necessary."

These are valuable observations.  It is, however, still necessary to assess the importance of unrestricted reporting in specifics relating to this case.

30. ... A criminal trial is a public event.  The principle of open justice puts, as has often been  said, the judge and all who participate in the trial under intense scrutiny.  The glare of contemporaneous publicity ensures that trials are properly conducted.  It is a valuable check on the criminal process.  Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction.  Informed public debate is necessary about all such matters.  Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice.  It promotes the values of the rule of law.

XI.  Consequences of the grant of the proposed injunction.

32. There are a number of specific consequences of the grant of an injunction as asked for in this case to be considered.  First, while counsel for the child wanted to confine a ruling to the grant of an injunction restraining publication  to protect a child, that will not do.  The jurisdiction under the ECHR could equally be invoked by an adult non-party faced with possible damaging publicity as a result of a trial of a parent, child or spouse.   Adult non-parties to a criminal trial must therefore be added to the prospective pool of applicants who could apply for such injunctions.   This would confront newspapers with an ever wider spectrum of potentially costly proceedings and would seriously inhibit the freedom of the press to report criminal trials.

33. Secondly, if such an injunction were to be granted in this case, it cannot be assumed that relief will only be sought in future in respect of the name of a defendant and a photograph of the defendant and the victim.   It is easy to visualise circumstances in which attempts will be made to enjoin publicity of, for example, the gruesome circumstances of a crime.  The process of piling exception upon exception to the principle of open justice would be encouraged and would gain in momentum.

34. Thirdly, it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial.  If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial.  Certainly, readers will be less interested and editors will act accordingly.  Informed debate about criminal justice will suffer.

35. Fourthly, it is true that newspapers can always contest an application for an injunction.  Even for national newspapers that is, however, a costly matter which may involve proceedings at different judicial levels.  Moreover, time constraints of an impending trial may not always permit such  proceedings.  Often it will be too late and the injunction will have had its negative effect on contemporary reporting.

36. Fifthly, it is easy to fall into the trap of considering the position from the point of view of national newspapers only.  Local newspapers play a huge role.  In the United Kingdom according to the website of The Newspaper Society there are 1301 regional and local newspapers which serve villages, towns and cities.  Apparently, again according to the website of The Newspaper Society, over 85% of all British adults read a regional or local newspaper compared to 70% who read a national newspaper.  Very often a sensational or serious criminal trial will be of great interest in the community where it took place.  A regional or local newspaper is likely to give prominence to it.  That happens every day up and down the country.  For local newspapers, who do not have the financial resources of national newspapers, the spectre of being involved in costly legal proceedings is bound to have a chilling effect.  If local newspapers are threatened with the prospect of an injunction such as is now under consideration it is likely that they will often be silenced. ...

37. In my view the judge analysed the case correctly under the ECHR.  Given the weight traditionally given to the importance of open reporting of criminal proceedings it was in my view appropriate for him, in carrying out the balance required by the ECHR, to begin by acknowledging the force of the argument  under article 10 before considering whether the right of the child under article 8 was sufficient to outweigh it."

2. A Local Authority v W [2005] EWHC 1564 (Fam), Sir Mark Potter P
      Sir Mark Potter addressed the guidance in Re S.  He noted certain points of distinction: (1) in that case there had been widespread publicity about the circumstances, while in the present case there had not; (2) the child in Re S had been placed, while here the risk of exposure of the children might make it impossible for them to stay with a suitable family; and that (3):

"58. As a final ground of distinction, this case is not put on the basis of the damage likely to be caused to the children by knowledge that their mother is or may be a criminal. Many children, themselves innocent, regrettably have to bear the burden of that experience. In this case the danger against which protection is sought is attachment of the personal attribution of HIV infection, falsely in the case of T and uncertainly in the case of R, with the consequences for them already described.



