A Council v M and Others (No 3)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson:,M,C,A,B |
| Judgment Date | 20 July 2012 |
| Neutral Citation | [2012] EWHC 2038 (Fam) |
| Date | 20 July 2012 |
| Court | Family Division |
[2012] EWHC 2038 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Peter Jackson
and
and
and
Ms Mary Lazarus for the Local Authority
Ms Carol McMillan for the mother (M)
Ms Sally Bradley for the father (F)
Mr Anthony Jerman for the eldest child (A)
Ms Maria Hancock for the second child (B)
Mr Martin Downs for the Children's Guardian for B and the third child (C)
Ms Janet Oganah for the Children's Guardian for the fourth child (D)
Ms Caoilfhionn Gallagher made written submissions on behalf of the media organisations
The names of solicitors are omitted in the interests of confidentiality
Hearing date: 16 July 2012
Judgment date: 20 July 2012
JUDGMENT 3 (reporting restrictions)
NOTE ON REPORTING RESTRICTIONS
This judgment is the third in a series of four. It was handed down to the parties on 20 July 2012 but was not made public to protect the children concerned and because of the pending criminal trial. It is now handed down publicly in an anonymised form, together with the first and second judgments, so that the matter can be reported, but without identifying the family. The fourth judgment, which will deal with the question of the legal status of the child C, will be published in due course.
Reporting restriction orders were made on 21 February 2012, 17 May 2102 and 17 July 2012. The last of these remains in force and prevents publication of
(a) the names and address of any of
The full text of the order is attached to this judgment.
April 2013
This is an application for a reporting restriction order ('RRO') preventing the identification of the members of a family in connection with matters which are the subject of care proceedings and criminal proceedings.
The application for the RRO is broadly supported by the parties to the care proceedings. It is opposed by three national media organisations: Guardian News & Media Ltd. (publishers of The Guardian and The Observer), Associated Newspapers Ltd. (publishers of The Daily Mail, The Mail on Sunday, and Metro) and Times Newspapers Ltd. (publishers of The Times and The Sunday Times).
The contentious issue is not whether a RRO should be made, but what its scope should be, and in particular whether it should exceptionally prevent the naming of the defendant in criminal proceedings.
The family members are
M the adoptive mother of three children from abroad
F the adoptive father of the two older children, long separated from M, and now living abroad
A a girl aged 18, living with her baby D in a foster home
B a girl aged 17, living with M
C a girl aged 7, living in a different foster home
D the son of A, aged 1
The children are known by M's surname, which is similar to F's. M and B's home and the foster homes are in the same county.
Background
Care proceedings in relation to the four children (A then being 17) began in August 2011, immediately after the birth of D.
On 21 February 2012, I made a reporting restriction order preventing the public identification of family members. In accordance with FPR 2010 PD 12I, the order broadly followed the standard form of order annexed to the Practice Note: Applications for Reporting Restriction Orders (18 March 2005).
In March 2012, a fact-finding hearing concluded, at which the local authority established that M had been the perpetrator of serious abuse. In a judgment given at the time I found that:
a. M had made A impregnate herself with donor sperm purchased by M from abroad in order that A should bear a child for M to bring up as her own. The programme, which took place with B's knowledge and participation, began when A was aged 14 and B aged 12. A became pregnant at the age of 14, but miscarried. At the age of 16 she again became pregnant, and D was born in 2011. When M tried to take over the care of D at hospital, her behaviour alerted the midwives, who brought in social services. A then revealed what had been going on to a family friend. She and D were placed together in foster care. B and C were removed from home. B has since returned to live with M, but C remains in foster care.
b. M had mistreated C in a number of ways, amounting to cruelty.
c. M had ruthlessly excluded F from the children's lives for a decade. He only re-established contact with the older two children after the proceedings began.
d. The children lived an isolated life with M, having no other relatives, and a social life controlled by M's interests of the moment. They were educated at home.
M denied the local authority's allegations. In particular, she claimed that A had become pregnant as a result of sexual activity of which M was unaware, or that A must have got hold of sperm that M had bought for her own use and inseminated herself without M's knowledge. M's stance meant that A had to give evidence, during which she was accused of being a fabricator and a fantasist by her mother.
Following the fact-finding hearing, M was charged with five offences of child cruelty. She has now been committed to the Crown Court for trial, and her first appearance there will be early next month.
The criminal charges are:
(1–3) offences relating to the insemination of A
(4) an offence of leaving C, aged 4, in the care of A, then aged 15, while she and B went on holiday abroad
(5) an offence of cruelty relating to the mistreatment of C
M says that she intends to plead guilty to counts 2, 3 and 4. She denies mistreatment of C.
It is not clear whether M's plea will be accepted. Although she now admits that her previous accounts were untruthful, her basis of plea is at variance with the facts found by this court. In particular, she continues to assert that she herself was trying to become pregnant and will apparently say that the insemination was A's idea, and that her offence was to go along with it.
Proof of the allegations rested on A's evidence, which I accepted. It is not presently clear whether A will have to give evidence again in the criminal proceedings.
On 17 May, following the charging of M, I amended the reporting restriction order to prevent the naming of the family in any reporting of the criminal proceedings. I directed that this was to be reviewed at a further hearing at the end of the care proceedings in July. The exceptional and temporary nature of the order was emphasised in the body of the order.
The significant change from the February order was the omission of the conventional proviso exempting the reporting of proceedings held in public, which read:
"publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;"
It is the removal of this proviso that is particularly contentious. The media organizations object to what they describe as "the width and unprecedented nature of the Order sought." They say that it renders any story arising from the criminal proceedings "effectively unreportable".
Lastly, in the care proceedings, final orders in relation to B and C were made this week. A final order will be made in relation to D in October.
The positions of the parties
As it happens, the original application for a RRO was brought by the local authority, while the application for a further order was made by A. The identity of the applicant is of no more than nominal significance.
The local authority, which has no history of seeking RROs and wishes to pursue the policy issues lying behind this case with vigour, seeks the fullest protection for the younger family members. In this it is supported by all other parties to the proceedings, including the Guardians for the three children. It is natural that these parties should take a broadly similar view, and, as ever, such unanimity reminds the court to look carefully at the arguments the other way.
These have been set out by Ms Caoilfhionn Gallagher in a comprehensive skeleton argument on behalf of the media organisatons. The thrust of her argument is that the order sought is too wide and too long, and in particular that the case for interfering with the right to report the criminal trial has not been made out. She also raises issues about procedural matters, but by the time of the hearing acknowledged that the media organisations had had the opportunity to consider the evidence on which the application was based.
For reasons of economy, the media organisations did not instruct Ms Gallagher to appear at the hearing. This inevitably limited the court's ability to test some of her submissions, and her ability to contribute to the framing of the order, which was nonetheless approached with her submissions well in mind.
The law
In the circumstances of this case, Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms 1950 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
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