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Reporting Restrictions and the New Transparency - Part 1

This is the first part of a three-part article by Mary Lazarus, barrister of 42 Bedford Row, reviewing recent developments concerning reporting restriction orders and transparency in the family courts. In this first part Mary considers some procedural issues before concentrating on those cases involving clashes between the need for privacy and the desire to report issues of genuine public interest.

Mary Lazarus, barrister, 42 Bedford Row

Mary Lazarus, barrister, 42 Bedford Row

There have been a slew of cases covering reporting restrictions in the last year, and this article does not propose to cover all of them, but to focus on some key themes and issues, and draw attention to an inevitable and significant interrelation with the new emphasis on transparency.

Much of what has emerged from the High Court and in particular from the President can be seen to fall into distinct groups: 

The two latter groups demonstrate inevitable and interesting interplay with the new transparency expounded by the President in his Practice Guidance (Transparency in the Family Courts: Publication of Judgments), and raise implications for consistency of a transparent approach, improvements to the management of such cases, and significant concerns that remain to be clarified.

The first group is more illustrative of what can be termed, colloquially, good old-fashioned stuff – namely intense balancing of and focus upon the respective Article 8 and 10 rights, resulting in RROs that have extended the boundaries of restriction.

Part 1 of this article will concentrate on this first group of cases and some recent issues arising in procedure.

Part 2  covers cases involving aggrieved parties and international implications and Part 3 sets out some reflections on the new Transparency Guidance.

Before exploring the case law, a brief note on recent issues arising in relation to procedure. 

It cannot be emphasised strongly enough how important it is to follow the requirements of Practice Direction 12I – Applications for Reporting Restrictions Orders.  This refers back to the Practice Note Applications for Reporting Restriction Orders dated 18.3.05, which is often referred to as the CAFCASS Practice Note.  That Practice Note contains links to model forms for both draft orders and explanatory notes, albeit that many recently reported cases attach or include the RRO made.  It is recommended that close attention is paid to the orders made and reasons given, in particular by the President in Re J (A Child) [2013] EWHC 2694 (Fam) and Re P (A Child) [2013] EWHC 4048 (Fam) to assist practitioners in avoiding excessively wide terms.

Be careful to note that the PD states that service can be effected on the national media via the Press Association's CopyDirect service.  However this is not quite correct.  CopyDirect provides notification that such an application is being made only to those media organisations which subscribe to the Press Association service; it is not comprehensive notification to all media organisations and particularly will not notify those non-subscribing media organisations which may be interested in a case. 

Helpfully, Sir James Munby P quoted recently in P (A Child) [2013] EWHC 4048 (Fam) (17 December 2013) a note from Mike Dodd, legal editor of the Press Association, which explains the CopyDirect notification system:

46. "There is a page on the Injunctions Alerts Service website – -which lists the media organisations served, and the relevant telephone numbers, and which states at the top:

"The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly."

The service was also established on the basis that subscribing organisations would be taken to have been served with an application if notification was sent via the service.

The system works as follows: Would-be applicants are supposed to call a number, given in the Practice Note, and speak to the Customer Services staff who deal with the service.

They then send the documents, electronically (which is easier) or by fax, to the service. These documents are, if necessary, scanned to be put into electronic form, and are then distributed via e-mail alerts to the national media.

Distribution is followed up by calls to each of the subscribing organisations to check that service has been received.

The service does not:

1: Serve regional and local newspapers, or magazines
2: Serve orders which have been obtained from the courts (despite the continuing efforts by some law firms to use it for this purpose).

The website's Home page, and the pages for the Practice Direction, Practice Note and for the Notification system all contain a red-bordered box detailing what it does and not do. The box is the same on all pages. It will be updated in the New Year, due to increasing use of the service by applicants seeking injunctions in the QBD who are also being required to notify the media of their applications. These mostly are cases involving settlements of medical negligence cases involving children."

The CAFCASS Practice Note suggests that CopyDirect may be used to effect service on 'the world at large', however this cannot be accurate given the above note.  It also gives this link for identifying particular media organisations:

Rather than simply relying on CopyDirect where there is a 'world at large' application pending, it is wiser to try to identify likely relevant local, national or international media organisations and serve them, and it is highly advisable, where possible, to serve in the 'traditional' manner any media organisation that has been approached by a party or has attended court or shown any interest or involvement in the case (e.g. the postal service referred to at para 16-17 in Re J (A Child) [2013] EWHC 2694 (Fam).