67. Thus, considered in terms of S.12(4)(a) of the Human Rights Act 1998, (1) this does not appear to be a case where the identity of the mother or any link with the children has yet become available to the public at large, at any rate beyond the confines of the estate on which the mother lived and the father still lives. Whether that will remain so even if the injunction is granted is more problematic: (2) it is in the public interest for the identity of the mother to be published, given the general rule that unfettered freedom to report criminal proceedings and give publicity to the identity of the defendant is in the public interest. However, knowledge of that identity is not essential in order to give the public an adequate account or understanding of the trial or issues involved for the purposes of 'open justice' or informed debate …
 


69. The case for unrestricted reporting is as follows.

a) First, the criminal proceedings are of high public interest and are likely to raise controversial issues as to law and policy in relation to the prosecution of charges of the kind involved. That high interest will not be properly reflected by a requirement for the trial to be reported in "disembodied" form. The public should be entitled to put a face to the name of the defendant in any such proceedings.

b) Second, the proposed publication of the identity and photograph of the mother is not directed at the children, who are not involved in the criminal proceedings as victims or witnesses. Indeed there is no certainty that the children will be mentioned in the course of the criminal proceedings.

c) Third, the children are of an age where they will be themselves unconscious of the nature of the proceedings or their implications. There is therefore no immediate threat to their health or wellbeing as a result of these proceedings.

d) The evidence before the court is speculative in nature in two respects. First, as to the likelihood of widespread recognition of the children beyond the confines of the estate and the immediate area in which the mother formerly lived. The second, as to the effects which it is suggested such recognition will have, namely abuse or harassment of the children or the families in which they find themselves, and recognition and ostracism at the nursery attended by T. These are fears expressed rather than real probabilities demonstrated.

70. The case for the applicant is as follows.

a) First, it is acknowledged that there is high public interest in the proceedings. However reporting of the proceedings and discussion of the issues raised will not be seriously inhibited by an order permitting publication of the identity or address of the parents.

b) Second, there will be serious short-term and long-term prejudice to the children if an injunction is not granted.

c) Third, in the short-term, the care proceedings will be inhibited and the placement of the children with foster parents will be prejudiced for the reasons given in paragraphs 13-18 of this judgment.

d) In the long-term, the children will be affected by the lasting stigma of AIDS and will continue likely to face teasing, bullying and ostracism at school and in the community as a result.

71. I have found it by no means easy to come to a conclusion in this case, primarily because of the inevitably speculative evidence in the case so far as the adverse effects an the children and their placements are concerned. There are here two powerful and emotive competing interests, each protected by the Convention. On the one hand, the freedom of the press in relation to the open reporting of criminal proceedings, coupled with what Munby J has described as the "clear and compelling interest" of the media and the public in the publication of the photograph of a person convicted of a serious crime so as to "put a face on the man" (see F v Newsquest Limited and others [2004] EWHC 762 (Fam), [2004] EMLR 607 at para 98); on the other hand the need to protect the privacy of the children caught up in a situation over which they have no control and where they are in a delicate and vulnerable state and the subject of care proceedings of uncertain outcome. As to the former, the interference with the Convention right is certain and clear cut. As to the latter, it is more problematic in two respects. First, what is the likelihood of interference if the injunction is withheld? Second, if the injunction is granted how effective will it be to prevent or reduce the interference against which protection is sought? In these respects, when having regard to proportionality, it is necessary to consider not only the extent of harm which has already occurred, but the likelihood that the harm sought to be avoided will occur in any event.

72. Finally, it may be pertinent to add in relation to the balance to be struck that, in the absence of Article 6 considerations, the predicament of the defendant in the criminal proceedings is irrelevant. Different types of crime, albeit serious, give rise to different reactions in society and (depending upon the circumstances of the case) there may well be cases, which engage pity as much as condemnation for the defendant. That is, however, irrelevant to a balancing exercise as between the inroad into press freedom and the public interest on the one hand and incursion into the child's right to privacy and family life on the other. Re S has made clear that the court must be prepared to take a hard-headed and, what may appear in this jurisdiction a hard-hearted, approach.

