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Home > Judgments > 2015 archive

Re S [2015] EWHC 4159 (Fam)

Reporting restriction order upheld and extended in relation to a child arrested in connection with terrorist offences.

A national newspaper applied to set aside a reporting restriction order made by Mr Justice Moor in respect to a child who had been arrested by the police in connection with terrorist offences. Two national newspapers printed articles, both online and in hard copy, identifying the child and his school. The local authority complained that the reporting breached orders made by the Family Division in wardship proceedings and took the view that 'it would not require any great degree of ingenuity to make the association between the arrest' and the family proceedings before Mr Justice Hayden.

Mr Justice Hayden noted that 'concerns relating to the radicalisation of minors are a new facet of child protection.' However, 'it is important that the professionals involved hold fast to tried and tested principles of comprehensive risk assessment and guard against the kind of moral panic that can all too quickly be generated by what are for many, not just the families involved, highly emotive issues.'

The judge addressed the issue of transparency saying '[t]he family justice system has, in recent years, taken great strides to ensure that its work becomes properly transparent to public scrutiny. There is however, and will always be, a tension between that important objective and the equally important obligation to protect children subject to proceedings'.

Mr Justice Hayden noted the need to balance the right of freedom of expression under Article 10 of the European Convention on Human Rights against the right to respect for private and family life under Article 8 along with the framework of s12 Human Rights Act 1998. He also referred to: the judgment of Lord Steyn in Re S (a child) [2005] 1 AC; the Editors Code of Practice as to privacy, children and children in sex cases; and police practice in maintaining the anonymity of minors both at arrest and charge. In particular, the judge said, 'the press must recognise that the protection of vulnerable children will always be given considerable weight in a mature, democratic society.' Further, he added that "[t]he tension between promoting a transparent family justice system and protecting vulnerable children is an essentially healthy one and will always require a careful parallel analysis of competing rights and interests.' Hayden J did not find the competing Article 8 and 10 rights delicately poised but said that all balancing exercises were highly fact specific.

Mr Justice Hayden approved the local authority's assessment that here 'protecting the privacy of these children in order to ensure their safety and general welfare must be the priority' but noted his concern at the consequences of restricting public scrutiny in such cases.

The judge concluded that the reporting restriction order should continue as drafted.

Summary by Sara Hunton, barrister, Field Court Chambers
________________________


No. FD15P00129
Neutral Citation Number:
[2015] EWHC 4159 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice

Thursday, 20th August 2015


Before:

MR. JUSTICE HAYDEN
(In Private)

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

B E T W E E N :

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF S


LONDON BOROUGH OF TOWER HAMLETS
Applicant
-  and  -
JD First Respondent
and
LD Second Respondent
and
S (through her Children's Guardian) Third Respondent
- - - - - - - - - - - - - - - - - -

Transcribed by BEVERLEY F. NUNNERY & CO.
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- - - - - - - - - - - - - - - - - -

A P P E A R A N C  E S

MR. C.  BARNES
appeared on behalf of the Applicant.
MISS D. FOTTRELL QC (instructed by Fisher Meredith) appeared on behalf of the Mother
MISS S. MORGAN QC (instructed by Miles & Partners) appeared on behalf of the Father
MISS A. MEUSZ  appeared on behalf of the Third Respondent.
MISS LOGAN appeared on behalf of the Guardian.
MR. N. HANSEN appeared on behalf of Z.
MISS F. McMAHON (instructed by RPC) appeared on behalf of Associated Newspapers Ltd as representatives of the Press.
MRS B. CONNOLLY QC and MISS J. CARTER MANNING appeared on behalf of the Metropolitan Police.
- - - - - - - - - - - - - - - - - -

J U D G M E N T
MR. JUSTICE HAYDEN
1. On Friday, 14th August this year, The Daily Mail newspaper published an updated online article.  The article was removed from The Mail Online shortly before 4pm on 14th August and, I have been told on behalf of the Associated Newspapers Limited (ANL) that it would have been removed earlier had there not been 'technical problems'.  Solicitors for the London Borough of Tower Hamlets had contacted ANL complaining that it was in breach of Orders made in the Family Division.  The previous day The Sun newspaper had published an article in hard copy, which, like the Mail Online article, identified a child subject to these proceedings.  The articles both identified a child as having been arrested in connection with terrorist offences. It was also reported that the child was a pupil at the Bethnal Green Academy. 