Equally, orders must also be properly served in the same way, or risk unenforceability.

Injunctions sought against foreign-based bodies such as internet website providers will require proper service regulated by FPR 6.41 and 6.43(3) which apply by virtue of FPR 6.1 and 12.1(1)(d); see in particular paras 63-64 of Re J [2013].

Bristol City Council fell foul of these requirements in a case where it was trying to restrict reporting of alleged physical abuse of a child in foster care and concerns about use of pornography by that foster carer, and to prevent the identification of relevant social workers and of the Council itself: Bristol City Council v C & Ors [2012] EWHC 3748 (Fam) (21 December 2012).

Baker J was unimpressed by the failure to notify the Press properly of the initial application before HHJ Barclay, particularly in the context of the excessively wide blanket ban sought:

15. …It is axiomatic that, save in exceptional circumstances, any application for a reporting restriction order should be made on notice to the media. S. 12 (2) of the 1998 Act provides: '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 identified.' This statutory provision is reinforced by the President's Direction and CAFCASS Practice Note of 18th March 2005 which provides for a system of service of applications for a reporting restriction order on the national media via the Press Association's CopyDirect service. The President's Direction further states: 'the court will bear in mind that legal advisors to the media…are used to participating in hearings at very short notice where necessary….service of applications via the CopyDirect service should hence forth be the norm. The court retains the power to make without notice orders, but such cases will be exceptional, and an order will always give persons affected the liberty to apply at short notice.'

[But NB the reservations expressed above as to the limitations of this 'service' – author's note]

16. I can see no justification for the failure in this case to give notice to the media prior to the hearing before Judge Barclay. A representative of the Sun newspaper was actually present in the Family Proceedings Court in Bristol at the point when the parties' representatives were appearing before Judge Barclay in the Civil Justice Centre. At the very least, that reporter should have been informed of the proposed application to Judge Barclay so that he could have attended the hearing to make representations. In truth, however, I can see no good reason why proper notice of the hearing was not given in accordance with the President's Direction. I have observed elsewhere that there is a danger that those who practice in the family justice system fail to give proper consideration to the Article 10 rights of the media. It is not the first time that an ex parte order has been made without notice to the media in circumstances which could not be described as exceptional. This must now cease. The media are undoubtedly and rightly aggrieved by this practice. In my judgment it is in the public interest for NGN to be entitled to publish its account of the failure to give proper notice in this case.

17. Furthermore, in my judgment, the initial position adopted by the local authority in seeking a complete prohibition on publication of any information relating to these proceedings, including the identity of the local authority itself, was unjustified. Subsequently, the local authority has sensibly modified its position and adopted a constructive and conciliatory approach. In his initial skeleton argument for the hearings before me, Mr Tolson accepted that there is a legitimate public interest in the reporting of the actions of the local authority in response to the crisis in the foster home. Furthermore, the local authority no longer seeks to conceal its own identify from such publications. Nevertheless, I consider that NGN is entitled in the public interest to publish its account of the local authority's initial position.

Thus, the approach adopted by Bristol unfortunately backfired because of the local authority's original stance of trying to shut down proper reporting rather than taking a wiser and more proportionate approach, which should have included serving and involving the interested press fully at as early a stage as possible, so that the original alleged misfeasance did not become compounded by attempts to conceal it.

The court's requirements in respect of evidence will emerge through examination of the recent cases.  For the moment it is necessary to state only the most important principle which is, that while some of the evidence as to the impact on the family members may be speculative, it is essential that such evidence exists and is substantiated so far as possible and has some proper factual basis.  Equally, specialist evidence in relation to international service, procedure, and enforceability will be required where applicable (see the discussion of Re J [2013] in the second part of this article).

Cases involving acute balancing exercises and wider reporting restriction orders
These cases have been described in the introduction above as good old-fashioned stuff.  In describing these cases in this way, there is no suggestion that the approach is outmoded or that such cases are no longer likely to arise, but to emphasise that these decisions have arisen by the familiar practice of intense evaluation of competing Article 8 and 10 rights based upon exceptional facts. Prior to these cases, there was only a single reported case of a RRO being made that prevented the publication of the name of a criminal defendant: A Local Authority v W [2005] EWHC 1564 (Fam), decided by Sir Mark Potter P.   [But see the discussion in Part 2 of this article about the naming of cases and awareness of the existence of other such cases.]

