Re W (Children) (Identification: Restrictions on publication)
| Jurisdiction | England & Wales |
| Judge | the President,THE PRESIDENT |
| Judgment Date | 14 July 2005 |
| Neutral Citation | [2005] EWHC 1564 (Fam) |
| Docket Number | Case No: NP 05 C 0017 |
| Court | Family Division |
| Date | 14 July 2005 |
[2005] EWHC 1564 (Fam)
The President
Case No: NP 05 C 0017
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Alison Ball QC (instructed) for the Applicant
Ian Peddie QC (instructed by The Guardian ad Litem) for the 3rd and 4th Respondents
Hearing date: 4 May 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in open court on 14 July 2005. It consists of 27 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Sir Mark Potter P.:
This is a reserved judgment following the hearing on 4 May 2005 of an application by a local authority ("the Council") to restrain publication of the identity of a defendant and her victim in a criminal trial in order to protect the privacy of children who are not involved in the trial but are the subject of care proceedings. This case raises, in substantially different circumstances, issues similar to those considered in the recent decision of the House of Lords in Re: S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1FLR 591.
The Council is concerned with the care of two children, T (a girl) born on 6 March 2002, now aged 3, and R (a boy) born 31 December 2004, now aged 6 months. Both children are the subject of care proceedings. R is the subject of an interim care order. At the date of the 4 May hearing he was placed with foster parents while his father and his paternal family were being assessed as potential carers for him. T was living with her maternal grandmother under a supervision order and a time limited residence order. An application was due to be heard on 6 May 2005 in the County Court for the removal of T from her maternal grandmother's home to foster care.
The mother, who is the first respondent, suffers from the HIV virus and is awaiting sentence having pleaded guilty to a charge under s.20 of the Offences Against the Person Act, which alleges that she knowingly infected the second respondent, who is the father of R, with that virus. T is the child of a man with whom the mother had an earlier relationship. The applicant seeks the renewal of an injunction the effect of which is to prohibit until further order any newspaper, programme service or any media broadcast including publication by the internet from revealing the names and addresses or publishing any photographic images of the mother or father in connection with the criminal proceedings and the names, addresses or details of nursery placements, names of any carers, or any other particulars likely or calculated to lead to the identification of the children or any photographic image of either of them.
The procedural history to date is that, on 20 April 2005, the county court judge, sitting as a judge of the Family Division, in the local Registry, granted an injunction to the above effect. She did so during the currency of care proceedings. However, the application to her was a free standing one invoking the inherent jurisdiction of the court. On the next day i.e. 21 April the mother was due to attend a committal hearing in the local Magistrates' Court. The order was made with the consent of all parties, no notice having been given to the press in accordance with the President's Direction of 18 March 2005 "Applications for Reporting Restrictions Orders". The order on its face made no provision for service of the order upon anyone other than the parties although it provided that
"Any person or organisation affected by this order shall have leave to apply or discharge or vary the same on two days notice."
It went on to provide for the filing of evidence, that all persons wishing to be heard on the injunction application should file a skeleton argument by 26 April, and that the matter would be further considered inter partes on 27 April 2005. The Council in fact served notice on the local newspaper. When the matter returned before the judge on 27 April 2005 the newspaper was not legally represented, although an editorial employee attended. However, the judge had before her and considered the written submissions of the Head of Legal Affairs of the owners, Newsquest, opposing the grant of the injunction. The judge renewed the injunction to 4pm on 28 April 2005, ordered service upon such newspapers and other organs of the media as the Council thought fit and transferred the matter to the High Court Family Division in London.
On 28 April 2005 the application was further adjourned by Singer J to 4 May 2005 so that further time could be given to those organs of the press, which had been served to respond to the application the injunction being continued by Singer J meanwhile. He also ordered service by the Council on the Press Association in accordance with paragraph 3 of the President's Direction dated 18 March 2005.
When the matter came before me on 4 May 2005 I was informed that a number of local newspapers in had been served, as well as the Press Association. No newspaper was present or represented. However, I had before me the written submissions of the Head of Legal Affairs of Newsquest which were before the judge and considered by her at the time of her renewal of the injunction on 27 April 2005.
The mother and father, as first and second respondents, were not present or represented. Nor was the third respondent, who is T's maternal grandmother. T and R were represented by the fourth respondent, their guardian, an officer of Cafcass. He is the author of a Children's Guardian Report, which was placed before me. I also considered the statement of Mr J, the Council's Service Manager for Children and Families in which he set out the position of the Council and the reasons for its application. I heard evidence from both the guardian and Mr J in elaboration of their statements. Finally, there was also a short statement from the mother.
That evidence established the following.
The mother is HIV positive. The court proceedings are likely to create considerable local (and possibly national) interest. A test upon T has established that she is not HIV positive. R, however, is too young to be reliably tested. Current medical advice indicates more than a possibility that R has been infected. However, he cannot be reliably tested at present or, probably, for up to a year.
The mother and children until recently lived on one of a small group of council estates, which are said together to form something of a self-contained community. What is local knowledge on one soon speeds to the others. The father lives on the same estate.
In December 2004, when it became known that the mother was HIV positive, she was forced to leave her council home due to abuse and harassment from neighbours in the form of name-calling and the throwing of missiles in her direction. The windows of her property were smashed. She has been moved to a neighbouring local authority some ten miles away from her community. For the purposes of contact with R, the mother has been transported to and fro at Council expense.
On 14 April 2005, T's maternal grandmother, with whom she was living, contacted T's guardian expressing concern that her own 12 year old daughter had been bullied at school and taunted with the word AIDS.
As at 4 May 2005, the position was as follows. T has been placed in a day nursery in another estate, well removed from the group to which I have referred, where there is no knowledge of her situation or the identity of the mother. She is happy there. There is a substantial level of ignorance locally about the nature, effect and communicability of the HIV virus and, according to the nursery staff, parents of children at the nursery (and in the community generally) are fiercely protective of their children and mistrustful of the local Social Services. It is the fear of the nursery staff, as well as the welfare officials of the council that, if publicity is given to the identity and HIV status of the mother or father and if (as is a likely consequence) knowledge that they are the parents of T or R spreads from the estate where they have lived to the wider community, it is also likely that such knowledge will be acquired and passed on by and between other parents of children at T's nursery. This will in turn give rise to a general assumption among the parents of HIV infection in the children and a general outcry at T's nursery.
It was the intention of the Council, if feasible, and following assessment, to place R with his father and the father's family if possible. The father presently enjoys anonymity in the criminal proceedings and it is the desire of the Council to preserve that position, if only for the sake of the children. If the father and his family were not assessed to be suitable carers, the Council considered that publicity as to the identity of the mother or the father in the absence of the order sought was likely to create difficulties in finding alternative carers. There was also grave concern on the part of the Council that potential foster carers, whose numbers are small, might themselves be put off taking a child who (whether accurately or otherwise)...
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