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A (A Minor) [2011] EWHC 1764 (Fam)

Application for reporting restrictions preventing the press from publishing details of a family involved in care proceedings in respect of a child, whose mother had been arrested on suspicion of the murder of her two other children.

A mother applied for a reporting restriction order precluding, amongst other things, the naming of various members of the family of A, her daughter, who was the subject of care proceedings. The representatives of the media who opposed the application largely accepted that A's name should not be revealed but did not agree to a restriction on the naming of A's two brothers who had recently died or the mother, who had been arrested on suspicion of murdering them, or the maternal grandmother, at whose home one of the children had collapsed prior to his death.

Following the death of the second brother, four months after the death of the first, A's mother was arrested, having been in care of both children at the time of their deaths. The family had been previously known to social services and were on the child protection register. The mother was interviewed and released on police bail, and subsequently detained in a psychiatric unit because of concern that she would harm herself. Despite being discharged from the unit, a psychological report disclosed that she was suffering from a significant depressive disorder and was in a state of extreme grief. It expressed concerns that prolonged pressure from the media might put her at risk of self harm. Prior to the final hearing of the application, the team manager of a local learning disability team filed a report giving details of recent events of self harm committed by the mother, said to have been precipitated by distress around media intrusion.

Baker J considered the jurisdiction he had to grant a contra mundum injunction and noted that, since the implementation of the Human Rights Act, the power to do so was no longer restricted to cases in respect of children but also available to protect the Convention rights of adults, including on the basis of evidence of risk to mental health to protect an adult's rights under article 8 – respect for private and family life. He noted the need also to protect the rights of the media to report information, and the need to conduct a balancing exercise.

The judge considered the arguments on behalf of the mother, grandmother and father of two of the children, that publication of such information might have the effect of narrowing the options for A's future care. He also considered the press' s representations including that i) the relief sought would prevent the media from reporting the fact that an identified individual was being investigated in connection with a suspected crime, ii) that to be prevented from reporting anything about the mother or other family members would give a level of protection to the family rarely afforded, and iii) that reporting of police investigation into criminal matters not only informs the public, but assists the process of encouraging witnesses to come forward.

The judge concluded that the article 8 rights of all of the family members were engaged. He also concluded that it was in the public interest for there to be publicity about cases when children who are known to social services sustain significant harm since the performance of public services was of fundamental public interest.

In respect of A, the judge determined that orders should be made preventing her identification as being connected in any way to the facts of this case. In respect of A's mother and other family members, the judge considered that the public interest in the investigation of the deaths of children and the reporting of police investigations justified the media reporting such details, provided that they did not risk identifying A.

Summary by Gillon Cameron, barrister, 14 Gray's Inn Square


_______________

Neutral Citation Number: [2011] EWHC 1764 (Fam)

Case No: FS11C00084

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/07/2011
Before :

THE HONOURABLE MR JUSTICE BAKER

IN THE MATTER OF A (A MINOR)
AND IN THE MATTER OF THE CHILDREN ACT
AND IN THE MATTER OF AN APPLICATION FOR A REPORTING RESTRICTION ORDER
- - - - - - - - - - - - - - - - - - - - -
Between :

A Local Authority Applicant

- and - 

A mother

- and –

F
Second Respondent


-and -

A grandmother
Third Respondent


- and –

A (by her children's guardian)
Fourth Respondent

-and-

News Group Newspapers Ltd,
Mirror Group Newspapers Ltd
Newsquest Ltd First Respondent
Respondents to the application for a reporting restriction order

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

Lucinda Davis for the local authority
Frances Judd QC and Margaret Pine-Coffin for the First Respondent
Douglas Taylor for the Second Respondent
Penny Howe  for the Third Respondent
Stephen Cotton  for the Fourth Respondent
Adam Wolanski (instructed by the Legal Deprtments of NGN Ltd, MGN Ltd and Newsquest Ld.) on behalf of the Respondents to the application for a reporting restriction order
(The names of the other solicitors are omitted in the interests of confidentiality.)
Hearing date: 21st June 2011
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


.............................

THE HONOURABLE MR JUSTICE BAKER

This judgment is being handed down in private on 8 July 2011. It consists of 28 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report of this judgment no person other than the advocates or the solicitors for the Respondents to the application for a reporting restriction order (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

MR. JUSTICE BAKER  :
1. This is an application in care proceedings concerning a child, "A", born April 2010 for a reporting restriction order restraining publication of information concerning the family following the tragic deaths of A's two brothers. The parties supporting the application seek an order that would preclude, amongst other things, the naming of various members of the family, including not only A, but also adult family members, including the mother of all three children who has been arrested on suspicion of murdering the two boys. The order sought is one that would apply contra mundum, that is to say it would be of general effect and bind any person having notice of it.

2. The application is opposed in part by representatives of the media.  They accept that the name of the surviving child A should not be published, but object to the order extending to cover the adult family members.

BACKGROUND
3. The mother is a twenty-five-year-old woman with a very troubled background who has had extensive dealings with social services and a number of other agencies for most all her life.  She has given birth to three children – B, born September 2006, J, born August 2008, and A, born April 2010.   B was conceived as a result of a very brief relationship and his father has had no further involvement with the family.  J and A have the same father, F, who met the mother in a psychiatric unit.  Both the mother and F suffer ongoing long term psychiatric and psychological problems.  The mother has cognitive difficulties and a history of depression and self harm. F has been diagnosed as a paranoid schizophrenic. 

4. It is the local authority's case that, throughout the lives of the children, the mother struggled to look after them. When he was about one year old, B was placed with his maternal grandmother under a residence order.  Thereafter, he had regular contact with his mother, and after their births, his half-siblings, J and A.  Because of the mother's long-term problems, social services were involved with the family from the outset.  J and A were placed on the child protection register in the category of neglect, and subsequently made the subject of child protection plans. 

5. In the first few days of 2011, J was taken to hospital on two occasions but subsequently was discharged home.  Then, in the early hours of 6th January 2011, he was taken to hospital by ambulance in a lifeless condition and pronounced dead shortly after arrival at hospital.  The mother was interviewed by police and a post-mortem examination carried out.  A strategy meeting of professionals convened on 7th January concluded that there were no grounds for carrying out any investigation under section 47 of the Children Act 1989 into the circumstances of J's death.  A continued living with her mother, subject to the child protection plan, and the local authority continued to visit the family. 

6. On 1st April 2011, B, then aged four and a half, collapsed at his grandmother's home while his grandmother was out and he and A were being cared for by their mother.  He was taken to hospital but died three days later on 4th April.  A preliminary post-mortem report stated that the cause of death was "undetermined pending further investigation".  Extensive pathological investigations were commissioned from a number of specialists whose reports are expected in August 2011. 