In considering these acute 'balancing exercise' cases, attention will be paid to: the guidance found in earlier first instance and leading cases; evidence of harm; consideration of the specific impact on each person/the public/the Press; combined with the 'intense focus' task, with particular consideration of 'exceptional' features of a case that may dislodge the 'strong rule' that criminal proceedings should be reported.

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

Although decided in summer 2012 this judgment was not reported until April 2013, due to implications for other outstanding issues in the case.  This was the notorious case in which an adoptive mother persuaded her oldest teenage adopted daughter to artificially inseminate herself in order to add another child to the family.  The amazing and horrible facts are set out at length by Peter Jackson J in the fact finding judgment:  A Council v M & Ors (Judgment 1: Fact-Finding) [2012] EWHC 4241 (Fam) (08 March 2012) and are summarised in the context of reporting restrictions at the outset of the RRO judgment:

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

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

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

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

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

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

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

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

11. The criminal charges are:

(1-3) offences relating to the insemination of A
(4) an offence of leaving C, aged 4, in the care of A, then aged 15, while she and B went on holiday abroad
(5) an offence of cruelty relating to the mistreatment of C.

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

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

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

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

16. The significant change from the February order was the omission of the conventional proviso exempting the reporting of proceedings held in public, which read: "publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;"

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

One can immediately see the sensational nature of this case, with both the devastating personal impact upon the individuals involved of the events themselves and of further publicity , and the legitimate public interest issues arising in relation to adoption, access to insemination, the criminal proceedings and knowledge/involvement of public agencies.

The unusual feature of the RRO was the inclusion of a ban on reporting the mother's name, despite her being the defendant in criminal proceedings for offences directly relevant to the very grave matters dealt with in the care proceedings and to which, at least in part at the time of this hearing, she was proposing to plead guilty.

Peter Jackson J considered the powers of the Crown Court to limit identification and publication under s.39(1) Children and Young Persons Act 1933, s.11 Contempt of Court Act 1981 and s.46 Youth Justice and Criminal Evidence Act 1999 and found that they would fail to protect the younger family members.

In examining the relevant case law he most helpfully attached an Annex to his judgment containing relevant sections from the following key cases:

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

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

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

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

29. I have also been assisted by the decisions of the Court of Appeal in Re Trinity Mirror Plc [2008] EWCA Crim 50[2008] 2 Cr. App. R. 1, and of Baker J in A Local Authority and Others v. News Group Newspapers Ltd., Mirror Group Newspapers Ltd. and Newsquest Ltd [2011] EWHC 1764 (Fam).

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

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

He went on to consider issues for each family member in turn, stating bluntly that the mother's rights counted for nothing in such circumstances, but concluding that significant risks attached to identification of each of the younger family members and that in this case identifying her risked identifying them.   He reiterated the close attention to be paid to the particular facts; the differences between the types of rights claimed; the fundamental right to report criminal proceedings; the exceptional nature of cases that will prevent that reporting; and that the restriction granted here was only partial so that the issues of real public interest rather than personal detail could still be reported:

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

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

84. On the other hand, there is no hierarchy of rights in this context and there are cases where individual rights must prevail. In highly exceptional cases this can even include making inroads into the fundamental right to report criminal proceedings, but only where that is absolutely necessary.

85. I have concluded that this is such a case. In such unique circumstances, the claims of Art.10 are very strong, but those of Art. 8 are even stronger. The risks to private and family life are exceptional and the injunction sought is nothing less than an absolute necessity. While there is no evidence of a risk to life and limb, if M is publicly identified the probable consequences for the younger family members would at best be harmful and at worst disastrous. The wellbeing of A is inseparable from the wellbeing of D. As sisters, the fortunes of A, B and C are also interlinked and any harm to one will be felt by the others. If these youngsters are identified, the effect on them would be long-lasting and profound.

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

[emphasis by underlining added]

Re Z (1) and Re Z (2)
Then in Spring 2013 came the two cases of Re Z, decided by Cobb J within a few days of each other.  In these cases a father applied for an RRO on the grounds that the lives and privacy of his eight children were at risk of gross exposure and interference as their mother was defending charges of massive benefit fraud based upon misleading, exaggerated or dishonest claims as to their physical and mental health.  The criminal proceedings would inevitably  lead to them, their medical records and other reports on their abilities and problems being openly and frequently referred to in the Crown Court. The likely Press scrutiny was exacerbatedand the situation complicated  both by the scandalous amount of money involved and the fact that some of the children had already been the subject of public attention as the mother had promoted their stage skills (even so far as obtaining a part in a West End musical for child E who by this stage turned out to be the most vulnerable).