2. The local authority took the view, that it would not require any great degree of ingenuity to make the association between the arrest and these proceedings.  Before turning to the substantive application before me I should like to make a few general observations which seem to me to give context.  As I have already explained in earlier judgments, concerns relating to the radicalisation of minors are a new facet of child protection.  Nonetheless, it is important that the professionals involved hold fast to tried and tested principles of comprehensive risk assessment and guard against the kind of moral panic that can all too quickly be generated by what are for many, not just the families involved, highly emotive issues. 

3. The family justice system has, in recent years, taken great strides to ensure that its work becomes properly transparent to public scrutiny.  There is however, and will always be, a tension between that important objective and the equally important obligation to protect children subject to proceedings, within this Division and vulnerable adults in the Court of Protection.   Inevitably, this is a period of evolution.  To achieve the goal of putting important information within the public domain requires the Court consistently to focus on the importance of Article 10 Rights (Freedom of expression) as well as Article 8 Rights which it instinctively protects.  Similarly, and to achieve the same goals, the press must recognise that the protection of vulnerable children will always be given considerable weight in a mature, democratic society.  I have had on more than one occasion recently cause publicly to thank the press for its responsible approach to cases involving both vulnerable adults and children.  The tension between promoting a transparent family justice system and protecting vulnerable children is an essentially healthy one and will always require a careful parallel analysis of competing rights and interests.

4. This case concerns the 'radicalisation' of minors.  There will be both proceedings within the Family Division and a concurrent police investigation.  That is a familiar scenario in a wide range of cases.  Radicalisation however is an issue that the public is understandably anxious about and wherever possible, within the framework that I have just broadly outlined, openness should be the load star.  The Local Authority whose concern is to protect children is very concerned that any information relating to their identity and whereabouts may place them at considerable risk.  I accept that evaluating risk against the kind of identified harm contemplated here is unchartered territory.  It involves a combination of potentially physical as well as emotional harm.  Accordingly, the Local Authority has felt that protecting the privacy of these children in order to ensure their safety and general welfare must be the priority.  I am inclined to think that is the right course but I also consider that the journey of understanding these cases requires to be travelled in a way which promotes wider public understanding of these issues.   To inhibit proper public scrutiny of these cases may have unacceptable consequences.  An over cautious approach to the protection of children's privacy may generate mistrust and suspicion.  It can, of course, also create a vacuum of information which can be exploited by those with a nefarious agenda.  

5. On the 14th August 2015 the Local Authority sought a RRO before Moor J, which he granted in terms which require to be set out in full in order properly to understand them:

1. The Court read the following documents:-

i. The witness statement of Thelma Ukueku, S's social worker.

ii. The withness statement of Simon Jones, Police officer

2. The Court granted permission to the Applicant to apply for the exercise of the Court's inherent jurisdiction.

ORDER
1. This order shall have effect until 4.30pm on Monday 17th August.

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.

3. This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of:-

a. The name and address of:-

i. the Child whose details are set out in Schedule 1(a)  to this order;

ii. the Child's siblings whose details are set out in Schedule 1(b) to this order;

iii. the Child's parents ("the parents"), whose details are set out in Schedule 2 to this order;

iv. any individual having day-to-day care of or medical responsibility for the Child ("a carer").

b. any picture being or including a picture of either the Child, a carer or an establishment;

c. any other particulars or information relating to the Child;

IF, BUT ONLY IF, such publication is likely to lead to the identification of the Child or her siblings or parents as having been arrested  or being the subject of the Local Authority's applications for Wardship and orders pursuant to the inherent jurisdiction under case number: FD15P00129.