7. Following B's death, the mother was arrested on suspicion of his murder. She was interviewed under caution and released on police bail until 9th August.  After her release, she was detained in a psychiatric unit under section 136 of the Mental Health Act because of concern that she would harm herself.

8. On 5th April, the Family Proceedings Court made an emergency protection order in respect of A, and the local authority placed her in the care of foster parents who live in the same town as the mother and maternal grandmother.  The local authority started care proceedings which were transferred immediately to the county court and thence to the High Court. On 8th April, HH Judge Marston, sitting as a judge of the Family Division, placed A under an interim care order and gave various directions, including joining the father and maternal grandmother as parties to the proceedings. 

9. The mother remained in a very disturbed state.  When discharged from the psychiatric unit, she moved into in sheltered accommodation.  A psychological report dated 24 May discloses that, in addition to her cognitive problems, she is suffering from a significant depressive disorder which "adversely affects her ability to interact with people, communicate with them, and answer probing or leading questions".  The psychologist expressed the opinion that, in her condition, she would be unable to manage questions posed by the media, and would be likely to make false statements as a result of being in a highly suggestible state.   The psychologist described the mother as being in "a state of extreme grief" and expressed concerns that prolonged pressure from the media may put her at risk of self harm. He concludes: "I cannot stress strongly enough how vulnerable [the mother] is at the present time".

10. In early May, it became apparent that the press were indeed interested in this case.  A reporter from The Sun knocked on the maternal grandmother's door wanting to ask questions about the death of the children.  The newspaper also contacted the police and social services seeking information.  On 13th May, the police issued a press release stating that the police

"can confirm that they are investigating the sudden death of two brothers… earlier this year.  The two-year-old boy died in January, and his four year old brother died in April.  Post- mortem examinations were carried out on both children and proved inconclusive.  Police are currently awaiting the results of further tests to establish if their death should be treated as suspicious.  A report has been submitted to HM Coroner.  Following the deaths, police arrested a twenty-five-year old woman… on suspicion of murder.  She has been questioned by detectives from the… constabulary's major crimes department and released on police bail until August 9th while police carry out additional enquiries and await the results of further tests."

11. The press interest also prompted the local authority to apply for a reporting restriction order.  In support of this application, the allocated social worker filed a statement saying inter alia "that the publishing of any information which could identify A or her present or future placements, the fact of the care proceedings, or the detail contained within the care proceedings will be detrimental to A's welfare".  The application was served on the media under the CopyDirect service in accordance with the President's Direction and CAFCASS Practice Note dated 18th March 2005.  On 13th May, Her Honour Judge Sullivan QC, sitting as a judge of the High Court, made an order, paragraph 3 of which prohibited the publishing or broadcasting of (a) the name and address of A, her carers, any individual having day to day care of or medical responsibility of A, and any residential home or hospital or other establishment at which she was residing or being treated; (b) any picture of A, a carer or any such establishment, and, (c) any other particulars or information relating to A.  The order was, however, subject to the qualification that such publication was prohibited "IF BUT ONLY IF [it] is likely to lead to the identification of the child as being the child of [the mother or father]".  It should be noted, therefore, the list of persons whose identification was precluded did not at that stage include either the mother or the father or the maternal grandmother.  The order also precluded any person from seeking information relating to the child from a list of named persons including the child herself, her foster carers, or any other carer.  Again, that list did not include the mother, father or maternal grandmother.  The order was subject to the proviso that it did not prevent the publication of information relating to a public court hearing, or information that was already in the public domain.  The order was expressed as lasting for seven days and was duly served on the media in accordance with the President's Direction and CAFCASS Practice Note. 

12. On 20th May, the application was listed for further consideration before HH Judge Marston, also sitting as a judge of the High Court.  On that occasion, the order was extended in the following ways.

(1) The list of persons whose names and addresses were not to be published under paragraph 3 of the order was extended to include the A's mother, father, maternal grandmother, and maternal uncle.

(2) The qualification on the publication of the names was amended so as to read as follows: "IF, BUT ONLY IF, such publication is likely to lead to the identification of the child as being the child of [the mother or father] and/or as a subject of care proceedings".

(3) The list of people from whom the seeking of information relating to the child was prohibited was extended to include "any of the child's  relatives." 

13. On 23rd May, The Sun published an article in its printed edition and on its web site under the heading "Mum quizzed as two sons die in a month". The headline was inaccurate as the deaths were twelve weeks apart. The report began: "Two vulnerable young brothers die within weeks of after social workers 'ignored' warnings about them from neighbours, it is claimed."  The report continued by stating inter alia:

(1) the mother's name and age;
(2) the names of J and B;
(3) the fact that they had died and that their deaths were "unexplained";
(4) the fact that the mother was detained in a psychiatric unit;
(5) an assertion that the children had been living in a state of neglect in the mother's care;
(6) the maternal grandmother's name;
(7) an assertion that, after J's death, the mother had moved in with the maternal grandmother;
(8) the apparently erroneous assertion that B had sustained a head injury prior to being admitted to hospital;
(9) allegations by unnamed "sources" that the local authority had been informed about the family but have failed to take action – "nobody seemed to care. These children were let down by the system". 

The article did not, however, name A or refer to her in any way.

14. Following the publication of this article, the mother's solicitor wrote to The Sun and complained that publishing the mother's name would lead to the identification of A and that the order of 20th May had therefore been breached.  The newspaper denied that they had committed any breach of the order, but the story was duly removed from the newspaper's website. 

15. On the following morning, however, a local newspaper published a more extensive article, illustrated by photographs of the mother, J and B.  One of the photographs of J and B was allegedly taken from the maternal grandmother's Facebook page without her consent.  The local paper reported, in addition to the material already published in The Sun,

(1) the fact that the mother, who was named in the article, had been arrested on suspicion of killing her sons;
(2) the address of the family flat where J had died;
(3) the fact that J had been admitted to hospital in the days before his death;
(4) the maternal grandmother's address at which B had died;
(5) some details of the events around B's admission to hospital;
(6) extensive comments from neighbours including further allegations about the state of neglect of the mother's home. 

Again, the report made no reference to A, although one of the photographs included part of a dress being worn by her. 

16. Following this report, it is said that the press made further attempts to contact family members and attended at, and took photographs of, the mother's flat.   A new page was created on Facebook in the names of the deceased children containing negative and threatening comments directed towards the mother. 

17. Later that afternoon on 24th May, the mother's legal representatives returned to court before Judge Marston to seek an extension of the injunction.  Short notice of their intention to seek an extension of the injunction was given to the CopyDirect media lawyer by telephone and a copy of an application form was sent by fax, although the full terms of the procedure laid down in the President's Directions and the CAFCASS Practice Note were not followed.  At the hearing, Judge Marston made the following amendments to the order. 