In Z & Ors v News Group Newspapers Ltd & Ors (Judgment 1) [2013] EWHC 1150 (Fam) Cobb J had to decide whether a RRO was appropriate  at short notice due to the imminent expiry of a s39 CYPA order made in the Crown Court , , as was now clear to all involved in the criminal proceedings, including the Press, that none of the children would be witnesses/victims and would thus fall outside s39's ambit.

Cobb J framed his consideration of the balancing exercise as follows:

36. When conducting the balancing exercise outlined above, I adopt the approach articulated by Lord Steyn in Re S (at para.17), paying close regard to the fact that:

(a) neither Article has as such precedence over the other;?

(b) 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;?

(c) the justifications for interfering with or restricting each right must be taken into account;

(d) the proportionality test must be applied to each.

37.  In considering this four-fold test I have had regard to the comments of Potter P in A Local Authority v. W and others [2005] EWHC 1564, in which he described (at §53) each Article as propounding "a fundamental right which there is a pressing social need to protect". Potter P emphasised in that case the importance of avoiding a mechanistic approach to the opposing factors, based "upon the basis of rival generalities" but encouraged the court to undertake conscientiously the "intense focus on the comparative importance of the specific rights being claimed in the individual case" before applying the cross-check of proportionality.

38. Article 8 embraces the concept of "unwanted access to private information and unwanted access to [or intrusion into] one's … personal space": this is what Tugenhadt J in Goodwin v NGN Ltd & VBN [2011] EWHC 1437 (QBD)(at para 85) described as "confidentiality" and "intrusion".  I accept the submissions of Miss Lazarus in this case that intrusion into one's personal space includes interference into the life of the family as well as the private life of the individual.

He reviewed significant commentary from the case law relating to public interest and to reporting criminal proceedings, and the requirements for such an order:

42. …as Tugenhadt J said in Goodwin (above)

"…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: judges have the final decision what it is in the public interest to publish." ?

43. Tugenhadt J's point had been framed in a different but complementary way by Lord Rodger of Earlsferry in Re Guardian News and Media Ltd [2010] UKSC 1 [2010] 2 AC 697 at para 63 when he said:

"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."

44. The application of the balancing exercise can be found in a number of cases in the Family Division, and increasingly in the Court of Protection. One of the most recent decisions is that of Peter Jackson J in A Council v M & others [2012] EWHC 2038 (Fam) in which he said this (at para 82-84):
… [quoted in this article above]…  I respectfully adopt this analysis.

45. The principles, as they apply to the reporting of criminal process: In this application I am of course concerned with the reporting of criminal process.

46. My starting point in this regard has to be to give due weight to the "strong rule" (so described by Lord Steyn in Re S) that the press, as the watchdog of the public, may report everything that takes place in a criminal court.

47. This applies as much to an ongoing trial as to the conclusion of it. Lord Steyn observed (when rejecting the distinction which Hale LJ had drawn between the public interest in knowing the names of persons convicted of serious crime compared with the public interest in knowing the names of those who are merely suspected or charged: see Re S at para 30):

"The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law."

48. It is, however, not a rule to be applied mechanically. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under Article 8.

49. This was echoed by the President of the Queen's Bench Division (giving the judgment of the court) in Re Trinity Mirror [2008] 2 Cr. App R 1 in which he referred to the principle of "open justice in courts exercising criminal jurisdiction". Integral to this principle (he said) is the need to ensure public confidence in the criminal justice system, the free reporting of criminal trials "and the proper identification of those convicted and sentenced in them" (ibid at para 33).

50. The judgment of the Court in Re Trinity Mirror made this important point (para 32):

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

51. These essential principles, ingrained in and indispensable to our democratic society, deserve the highest respect.

52. But criminal conduct, and the process by which it is investigated and tried, often brings with it heartbreak and unhappiness, particularly to those who are innocent victims and bystanders. I have little doubt that these will be dreadfully painful times for the adult and minor children of Mrs Z.

53. In this respect, I recognise the need to guard against an instinctive desire to extend a protective wing to shield the children of parents who are accused of criminal activity and involved in the associated public forensic process. I have much in mind here the comments of Baker J at para 43 in of W(B) v M(OS) & others [2011] EWHC 1197 (CoP):

"judges and practitioners in the Court of Protection – as in the Family Division – must be on their guard to ensure that their naturally protective instincts, developed through years of giving paramount consideration to the welfare of children and the best interests of vulnerable adults, do not lead them to underestimate the importance of article 10 when carrying out the balancing exercise".

