Birmingham City Council v Safraz Riaz and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keehan |
| Judgment Date | 24 June 2015 |
| Neutral Citation | [2015] EWHC 1857 (Fam) |
| Docket Number | Case No: BM14P09068 BM14P09070 BM14P09071 BM14P09073 BM14P09074 |
| Court | Family Division |
| Date | 24 June 2015 |
[2015] EWHC 1857 (Fam)
The Honourable Mr Justice Keehan
Case No: BM14P09068
BM14P09069
BM14P09070
BM14P09071
BM14P09073
BM14P09074
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Lorna Meyer QC (instructed by Birmingham City Council) for the Applicant
Hearing dates: 22 June 2015
Introduction
AB, a 17 year old, young woman was sexually exploited by each of the ten respondents to these proceedings. There is a reporting restrictions order ('RRO') in force to protect her identity until she attains her majority in August of this year. The local authority, Birmingham City Council, applies for that RRO to be extended to afford AB anonymity for the rest of her life.
This judgment should be read with the judgment I gave in this matter on 15 December 2014: [2014] EWHC 4247 (Fam).
AB supports the making of a lifelong RRO in her favour. None of the respondents has made any representations on this issue. None attended court and none was represented.
The Press Association and Times Newspapers, represented by Mr Dodd, oppose the making of a RRO to extend beyond AB's 18 th birthday. Other members of the press and broadcast media were served with notice of this application but none made any written submissions nor were they represented at this hearing.
Law: Reporting Restriction Order
I refer to paragraphs 47 to 61 of my earlier judgment where I considered the law relating to the granting or refusal of applications for RROs. In determining this application I take account of each of the authorities set out in those paragraphs and I do not intend to repeat the same save where I consider it necessary to do so.
At this hearing I was referred to a number of additional statutory provisions and authorities.
On the facts of this case Articles 8 and 10 of the European Convention on Human rights and Fundamental Freedoms are engaged.
Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
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 o 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.
In the case of R (ota JC and RT) v The Central Criminal Court and others [2014] EWCA Civ 1777, the Court of Appeal considered whether the protection afforded by the provisions of s39 Children and Young Persons Act 1939 extended beyond a child or young person's 18 th birthday. The court unanimously concluded the answer was no. In the course of giving the lead judgment Laws LJ observed at paragraph 42:
"It is important to note that a judge asked to make a section 39 direction in the course of proceedings will in every case balance the competing forces of Article 8 and 10 but upon the section's conventional construction, which I favour, he will do so in a context limited by the fact that if he makes an order it will expire on the subject's 18 th birthday. If his order under section 39 is extended, subject to later revocation, for the life of the subject it means that the judge is being asked to give very great, it may be thought overriding, weight to Article 8. Moreover, the common law principle of open justice is no less important; and is likewise intruded upon by the argument of the appellants."
I was referred to the case of JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 by Ms Meyer QC, on behalf of the local authority, and by Mr Forbes, on behalf of AB. In that case the Court of Appeal said that it was appropriate to make an anonymity order in respect of the children and protected parties who were parties to civil proceedings for the purposes of settlement approval hearings held in public.
Giving the judgment of the court, Moore-Bick LJ said:
"17. The identities of the parties are an integral part of civil proceedings and the principle of open justice requires that they be available to anyone who may wish to attend the proceedings or who wishes to provide or receive a report of them. Inevitably, therefore, any order which prevents or restricts publication of a party's name or other information which may enable him to be identified involves a derogation from the principle of open justice and the right to freedom of expression. Whenever the court is asked to make an order of that kind, therefore, it is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required for that purpose. The approach is the same whether the question be viewed through the lens of the common law or that of the European Convention on Human Rights, in particular articles 6, 8 and 10. As to the latter, see In re Guardian News and Media Ltd [2010] UKSC 1, [ 2010 2 A.C. 697 at paragraphs 43–52. In JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 W.L.R. 1645 this court provided guidance on the manner in which applications for injunctions to prevent publication of private information should be approached. The case did not concern an application for approval of a settlement involving a child or protected party, but the making of an anonymity order in the context of an attempt to prevent publication of personal information. To that extent there are obvious differences between that case and the present, but in paragraph 21 of his judgment Lord Neuberger M.R. identified the following principles which are of general application and therefore of direct relevance to applications of the present kind:
(i) an order for anonymity should not be made simply because the parties consent to it;
(ii) the court should consider carefully whether some restriction on publication is necessary at all, and, if it is, whether adequate protection can be provided by a less extensive order than that which is sought;
(iii) if the application is made on the basis that publication would infringe the rights of the party himself or members of his family under article 8 of the Convention, it must consider whether there is sufficient general, public interest in publishing a report of the proceedings which identifies the party concerned to justify any resulting curtailment of his right and his family's right to respect for their private and family life."
He continued:
"26. In paragraph 13 of his judgment Tugendhat J. observed that advocates commonly address the question as simply one of balancing the demands of privacy and freedom of expression. He rejected that analysis, however, holding that the true question for decision is whether it is necessary for the court to grant a derogation from open justice and thus from the rights of the public at large. In our view he was right to do so and he was also right to hold that the absence of any objection from the defendant or the media does not relieve the court of the duty to consider whether a derogation from the principle of open justice is necessary.
29. Although, as we have indicated, we do not think that approval hearings lie outside the scope of the principle of open justice, we think there is force in the argument that in the pursuit of justice the court should be more willing to recognise a need to protect the interests of claimants who are children and protected parties, including their right and that of their families to respect for their privacy, in relation to such proceedings. Such a willingness is reflected both in the Family Procedure Rules and in the Court of Protection Rules. It might be thought that approval hearings, whether involving children or protected parties, are comparable in nature and deserve to be viewed in a similar light, although it has not been suggested that in general such hearings should be held in private. The function which the court discharges at an approval hearing is essentially one of a protective nature, as it was when it exercised the function of parens patriae on behalf of the Crown in relation to wards of court and lunatics....
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