(1) He deleted the "If but only if" qualification to paragraph 3 of the order prohibiting the naming of the individuals listed in that paragraph.  The effect of this amendment was to prohibit the publication of the names of A, her parents, or maternal grandmother without qualification, save as mentioned below.

(2) He added a prohibition against the publication of the surname of the deceased children.

(3) He added a prohibition against the seeking of any information from the mother or father.

(4) He did not, however, amend paragraph 7 of the order which therefore continued to provide that nothing in the order would prevent the publication of information relating to the public court hearing, or information already in the public domain.  The learned judge directed that the matter be listed before me (as the judge allocated to try the care proceedings) on 27th May.

18. At that hearing before me on 27th May, representatives of the media attended seeking the reversal of the amendment to the order made by Judge Marston on 24th May.  It was clear that the hearing would involve consideration of extensive issues which could not be considered in the time available on that date.  I therefore adjourned the matter to be heard on circuit on 21st and 22nd June.  In the interim, I directed that the order of 24th May should continue.  It seemed clear to me, however, (and was accepted by representatives of the media) that the intention behind the order of 24th May had been to prevent any naming of the mother and father, and further that this aim was undermined by the retention of the public domain proviso in paragraph 7.  I therefore deleted that proviso in the interim in order to give effect what was the plain intention behind Judge Marston's order of 24th May, whilst indicating, that by doing so, I was not giving any indication of the likely outcome of the contested hearing before me. 

19. Between 27th May and the full hearing before me on 21st June, the following further developments have taken place.  First, the Facebook page containing allegedly negative and threatening comments directed at the mother has been taken down.  Secondly, a short psychiatric report has been filed given details of the father's serious psychiatric condition.  Thirdly, a report had been filed by the team manager of the local learning disability team giving details of recent incidents of self-harm committed by the mother, each apparently requiring hospital treatment, and said to have been precipitated by the mother's "distress around media intrusion".  The report described how, in her current sheltered accommodation, the mother requires additional one-to-one support fourteen and a half hours per day, plus waking night support.  Fourthly, the local authority social worker reports in a statement filed for the hearing before me that, as a result of the press articles, contact visits between A and her mother and grandmother have been cancelled on four occasions, to ensure A's safety and privacy.

THE LAW
20. Since the implementation of the Human Rights Act 1998 passed by Parliament to incorporate the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") into English law, the foundation of the jurisdiction to restrain publicity is now derived from ECHR. By section 6 of the Act, the court, as a public authority, is required to act in a way which is compatible with a right under ECHR, and by section 2(1) is obliged to take into account any relevant judgment of the European Court of Human Rights.

21. Applications for reporting restriction orders are determined by analysing and balancing the competing rights under ECHR. The approach was explained by the House of Lords in two cases, Campbell v MGM Ltd  [2004] UKHL 22, [2004] 2 AC 457 and Re S (A Child) (Identification: Restrictions of Publication) [2004] UKHL 47, [2005] AC 593.  Prior to the implementation of the 1998 Act, applications for orders restraining publicity in family cases had been made under the inherent jurisdiction – see the long line of cases beginning with Re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47 and culminating in Re Z (A Minor) (Identification: Restrictions on Publications) [1997] Fam1.  As explained in Re S (supra) by Lord Steyn at paragraph 23, the principles previously established under the inherent jurisdiction no longer apply, although the courts may in appropriate circumstances refer to the older cases to illustrate the way in which the competing rights under ECHR should be balanced.

22. Prior to the implementation of the Human Rights Act, the court's power to grant contra mundum injunctions of the type sought by the mother in this case was restricted to cases where the court was exercising its inherent jurisdiction in respect of children. Since the Act, however, as Eady J observed in OBQ v BJM and CJM [2011] EWHC 1059 (QB) at paragraph 18, "the remedy is available, whenever necessary and appropriate, for the protection of Convention rights whether of children or adults". Initially it was thought that such orders could only be made in favour of an adult to protect interference with the right to life under article 3 or the prohibition of torture under article 3: see Venables and Thompson v News Group Newspapers Ltd [2001] Fam 430, the case concerning the murderers of Jamie Bulger. Following the decision of the European Court in Bensaid v UK (2001) 33 EHRR 10, in which it was recognised that "the preservation of mental stability is … an indispensable precondition to effective enjoyment of the right to respect for private life", contra mundum injunctions have been granted, on the basis of evidence risk to mental health, to protect an adult's rights under article 8 : see X (formerly Bell) v O'Brien [2003] EWHC 1101 (QB) and Carr v News Group Newspapers Ltd [2005] EWHC 971 (QB).

23. The first step is therefore to identify the ECHR rights engaged.  Normally, the only rights engaged will be articles 8 and 10. 

24. Under article 8:

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

(i2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

25. Under article 10:

"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ….

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence."

26. Occasionally, as in this case, a party will assert that article 6 is engaged. Under article 6(1),

"in the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing ….Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial … where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

27. Amongst the "rights and freedoms of others" which it may be necessary to protect by interfering with the article 8 rights are the rights of the media to receive and report information.  Equally, amongst the "rights of others" which it may be necessary to protect by restricting the exercise of the article 10 freedom are the rights of individuals to respect for their private and family life.  Thus, in most cases the two rights are likely to be in direct competition, and the court has to conduct a balancing exercise in each case to determine which right should prevail. 

28. When conducting the balancing exercise between articles 8 and 10 of ECHR, the court applies the four well-known propositions identified by Lord Steyn in paragraph 17 of his judgment in Re S (supra) as emerging from the opinions of the House of Lords in the earlier case of Campbell v MGN Ltd (supra):

"First, neither article has as such precedent of the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.  For convenience I will call this the ultimate balancing test."

29. The House of Lords decisions in the Campbell case and in Re S emphasise that the terms of ECHR and the 1998 Act should not be read as giving presumptive priority to article 10.  In A Local Authority v W, L, W, T and R [2005] EWHC 1564 (Fam) [2006] 1 FLR 1, Sir Mark Potter at Paragraph 53 summarised the approach as follows:

"The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity in that neither article has precedence over or "trumps" the other.  The exercise of parallel analysis requires the courts to examine the justification of interfering with each right and the issue of proportionality is to be considered in respect of each.   It is not a mechanical exercise to be decided upon the basis of rival generalities.  An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out.  Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test…"

30. In considering article 8, the court bears in mind, as explained by Tugenhat J. in Goodwin v NGN Ltd and VBN [2011] EWHC 1437 (QB) at paragraph 85, that the right to respect for private and family life involves more than one concept, and that the right to privacy comprises two core components characterised in one academic authority (Law of Privacy and the Media, 2nd edition, 2011, Warby, Moreham and Christie) as "unwanted access to private information and unwanted access to [or intrusion into] one's …personal space" and labelled more succinctly by Tugenhat J as "confidentiality" and "intrusion". Manifestly, the intrusive component of the right includes unwanted interference into the life of the family as well as the private life of the individual.

