Re A (A Child) (Application for Reporting Restrictions)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Date | 2011 |
| Court | Family Division |
Private and family life – Freedom of expression – Reporting restrictions – Police questioning mother on suspicion of murdering child’s two siblings – Mother being released on bail and detained in psychiatric unit for period – Psychological report indicating that prolonged pressure from media could put mother at risk of self-harm – Interim care order being made and child being placed with foster carers – Local authority successfully applying for reporting restrictions – Order being extended and media seeking reversal of amendments – Whether publication of identity of mother and child breaching right to respect for private and family life – Whether mother’s right to fair trial potentially infringed – Appropriate form of order – Human Rights Act 1998, Sch 1, Pt I, arts 6, 8, 10.
The mother, who suffered from ongoing psychiatric and psychological problems, had had extensive dealings with social services for most of her life. She had three children, B, born in 2006, J, born in 2008, and A born in 2010. F was the father of J and A, he and the mother having met in a psychiatric unit. When he was around a year old, B, whose father had no involvement with the family, was placed with his maternal grandmother under a residence order. Thereafter, he still had regular contact with the mother and, when they were born, his half-siblings, who were placed on the child protection register in the category of neglect and made the subject of child protection plans. In the first few days of 2011, J was taken to hospital on two occasions. On a subsequent date in January, he was taken to hospital by ambulance in a lifeless condition and pronounced dead shortly after arrival. A remained living with her mother, subject to the child protection plan. In April, B collapsed at the grandmother’s home whilst in the care of the mother, dying in hospital three days later. A preliminary post-mortem failed to determine the cause of his death and further detailed pathological investigations were commissioned. The mother was arrested on suspicion of B’s murder and, after her release on bail, was detained in a psychiatric unit due to concern that she would harm herself. An emergency protection order was made in respect of A, who was placed in the care of foster parents living in the same town as the mother and grandmother. The local authority commenced care proceedings, which were transferred immediately to the county court and then the High Court. A was placed under an interim care order. Upon being discharged from the psychiatric unit, the mother moved
into sheltered accommodation. By early May 2011, both national and local newspapers had become interested in the case, prompting the local authority to apply for reporting restrictions. In support of its application, the allocated social worker filed a statement stating, inter alia, that the publishing of any information which could identify A, her location, the fact of the care proceedings or details pertaining thereto would be detrimental to A’s welfare. A psychological report indicated that, in addition to cognitive problems, the mother suffered from a significant depressive disorder which adversely affected her ability to interact or communicate with people, and that prolonged pressure from the media would put her at risk of self-harm. On 20 May, an order was made which prohibited the publishing or broadcasting of (a) the name and address of A, her carers, any individual having day-to-day care of or medical responsibility for her, and any residential home or hospital or other establishment at which she was residing or being treated; (b) any picture of A, a carer or any such establishment; and (c) any other particulars or information relating to A. The order was, however, subject to the qualification that such publication was prohibited ‘IF BUT ONLY IF [it] [was] likely to lead to the identification of the child as being the child of [the mother or father]’. It also included a proviso to the effect that it did not prevent the publication of information relating to a public court hearing, or information that was already in the public domain. The order, which was expressed as lasting for seven days, was later extended to prevent the publication of the names and addresses of, inter alia, the parents and the maternal grandmother. An article appeared in The Sun newspaper which did not name or refer to A in any way, but referred to the mother’s name and age, the maternal grandmother’s name and made assertions about the mother’s care of the children. The following morning, a local newspaper published a more extensive article which included further details of the case. Following the report, the press were said to have made further attempts to contact family members and to have taken photographs at the mother’s flat. The mother’s legal representatives sought an extension of the order and, on 24 May, the judge deleted the ‘if but only if’ qualification, the effect of which was to prohibit the publication of the names of A, her parents and the maternal grandmother without qualification. Further amendments were made, including the addition of a prohibition on publishing the surname of J and B, but the public domain provision remained in place. At a hearing a few days later, the media sought a reversal of the amendments. Adjourning the matter to a later date, the judge directed that the order of 24 May should continue in the interim, apart from the public domain provision, which he deleted on the basis that its retention undermined the intention behind the order, namely to prevent any naming of the parents. The mother argued that the amended order ought to be retained so as to prevent identification of herself as well as A. She contended that the rights of A, herself and other family members under art 8 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) had been engaged by the publication of information about her, the state of the family home, the care of the children and the circumstances of the deaths; the publication of such information was a considerable interference with the art 8 rights of both A and her mother. The naming of the mother was, she contended, likely to lead to the identification of A as her daughter. She also submitted that her right to a fair trial under art 6 of the Convention was engaged and in danger of being infringed because her poor mental state, attributable in part to the press reports, was likely to have an adverse effect on her ability to participate in court proceedings concerning A. The media did not object to the court reverting back to the order of 20 May, conceding that in A’s case the balance came down in favour of protecting her art 8 rights.
Held – (1) When conducting the balancing exercise between arts 8 and 10 of the Convention, it was necessary to apply the following well-known propositions: (i) neither article had, as such, precedence over the other; (ii) where the values under the two articles were in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case was necessary; (iii) the justifications for interfering with or restricting each right had to be taken into account; and (iv) the proportionality test had to be applied to each. In the instant case, the publication of the articles in The Sun and the local paper was a clear interference with the family’s art 8 rights. It was manifestly obvious that, in circumstances where two children had died, there was a right to respect for private and family life. Furthermore, the lifestyle within the household and the circumstances in which the children were brought up were clearly aspects of family life which, in most cases, were kept shielded from the public gaze. On the other hand, it was in the public interest for police investigations of serious crime to be fully reported provided that such reports kept within the law, including the law of contempt of court. There were several reasons for permitting such reporting. First, in general terms, crime was a disfiguring feature in society which needed to be exposed to public view so that society as a whole could address the many issues it raised. Secondly, the suspicious death of a child was a particular issue of public importance which warranted appropriate scrutiny in the media. Thirdly, during the course of a difficult and important criminal investigation, the police needed all the help they could get; the publication of reports of the investigation might trigger memories amongst readers or viewers and lead witnesses to come forward. Fourthly, it was in the public interest for there to be publicity about cases when children who were known to social services sustained significant harm. The performance and efficiency of public services was a matter of fundamental public interest. It was therefore in the public interest for the press to be allowed to report that a woman had been arrested on suspicion of killing her two children, who were at the time known to social services. The question was whether the freedom to report such matters was outweighed in the balancing exercise. In A’s case, the balance came down in
favour of protecting her art 8 rights, as recognised by the media parties. Her rights were particularly acute; she had been taken from her family in the most tragic circumstances. The mother’s art 8 rights were also acutely engaged, her mental frailty being an aspect of her private life which had to be given appropriate respect. However, those rights were outweighed by the importance of the media’s freedom of expression. In other words, the interference with her art 8 rights was necessary in a democratic society in the interests of the prevention of crime and for the protection of the rights and freedoms of others. Her submission that her art 6 rights might be infringed added nothing to the balancing...
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