6. The order also made wider provisions:
Nothing in this Order shall prevent any person from:-

(a) publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;

(b) seeking or publishing information which is not restricted by Paragraph 3 above;

(c) inquiring whether a person or place falls within paragraph 3(a) above;

(d) seeking information relating to the Child while acting in a manner authorised by statute or by any court in England and Wales;

(e) seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 4 to this order;

(f) 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).

7. In a detailed skeleton argument, prepared on 17th August by Miss Christina Michalos, ANL contended that those orders (i.e. those of Moor J on 14th August) were wrongfully made and should be set aside.  I indicated that I would not hear that application until later in the week when I had begun to evaluate the shape and ambit of the evidence presented by the local authority in wardship proceedings.

8. I had, initially, taken the view that I would not determine this application until I had delivered the judgment in the substantive proceedings.  Conscious, however, that the advocate on behalf of ANL, now Miss McMahon of counsel, had been waiting patiently, I decided to deal with this matter before judgment. That was a simple, pragmatic decision, but having received Miss McMahon's considerable assistance in this application, I take the view that there is much sense, in fact, in hearing it before proceeding to judgment in the welfare issues.

9 . ANL take issue with the following provisions in Moor J's Order:

a. The name and address of -

i. the Child whose details are set "out in Schedule 1 (a) to this order;

ii. the Child's siblings whose details are set out in Schedule 1(b) to
this order;

iii. the Child's parents ("the parents"), whose details are set "out in
Schedule 2 to this order;

iv. any individual having day-to-day care of or medical responsibility for the Child ("a carer");

b. any picture being or including a picture of either the Child, a carer or an establishment;

c. any other particulars or information relating 10 the Child;

IF, BUT ONLY IF, such publication is likely to lead to the identification of the Child or her siblings or parents as having been arrested or being the subject of the Local Authority's application for Wardship and orders pursuant to the inherent jurisdiction under case number: FD15POO129. (emphasis added)

10. The objection is to the prevention of publication of the names of the five members of this family who were arrested, three of whom were minors.  The restriction is resisted on essentially three bases:

1. an arrest, it is contended, is a fundamental aspect of the administration of the criminal justice system: the public interest in knowing both the names of those who are arrested and the offences for which they are arrested is so integral to public confidence in the system that the information should only be withheld if 'absolutely necessary' (as Ms. Michalos puts it in her document);

2. The RRO in the present form prevents publication of the fact of the arrest of five family members with connections with terrorist offences, which is 'unwarranted';

3. the fact of the arrest and the fact that S is subject to wardship proceedings are two entirely separate issues. ANL accepts that the wardship should remain subject to reporting restriction.

11. There is a degree of overlap in the above propositions but I set them out largely as advanced. 
 
12. The framework of the applicable law is now well settled but, as I have already alluded to above, it requires a balance to be struck on the facts of each individual case, having regard to the relevant competing interests in focus.   The exercise was identified with rigorous clarity by Lord Steyn in Re S (a child) [2005] 1 AC at [17]:

"The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN limited [2004] 2 AC 457.  For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.  For convenience I will call this the ultimate balancing test ..."

13. Ms. McMahon has also referred me to Birmingham City Council v Riaz [2014] EWHC 4247 (Fam) particularly paras [47] to [61] and, in the course of submissions: London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam).  She contended that a number of features weighed more heavily in favour of the Article 10 rights, as she put it, 'of the media and the public', perhaps better, or at least more simply, stated as the right 'to freedom of expression'.

14. It isn't necessary for me to burden this judgment with each of the arguments recited in the Skeleton.  I have each of those arguments in mind.  In summary however:  The importance of justice being open to public scrutiny.  I was referred to the judgment Coulson J: R v William Cornick [2014] EWHC 623:

"9. In my view, the most powerful recent statement on this topic can be found in the judgment of a five person Court of Appeal in R v Croydon Crown Court ex parte Trinity Mirror PLC and Others [2008] EWCA Crim 50. There, the then President of the Queen's Bench Division, Sir Igor Judge, said:

"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…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."