31. When considering article 10, the court must have regard in particular to the provisions of section 12 of the 1998 Act, headed "Freedom of Expression":

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

(2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent; or (b) there are compelling reasons why the respondent should not be notified.

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

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the  public interest for the material to be published, [and] (b) any relevant privacy code."

32. The Press Complaints Commission Editors' Code of Practice is a "relevant privacy code" within the meaning of section 12(4)(b). Clause 1 of the Code, headed "Accuracy", provides inter alia:

"(i) The press must take care not to publish inaccurate, misleading or distorted information …."

Clause 3, headed "Privacy" states:

"(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
(ii) Editors will be expected to justify intrusions into any individual's private life without consent …."

Clause 5 is headed "Intrusion into grief and shock" and provides inter alia:

"(i) In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion, and publication handled sensitively. This should not restrict the right to report legal proceedings such as inquests."

The section headed "The Public Interest" provides inter alia:

"There may be exceptions to the clauses marked * [which includes the clause headed "Privacy" quoted above] where they can be demonstrated to be in the public interest.

1. The public interest includes, but is not confined to,

(i) Detecting or exposing crime or serious impropriety
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by an action or statement of an individual or organisation.

2. There is a public interest in the freedom of expression itself.

3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.

4. The PCC will consider the extent to which material is already in the public domain, or will become so.

5. In cases involving children under 16, editors must demonstrate an exceptional public interest to override the normally paramount interests of the child."

33. Section 12(4)(a)(ii) reiterates the principle that, amongst the matters to be taken into account when determining where the balance lies in each case, is the extent to which the information is already in the public domain. This principle pre-dates the Human Rights Act. As Lord Goff of Chievely observed  in A-G v Guardian Newspapers (No 2) [1990] 1 AC 109,

"once [information] has entered what is usually called the public domain (which means no more than the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it."

One judge has likened confidential information to an ice cube so that, once melted, there is no effective remedy. In another colourful metaphor, Eady J in Mosley v NGN Ltd [2008] EWHC 687, warned (at paragraph 34) that the court "should guard against slipping into playing the role of King Canute". In recent times, however, the principle has undergone considerable refinement, for two reasons.

34. First, the concept of the public domain has changed as a result of the revolution in information technology, as acknowledged by Munby J (as he then was) in F v Newsquest Ltd and others [2004] EWHC 762 (Fam) [2004] EMLR 29 at paragraph 66:

"There is, I think, considerable force in the point made by Mr Baker that, with the advent of the internet, and in a world where there is an almost infinite quantity of accessible information, it is impossible to see the public domain as something which has clear boundaries. As he says, although some information will be manifestly well-known so that re-publication will have comparatively little effect, other information may be obscure so that re-publication could have a very significant effect. As he also says, whereas some information, once in the public domain, will stay there permanently, other information may in reality disappear from the public domain after time, in the sense that although it remains in a cuttings file or a database it never or hardly ever sees the light of day."

35. It is sobering to recall that the judgment in F v Newsquest was delivered in April 2004 at the very moment when Facebook, launched only a few weeks earlier at Harvard, was starting to sweep through the campuses of America. In the subsequent seven years, with the growth of Youtube and Twitter, the internet has had an even greater effect than was anticipated. The range of information available to the public is infinitely greater than twenty years ago, but manifestly it does not follow that all that information can be described as being in the general public consciousness. One consequence is that a court has to scrutinise an assertion that information is in the public domain even more carefully.

36. Secondly, it has been recognised that the application of the principle depends on which of the core components of article 8 – confidentiality or intrusion – is engaged. In most cases, once confidential information has been published to an extent that it has become generally accessible, it will lose its essential quality of confidentiality and there will be nothing that the court can do to undo what has been done. On the other hand, as Tugenhat J. explained in JIH v News Group Newspapers Ltd [2010] EWHC 2818 (QB) at paragraph 59, where the complaint is one of press intrusion, "even when that information is not secret or unknown …. the repetition of known facts about an individual may amount to unjustified interference with the private lives not only of that person but also of those who are involved with him".

37. As Tugenhat J further observed in CTB v News Group Newspapers Ltd and Thomas [2011] EWHC 1326 (QB) at paragraphs 23 and 24, the fact that the modern law of privacy is concerned not only with confidential information but also with intrusion is

"one reason why it can be important to distinguish between the was the law approaches public domain arguments in relation to commercial or state secrets, for example, and that which is appropriate to personal information. It also largely explains why it is the case that the truth of falsity of the allegations in question can often be irrelevant: see e.g. McKennitt v Ash [2008] QB 73 …. It is fairly obvious that wall-to-wall excoriation in national newspapers … is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the internet or in foreign journals to those, however many, who take the trouble to look it up. Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment …. For so long as the court is in a position to prevent some of that intrusion and distress, depending on individual circumstances, it may be appropriate to maintain that degree of protection. The analogy with King Canute to some extent, therefore, breaks down."

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."

SUBMISSIONS BY THE PARTIES TO THE CARE PROCEEDINGS
40. On behalf of the mother, Miss Frances Judd QC and Miss Margaret Pine-Coffin argued that the order of 24th May should be retained so that reporting restriction order continues to prevent identification of the mother as well as A.  They were supported by Mr Douglas Taylor on behalf of the father, Miss Penny Howe on behalf of the maternal grandmother and Mr Stephen Cotton on behalf of the child's guardian.  On behalf of the local authority, Miss Lucinda Davis supported the application concerning the child but was neutral as to whether or not the order should be extended to prevent publication of the names of the mother and other family members.

41. Miss Judd and Miss Pine-Coffin submitted that it is clear that the article 8 rights of A, the mother, and other family members, are engaged by the publication of information about the mother, the state of the family home, the care of the children, and the circumstances of the death of the two boys, including the publication of names, addresses and photographs.  They added that some of the descriptions of the home  published by both The Sun and the local paper appeared to have come from neighbours who were imparting information that was obviously private and confidential, whether or not it was accurate.  In oral submissions, Miss Judd characterised the publication of these details as a particular invasion of the mother's privacy. She drew my attention to the comment of Eady J at first instance, with which the Court of Appeal agreed, in McKennitt v Ash (2006) EWCA Civ 1714 [2008] QB73:

"To describe a person's home, the décor, the layout, the state of cleanliness, or how the occupiers behave inside it, is generally regarded as unacceptable.  To convey such details, without permission, to the general public, is almost as objectionable as spying into the home with a long distance lens and publishing the resulting photographs."