73. After carefully consideration I have decided nonetheless to grant the injunction sought.

74. So far as Article 10 is concerned, I accept the high media and public interest in the case, and that suppression of the identity of the parents by name, address or photograph will result to that extent in a disembodied trial. However, the case rightly made by Newsquest is that it is the novelty and issues involved in the charge to which the mother is pleading guilty which render it of high interest and I do not consider that reporting or discussion of those issues will be significantly inhibited. In so far as relief is sought against the naming of others who are or may be responsible for the care, education or welfare of the children, I do not consider that any significant inroad would be made into the right to report the criminal proceedings.

75. I accept entirely that the principal interest of the press, namely that to publish the identity and photograph of the mother is not directed at the children; however I consider that it is bound to have an adverse affect upon them in a manner which engages, and is likely to inflict, substantial damage on their Article 8 rights.

76. I also accept that the children are of an age where they will not themselves be conscious of the nature of the proceedings. However I do not accept there is no immediate threat to their health or well-being if the injunction is not granted. I am persuaded by the evidence before me that if the "naming and shaming" which is proposed (and by use of that convenient phrase I do not seek to suggest that it would not be justified) then there is likely to be a focus of attention, pressure and harassment upon the children and the families concerned and potentially concerned with their care of a far higher profile and more intense degree than would be the case if the injunction is not granted (see further below).

77. As to the likelihood of future events, it does seem to me that, so far as R is concerned, at his tender age, the likely damage is far less acute than in the case of T. If R stays with his father's family, their predicament will be known on the estate, regardless of whether wide spread publicity occurs. However, it is not yet settled where R's future placement will be. Further, if the matter is the subject of high publicity, not only is it likely to encourage a higher level and a more widespread curiosity and adverse attention in the short-term, but, memory and gossip being what they are, chances of attracting harassment, bullying and teasing in the future over a medical condition which R probably does not have, and certainly does not deserve, are high, and in my view probable. If, in the event, the outcome of the care proceedings is ultimately that the Council seek to place R with other foster parents, again I consider it likely that unnecessary difficulty may be encountered in placing him.

78.  So far as T is concerned, similar considerations apply, but to a more serious and positive extent in that she is already of an age to be vulnerable and sensitive to teasing, ostracism or bullying should that occur as a result of wide publicity being given to the identity of her mother and father. I have already referred to T's very vulnerable position by reason of the disturbance that she has already suffered. I accept that there is likely to be serious short-term and long-term prejudice to the children if the injunction is not granted, for the reasons given by the Council. It may well be that, even without it, there will be a level of gossip and harassment. However, in my view it is sufficiently established that what may otherwise die down as a nine-day wonder will be elevated into a widespread and far longer-lasting inroad into the privacy and family life to which these children are entitled and of which they are in such need. In my view it is both necessary and proportionate to protect the children against what I consider is established as a likelihood of harm which will be avoided, or at any rate diminished, if the injunction is granted.

79. Accordingly, I propose to grant an injunction, the final terms of which remain to be discussed."

3. Re Trinity Mirror Plc [2008] 2 Cr. App. R. 1

"31. The court with jurisdiction to make this order, if it were ever appropriate to be made, is the High Court. The nature of the problem which would confront the High Court is summarised by Sir Mark Potter P in A Local Authority v. W and others, the only reported case to date in which the High Court has agreed to restrain identification in the media of the defendant to criminal proceedings on the basis that this order was necessary to protect the rights and interests of her (or his) children. He said of Articles 8 and 10, at para 53:

"... each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. 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 court to examine the justification for 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."

32 This appeal succeeds on the jurisdiction argument. We must however add that we respectfully disagree with the judge's further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under Article 10 should be resolved in favour of the interests of the children. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's "birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.