10. In my respectful opinion, this observation properly stresses the general principle that, in the vast majority of cases, a defendant in a criminal case can be expected to be named, unless there is an absolute necessity for anonymity."

15. I hope Ms. McMahon will forgive me if I distil her rather more extensive argument on this point by summarising. She contended that the principles identified above in relation to a criminal trial apply, by parity of analysis to a minor, or indeed an adult, who has been arrested but not charged.  With respect, I am bound to say that this argument, which is presented as if the logic were axiomatic, is to my mind highly controversial.  Moreover, there is no 'starting point', to use Ms. McMahon's phrase in favour of publication.  That is entirely to distort the exercise that Lord Steyn has identified and on which Ms. McMahon purports to rely.  The analysis is now well established by case law.  See Clayton v Clayton [2006] EWCA Civ 878:

56. This approach has the beneficial effect that, with the substitution of the Convention for the inherent jurisdiction of the High Court as the source of the power to grant anti-publicity injunctions in such cases, it is clear that the power to grant such an injunction on welfare grounds in Children Act proceedings now applies equally to proceedings in the County Court as in the High Court, whatever the precise ambit of s.97 of the 1989 Act.

57. In Re S, the conflict was between the child's Article 8 rights to privacy on the one hand and the Article 10 rights of the media to report criminal proceedings on the other. As stated by Lord Steyn at para [17] neither Article as such has precedence over the other and, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary. The justification for interfering with or restricting each right must be taken into account and, finally, the proportionality test must be applied to each.

58. In Re W [2005] EWHC 1564 (Fam), I summarised the effects of the judgment in Re S in this way:

"There is express approval of the methodology in Campbell in which it was made clear that 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 on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in the terms of proportionality is carried out."

16. It is not difficult to see how the need to protect the privacy and safety of a minor who has been arrested but not charged with any offence may weigh more heavily in the balancing exercise than that of a child charged with offences or standing trial.  The point however is that each situation will require an 'intense focus' on the actual facts in each case predicated on a parallel analysis in which neither Article 8 nor Article 10 is afforded precedence. 

17. Consistent with this analysis is information that I have been given by Miss Connolly QC, who appears in this case on behalf of the Metropolitan Police.  With the benefit of senior police officers behind her and perhaps from her own knowledge, she tells me that it is not police practice to identify a minor upon arrest or indeed upon charge.  Consideration in respect of the identification of a minor will only arise at the first court appearance.  Miss McMahon, with entirely appropriate professional candour, also acknowledges that Parliament has enacted legislation, albeit not yet in force, which provides for the anonymisation of minors in the criminal justice process.

18. In addition to the above I must have regard to s.12 (1) (a) of the Administration of  Justice Act 1960, the consequence of which is to make it a contempt of court to publish:

"information relating to proceedings before any court silting in private..

(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;"

19. As is emphasised to me, the prohibition on publication extends only to 'information relating to the proceedings'.  Specifically, s.12 does not prohibit the publication of the fact that a child is a ward of court: see Re B [2004] EWHC 41 (Fam). 

20. Finally, it is submitted there is 'an important and inherent Article 10 weight in the press being able to identify the names of individuals who are subject of their press reports'.  I am not entirely sure what is meant there by 'inherent'.  If it is to suggest that naming an individual is a facet of Article 10 then that is plainly correct but if it is subtly to insinuate that reporting and naming should be regarded, at least prima facie, as indivisible, that is plainly wrong, for all the reasons considered above (see paras [12]-[14]). Ms. McMahon placed considerable weight on Re Guardian News and Media Limited [2010] UKSC 1, 2010 2 AC 697 especially paras 63-68 per Lord Rodger:

63. What is 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 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hofmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, judges are not newspaper editors. See also Lord Hope of Craighead in In re British Broadcasting Corpn [2010] 1 AC 145, para 25. 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.

64. Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608, para 34, when he stressed the importance of bearing in mind that from a newspapers 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.__ Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.

65. On the other hand, if newspapers can identify the people concerned, they may be able to give a more vivid and compelling account which will stimulate discussion about the use of freezing orders and their impact on the communities in which the individuals live. Concealing their identities simply casts a shadow over entire communities.