42. Miss Judd proceeded to submit that the effect of the publication of such information was a very considerable interference with the article 8 rights of both A and her mother. The naming of the mother was likely to lead to the identification in the local area of A as her daughter, given the fact that they had the same surname and that both newspapers had reported considerable details about the family, in particular the addresses of both the mother and the maternal grandmother.  Miss Judd further submitted that the photographs published would make it easier for the mother to be recognised and that, were she to be seen with A, for example at the contact centre, A would be identified as her daughter.  The risk of such identification had led to the cancellation of a number of contact visits following the publication of the story in the local paper.  Further publication of information and photographs would be likely to lead to further disruption of contact.   

43. So far as the mother is concerned, Miss Judd submitted on her behalf that the psychologists' report demonstrates that the mother is a highly vulnerable individual who will find it extremely difficult to cope with press intrusion.  This evidence was supported by the report filed by the team manager of the local learning disability team giving details of recent incidents of self harm committed by the mother, precipitated by her distress around media intrusion, leading to hospital admissions and thereafter close personal supervision.  On the basis of this evidence, Miss Judd described this as a very extreme case.

44. Miss Judd further pointed out that, depending on the outcome of the police investigations, it is likely that the mother will wish to argue in these care proceedings that she should be permitted to resume care of A at some point in the future.  Her poor mental state, allegedly attributable in part to the press reports, was likely to have an adverse effect not only on her capacity to care for A but also on her ability to participate in proceedings in which decisions about A's future care would be made.  As a result, it was submitted that, in addition to her article 8 rights, the mother's article 6 rights are engaged and in danger of being infringed.  

45. Miss Judd and Miss Pine-Coffin accept that article 10 is engaged.  They acknowledge that the right to freedom of expression is of great importance, but add that "it cannot be said that the publication of the matters set out in the articles of 23rd and 24th May based on information given by unnamed neighbours, were in the public interest, or that any further articles (other than reports of court proceedings) naming the mother and deceased children would likewise be in the public interest".  Miss Judd and Miss Pine-Coffin further submit that "the press did not have any role to play in investigating any possible crime themselves".  In her oral submissions, Miss Judd added that the fact that press interest in the story appeared to have waned indicated that there was now less importance to be attached to the freedom of publication unless and until the mother is formally charged and brought to court.

46. The mother's counsel further add that information published about the state of the family home, and what is alleged to have happened to the boys, would be highly prejudicial to the mother in the event of her being charged. They point out that, under section 2(2) of the Contempt of Court Act 1981, the press are strictly liable for publication which carries "a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced".  In Miss Judd's submission there can be no public interest in publication that risks being in contempt of court.  In addition, pointing to inaccuracies in the reports published to date, she contended that there was no public interest in the publication of information that was untrue, and reminded me that publication of inaccurate information was a breach of the PCC Code of Practice. She also asserted that the press had infringed clause 5 of the Code by intruding into the mother's grief and shock.

47. Miss Judd contended that little weight should be given to the argument that, as a result of the publication that has already taken place, the fact of the mother's arrest and the circumstances about the boys' deaths could be described as being in the public domain. She submitted that repeated publication would continue to infringe the mother's article 8 rights, citing in support the observation of Tugenhat J. at paragraph 59 of the judgment in JIH v News Group Newspapers (supra) quoted at above at paragraph 36. She submitted that the level of publication that had occurred to date was not so significant as to render the continuation of the injunction meaningless. She contrasted this case with Re Stedman [2009] EWHC 935 (Fam) in which an injunction had been refused after an avalanche of publicity about a 12-year-old boy who was (wrongly) alleged to have impregnated a 15-year-old girl.

48. The mother's counsel concluded that the conduct of the ultimate balancing exercise in this case came down in favour of continuing the wider order made by Judge Marston on 24th May. She conceded, however, that there is a different public interest in the reporting of a criminal trial and that, in the event of the mother being charged and brought to court, the conduct of the balancing exercise may well lead to a different outcome. 

49. As set out above, the mother's application is supported by counsel for the father, maternal grandmother and the guardian.  Each counsel made further submissions in writing and orally.  I have all of those submissions in mind and select only salient features for the purposes of this judgment. 

50. On behalf of the maternal grandmother, Miss Howe sought an order which would preclude identification of her client.  She based her case on the implications of further publications for A's welfare.  She reminded me that, depending on the outcome of the forthcoming independent social worker's assessment, there was a prospect that the grandmother would seek to apply for an interim residence order before the conclusion of the care proceedings.  If the details concerning the grandmother which have already been published were to be repeated, or for there to be fresh publication about the grandmother's circumstances, there is a risk that the placement of A with the grandmother may be jeopardised. 

51. On behalf of the father, Mr Taylor in his written submissions made a number of observations about the impact of the internet upon publicity injunctions which, although interesting, do not in my judgment greatly impinge on the decision I have to make at this stage.  In his oral submissions, he adopted Miss Judd's analysis and observed that further publication about details of the family of the sort that appeared in the earliest stories might have the effect of narrowing the option for A's future care.  In this way, A's rights under article 8 and article 6 were in danger.  Mr Taylor sought the continuation of the order on 24th May precluding publicity in respect of his client as well as other family members. 

52. On behalf of the children, Mr Cotton fully supported the applications on behalf of the various family members for the continuation of Judge Marston's injunction.  His stressed that the right to family life included the right to sustain family relationships and cited in support of this proposition the observation of Ryder J in BBC v Rochdale MBC and X and Y [2005] EWHC 2862 (Fam) [2007] 1 FLR 101 that "article 8 of the Convention protects the right to establish, maintain and develop relationships with other human beings".

53. On behalf of the local authority, Miss Davis, as set out above, supported the continuation of the injunction covering A, but was neutral about the extension of the order to cover other family members.  She did, however, seek on behalf of the local authority an extension of the injunction so as to restrain the taking of any photographs of the mother, or any other family members, within five hundred metres of any contact venue.  This extension, which was not opposed by the media, was designed to prevent the risk of press intrusion disrupting contact and thereby adversely affecting A's welfare.  

SUBMISSIONS ON BEHALF OF THE MEDIA
54. Mr Adam Wolanski appeared on behalf of News Group Newspapers Ltd, publishers of The Sun, MGN Ltd, publishers of the Mirror newspapers, and Newsquest Ltd., the publishers of the local paper. 

