Article on the family courts and how media reporting works when criminal cases involving children feature.
Family courts and reporting criminal cases involving children
Tags: Reporting, Reporting Restrictions, Media, Transparency, Children, Child Welfare, Criminal Cases
Section 97 of The Children Act 1989 prohibits the publication of material which identifies, or is likely to identify, a child involved in proceedings in which any power under the Children Act 1989, or the Adoption and Children Act 2002, may be exercised. Similarly under rule 92 of the Court of Protection Rules 2007, persons receiving medical treatment, who are unable to look after their own affairs and are under the auspices of the Court of Protection are also protected against being identified. This translates for practical purposes into anonymity around any reporting of cases in which they are involved.
Section 12 of the Administration of Justice Act 1960, prohibits publication of information about proceedings in private which relate to the High Court’s exercise of the inherent jurisdiction, are under the Children Act 1989, the Adoption and Children Act 2002 or relate wholly or mainly to the maintenance or upbringing of a minor.
In March 2005, the then President of the Family Division, Dame Elizabeth Butler-Sloss, handed down a Practice Direction setting out new guidance on applications for reporting restriction orders in the Family Division that affect national media organisations. Full details of the Practice Direction are reported at  2 FLR 120. and the Practice Note is reported at  2 FLR 111.The Practice Direction requires that notice of an intention to apply for an anonymity order (which will by its nature impact on the media’s Article 10 ECHR rights) should be given to the media via the Press Association’s Injunctions Alerts Service. The Practice Direction also sets out the process that should be followed and the information that should be provided, as well as the form of any order. This process is now also being used in the Court of Protection.
The Press Association Alert Service can be used by applicants seeking injunctions or reporting restriction orders in three circumstances:
1: To notify the media of an application for an injunction from the Family Division to protect the privacy of a child or patient or restrict publication of information about specified individuals.
2: To notify the media of applications in the Family Division for orders giving anonymity to people such as social workers or medical experts and other witnesses when parties to proceedings seek the publication of the judgments. (see the guidance from by Mr Justice Munby (March 2007) in In the matter of William Ward – BBC v (1) Cafcass Legal, Cambridgeshire County Council, Victoria Ward, Jake Ward, William Ward, acting by his children’s guardian Carol Clements, Cambridge University Hospital NHS Foundation Trust, Cambridgeshire Constabulary, Doctor A, Doctor B ( EWHC 616 (Fam)).
3: To notify the media of an intention to apply for an order to exclude journalists from the entirety of proceedings in the family courts, (see the judgment (July 2009) in Re X (A Child) (Residence and Contact) ( EWHC 1728 (Fam)).
The Alerts service cannot be used to serve injunctions or orders that have already been obtained. Such orders must be served directly on any organisations that are intended to be bound by them. Where an application for any of these sorts of orders is being made, applicants are expected to have filled out a prescribed checklist.
The Court of Appeal has held that, properly construed, s.97 of the 1989 Act only prevented the identification of children involved in 1989 Act proceedings while the proceedings continue, and that such prohibition ends when the proceedings are concluded: Clayton v Clayton  Fam 83;  EMLR 3;  1 FLR 11.
Generally any orders made under section 97 are specifically limited in three important ways: (i) there is a provision that states that any anonymity is only to be imposed if publication of the name / details would be likely to lead to the identification of that individual as a child who was subject to care proceedings (or, as the case may be, an individual receiving treatment]: this prevents inadvertent references to the child – for example if they were involved in an accident and their name was reported – from breaching an order; (ii) nothing prevents the publication of information which is already in the public domain; and (iii) nothing prevents the reporting of anything occurring in an open court hearing.
There is a strong presumption at common law in favour of open justice. Open justice is “a principle at the heart of our system of justice and vital to the rule of law” (see R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court and the Government of the USA  EWCA Civ 420 per Toulson LJ [§1]. This strong presumption can only be rebutted in exceptional circumstances (where there is a pressing social need requiring its restriction and, even then, the restriction must be proportionate). There must be “anxious scrutiny” of the legal and evidential basis for such requests. The open justice principle is regarded as integral to protecting the rights of those involved and essential to maintaining public confidence in the administration of justice.
In ex parte Kaim Todner  QB 966, at 977, Lord Woolf MR stated:
“The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
…Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary.”
