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A Local Authority v PD & Ors [2005] EWHC 1832 (Fam)

This case concerns the applicability of granting injunctive relief, thereby prohibiting disclosure of material in the press which could lead to the identity of the child becoming known where there were pending criminal proceeding and current family proceedings. This case specifically considers the test applicable in such applications, and in particular Convention rights 8 and 10.

A Local Authority and P D and G D (By her Guardian)

In the matter of an application by Times Newspapers Limited, News Group Newspapers, Associated Newspapers and Mirror Group Newspapers ('the Press Applicants'¨)

[2005] EWHC 1832 (Fam)


FAMILY DIVISION: SIR MARK POTTER, P (19 JULY 2005)


Summary
This case concerns the applicability of granting injunctive relief, thereby prohibiting disclosure of material in the press which could lead to the identity of the child becoming known where there were pending criminal proceeding and current family proceedings. This case specifically considers the test applicable in such applications, and in particular Convention rights 8 and 10.

Background
The facts of this case were described by the President of the Family Division as 'unusual and sensational'. The child, G, was six years old and at the time of the hearing G's father was on trial charged with the murder of his wife, G's mother. The body was found on 8 June 2004 in a dismembered state in the freezer in the home where they had lived with G. On 7 June 2004 G had been left with her paternal grandmother and G's father had fled the country. At this time there was widespread press publicity identifying the father and the fact he had a six-year old daughter. The circumstances surrounding the father's disappearance affected the paternal grandmother to such an extent that G was placed in the care of a foster carer. However, the father returned on 21 June 2004 and was arrested. Following this the paternal grandmother's health improved and G was placed in her care under repeated interim care orders.

During the course of the care proceedings HH Judge Pearlman made an injunctive order restricting the publication of information relating to the case including the name and address of the parents or any picture or depiction, including a picture or depiction of the child.

The Press Association sought clarification as to whether this restricted their right to publish the father's name and photograph in the context of the ongoing criminal proceedings. The matter came before the President of the Family Division to consider the interpretation and appropriateness of the current injunctive order.

The Local Authority argued that if the name of the father was published together with a photograph this would interfere with the child's private life in respect of her 'physical and psychological integrity' and her quiet, settled and happy life with her paternal grandmother.

Judgment
Ignoring the specifics of the wording of the injunction in this case and whether, in fact, it could be construed as limiting the publication of the father's name and photograph, the following general principles can be extracted from the judgment: the burden of proving the case for granting an injunction always lies on the applicant; this burden is a heavy one when seeking an injunction restraining the press from exercising its right to report criminal proceedings; the necessity is to show unusual and exceptional circumstances; every case must be examined according to its particular facts in order to carry out the balancing exercise involved.

Articles 8 and 10 permit a degree of restriction on the rights they protect but it must meet a pressing social need and be no greater than is proportionate to the legitimate aim pursued. The President upheld his own Judgment in Re: S [2004] UKHL 47 and confirmed the following:

(1) Neither Article has as such precedence over the other;

(2) Where the two Articles are in conflict, intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary;

(3) The justifications for interfering with or restricting each right must be taken into account

(4) The proportionality test must be applied (the ultimate balancing test)

The President found that on this case, whilst the task of concealing the mother's gruesome death from G would be made more difficult by the publication of the father's information, this was not an insuperable obstacle to the proper handling of G's emotional and psychological care. Therefore, he concluded that it was difficult to see any exceptional or compelling circumstances in this case. In addition, as there had already been widespread publication of the identity of the father, the circumstances of the mother's death and the existence of G, the granting of the injunction would be an attempt to close the stable doors after the horse has bolted!

Therefore, the consequences on G's private and family life were considered far from sufficient to outweigh the substantial interference with the right of the press to freedom of speech.

Cases referred to in the Judgment:
Re: S [2004] UKHL 47
Re: W [2005] EWHC 1564 (Fam)

Read the full text of the judgment here