To publish or not to publish? – Applications in relation to publication of care proceedings

The recent case of Re A and B (children) [2018] EWHC 3491 (Fam) was a case heard in the High Court by the then President of the Family Division, Sir James Munby. It considered cross applications from a Local Authority (“LA”) and a journalist arising out of care proceedings brought by the LA which resulted in two care orders. The LA was applying for an injunction to prohibit reporting regarding these two children until their 18th birthday. The journalist was applying to the Court for documents to be disclosed and permission to report on the proceedings.

Background

On the 2nd May 2017, the journalist attended a hearing in the care proceedings where he made an application to the Her Honour Judge Black to report on the proceedings. The application was refused and Judge Black ordered for the journalist to return to the LA all court documents relating to the proceedings; and informed him to remove from the internet an article he had written about the proceedings. The journalist did not do so and in fact, posted a second article about the proceedings following this.

On the 4th May 2017, the LA made an application seeking an injunction to prohibit the journalist from publishing details, to immediately remove the article, to return all papers, inform the Court the identity of the person providing the papers/information and for permission to make committal applications. It was agreed at a hearing on the 8th May 2017 before Baker J, that the journalist would remove the articles (which he did), would not publish any information relating to the proceedings and would return all documents to the LA.

On 25th May 2017, the journalist applied for various orders, summarised as orders permitting the information relating to proceedings be provided, as well as the disclosure of papers for the purpose of writing a series of articles about the operation of proceedings, an order permitting publication of that series of articles and an order permitting any person with knowledge of the case or party to the case to share their knowledge and pass on papers. He listed the papers that he wished to receive which encompassed almost all the key documents in the case with no suggestion of any redaction, save for one document.

On 31st May 2017, an oral application by the journalist to attend the final hearing of the care proceedings was refused by Judge Black.

Initial Analysis

It was clear that the publication of both articles was contempt of court when applying Section 12(1)(a)(ii) of the Administration of Justice Act 1960. This section prohibits publication of information relating to any court sitting in private where proceedings are brought under the Children Act 1989. This includes, as set out in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, the publication of accounts of what has gone on and documents, as well as extracts and summaries of those documents.

Submissions to the Court

The LA submitted that the journalist cannot publish what he wishes without the permission of the Court and that the matter needed to be determined by reference to well-known principles. Further submissions were made about the impact on the children of the publication and the balance of the children’s Article 8 rights with that of the journalist’s under Articles 6 and 10. It was also suggested that there was no meaningful limitation on the amount of disclosure requested by the journalist and no suggested safeguards.

The Mother of the children and the children’s guardian supported the position of the LA whilst pointing out the journalist’s flagrant disregard for the children, the parents and the court, as well as the deep concerns surrounding the impact on the children and their wishes and feelings for there to be no publications.

The journalist submitted that there is a need for transparency in the family justice system and that publication of a judgment without the underlying documentation did not give full insight into the whole process; that he understood the Article 8 rights of the children; that the balancing of the rights should tip in favour of his Article 6 and 10 rights and that the children have little understanding of the application and so their wishes and feelings should be given limited weight.

The Father of the children aligned himself with the journalist.

Judgment

The Judge felt the balance “lies within quite a narrow compass” (para 26) but focussed on the journalist’s application first. In doing so, he rejected some of the submissions put forward by the LA, feeling that the matter came down to four factors of importance:

  1. The great extent of the documents and information sought access to and the nature (extremely personal) of the information contained within.
  2. The absence of any limitations of safeguards in relation to the use of the information and documents.
  3. The journalist’s previous behaviour in the publication of both articles in flagrant breach of Section 12 of the 1960 Act discussed above which gave little confidence that the journalist could be relied upon to act responsibly with the information.
  4. The compelling material describing the impact on the children and the child’s wishes and feelings.

In judgment, the Judge stated that the balance “comes down clearly and decisively against granting….the relief he seeks” (para 28). Stating that the public interest argument put forward by the journalist does not begin to counter-balance the combined effect of the factors listed above.

Turning to the injunction sought by the LA, the conclusion was also not to grant the order sought as it is not necessary to prohibit behaviour that the 1960 Act already prohibits. It was also important for the journalist, and others like him, to recognise that his actions were prohibited by that act and that any breaches were contempt of court – “whether or not there was any express injunction in place”.

The Judge also brought to the LA’s attention that, in any event, their injunction application was too wide as to grant that “any details of the children” should not be published. As this would, for example, prevent a stand-alone, positive story being published about the children.

Conclusion

This case rested on previous authorities and legislation, cited throughout the judgment, with the Judge suggesting that this gave enough protection for the children against would-be publishers, whilst still acknowledging and balancing the need for transparency.

The full judgment can be found here: http://www.bailii.org/ew/cases/EWHC/Fam/2018/3491.html

Specialist advice on injunction applications and care proceedings can be obtained from members of Becket Chambers – speak to the clerks for further information.

Cara Radford is a Pupil barrister in Becket Chamber, presently undertaking her first six pupillage.