In Scott v Scott  AC 417, the House of Lords recognized three exceptions to the principle of open justice, which justified hearings being held “in camera” Two of the exceptions were wardship cases and cases dealing with the affairs of those suffering from mental incapacity. Statutory provisions have expanded the scope of the derogations from open justice. In addition to the specific class of cases involving children and cases of mental incapacity, ancillary relief proceedings, in which the parties’ financial affairs are scrutinised, are also considered to concern private matters.
Most applications in the Family Proceedings Court, the County Court and the Family Division are heard “in private”, [Family Procedure Rules 2010 r.27.10 provides for hearings under those rules to be in private unless any enactment provides otherwise or the court directs otherwise]. The Family Procedure Rules 2010, in force from 6 April 2011, have adopted the terminology of “in private” [the previous rules referred to hearings taking place “in chambers”]. Members of the public are not permitted to attend hearings held “in private”. Duly accredited members of the media are entitled to attend hearings of family proceedings held in private in the Family Division, the County Court and Family Proceedings Courts, subject to the power to exclude them on specified grounds. A media representative is accredited if s/he carries a press card issued by the UK Press Card Authority. Section 12 (4) of the Human Rights Act 1998 provides that:
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.
There is no dispute that, in an appropriate case, the High Court has the power to make a reporting restrictions order, however,the protections provided by section 97 can cause conflict where there is a criminal act alleged which involves children, their parents, or siblings as defendants or as witnesses and there will be a criminal trial, which will take place in open court. A criminal trial is a public event. The principle of open justice ensures that trials are properly conducted. It is a valuable check on the criminal process. It promotes the values of the rule of law. 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: In re Trinity Mirror  QB 770 [§32]. It will only be in the most exceptional circumstances that it would be appropriate to grant an order prohibiting the publication of the identity of an adult defendant in criminal proceedings: In re Trinity Mirror  QB 770 [§33]. A defendant in a criminal trial must be named save in rare circumstances: R v. Marines A, B, C, D, E  EWCA Crim 2367, per Lord Thomas LCJ [§84]. As open justice is so important a principle, an order that a defendant should be not identified will not be necessary if some other measure is available to protect the privacy rights of the individuals, and that other measure would be proportionate: [§88].
In Re Trinity Mirror, Lord Judge LCJ said [§32-33]:
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, where restrictions on this principle are considered appropriate, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.
33. It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence. ….. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.
There is a power under section 39 of the Children and Young Persons Act 1933, to prohibit publication of certain matter in newspapers and broadcasts in relation to any proceedings in any court, so that a court may direct that — (a) no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein; (b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court.
Under Article 6 European Convention of Human Rights and at common law, the press is presumptively entitled to report in full proceedings held in open court. This is reflected in section 4 (1) Contempt of Court Act: “(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.“ This means that if a person is referred to by name in any criminal court proceedings, the name can be reported. Any displacement of that presumption means that there is a derogation from that open justice principle and can only occur in unusual or exceptional circumstances. As Peter Jackson J observed in A Local Authority v M and Others  EWHC 2038 (Fam) at paragraph 27:
“a conclusion that the Article 8 rights of individuals should prevail over the Article 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, though not beyond contemplation”.
The mother had adopted three children, A, B and C, from different countries. She had then purchased donor sperm and made A impregnate herself in order that she might have a child which the mother could bring up as her own. A became pregnant and miscarried at the age of 14. She then became pregnant at the age of 16 and gave birth to a baby boy. The mother’s behaviour in hospital caused concern to the midwives at the hospital, who alerted social services. Criminal charges were brought against the mother. The Judge, Peter Jackson J had to balance the interests and rights of the children under Article 8 ECHR and the freedom of expression under Article 10 ECHR. Peter Jackson J granted a RRO restricting the reporting of the criminal trial of the mother.