66. Importantly, a more open attitude would be consistent with the true view that freezing orders are merely indicative of suspicions about matters which the prosecuting authorities accept they cannot prove in a court of law. The identities of persons charged with offences are published, even though their trial may be many months off. In allowing this, the law proceeds on the basis that most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law. That understanding can be expected to apply, a fortiori, if you are someone whom the prosecuting authorities are not even in a position to charge with an offence and bring to court. But, by concealing the identities of the individuals who are subject to freezing orders, the courts are actually helping to foster an impression that the mere making of the orders justifies sinister conclusions about these individuals. That is particularly unfortunate when, as was emphasised on the appellant's behalf, they are unlikely to have any opportunity to challenge the alleged factual basis for making the orders.

67. It might be argued that, nevertheless, in this particular case naming M in any report would be an unnecessary luxury. After all, it could be said, what actually matter are the legal and constitutional issues raised in the proceedings and these can be understood and debated on the basis of an anonymised report. But the very fact that M and the other appellants are not accepting, but challenging, the whole system of freezing orders based on mere suspicion means that they are presenting the orders as wrongs done to them, rather than as indications that they themselves have done something wrong. Concealing their identities runs counter to the entire thrust of that case. Should their appeals be allowed, concealment would be even less appropriate. Not E but Mr John Entick of Stepney has gone down in history as the plaintiff in the great case of Entick v Carrington (1765) 19 State Tr 1029.

68. Certainly, the identities of the claimants cannot affect the answers that this court gives to the legal questions in the substantive appeals. So those identities may not matter particularly to the judges. But the legitimate interest of the public is wider than the interest of judges qua judges or of lawyers qua lawyers. Irrespective of the outcome, the public has a legitimate interest in not being kept in the dark about who are challenging the TOs and the AQO. The case of HAY is instructive in this respect. Most people will be astonished, for example, to learn that, up until now, the courts have prevented them from discovering that one of the claimants, Mr Youssef, has already successfully sued the Home Secretary for wrongful detention after a failed attempt to deport him to Egypt. Equally importantly, even while the Treasury is defending these proceedings brought by him, the Government are trying to have his name removed from the 1267 Committee list. Meanwhile, he is busy writing and broadcasting from London on Middle East matters.

21. It is contended that the report of the fact of the arrest of this family without revelation of their name would be 'disembodied', with the consequence that editors would tend to give the report a lower priority.  The consequence of this, it is argued, is that reporting of these very important issues is, for a combination of financial and simple human interest reasons, given a much lower profile. Thus it follows that important material is not released into truly informed public debate to the extent that the subject matter properly demands.  Again, I have summarised the argument in a way which I hope does justice to Ms. McMahon's fuller analysis.  This point is one that I have given great consideration to.  It is possible to contemplate circumstances in which it might prevail.  I am however entirely satisfied that this is not the case here.

22. All children who are subject to child protection proceedings have either sustained significant harm or are considered to be at risk of it.  For the avoidance of any ambiguity, I have found that applies here.  However, certain categories of children within the system are also perceived to be a risk to others.  Society's reaction to such children can often be alarming.  These children frequently become particularly vulnerable within the system.  The findings I make will, I suspect, cause real alarm to those who read the judgment.  I am required to sift and analyse facts and to establish those facts within the framework of the law, inevitably that requires consideration of a raft of information within the judgment itself.  Cases of this kind are, happily, still relatively rare but the consequence is that this only makes it easier to link child protection proceedings with concurrent criminal investigation.  Thus the potential for very sensitive information to enter the public domain as a result of journalists recognising the link ('the jigsaw effect') is manifest.  Here, it is not only a real risk, it is a probability.  Not only is the child identified and therefore vulnerable but there is, in my judgement, a real risk that the criminal investigation itself might be compromised.  In short, I do not consider the competing Article 8 and 10 rights here to be delicately poised.  I would however observe, that which I hope is obvious from the above reasoning, that the essence of such an exercise is so fact specific that, as events unfold, there will be occasions when the balance might shift.
 