33. It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence. Among the consequences, the parent will disappear from home when he or she is sentenced to imprisonment, and indeed, depending on the crime but as happened in this case, there is always a possibility of the breakdown of the relationship between their parents. However we accept the validity of the simple but telling proposition put by the court reporter to Judge McKinnon on 2 April 2007, that there is nothing in this case to distinguish the plight of the defendant's children from that of a massive group of children of persons convicted of offences relating to child pornography. If the court were to uphold this ruling so as to protect the rights of the defendant's children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.

34. This court is naturally concerned for the welfare of the defendant's children. We accept the assessments of their mother, their headteacher, their social worker and the consultant child psychiatrist. Nevertheless we must adopt a much wider perspective. For the reasons set out above, we concluded at the end of the hearing that all we could properly do in the interests of the children was - exceptionally - to announce our decision in advance both of the delivery of our judgment and of our setting aside of the judge's order. Our intention was to create a period in which work might be done with the children, with a view to enable them better to cope with the public identification of their father following its earlier postponement."

4. A Local Authority and Others v. News Group Newspapers Ltd., Mirror Group Newspapers Ltd. and Newsquest Ltd [2011] EWHC 1764 (Fam) (Baker J)
In this judgment, there is citation from the Press Complaints Commission Editors' Code of Practice (at paragraph 32).  This contains provisions in relation to privacy and public interest, and in cases involving children under 16, editors must demonstrate to the PCC an exceptional public interest to override the normally paramount interests of the child.

Baker J also makes observations on the public interest:

"38. Further, when considering, as required by section 12(4)(a)(ii), the extent to which it is in the public interest for the material to be published, I bear in mind, in the words of Tugenhat J. in Goodwin v NGN Ltd and VBN [2011] EWHC 1437 (QB) at paragraph 2, that

"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."

39. On the other hand, it is for editors, not judges, to decide how a story should be reported. As Lord Rodger of Earlsferry said in Re Guardian News and Media Ltd [2010] UKSC 1 [2010] 2 AC 697, at paragraph 63:

"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."

 

ANNEX 2: EXPLANATORY NOTE AND ORDER OF 17 JULY 2012

EXPLANATORY NOTE

1. The Court has today made a reporting restriction order for the protection of three children and one vulnerable young adult, the mother of the youngest child.  The children are

B, now aged 17
C, now aged 7
D, now aged 12 months (d.o.b  29.6.11)

2. The vulnerable adult is A (18 years).

3. Also referred to in the order are M (adoptive mother of A, B & C) and F (adoptive father of A and B).

4. The order has effect until 2029.

5. It prevents (by Paragraph 3) the publication of information likely to identify any of the above family members by name or location or other details as being or having been

vii. parties to proceedings in the Family Division of the High Court;

viii. in foster care, or provided with accommodation by a local authority;

ix. adopted from or having adopted children from X or Y;

x. involved with artificial insemination;

xi. involved in a dispute over the circumstances of conception of a child;

xii. concerned in criminal charges brought against M.

6. The order, made after the court had read submissions from media organisations, is exceptional in that it prevents the naming of M or other family members in any reporting of the forthcoming criminal trial of M for offences against A and C.  These restrictions are necessary to protect the children and A from the substantial and harmful consequences of publicity about matters concerning which the High Court has made findings. 

7. Provided that the family members are not likely to be identified as a result, the order specifically does not restrict reporting of the criminal trial of M or any other issues of public interest that arise (Paragraph 6).  

8. The full terms of the order are attached to this Explanatory Note.  Anyone affected by the order has the right to apply to vary or discharge it (Paragraph 8).

9. The court will give detailed reasons for the order in a judgment that will be handed down shortly. 

----------------------

ORDER

IN THE HIGH COURT OF JUSTICE                     Case No..............
FAMILY DIVISION

IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
AND IN THE MATTER OF THE HUMAN RIGHTS ACT 1998

BETWEEN:

A COUNCIL
and
M
F
A
B
C
and
D

REPORTING RESTRICTION ORDER: IMPORTANT
To any person with knowledge of this 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.