55. Mr Wolanski indicated that the media parties took no issue with the initial order of Judge Sullivan QC, repeated by Judge Marston on 20th May, but strongly resisted the current application by the mother.  He submitted that the relief sought by the mother would have a far-reaching and unprecedented effect in that she sought an order which would prevent the media from reporting the fact that an identified individual was being investigated, or had been arrested, in connection with the suspected crime.   Mr Wolanski pointed out that the order granted by Judge Marston on 24 May, and as sought by the family members, would have the effect of preventing anything at all being reported about the mother or the other family members covered by the order, save in relation to court proceedings.  Mr Wolanski submitted that this would provide the family members with a level of protection which had only been afforded in very rare circumstances, for example, to the murderers of James Bulger in Venables and Thompson v News Group Newspapers Ltd [2001] Fam 430.  Mr Wolanski submitted that that case, and the other cases in which such orders had been made, involved a background of public vilification and threats to the applicant which had no parallel in this case. 

56. In his written submissions, Mr Wolanski submitted that the application on behalf of the mother would have serious implications for the freedom of the press to report the investigation of criminal offences.  Accounts in the media of police investigation, including arrests, are part of the daily diet of news reporting, and supported by the police, who frequently co-operate with the press and provide information intended for publication, including details of arrests.   Such reporting not only informs the public, but assists the process of encouraging prospective witnesses to come forward to contribute to the investigation. 

57. Mr. Wolanski amplified this argument in his oral submissions in which he identified six interconnected strands of article 10 freedom in this case.

(1) The public interest in the freedom of the press generally, as identified and explained by Lord Woolf MR in A v B [2003] QB195 in particular his observation that: "any interference by the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest."

(2) The public interest being known that the police are carrying out their investigatory functions.

(3) The public interest in enabling witnesses to possible offences to come forward;

(4) The importance of exposing crime;

(5) The public interest in reporting the involvement of the local authority in cases where children have died or sustained serious injury; and

(6) The public interest in reporting the outcome of serious case reviews.

58. Mr Wolanski boldly submits that the mother's rights under article 8 are not engaged in this case.  He cited the observation of Lord Nicholls in the Campbell case at paragraph 20 that:

"essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."

Mr Wolanksi submitted that the mother could have no reasonable expectation that information about her arrest and alleged involvement in the death of B and J would be kept private.  He submitted that it was the information itself, not the consequences of the publication of that information, that was relevant to determining whether or not the article 8 rights were engaged.  He pointed out that Parliament has not legislated to prevent the reporting of arrests, and further argued that the terms of sections 2 and 32 of the Data Protection Act 1998 indicated that the Parliament has expressly recognised the importance of the rights of the press to report information on the alleged commission of offences.  Accordingly, submitted Mr Wolanski, the mother's article 8 rights are not engaged in this case.

59. Mr Wolanski contended that the mother's application is in reality a "libel injunction" because the evidence filed on her behalf indicates that the real nub of her complaint is that publication would damage her reputation and thereby cause her harm.  Mr Wolanski submitted, relying on observations by Tugendhat J in Terry v Person Unknown [2010] EWHC 119 [2010] EMLR 400 at paragraph 46, that in such circumstances an applicant was unlikely to succeed either at an interim application or at trial, whether under the law of defamation or the law of privacy, because, as explained in the Court of Appeal in Initial Services v Putterill [1968] 1QB396  there is no confidence in iniquity.

60. In the alternative, Mr Wolanski submitted that, if the court concluded that the article 8 rights of the mother and family members were engaged, the conduct of the "ultimate balancing exercise" should lead the court to refuse the  wider injunctions sought in this case.  The importance of preventing any interference in the reporting of alleged crimes outweighed the importance of any infringement in the private and family lives of the adults involved in such cases, save in exceptional circumstances. He argued that the only cases in which such an injunction has been granted were those cases, such as Venables, in which the applicant had been able to point not only to an interest in retaining privacy, but also a threat to lives.  In other words, the circumstances engaged not merely the qualified right to respect for family life under article 8 but also the absolute right to life under article 2 or the absolute freedom from torture under article 3.  Mr Wolanski submitted that the threats made in this case on the so-called Facebook hate page were not of a scale of substance to engage the article 2 or 3 rights. 

61. Furthermore, Mr Wolanski submitted that the evidence did not support the argument that the press reporting had caused a significant infringement of the article 8 rights of the family members in this case.  In addition, he submitted that the information was already widely known within the local community as a result of the earlier publications, and could thus be said to be in the public domain.

62. Finally, Mr Wolanski refuted the submission made on behalf of the mother that the publication of information about the state of the family home and what was alleged to have happened to the boys was highly prejudicial to the mother in respect of a criminal trial and therefore a matter to a contempt of court.  He reminded me of the words of Lord Bridge in Pickering v Liverpool Post [1991] 2AC at page 425:

"It is not, of course, possible to determine in advance what kind of public comment on pending proceedings would create a substantial risk on the course of justice will be seriously impeded or prejudiced.  That is one reason why it is not commonly possible, save in… exceptional circumstances… to restrain, by injunction a threatened contempt in breach of the strict liability rule.  But editors and publishers will be well advised to exercise great care and not to overstep the mark in this regard."

DISCUSSION
63. The first issue is to identify the ECHR rights engaged.  There is no dispute that article 10 is engaged and in this respect I accept Mr Wolanski's analysis.  The issue is therefore whether articles 6 and 8 are engaged. 

64. I find that the article 8 rights of all family members – A, the mother, F, and the maternal grandmother – are engaged in this case.  To my mind it is manifestly obvious that, in circumstances where two children have died there is a right to respect for private and family life. Furthermore, the lifestyle within the household, and the circumstances in which the children were being brought up, are clearly aspects of family life which in most cases are kept shielded from public gaze.  Whatever the circumstances in which the children lived and died, the publication of reports in the press about the family is an intrusion, that is to say an interference with the family's rights under article 8 which can only be justified by the reference to the exceptions in article 8(2).  I reject Mr Wolanski's submission that there was no expectation that the information in this case would remain private.  The question is whether the right to respect for family and private life is outweighed in the balancing exercise. 

65. I derive no assistance from Mr Wolanski's submission that the mother's application is, in reality, for a libel injunction.   In my judgment, the fact that the statements made concerning the mother, or inferences derived from those statements, may be defamatory does not negate the need to adopt the approach set out by Lord Steyn in Re S, that is to say the process of identifying, scrutinising and balancing the human rights engaged in the particular case.  As Tugenhat J explained in CTB in the passage cited above, the truth or falsity of  the allegations is irrelevant because the modern law of privacy is concerned as much with intrusion as with confidentiality.  It would be absurd if the right to respect for private and family life was not engaged by publications of untrue statements.  As Buxton LJ observed in McKennitt v Ash (supra) "the defendant cannot deprive the claimant of his article 8 rights simply by demonstrating that the matter is untrue."  Excoriation in newspapers may be intrusive whether the reports are true or false. 