54. I am conscious that in my evaluation of the material I must also not let the "misery, shame, and disadvantage" (para 33 Re Trinity Mirror) foisted upon the children by virtue of their mother's alleged criminal conduct weigh heavy in the balance; I recognise that inevitably the children of those accused of crime (particularly those convicted of crime) become victims to the consequences of the process, and (if proved) the criminal conduct itself.

55. Exceptionality: When weighing up the competing factors, I bear very much in mind what Lord Steyn said in Re S about the "strong rule" of press freedom only being "displaced by unusual or exceptional circumstances"; this was re-stated by the President of the Queen's Bench Division in (Re Trinity Mirror at para 33: he too referred to the displacement of the right of press freedom as "exceptional"). I proceed in my determination of the issues in this case on the basis that only exceptionally could I displace the strong rule of press freedom.

56. The burden of proof: In establishing that exceptional situation the burden falls on the applicant. In this regard, I draw on the comments of Potter P: see A Local Authority v PD and others [2005] EWHC (Fam) 1837 at para.30:
"The burden of proving the case for grant of an injunction always lies upon the applicant. In the special case of an injunction contra mundum, and in particular one which restrains the press from exercising its right unrestrainedly to report criminal proceedings, the burden is a heavy one. The necessity is to show unusual and exceptional circumstances. The entire tenor of the judgment in Re S demonstrates the difficulties facing the applicant in a case of this kind."

57. The evidence required: Applications such as this are necessarily brought swiftly and summarily without the luxury of time for the preparation of detailed and corroboratively supported statement. That said, I must reach my conclusion based on evidence. As Peter Jackson J said in Hillingdon LBC v Neary [2011] EWHC 413 (CoP) at para 15(3):

"Publicity can have a strong effect on individuals, particularly if they are not used to it, or if, … they are vulnerable to anxiety and to changes in their environment. Any evidence that suggests a real possibility of a detrimental effect from publicity must weigh heavily. On the other hand, there must be some proper factual basis for such concerns" [emphasis by underlining added].

He concluded that the arguments were 'exquisitely finely poised … at this stage in the trial', and in his analysis pointed to the extraordinary features of the case where the children were 'at the heart' of the trial as having been the 'instruments' of the mother's alleged wrongdoing (unlike in Re S) and their dependent status horribly exploited, and so the trial would directly affect them and that at that stage he was entitled to take account of the applicant's concerns about the emotional and behavioural vulnerabilities of the children.  This latter was substantiated, importantly albeit briefly, in relation to Child E by documents from her CAMHS social worker.

Interestingly, he rejected the approach of Peter Jackson J that such an Article 10 limitation would only be 'partial' and concluded that it would 'stifle any meaningful report of the case', but was swayed at this stage to protect the engaged Article 8 rights and ordered that there should be no reporting of the family name or of any information identifying the family members.

But this was only pending conclusion of the criminal trial:

89. While acknowledging that the rights to freedom of expression "… apply with equal force to the freedom of the press to report criminal trials in progress and after verdict" (Lord Steyn in Re S para 28), in my judgment marginally different considerations are likely to apply to the balancing exercise in the event that Mrs Z is convicted.

90. The spotlight, currently focused on the children, their alleged disabilities, and medical records, will have diffused. A wider perspective of offending will be in view. The public interest in knowing about proven serious fraud upon the State is likely to outweigh the protection which the Article 8 rights currently offer the children who were the vehicles of that fraud.

91. The President of the Queen's Bench Division observed in Re Trinity Mirror that it is an important aspect of the public interest in the administration of criminal justice "that the identity of those convicted and sentenced for criminal offices should not be concealed."(para 32). I accept unreservedly these remarks, and applied to the facts of this case, on the information currently available, I am of the view that the identity of Mrs Z (and therefore the family) should probably not be the subject of reporting restraint in the event that she is convicted.