The jurisdiction of the High Court under the Human Rights Act 1998 to make injunctions/reporting restriction orders against the media as a whole in order to protect a person’s human rights and to suppress reporting of criminal trials was considered in In re S (A Child) (Identification: Restrictions on Publication)  1 AC 593. The right asserted against the press (relying on Article 10) is usually the Article 8 privacy right. There must be an intense focus on the comparative importance of the specific rights being claimed in the individual case [§17]. This requires consideration of evidence as to the impact of the media reporting in issue on the person asserting the Article 8 right. If such an order is made it must be a proportionate interference with the right of the media to report under Article 10. This means that the order must restrict the Article 10 right no more than is strictly necessary in pursuit of the aim of protecting against the harm under Article 8 identified by the court. It must be carefully crafted to address the case under Article 8 but should not catch any other reporting. There is no evidence before the court to enable it to carry out this exercise. But the order as presently formulated is plainly, as indicated above, disproportionate. The media could not report for example, without anything more, that JC and RT are claimants in this Administrative Court case. To report this would not prejudge the substantive issues in the claim or identify the Cs in the way prohibited for children and young persons by s.39 (ie as concerned in particular criminal proceedings).
In Re S, S’s mother was accused of murdering his brother by salt poisoning. An order was sought based around protecting the interests of S which would have prevented the mother being named or identified during the criminal trial. The child’s guardian argued that publicity would have a seriously detrimental effect on S’s welfare. This was supported by a psychiatric report which said that the stress of the publicity and attention would significantly increase the possibility of S developing a psychiatric disorder. Hedley J permitted identification of the mother and the deceased brother and the publication of photographs of them. The subsequent appeals to the Court of Appeal and the House of Lords were both dismissed. In the House of Lords, Lord Steyn summarised the Strasbourg jurisprudence in this area at Paragraph  and concluded:-
“These statements by the European Court of Human Rights reveal that under the ECHR there is a general and strong rule in favour of unrestrained publicity of any proceedings in a criminal trial”.
Lord Steyn listed four propositions (from Campbell v MGN Ltd  2 WLR 1232 ) [§17]:-
(a) Neither Article 8 nor Article 10 has as such precedence over the other;
(b) 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;
(c) Thirdly, the justifications for interfering with or restricting each right must be taken into account;
(d) Finally, the proportionality test must be applied to each. For convenience, he calls this the ultimate balancing test.
He said [§18] that:-
“..the ordinary rule is that the press, as the watchdog of the public may report everything that takes place in a criminal trial. I would add that in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is not however a mechanical rule. 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.”
He concluded [§24–27] that:-
“The interference with article 8 rights, however distressing for the child, is not of the same order when compared with cases of juveniles who are directly involved with criminal trials”.
The issue was further considered by the then President, Sir Mark Potter in Re W (Children) (Identification: Restrictions on Publication),  EWHC 1564 where an order was made that did prevent the publication of the identity (including photographs) of a mother who had pleaded guilty to infecting the children’s father with HIV. The President said [§53] that the starting point was presumptive parity of Article 8 and Article 10:-
“…neither article has precedence over or “trumps” the other…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…However, nowhere did he indicate that the weight to be accorded to the right freely to report criminal proceedings would invariably be determinative of the outcome. Indeed, although he acknowledged that it was the “ordinary” rule that the press, as public watchdog, may report everything that takes place in a criminal court, that rule might nonetheless be displaced in unusual or exceptional circumstances”.
In Re W there was clear evidence of the serious consequences to the children if the facts became known in the community. The mother had been driven out of her home by abuse and harassment when it became known that she was HIV positive. There was concern that publicity would lead to general outcry at the children’s nursery and that other families would either refuse to use the facilities or intimidate the family until they were prevented from attending themselves.
This issue was further considered by the now President, Sir James Munby in Re P (A child)  EWHC 4048 (Fam). He said [§26] that:
“it is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information, which it is entitled to publish. Second, that comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts [but the] fear of such criticism, however justified that fear may be, and however unjustified the criticism is…not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms…or even in language which is crude, insulting and vulgar.”
He said that the court should treat the interests of the child, although not paramount, as a primary consideration.
There have been two more cases recently where the issues surrounding reporting restrictions which would prevent the naming of a defendant in a criminal trial have been considered.