66. The article 8 rights of the family members are therefore engaged in this case. 

67. So far as article 6 is concerned, as stated above, Miss Judd's supplemental argument is that her client's article 6 rights are engaged and in danger of being infringed because her poor mental state, allegedly attributable in part to the press reports, was likely to have an adverse effect on her ability to participate in the court proceedings concerning A.  Miss Judd relies on the first sentence of article 6 that "in the dissemination of his civil rights and obligations… everyone is entitled to a fair hearing".  Miss Judd argues that the ability to participate in proceedings is an element of entitlement to such a fair hearing. 

68. I am not persuaded that this gives the mother any additional complaint in this case.  As explained below, I am persuaded that the publicity concerning the circumstances of the deaths of the children and the police investigation assists the process of arriving at the truth, and may therefore ultimately contribute to the fairness of the litigation process to which, as article 6 states, everyone (not merely the mother) is entitled.  To my mind, the submissions about article 6 add nothing of substance to the balancing exercise to be conducted between articles 8 and 10 in this case.

69. The publication of the articles in The Sun and the local paper were a clear interference with the family's article 8 rights.  On the other hand, it is in the public interest for police investigations of serious crime to be fully reported providing such reports keep within the law, including the law of contempt of court.  There are several reasons for permitting such reporting.  First, in general terms, crime is a disfiguring feature in our society which needs to be exposed to public view so that society as a whole can address the many issues it raises.  Secondly, the suspicious death of a child is a particular issue of public importance which warrants appropriate scrutiny in the media.  Thirdly, during the course of a difficult and important criminal investigation, the police need all the help they can get.  The publication of reports of the investigation may trigger memories amongst readers or viewers and lead witnesses to come forward.  Television programmes such as "Crimewatch" have been broadcast for many years with that specific aim in mind.  Accordingly, I reject Miss Judd's submission that the press did not have any role to play in the investigation.  On the contrary, as the success of "Crimewatch" demonstrates, the media may play a key role in the identification, investigation and solving of crimes.  Fourthly, it is in my judgment in the public interest for there to be publicity about cases when children who are known to social services sustain significant harm.  The performance and efficiency of public services is a matter of fundamental public interest. 

70. Thus, to my mind, it is in the public interest for the press to be allowed to report that a woman has been arrested on suspicion of killing her two children, who were at the time known to social services.  The question, again, is whether the freedom to report such matters is outweighed in the balancing exercise. 

71. A's article 8 rights are particularly acute.  She has been taken from her family in the most tragic circumstances.  She has lost two brothers, her mother is under suspicion for causing the death of her brothers and is displaying signs of significant mental health problems.  Her grandmother, who cared successfully for her older brother, B, prior to his death, has put herself forward as a potential carer but finds herself caught up in the blaze of publicity. 

72. The mother's article 8 rights are also acutely engaged. Two of her children have died and her third child is in care.  After years of mental health problems, her psychiatric condition has deteriorated.  The fact that she suffers from mental frailty is an aspect of her private life which must be given appropriate respect.

73. What is the impact of the fact that a considerable amount of this information has already been published?  A distinction can be drawn between, on the one hand, the information that children known to social services have died and that their mother has been arrested in connection with their deaths, and, on the other hand, intrusive reporting into the circumstances within the family home.  The fact of the children's deaths, that the mother has been arrested, and the involvement of social services is information already widely reported nationally and locally, and to my mind this is a factor against the injunction now sought on behalf of the mother.  These facts are widely known and the likely effect of any repetition on the mother's article 8 rights is to my mind limited so that the case for restraining republication is less strong.  On the other hand, detailed accounts of life in the home have amounted to significant intrusion. To my mind, there is a stronger argument that re-publication of those details would have a significant impact on family members and would therefore amount to an interference with article 8 rights. 

CONCLUSION – THE ULTIMATE BALANCING EXERCISE
74. Mr Wolanski on behalf of the media concedes that his clients do not object to the Court reverting to the order made by Judge Marston on 20 May.  By that concession, I understand him to be accepting that, in A's case, the balance comes down in favour of protecting her article 8 rights. 

75. In my judgment, however, in order to achieve adequate and clear protection for A's article 8 rights, it is necessary to make the following amendments.

76. First, the proviso to paragraph 3 of the order (the "if, but only if" clause) should be amended to read as follows: "if but only if such publication is likely to lead to the identification of the child as being (a) the child of the mother and father named in schedule 3 to this order; (b) the child of a woman who has been arrested on suspicion of murdering children; (c) the sister of the deceased children named in schedule 3; (d) the sister of children who have died or (e) the subject of care proceedings." 

77. Secondly, as the evidence demonstrates that there is a reasonable prospect that A will be placed in the interim care of her maternal grandmother in the next few months, I consider, balancing article 8 and 10, that it is right to add the following words to the "if but only if proviso":  "if but only if such publication is likely to lead to the identification of the maternal grandmother named in schedule 3 to this order as being (a) the mother of the child's mother named in schedule 3; (b) the mother of woman arrested on suspicion of murder; (c) the grandmother of the child named in schedule 1; (d) the grandmother of the deceased children named in schedule 3; (e) the grandmother and/or carer of a child who is the subject of care proceedings, or (f) the grandmother and/or carer of a child whose siblings have died".

78. Thirdly, no party has been able to provide me with full evidence as to the information that has been published on the internet about this case.  I therefore have no way of knowing the extent to which A's has been named or identified in such publications.  The fact that she may have been so named or identified is no justification for permitting repetition of such publication. I therefore propose to delete paragraph 6(g) of the order of the 20 May, that is to say, the so-called public domain proviso.  In other words, no one who breaks the order restraining publication of information concerning A will be able to rely on the fact that information about her had already been published.

79. Fourthly, I add the amendment agreed by the local authority and media precluding any person from approaching or photographing the mother within five hundred metres of any place at which she is having contact with A.

80. So much for the injunction restraining publication of information concerning A. In her case, the balance comes down clearly in favour of restraint, as recognised by the media parties.

81. When I turn to M, however, the argument is more finely balanced. The arguments deployed by Miss Judd are very persuasive.  The mother is clearly someone with considerable long term mental health problems which have been exacerbated by the publicity to date and likely to be effected by further publicity in future. As indicated, I do accept that some of the reporting has been intrusive, and that the court has the power in appropriate circumstances to prohibit re-publication of such reports. I also accept that the publicity has on occasions prevented contact taking place, although I do not consider that this presents insurmountable problems to the local authority whose position will be buttressed by the agreed amendment precluding any person from approaching or photographing the mother within five hundred metres of any place at which she is having contact. 

82. Despite the strength of Miss Judd's arguments, I find on balance, that, in the mother's case, her article 8 rights are outweighed by the importance of the media's freedom of expression. In other words, I find that the interference in her right to respect for private and family life resulting from press reports of her arrest on suspicion of causing the death of her two sons to be necessary in a democratic society in the interests of the prevention of crime and for the protection of the rights and freedoms of others.