23. As I have outlined above, the application for the injunction before Moor J arose after, indeed as I understand it in consequence of, the publications referred to.  Of course, it does not follow that information in the public domain is irretrievable, indeed this is not argued on behalf of ANL see: Doncaster MBC v Haigh, Tune and X [2011] EWHC B16 (Fam); F v Newsquest [2004] EWHC 762 (Fam) (Munby J); re A [2011] EWHC 1764 (Fam) (Baker J); MXB v East Sussex Hospitals Trust [2012] EWHC 3279 (Tugenhadt J).   The case is advanced solely on the basis that the Article 8 and Article 10 balancing exercise needs to be conducted, alongside the framework of s.12 of the Human Rights Act 1998.  The key provisions of s.12 require to be stated:

Freedom of expression.
(1)This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2)If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a)that the applicant has taken all practicable steps to notify the respondent; or

(b)that there are compelling reasons why the respondent should not be notified.

(3)No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4)The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears 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;

(b)any relevant privacy code.

24. It is argued on behalf of ANL that having balanced and factored in each of the above, publication should prevail.  In summary:

29. It is submitted that the correct balance to be struck is to allow the publication of the fact of the arrests. This is not a situation where the parents, the siblings or S would usually be expected to be benefit from anonymity. The fact of an arrest falls within the principle of open justice. Therefore it is incumbent upon the applicants for a reporting restrictions order to satisfy the Court that such an order is necessary; it is submitted that they have failed to do so.

30. An order prohibiting the reporting of the fact of an arrest of an entire family is exceptional order. It is submitted that it is an unwarranted and unjustifiable intrusion on the media's right to freedom of expression and public's Article 10 rights to receive information. The public have a right to know that a whole family has been arrested. There is a very strong public interest in publicity concerning suspected terrorist offences - not least witnesses coming forward whether to rebut or support the allegations.

25.  It is also informative to consider the guidance in the Editors Code of Practice.  The general importance to be given to privacy is set out thus:

3  Privacy
i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.

iii) It is unacceptable to photograph individuals in private places without their consent.

Note - Private places are public or private property where there is a reasonable expectation of privacy.

26. More particularly, there is specific guidance, firstly, in relation to children generally and secondly, in respect of children involved in sex cases:

6  Children
i) Young people should be free to complete their time at school without unnecessary intrusion.

ii) A child under 16 must not be interviewed or photographed on issues involving their own or another child's welfare unless a custodial parent or similarly responsible adult consents.

iii) Pupils must not be approached or photographed at school without the permission of the school authorities.

iv) Minors must not be paid for material involving children's welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child's interest.

v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life.

7  Children in sex cases
1. The press must not, even if legally free to do so, identify children under 16 who are victims or witnesses in cases involving sex offences.

2. In any press report of a case involving a sexual offence against a child -

i) The child must not be identified.

ii) The adult may be identified.

27. As is clear in 7 (2) (ii) there is not in fact an assumption that an adult will be identified, let alone a child.  I have on a number of occasions during the exchanges with counsel in this case compared radicalisation cases to those involving the sexual exploitation of children.  The identification and grooming of minors often through internet connection has striking parallels with sexual grooming.  I made the observation in Tower Hamlets LBC v M & Ors [2015] EWHC 869 (Fam).  Of course, when these codes of practice were written abuse of minors by way of radicalisation was not in contemplation.  The comparisons I have identified trigger, to my mind, the same need for protection.  In any event the entire balancing exercise here again falls heavily towards the protection of the children even when, as here, that affords collateral protection to a parent who, in isolation, might not obtain it. 

28. Accordingly, having regard to: the framework of statute and case law; police practice in maintaining the anonymity of minors both at arrest and charge; the contemplated changes in criminal procedure geared to protect minors involved in the process; the Editors Codes of Practice and most importantly, my own focus on the competing rights and interest in play, I am driven to the clear conclusion that the RRO granted by Moor J should continue in the terms drafted.