Re W. (Wards) (Publication of Information)
| Jurisdiction | England & Wales |
| Judgment Date | 1989 |
| Date | 1989 |
| Year | 1989 |
| Court | Family Division |
SIR STEPHEN BROWN, P
Contempt of court – wardship proceedings – extent of statutory and common law prohibition of publication of wardship proceedings – no automatic prohibition on publishing identities of wards of court – power of court to order that identities of wards should not be published – need for order to be brought to the notice of publisher – general notice – need for publisher to make particular inquiry.
Contempt of court – standard of proof – criminal standard of proof to be applied.
Wardship – order prohibiting publication of identities of wards – order referring to serial number of case not naming the wards – material factor in determining whether publisher had knowledge of the order.
Wardship – publication of identities of wards contrary to express order – need for proof that publisher had notice of order or deliberately closed his eyes to the obvious.
Wardship – publication of identities of wards when the facts were already in the public domain – need to balance right of freedom of expression on a matter of public concern already in the public domain against need to preserve confidentiality of identities of wards.
In 1987 the Cleveland County Council commenced wardship proceedings following a diagnosis by a consultant paediatrician that two young girls had been sexually abused. Subsequently, a judicial inquiry was set up to inquire into child abuse in Cleveland. In July 1987 Hollis, J made an order granting leave to the Treasury Solicitor as solicitor to the judicial inquiry to inspect or copy all files in wardship or custody proceedings which were instituted in relation to alleged cases of sexual abuse in Cleveland and to bespeak transcripts of any oral evidence or judgment given in the course of such proceedings on the undertaking that these would not be produced or referred to in evidence save in the course of a private sitting and would not be disclosed or made available to others than counsel, solicitors and experts instructed on behalf of those granted legal representation before the inquiry and such other persons as the chairman of the inquiry might direct. At a preliminary session of the inquiry, the chairman referred to the order of Hollis, J and indicated the serious consequences of a breach of that order.
In November 1987 a hearing in the wardship proceedings in respect of the two girls took place. Following a television news item referring to some details of the case, the local authority obtained an injunction restraining the publication of any information relating to the wards in the case, which was referred to by the serial number of the wardship summons in question,
[1989] FCR 625 at 626
except for such information as to the arrangements for management of child abuse in Cleveland as was allowed by the chairman of the inquiry and except for fair and accurate reporting of public sittings of the inquiry so long as such reporting did not identify the wards.
On 8 February 1988, at an adjourned hearing of the wardship proceedings, a consent order was made whereby the children were to remain wards of court, that care and control was given to the parents, a supervision order was made, and there were orders relating to medical attention.
On 14 February 1988, The Mail on Sunday carried an article which identified the wards. On 15 February 1988 The Sun published an abridged version of The Mail on Sunday article which also identified the wards. On 17 February 1988 The Daily Mirror published a feature which identified one of the wards. On 19 February 1988 The Sun published a further article on the subject.
The local authority then issued notices of motion alleging contempt by the three newspapers, their editors, and the journalists involved, as the articles in question constituted publication of information relating to wardship proceedings held in private within the meaning of s 12(1)(a) of the Administration of Justice Act 1960 and were in breach of the injunction not to identify the wards.
Section 12 of the 1960 Act provides:
"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except ... (a) where the proceedings relate to the wardship ... of an infant ...
(2)... the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not in itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.
(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section."
At the end of the evidence for the local authority each of the respondents submitted that there was no case to answer on two main grounds. First, that the articles did not contain information relating to proceedings before a court relating to the wardship other than a summary of the order of the Judge, and that in the absence of an express order of the court it was not a contempt of court to identify the ward or the fact that wardship proceedings were taking place or had taken place or to publish the names and addresses of other parties to the proceedings or to publish the contents of or an accurate summary of the order made in the wardship proceedings or to publish events in the life of the ward which had taken place in public or were otherwise already in the public domain. Counsel acting as amicus curiae supported these contentions. Secondly, the respondents submitted that the local authority had not established to the degree of certainty required in contempt proceedings that they had notice of the injunction. Additionally, and quite separately The Daily Mirror submitted that the article complained of on 17 February 1988 amounted to no more than a comment on facts already in the public domain.
Held – (1) It was not a breach of the provisions of s 12 of the Administration of Justice Act 1960 or of the common law to publish the fact that the minor was a ward or that wardship proceedings were taking place or had taken place. What was prohibited by the statute and common law was the publication of details of the actual proceedings held in private. Therefore, the allegation of contempt based purely on the fact that wardship proceedings had been taking place in private and that the minors were wards of court could not be sustained against any of the three newspapers.
Re Martindale [1894] 3 Ch 193; Re De Beaujeu's application for a Writ of Attachment against
[1989] FCR 625 at 627
Cudlipp [1949] Ch 230; Re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58; Re X [1984] 1 WLR 1422; and Re L (A Ward) (Publication of Information) [1988] 1 All ER 418 followed.
(2) The injunction expressly prohibited publication of the identities of the wards. Therefore, prima facie, each of the newspapers had breached the terms of the injunction. A court hearing a wardship summons had jurisdiction to prohibit any publication of the identity of the ward: see Re X [1984] 1 WLR 1422. It would be impractical for there to be personal service on all those who might be minded to publish facts or matters in breach of such an injunction. In those circumstances, RSC Ord 45 r 7(6) and (7) might operate to relieve the applicant of the necessity of effecting personal service before endeavouring to enforce the order. The applicant must, however, establish that the injunction was brought to the notice of the respondents. The proper inference to be drawn from the evidence was that the making of the injunction and its terms were duly transmitted to the three newspapers and that there was a very strong inference the newspapers and their editors knew of it and either chose to ignore it or deliberately and recklessly avoided becoming aware of it through making the usual inquiries. A prima facie case of contempt had been established against The Mail on Sunday and The Sun newspapers and their respective editors. The submissions of no case to answer against the individual journalists would be upheld as they could not be fixed with "knowledge" of the injunction. So far as The Daily Mirror was concerned, the relevant article was comment on facts already well within the public domain. It was necessary to balance the right of freedom of expression on an issue of public concern already in the public domain against the need to preserve the confidentiality of the identities of the children. As their identities had already been widely revealed the submission of no case to answer in respect of The Daily Mirror, its editor, and the journalist involved, would be upheld.
(3) Although it was established that there was a case to answer by The Mail on Sunday and The Sun, and their editors, they had subsequently adduced evidence. It therefore fell to be decided whether the allegations of contempt made against them had been proved to the degree of certainty which was required for proof of contempt, namely the criminal standard of proof.
(4) In these cases it was a most material factor that the injunction itself did not specify the names of the wards. It merely referred to a serial number. That fact was significant when considering the question of knowledge. Evidence was given that notification of injunctions by courts to newspapers through the Press Association usually gave the names of the parties and forbade the publication of material of a confidential nature concerning named wards.
(5) The editor of The Mail on Sunday appreciated that he had to make particular inquiry into the status of the family whose children were named in relation to any injunction. Inquiries were made of the solicitor who acted for the family in the wardship proceedings. That solicitor had stated, in response to inquiries on behalf of the editor, that there was no injunction relating to the children of that family but that there was an injunction relating to the children of another family. Further...
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