Before Mr Justice Peter Jackson
Sitting at the Royal Courts of Justice on 17 July 2012

PREAMBLE

A. Earlier reporting restriction orders in this matter were made on 21 February 2012 and 16 May 2012, the latter replacing the former and having effect until 17 July 2012.

B. This order replaces the above orders with effect from 6 p.m. on 17 July 2012.

C. On 16 July 2012 the Court further considered the matter at a pre-arranged hearing at which the following persons and/or organisations were represented:

[Parties names]

D.  The Court received written submissions from the media organisations Guardian News & Media Ltd, Associated Newspapers Ltd and Times Newspapers Ltd.

E. The Court read the documents in the proceedings generally and considered the following evidence in particular:

The statements of the solicitor for the local authority (16 February 2012) and the solicitor for A (14 May 2012)

The report of Dr C dated 29 May 2012, and his oral evidence on 11 July 2012

The oral evidence of [the social worker] on 10 July 2012

The reports of Independent Social Worker [name] dated 7 and 31 May 2012

The report of Children's Guardian of 9 July 2012 and her oral evidence on 13 July 2012.

F. The Court directed that copies of the attached Explanatory Note of 17 July 2012 be made available by the Applicant to any person affected by this Order.

ORDER
Duration
1. Subject to any different order made in the meantime, this order shall have effect until 29 June 2029, the 18th birthday of the youngest child.                                                                

Who is bound
2   This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.

Publishing restrictions
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 the following:

(a)  the names and address of any of

31 the Children whose details are set out in Schedule 1 to this order;
32 the Parents, whose details are set out in Schedule 2 to this order;

(b)  any picture being or including a picture of either the Children or the Parents;

(c)  any other identifying details relating to the Children or the Parents, and in particular descriptions of them as being connected with any of the following geographical areas: [two towns]; [the county]; [the region of the country]; X; Y.

IF, BUT ONLY IF, such publication is likely to lead to the Children or Parents being identified as being or having been:-

xiii. parties to proceedings in the Family Division of the High Court;

xiv. in foster care, or provided with accommodation by a local authority;

xv. adopted from or having adopted children from X or Y;

xvi. involved with artificial insemination;

xvii. involved in a dispute over the circumstances of conception of a child;

xviii. concerned in criminal charges brought against M

4  No publication of the text or a summary of this order (except for service of the order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above.

Restriction on seeking information
5.  This Order prohibits any person from seeking any information relating to the parents or children from any of the following:

(a)  the children;

(b)  the parents;

(c)  any health or social work or education professional involved in the family's case.

What is not restricted by this Order
6. Nothing in this Order shall prevent any person from:

(a)  publishing information that is not prohibited by Paragraph 3 above, and in particular from publishing:

i. details of the criminal trial of M

ii. other information, including but not limited to matters of public interest such as: the regulation of overseas adoption, the trade in gametes, surrogacy, home education, parental alienation, and the scope of reporting restriction orders.

(b)  inquiring whether a person or place falls within Paragraph 3(a) above.

(c)  seeking information relating to the parents or children while acting in a manner authorised by statute or by any court in England and Wales.

(d)  seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 3 to this order.

(e)   seeking or receiving information from anyone who before the 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).

[There is no paragraph (f) in the published order]

(g)  publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.

Service
7.  Copies of this Order shall be served by the Applicant (and may be served by any other party to the proceedings)

(a)  by service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think 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 or 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.

Further applications about this Order
8.  Any person affected by any of the restrictions in paragraphs 3-5 above may make application to vary or discharge it to a Judge of the High Court on not less than 48 hours notice to the parties.

Date of Order: 17 July 2012

SCHEDULE 1
The Children concerned:

[B, C & D, dates of birth]

SCHEDULE 2
The Parents:

[F, M & A]

SCHEDULE 3
Contact details of responsible solicitor:

[Local Authority Solicitor, address and telephone number]