Bristol City Council v NGN Ltd and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2012 |
| Neutral Citation | [2012] EWHC 3748 (Fam) |
| Date | 2012 |
| Court | Family Division |
Care proceedings – Confidentiality – Reporting restrictions – Private and family life – Freedom of expression – Child being placed in interim foster care – Care and placement orders being made – At hearing new information emerging regarding child’s treatment whilst in foster care – Justices of Family Proceedings Court expressing criticism of local authority when giving reasons for care order – Biological father notifiying journalist of concerns and journalist attending latter part of hearing – Temporary reporting restriction order being made without notice to media – Local authority seeking reporting restriction order – Whether redacted version of justices’ facts and reasons should be published – Whether failure to give proper notice to media justified – Whether members of foster household should be mentioned or identified in any publication relating to proceedings – Whether names of social workers should be protected by reporting restriction order – Appropriate form of order – Human Rights Act 1998, Sch 1, Pt I, arts 8, 10.
In 2012, the applicant local authority successfully sought care and placement orders in relation to A, a five-year-old girl. Prior to the hearing, A had been placed with foster carers under a succession of interim care orders. Another foster child, S, was also present in the foster home, as were two other members of the household, R and T. At the hearing, it came to light that on 14 May 2012 the local authority had received information from the police suggesting that someone at the foster home had previously accessed child pornography. At a contact visit on the same day, A told her biological parents that R had grabbed her around the throat. A red mark was observed by the father and the contact supervisor. A returned to the foster home and her father contacted the police, who immediately contacted the social services emergency duty team. On 15 May, A’s social worker met A, but observed no injuries. A gave her an account of what had allegedly occurred, stating (a) that the alleged assault had occurred at 2 am; (b) that it had occurred upstairs in the foster home while the foster father was at work and the foster mother downstairs; (c) that T had been cuddling S at that time; and (d) that the alleged assault had been witnessed by both T and S. No medical examination was arranged. The social workers concluded that there was insufficient information to remove A from the foster home at that
stage. On 21 May, a strategy meeting was held at which it was agreed that the police would seize computers from the foster carers for forensic examination. It was decided that A would not be removed from the foster placement prior to such seizure unless there were any further concerns. On 28 May, the police and social services visited the foster carers, removed all computers from the house and moved A to another foster home. The following day, the foster father was found dead, having apparently committed suicide. In giving their written reasons for making a care order in respect of A, the justices of the Family Proceedings Court made a number of observations which were critical of the local authority and its handling of the matter, including their concern that the authority had known of the risks of sexual, physical and emotional harm to A on 14 May but had not taken protective action as it should have done. A’s father had notified a national newspaper of the concerns and a journalist attended the latter part of the hearing. Save where a court directed otherwise, care proceedings under Pt IV of the Children Act 1989 were held in private, pursuant to r 27.10(1) of the Family Procedure Rules 2010, SI 2010/2955. Rule 27.11, and Practice Directions 27B and 27C, gave duly accredited representatives of newsgathering and broadcasting organisations the right to be present in private care proceedings unless excluded by the court on certain limited grounds set out in the rule. The right to report such proceedings, however, was restricted by s 12 of the Administration of Justice Act 1960. In the instant case, the justices made an order that nothing should be published about the case until further order. On 10 October, prior to the making of the care order, the representatives of the parties to the care proceedings attended a hearing, without any notice being given to the media. A temporary reporting restriction order was made, prohibiting the publication of any report of the proceedings which revealed any particulars calculated to lead to the identification of A, any of the foster carers or members of their family, any social worker involved or the local authority itself. Extensive negotiations followed between the parties to the care proceedings and News Group Newspapers Ltd (NGN), the publishers of The Sun. They reached a broad measure of agreement that the court should be invited to authorise the publication of information relating to the care proceedings. Specifically, they agreed that the following information should be publishable: (i) a redacted version of the justices’ facts and reasons; (ii) certain information which NGN indicated that it wished to publish arising out of the proceedings; and (iii) a response from the local authority to the comments made by the justices in their facts and reasons and by NGN. Although there was a large measure of agreement as to what should be permitted under those broad headings, some items remained in dispute, including the extent to which the members of the foster household should be mentioned or identified in any publication or information relating to the proceedings; and whether the names of the social workers, specifically A’s key worker and her team manager, should be protected by the reporting restriction order. Consideration was given to, inter alia, arts 8 and 10 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998).
Held – (1) Before turning to those items in dispute, it was appropriate to make some observations about the matters over which there was agreement since it was ultimately for the court and not the parties to decide how the statutory restrictions under s 12 of the 1960 Act should be relaxed. It was important to note that the written facts and reasons produced by the Family Proceedings Court were not, strictly speaking, a judgment as produced by a professional judge. Nevertheless, they were an important record of findings made by the justices and an explanation of the reasons for making a care order. Where a Family Proceedings Court identified matters of general concern about the way in which a local authority had performed its statutory child protection duties, it was manifestly in the public interest for there to be wider dissemination of the justices’ concerns. Accordingly, the order to be made at the conclusion of the instant application would incorporate permission to disclose a redacted version of the justices’ facts and reasons. (see [21]–[22], below); Stray v Stray [1999] 2 FLR 610 considered.
(2) It was axiomatic that, save in exceptional circumstances, any application for a reporting restriction order should be made on notice to the media. In the instant case, there was no justification for the failure to give notice to the media prior to the hearing in the Family Proceedings Court. A representative of the national newspaper had actually been present at the court at the point when the parties’ representatives were appearing before the judge. At the very least, that reporter should have been informed of the proposed application so that he could have attended the hearing to make representations. In the circumstances, it was in the public interest for the newspaper’s publishers to be entitled to publish its account of the failure to give proper notice (see [23]–[24], below).
(3) The publication of information identifying the status or relationships of the other individuals present in the foster household would be an infringement of the rights of those individuals pursuant to art 8 of the Convention. That infringement was compounded by the fact that those individuals had been given no opportunity to respond to the allegations made against them in the course of the hearing before the Family Proceedings Court. It was, of course, very common for third parties to be mentioned in the course of court proceedings, but it was unusual for a court to make findings, even provisional findings, on allegations against persons who were neither present nor represented. Furthermore, given the very strong likelihood that the foster father would be identified in published reports of the inquest into his death, it was probable that, were the court to permit publication of the status and relationship of the other individuals involved in the alleged ‘assault’ and ‘cuddle’ incidents, albeit on an anonymised basis, the identity of those individuals would become known in due course, as a result of a process of ‘jigsaw’ identification after the
publication of reports of the inquest. Of course, the art 8 rights of those individuals had to be balanced against the art 10 rights to freedom of expression; it was in the public interest for the media to report the concerns expressed by the justices in their facts and reasons at the conclusion of the care proceedings. However, applying the necessary intense focus to that right of freedom of expression, and looking carefully at the concerns set out in the justices’ facts and reasons, the status and relationship of the individuals involved in the alleged ‘assault’ and ‘cuddle’ incidents were of marginal importance. The public interest was fully served by the those individuals being described as persons present in the foster household, without reference to their name, age, status, or relationship. Accordingly, the justices’ facts and reasons would be further redacted prior to publication to comply with that ruling (see [34]–[36], below).
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