The second judgment - Z &  Ors v News Group Newspapers Ltd (Judgment 2) [2013] EWHC 1371 (Fam) - modified the first RRO.  By this stage the criminal trial was nearing its end and the Press were understandably keen to know how to report any conviction.  There was further evidence from CAMHS.  There was some limited reporting compliant with the first RRO (contrary to the judge's concern that no meaningful reporting was possible).  However, Cobb J concluded that, if the mother were convicted, the balance swung instead in favour of protecting Article 10 rights. Therefore, while the children and father should continue to be protected -  'this [conviction] does not eradicate the enduring and valuable Article 8 rights of the children and the family' - the mother's name should be publishable despite the risks for identification of her children.  In reaching this conclusion, Cobb J reflected the lack of rights claimable by such a defendant parent, applied the 'hard-headed' approach advocated by Potter P in A Local Authority v W in his concluding comments, and thus in effect acknowledged the risk of 'jigsaw identification':

27. The inevitable yet highly unfortunate consequence of naming the defendant (in the event of her conviction) is that there will be opportunity for those who wish, and are able, to do so to identify the children who were involved in the defendant's (in this scenario, proven) fraudulent activities; the children were, as I earlier indicated, innocent instruments of the alleged fraud. I regret that by involving the children in any proven crime, the mother herself must take significant responsibility for the public acquiring knowledge of her exploitation of them.

31. In my judgment, those who cheat the over-stretched resources of the welfare state can neither generally nor reasonably expect to escape the proper reporting of their wrongdoing, or hope to achieve the concealment of their identities. It is with considerable regret that in varying the Reporting Restriction Order in the event of a conviction, I will expose the children of Mrs Z to the risk of identification. A guilty verdict would reflect the jury's satisfaction that Mrs Z had improperly used her children as innocent instruments of her crime; if this is the outcome of the criminal process, then it is she alone who has unhappily heaped upon her family the misery, shame and disadvantage, which is the inevitable consequence of her offending.

Swansea v XZ & Anor
Finally under this heading (and notably subsequent to The President's decision in Re J (A Child) [2013] EWHC 2694 (Fam) (05 September 2013) ) comes the recent case decided by Moor J: Swansea v XZ & Anor [2014] EWHC 212 (Fam) (10 February 2014).

Reading between the lines, the judgment is similarly laced with acutely identifying features such as the parents' country of origin, their faith, the mode by which the mother entered this country, the number of children in the family, and there being few if any other such families in the Swansea area.  The mother in this case had pleaded guilty to infanticide and causing GBH in relation to two of the children of the family, but was now reunited with them, had been sharing care of them successfully with the father and was in better mental health than when she committed the offences.  At the time of the hearing she was facing a sentencing hearing a few days later.

In considering the risk of significant harm to the children Moor J was obliged to accept admittedly speculative but powerfully expressed evidence:

31. Significant evidence has been put before me as to the risk that the children will suffer significant harm. Whilst I accept that such evidence does involve a considerable element of speculation, Sir Mark Potter P, in the case of Re W (Children) (Identification: restriction on publication) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1 said at Paragraph 21 that:-  "I accept that the evidence to which I have referred is speculative. However, in a situation where, so far, no substantial publicity has occurred, the evidence is necessarily speculative in nature. In this case, it consists of the assessment of a local authority officer and guardian, both with wide welfare experience and local knowledge as to local attitudes."

Moor J mentioned the same leading cases, albeit with the brief addition of the two first instance cases decided recently by The President (Re P and Re J [2013] – discussed in Part 2 of this article), but without reference to Goodwin, Re Trinity Mirror, A Council v M & Ors or Re Z.  However, it is worth noting that the Press, upon seeing the local authority's position and evidence, conceded that a RRO should be made, and so the case was uncontested, albeit that all parties sought the court's clarification as to how the forthcoming sentencing hearing could be reported.

Notwithstanding the current context of greater revelation and a swing towards Article 10, the judge concluded that the balance lay in protecting the children's Article 8 rights over transparency, with the mother simply to be referred to as 'a mother from the Swansea area' and the two children as 'A' and 'B'.

These cases have all been characterised by a combination of sharply identifying features and risks of serious damage to the family which swing the balance towards protecting privacy and against the freedom to publicise, notwithstanding matters of genuine public interest and in particular where criminal proceedings have been the legitimate subject of Press interest.

The flow of judgments considering RROs has been accompanied by – and has perhaps precipitated – guidance from the President concerning the need for transparency.  Recent decisions by the President and reflections on the recent Transparency Guidance are considered in Parts 2 and 3 of this article.

To read Part 2 of this article, please click here. To read Part 3, please click here.


STOP PRESS – since publishing the above article, the judgment of Keehan J in Surrey County Council v ME & Ors [2014] EWHC 489 (Fam) (04 March 2014)  has been handed down, in which he provided a thorough analysis of exceptionality in an acute balancing exercise, and declined to grant RROs despite the 'unusual and sensational' facts and vulnerabilities of the children of the family, where a teenager is being tried for the murder of the younger children's father.