In City and Council of Swansea v XZ and YZ and others [http://www.bailii.org/ew/cases/EWHC/Fam/2014/212.html] the defendant was a mother with children. She was originally charged with two counts, namely the murder of her baby daughter, and grievous bodily harm with intent against a second baby. Subsequently, she pleaded guilty to the infanticide of AZ and the wounding of BZ. An order had been made in the High Court which prevented the naming of the mother during the criminal trial. The Local Authority applied to extend that order after the conclusion of the trial. The media opposed that application. Initially the media sought to challenge the order in its entirety, but after seeing the evidence, the media did not oppose the continuation of the anonymity order on the mother, but sought to be permitted to report more factual background about the mother’s circumstances. Mr Justice Moor made it clear that “in any case where a Reporting Restriction Order is applied for, the Applicant should immediately serve all evidence on which it relies on any media organisation that requests it, provided the organisation has been served with notice of the application either directly or through Copy Direct. It is not necessary for the organisation to intervene formally to obtain the documents …. The media is, of course, subject to the normal requirements for confidentiality. It follows that there is no need to obtain permission to let them see those documents.”
Having considered the evidence and the parties submissions, including statistics relating to persons from the country concerned living in the Swansea area, Mr Justice Moor was satisfied that there should be no reference to the family’s origin. He also considered the statistics in relation to the families’ religions and concluded that permitting disclosure of the mother’s religious faith would also be likely to lead to identification of the children. He also refused to permit the publication of the exact number of children in the family because he did not believe there were likely to be many families in the Swansea area in that category and certainly not where they live. He did allow reporting of the fact that the parents were separated, that there was more than one surviving sibling and that they see their mother, and that since the institution of care proceedings, her care of them when with her has, at all times, been exemplary. Additionally the media were reported to permit that the mother came from the Swansea area, that the Local Authority is the City and County of Swansea, that the police authority was South Wales Police.
In the case of Jerome Ellis,
Mr Justice Keehan lifted an order, which had prevented the media from identifying 14-year-old Jerome Ellis (“JE”), who was on trial at Guildford Crown Court accused together with his older brother Joshua, of murdering his 54-year-old stepfather, Neil Tulley. Although there was initially an Order under section 39 of the Children and Young Persons Act 1933 preventing the naming of Jerome, that was lifted before the murder trial started. Reporting of the prosecution opening included the names of both brothers and their parents. Surrey County Council applied for a reporting restriction which would have in effect prevented the reporting of the fact that Jerome Ellis was a defendant in the criminal trial. The judge also ruled that journalists could name Jerome’s parents. Mr Justice Keehan said he would give reasons for his decision at a later date, and subsequently did so in his judgment, Surrey CC v ME and others, published on 4th March, 2014  EWHC 489 (Fam).
The Judge emphasised that [§25] there must be cogent evidence to support any concerns that are advanced: “There comes a point, however, where evidence is not merely speculative but is pure speculation, even from experienced professionals, with no sound or cogent underlying evidential basis. Given the Draconian and wide ranging nature of RROs, I am of the view that the latter evidence will not be sufficient or adequate to provide an evidential basis to establish the “absolute necessity” for the making of an order nor to establish that the facts of the case are truly “exceptional”.
One of the matters relied upon by the local authority was the impact of publicity on one of the other children GE, who was 16. The Judge was not satisfied that the distress and upset alleged was sufficient to justify the making of restricted reporting order, as there had already been considerable publicity about the matter and held that he was [§51-5] “not persuaded on the evidence that there is a real risk that the reporting of the trial will lead to the breakdown of his placement. I am not satisfied that there is a real risk the reporting of the trial or the absence of a RRO will lead to the identification of GE in the print or broadcast media or on the internet. The publicity to date has not done so. 52. There is no evidence that such publicity as there has been to date has caused harm to GE. The local authority’s evidence, at its highest is that over the last weekend GE became distressed as a result of recent publicity but no more.”
Having considered all the evidence and arguments, he concluded that the facts of the case, while they were “unusual and sensational” were not exceptional and were “far from sufficient to outweigh the plain and substantial interference with the right of [media organisations]” to identify JE and the parents and to report the current criminal proceedings. He was therefore [§62]“not satisfied that the Article 8 rights of JE should prevail over the Article 10 rights of the media. I am satisfied that such an outcome would not be proportionate.” He also decided against making a limited order to prevent the naming of the other children, giving 7 reasons for this [see §71].
The authorities also make clear that applications to restrict reporting of criminal proceedings should be approached in a structured way. The court should approach the making of such an order in a similar way to the three stage test set out by the Court of Appeal in Ex p Telegraph  1 WLR 1983 [§22].
Gill Phillips, Director of Editorial Legal Services, Guardian News & Media Limited
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