83. There is a very great public interest in the investigation of the deaths of children and the detection of cases in which such deaths are caused non-accidentally.  The reporting of police investigations satisfies justifiable public concern about the capabilities of the authorities to identify and deal with these difficult cases.  Such reporting may also unearth other witnesses and evidence.  Equally, it is important that the public should be informed when children who die in such tragic cases are already known to social services so that local authorities can be held accountable. 

84. Criticism has been made of the tone of some of the reporting which, it is said, has added to the intrusion in the lives of members of the family.  But, as Lord Rodger noted in Re Guardian News and Media (supra), editors, not judges, know best how to present the material in a way that will interest the readers to their particular publication and so help them to absorb the information. 

85. I therefore refuse the application on behalf of the mother to continue the order made by Judge Marston on 24th May, or to make any other order that prevents the media reporting details of the investigation.  For the same reason, I decline to make any order in respect of other family members, save for the restrictions imposed in respect of the publication of information concerning A.

86. But I add these caveats.

87. First, the media need to consider carefully the terms of the reporting restriction order I am making protecting A's article 8 rights.  It seems to me, although I have not heard detailed argument on the point, that some of the reporting hitherto has come close to infringing the order of 20 May. Now that the order protecting A's article 8 rights has been tightened as set out above, the media will need to tread even more carefully.

88. Secondly, the media will need to bear in mind the provisions of the Contempt of Court Act. I make no findings whether or not the reporting to date has amounted to a contempt – that is not a matter for me.  But plainly, there is a risk that reports of an investigation may seriously impede or prejudice the course of justice. I therefore echo the words of Lord Bridge in the Pickering case quoted above: "editors and publishers will be well advised to exercise great care and not overstep the mark in this regard". 

89. Thirdly, the media will equally need to bear in mind the terms of the PCC Editors Code of Practice as quoted above, in particular, the passages in clause 5 concerning intrusion into grief and shock.  The code requires that in such cases "enquiries and approaches must be made with sympathy and discretion, and publication handled sensitively". 

90. Finally, this case is in a state of flux and uncertainty.  The investigation is ongoing.  At this stage, I have concluded that the balance comes down against the injunction sought on behalf of the mother, but circumstances may change in future so that the balance between the competing rights shifts.  If so, the court will of course be prepared to hear a renewed application.

91. At this stage, however, I make an order in the following terms:

ORDER

REPORTING RESTRICTION ORDER

IMPORTANT
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.

EXPLANATION

1. On 21 June 2011 and 5 July 2011 the Court considered an application for a reporting restriction order. 

2. The following persons and/or organisations were represented before the Court;

 The local authority named in schedule 4 to this order.

 The child's mother named in schedule 3 to this order.

 The child's father named in schedule 3 to this order.

 The child's maternal grandmother named in schedule 3 to this order.

 The child named in schedule 1 to this order represented by her child's guardian.

 News Group Newspapers Ltd, Mirror Group Newspapers Ltd and the publishers of the local newspaper named in schedule 5 to this order.

3. The court read the following documents;

Reporting restrictions orders made on 13 May 2011, 20 May 2011, 24 May  2011 and 27 May 2011.

Statements in support of the application by witnesses listed in schedule 6 of  this order.

Articles published by The Sun and the local paper named in schedule 5 of this  order. 

A page from the Facebook internet site.

Psychiatric reports on the mother and father.

Position statements and skeleton arguments filed on behalf of all parties
 
4, The court directs that copies of the Explanatory Note and reporting  restriction order be made available to the applicant and any other person  affected by this order.

5. The Court acknowledging that at present the addresses of the child and her foster carers' names and addresses are not public knowledge and in the exercise of the court's inherent jurisdiction, the said names and addresses will not therefore be published in the order.
 
ORDER

1. Subject to any different order made in the meantime, this order shall have effect until the child's 18th birthday in April 2028. 

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

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

a)  the name and address of

i)  the child whose name is listed in schedule 1 to this order ("the child");

ii)  the child's carers whose details are set out in schedule 2 to this order;

iii)  any individual having day to day care of or medical responsibility for the child.;

iv)  any residential home or hospital, or other establishment in which the child is residing or being treated ("an establishment");

v)  the child's mother who is named in schedule 3 to this order;

vi)  the child's father who is named in schedule 3 to this order;

vii) the child's maternal grandmother who is named in schedule 3 to this order;

viii) the child's maternal uncle who is named in schedule 3 to this order;

ix) the child's deceased siblings who are named in schedule 3 to this order;

b)  any picture being or including a picture of either the child or carer or an establishment;

c)  any other particulars or information relating to the child,

IF BUT ONLY IF such publication is likely to lead to the identification of

(1) the child as being

a) the child of the mother and father named in schedule 3 to this order;

b) the child of a woman who has been arrested on suspicion of murdering children;

c) the sister of the deceased children named in schedule 3 to this order;

d) the sister of children who have died;

e) the subject of care proceedings;

(2) the maternal grandmother named in schedule 3 to this order as being

a) the mother of the child's mother named in schedule 3 to this order;

b)  the mother of a woman arrested for murder;

c) the grandmother of the child named in schedule 1 to this order;

d) the grandmother of the deceased children named in schedule 3 to this order;

e) the grandmother and/or carer of the child who is a subject of care proceedings;

f) the grandmother and/or carer of a child whose siblings have died.

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

5. This order prohibits any person from seeking any information relating to the children or a carer from any of the following;

a) the child;

b) the foster carers;

c) a carer;

d) the staff or residents of an establishment;

e) the staff of a school;

f) any of the child's relatives.

6. This order further prohibits any person approaching or photographing the child's mother named in schedule 3 to this order within five hundred metres of any place at which she is having contact with the child. 

7. Nothing in this order shall prevent any person from

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

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

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

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

e) seeking information from the responsible solicitor acting for the local authority , whose details are set out in schedule 4 to this order, or any press officer employed by the authority;

f) seeking or receiving information from anyone who before making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).

8. Copies of this order endorsed with a notice warning of the consequences of disobedience shall be served by the applicant (and may be served by any other parties to the proceedings):

a) by service on such newspaper and sound or television broadcasting or cable satellite or programme services as they see fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting, cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or

b)  on such other persons as the parties may think fit, by personal service.

9 The parties and any person affected by any the restrictions in paragraphs 3 to 6 of this order may make application to vary or discharge it to a judge of the High Court on no less than forty eight hours' notice to the parties, reserved to the Honourable Mr Justice Baker if available. 

(The order concludes with schedules setting out names and other details of the parties and witnesses, and an explanatory note in accordance with the President's Direction and Cafcass Practice Note of 18th March 2005).

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