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A Council v W, L, W and T & R [2005] EWHC 1564 (Fam)

The identity of a defendant in criminal proceedings could be suppressed by an injunction where publication could do serious harm to the Article 8 rights of her children.

A Council v W, L, W and T & R [2005] EWHC 1564 (Fam)

Family Division: Potter P (14 July 2005)

Summary
The identity of a defendant in criminal proceedings could be suppressed by an injunction where publication could do serious harm to the Article 8 rights of her children.

Background
This case concerned a girl ('T'), born in March 2002, and a boy ('R'), born in December 2004.

Both children were in the care of the applicant local authority ('the Council'). Their mother, the first respondent, had been charged with having knowingly infected R's father, the second respondent ('L'), with HIV. The criminal proceedings were likely to attract local and possibly national interest.

On 20 April 2005, the day before the mother's committal hearing, all parties consented to the Council's application for an interim injunction prohibiting publication of any details or images likely or calculated to lead to the identification of the children.

Following the President's Direction ('Applications for Reporting Restrictions Orders'), the Council served notice on the local newspaper who opposed it in written submissions. The judge renewed the injunction, ordered service on any other media the Council thought fit and transferred the matter to the High Court.

On 28 April 2005 Singer J adjourned the application to allow further time for responses from the media and continued the injunction. He also ordered service by the Council on the Press Association.

When the matter came before the President on 4 May 2005, the mother was awaiting sentence. T was living with her maternal grandmother, the third respondent, pending an application for her removal into foster care. R was living with foster parents while L and L's family were being assessed as potential carers. No newspaper was present or represented, although the President considered the earlier written submissions. The President reserved judgment.

On 23 June 2005, the judge in the care proceedings granted an interim residence order in respect of R in favour of L, and made T a ward of court.

The President subsequently received a report by the Cafcass guardian stating that T had had too many carers, had been emotionally damaged by the lack of consistency in her life, had behavioural problems and was in urgent need of a long-term placement in a loving household with as little disturbance as possible.

Judgment
Held, granting the injunction, that although it was in the public interest for the identity of the mother to be published, given the unfettered freedom to report criminal proceedings, knowledge of her identity was not essential for the purposes of open justice or informed debate.

The predicament of the defendant in the criminal proceedings was irrelevant in assessing the balance to be struck. Suppression of her identity would result in a 'disembodied' trial but discussion of the novel issues raised by the case would not be significantly inhibited. Likewise, the suppression of the identity of those responsible for the welfare the children did not significantly diminish the right to report the criminal proceedings.

Publication of her identity was, though, likely to inflict substantial damage to the children's Article 8 rights. Although their age meant they would not be conscious of the nature of the proceedings, the proposed 'naming and shaming' of their mother meant it was likely that there would be a more intense focus of attention on them, and the families concerned with their welfare, than would be the case if the injunction were not granted.

Although the damage to R was likely to be far less acute than for T, if R stayed with L's family, his future placement was still uncertain. Further, in the Court's view it was probable that there would be harassment, bullying and teasing in the future if an injunction was not granted. The Council may also have unnecessary difficulty in placing R with foster parents if required.

Similar considerations applied to T, but to a more serious extent as she was old enough to be sensitive to any teasing or bullying and vulnerable because of the disturbance that she had already suffered.

There was therefore likely to be serious short and long-term prejudice to the children if the injunction were not granted. What might otherwise be a 'nine-day wonder' would be elevated into a widespread and far longer-lasting inroad into the children's right to the privacy and family life that they needed. It was both necessary and proportionate to protect them against the likelihood of harm which would be avoided, or at any rate diminished, if the injunction were granted.

In a footnote to the judgment The President was keen to draw attention to the provisions of the Practice Direction issued on 18 March 2005 concerning the handling and conduct of such cases.

Read the full text of the judgment here