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journalist’s right to private and family life with her source

A very interesting decision by the President sitting in the Court of Protection in Re G (an adult) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

 

This is the 3rd judgment in relation to this 94 year old woman in the last two months. I’m going to try here, not to get too far into the controversy (I’m sure the comments will descend into that, but let’s TRY to focus on the principles and issues in THIS judgment)

THIS judgment relates to the application by the Daily Mail news group (ALN) to be joined as a party to the Court of Protection proceedings, to have an input into the questions to be posed to the expert, and ultimately to have the chance to cross-examine everyone. That’s a unique application, and the reasoning behind the decision is therefore interesting.

We do need SOME historical context though, so we need to know that the decisions being made by the Court of Protection are controversial, that G is 95 and that C her live-in carer is very actively campaigning about the controversial decisions and unfairness, part of that campaign includes involving the Press (the ubiquituous Mr Booker, and this time Ms Reid of the  Mail on Sunday). G has talked to those journalists, and at times been very keen to tell her story, at other times it is said that she finds the press involvement intrusive.  The Press want to report on the injustice that G and C may have suffered, and want to report as much as possible. In the second judgment, Cobb J ruled that there were doubts about G’s capacity to talk to the Press and that there needed to be an assessment of that and in effect a cease-fire on the Press talking to G until it could be established whether she (a) had capacity to do that and (b) if not, would it be in her best interests to do so.

 

If you want to skip to the chorus, it is HEARING THREE heading

 

Hearing one

The first judgment, 26th February 2014   was decided by Russell J.  http://www.bailii.org/ew/cases/EWCOP/2014/485.html

That case was brought by the Local Authority, who had become concerned about the influence that C (the carer) was having over G, and particularly that G was being influenced to change her will to the benefit of C.  (These allegations are all disputed by G)

This is the judge’s summary

 

  • In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

 

 

 

  • The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

 

 

 

  • The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

 

 

 

  • All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

 

 

That judgment made reference to the press reporting of the case to that point, and that the press were present in Court

 

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

 

G had a degree of dementia. She was assessed by an Independent Social Worker  (underlining mine)

 

 

  • Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

 

 

 

  • On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

 

 

 

  • G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

 

 

There was also an expert, Dr Lowenstein, who reported.  Again, underlining mine for emphasis

 

 

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94″; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

[The Court of course, did not HAVE to consider Dr Lowenstein's evidence at all, since it had been obtained without leave of the Court, but they did so]

 

Russell J’s conclusions on G’s capacity were these

 

  • In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

 

 

 

  • The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

 

 

 

  • There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

 

 

 

  • I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

 

 

A request was made for an order that C not exercise any of her powers under the Lasting Power of Attorney to manage G’s affairs and finances, and the Court agreed with this.

 

[Everything that the Judge decided is very hotly contested by those lobbying on C's behalf, and indeed the journalists who have spoken to G, but the judgment was not appealed]

 

Hearing two

 

This was before Cobb J on 26th March 2014   http://www.bailii.org/ew/cases/EWCOP/2014/959.html

 

This hearing was particularly about whether G had the capacity to give interviews to journalists or be interviewed with a view to stories being reported.  G remained living in her own home, with C as her carer (the only real change from the previous hearing was that C was no longer in a position to manage G’s finances)

Cobb J begins by remarking that members of the Press are present and that they are welcomed. He does pass comment on the reporting of the Russell J decision

 

  • I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

 

 

 

 

  • Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.

 

Cobb J felt that the issue of whether G had capacity, and if not, whether it was in her best interests to talk to the Press required some specialised assessment and evidence

 

  • Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today’s application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

 

 

 

 

  • This approach was supported by the Official Solicitor in all respects.

 

 

 

 

  • Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

 

 

 

 

  • It is self-evident that the question of G’s capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority’s application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

 

 

 Having made the decision to get expert evidence from Dr Barker on those issues, the only issue remaining was what should happen in the interim – should the Press be talking to G, or should those legitimate journalistic desires to get the story be put on hold until the Court could decide whether G had capacity to make that decision for herself?

 

  • I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

 

 

 

 

  • There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

 

 

 

 

  • As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G’s best interests that I should make such an order.

 

 

 

 

  • On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was “happy” that the article written by Ms Reid had indeed been written: “… it let them know what they do to the elderly“.

 

 

 

 

  • Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life.

 

 

 

 

  • On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: “The newspaper trying to say I am crazy when I am not crazy…” She has gone on to say, when asked about the article in the Daily Mail: “I don’t know how happy I would be about that. I don’t want anybody from the press. They put what they like. They put in details that are not correct.” She also told me that she valued her privacy.

 

 

 

 

  • There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly “in the spider’s web … the fly cannot get out of the spider’s web“. She has confirmed elsewhere and to others that C is “the spider“.

 

 

 

 

  • There is a concern that while Ms Reid has indicated to me that she has made but one visit to G’s home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

 

 

 

She said reporters are always at her home or phoning her“.

 

That said, she added:

 

She said she wants people to know what is happening to her and that it has gone all around the world already.

 

And

 

I asked her if she remembered the name of anyone she had spoken to. She said she did not.

 

  • I bear in mind, when considering G’s best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

 

 

 

 

  • It seems to me that, weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2nd May.

 

 

  • I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form

 

 

 

Readers may also be interested in the paragraphs dealing with C taking G to protest at Parliament.

The other issue was that C was resistant to social workers visiting G

 

  • I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

 

 

 

were not in a position to act as a substitute for Social Services … she” [that is a representative PCSO from the Redbridge Neighbourhood Team] “…did not think they had the resources to commit to twice-weekly visits … the Neighbourhood Team did not want to get drawn into court proceedings but would agree to resume visits to [G's home] on an ad hoc basis … the team could not commit to a weekly visit but would ‘pop in every so often and have a chat with G for ten minutes’.”

 

 

  • For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G’s welfare within the home.

 

 

 

 

  • I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

 

 

Again, this is all hotly contested, but the judgment has not been appealed

 

Hearing Three

 

This one was before the President, on 1st May 2014  http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

Apologies in advance, some of this is going to have to get technical.

There were two issues raised

1. Was Ms Reid, journalist for the  Mail on Sunday, in any trouble?  And latterly, did she have an article 8 right to private and family life that allowed her to visit G and have a say in her life?

 

2. Should Associated Newspapers Limited ( the Mail) be joined as a party to the proceedings, as per their application, and could they have an input into the questions to be put to Dr Barker following Cobb J’s judgment above?

 

The first is thankfully pretty short. Cobb J of course said that until the next hearing when Dr Barker’s report was available, journalists should not interview G, that it was not in G’s interests to talk to the Press and that “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings … “

What happened, allegedly, after that judgment was given, was that Sue Reid from the Daily Mail spoke with G and in effect said that she was not allowed to interview her anymore, but would visit her as a friend. (I say alleged, because of course the Court has not made any findings or heard any evidence, and this assertion might be complete nonsense. One has to be fair.  All I can see is that from THIS judgment, the President does not say that the allegation is denied. It could well have been, but it just did not get recorded in the judgment. So it is an allegation only.

 

  • On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

 

 

“After the hearing Ms Reid was heard outside court telling G that as the judge had stopped Ms Reid contacting her, Ms Reid would have to make social visits to G instead. Clearly this would be completely inappropriate in view of the judgment of Cobb J. The court heard that Ms Reid has only met with G at her home on one occasion and we assume that this was for the purpose of publishing her article dated 20 February 2014. We are not sure why Ms Reid would seek to make social visits to G

We write to clarify that Ms Reid will not seek to circumvent the Order of Cobb J by making social visits to G. Please respond urgently confirming that Ms Reid will not attempt to visit G before this matter returns to Court on 2 May 2014.”

ANL replied on 3 April 2014. Its response prompted the Official Solicitor’s solicitors to write again on 8 April 2014:

“We write further to your letter dated 3 April 2014. The Official Solicitor remains concerned about your client’s proposed actions and note that you have not provided an assurance that Miss Reid will not seek to visit G before the matter is again before the Court on 2 May 2014. We refer you specifically to paragraph 40 of the Judgment of Mr Justice Cobb dated 26 March 2014.

We enclose a sealed copy of the Order of Mr Justice Cobb dated 26 March 2014. In view of this please can you confirm whether your client has made any social visits to G since the hearing on 26 March 2014 and whether she intends to make any visits in the future?”

In the interests of fairness, I shall report that whether those allegations were true or not did not trouble the President, since even if they were true, he didn’t think they raised any concern that should worry the Court.

  • As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

 

So there you go, whether Ms Reid had said this or not, it would have been fine if she had said it, and it would have been fine if she had in fact gone to visit G as a friend.  [I might myself have had a different view as to the true purpose of those visits, but what is sauce for the goose is sauce for the gander - the Judge has said it, nobody has appealed it, so the issue is settled]

 

On the secondary issue, whether Ms Reid had article 8 rights in relation to G

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

 

[In a case that is already peppered with D and G, and F and H, the Judge explained all of the article 8 issues by use of X andY, which makes it hard going. In effect what he says is that G can have an article 8 right that she wants to spend time with Sue Reid, but if G doesn't want to spend time with Sue Reid (or lacks capacity and the Court have to rule on her best interests) then Sue Reid doesn't have an article 8 right to access to G. It is more complex than that, I've reduced it to a manageable form because there are real people reading this blog]

 

The big stuff then – should ANL be made a party?  Having already dragged X and Y into the alphabet soup, we broaden out by introducing here S (the subject – here G) and J (the journalist, here Sue Reid).

  • Where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

 

 

 

  • The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.

 

  • But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

 

 

 

  • In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

 

 

“in a case such as this there are in principle three questions which have to be considered:

(i) Does Pamela lack capacity? If yes, then

(ii) Is it in Pamela’s best interests that the film not be broadcast? If yes, then

(iii) Do Pamela’s interests under Art 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Art 10.”

 

  • The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.

 

 

 

  • Assuming that S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

 

 

 

  • Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.

 

 

 

  • As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

 

 

 

  • Of course, the court’s best interests decision in relation to S is not necessarily determinative. If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought.

 

 

 

[That's very considered and dense stuff - basically the Judge is saying that people get party status to litigate if there is a conflict between them and the other parties that gives right to an argument that the Court has power to resolve and needs to resolve. There isn't that here.  ANL have legitimate interest in any application for Reporting Restriction Order or injunctions against them or their staff, but they don't have a legitimate interest in the argument between G, C and the Local Authority.  They might be interested IN IT, but that's not the same thing]

 

  • ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

 

 

 

  • In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

 

 

 

  • Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

 

 

 

  • The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person’s best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

 

 

 

  • Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. On the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another [2014] EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.

 

 

 

  • I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

 

 

 

  • In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

 

 

 

  • I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.

 

 

 

(I will conclude by saying that whilst I too think that the ANL application was misconcieved in law, I can see why in practice they made it.  IF their story is (and it pretty much is) that the Court of Protection is a wicked terrible body, interfering with people’s freedoms and ignoring what dear old G wants, then I can see why they think that the Court of Protection DECIDING whether G should talk to the Press is something of a conflict of interest.  Imagine for a moment that it had been Maria Miller’s decision and it had been solely up to her whether any of the Press were allowed to report her expenses scandal. As the ANL think that the expert is going to be set up to say “Don’t let G talk to the Press, it isn’t good for her” they wanted to have an input into what he was asked and to have the chance to cross-examine him if that’s what he said.  That somewhat ignores the fact that C is already a party and is able to have that input and cross-examine Dr Barker, but I can honestly see why the Mail made this application from an emotional and journalistic perspective.   They couldn’t have got a judge who was more keen on transparency and openness though, so if they couldn’t persuade the President, it was a hopeless application)

I will add that I think that Sue Reid genuinely believes that what is happening here is an outrage and a miscarriage of justice, and that she is reporting what C and G are saying to them with absolute sincerity.  It is absolutely right that she follow her journalistic instincts and that if there is something rotten in the State of Denmark that this be exposed.

 

 

 

 

Reporting Restriction Order – Swansea

 

The decision in Swansea v XZ and Another 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/212.html

It is rather strange, in this week where all judgments by Circuit Judges or above relating to children are to be published online following the President’s guidance, to also see a Reporting Restriction Order case; although the order makes a great deal of sense in the particular circumstances of the case.

In this one, a mother from the Swansea area faced criminal charges relating to the murder of one child and the wounding of another. The mother pleaded guilty to the criminal charges in November 2013.  The alleged offences happened in 2006 and 2007, although the criminal charges were brought many years later.

This was touched on by the Court here

On 27th September 2011, the police finally applied for disclosure of the case papers. I note that this was already nearly three years after the finding of fact hearing before Wood J. The case came before Charles J on 1st November 2011. Even at that stage, he said that there was, as far as he could see, “no reasonable justification” for the delay in applying which appeared to be “inexcusable.”

Between 2007 and the present day, care proceedings took place on the second child and subsequent children those proceedings seem to have taken place over many years, with what seems like several different sets of proceedings,  finally ending in 2013 with the family court deciding that all of the surviving children could live with their parents.  [The precise chain of where they had all been living in the interim is not easy to follow, but it seems that it had mostly been with either both parents, or the father alone]

I should make it clear that the Mother’s care of the children that were staying with her has, since the institution of the proceedings, been, at all times, exemplary. The children very much wanted to be with their Mother and it was in their best interests to be with her provided she was mentally well and it was safe for them. By 11th March 2013, it was clear that, despite the criminal charges, her mental health had not deteriorated. I therefore directed that those children should return to live with her on 19th March.

 

The Local Authority applied in this case for a Reporting Restriction Order to prevent the mother’s name being published – in the usual course of events, there would be nothing to prevent the Press publishing the outcome of the criminal trial (which is certainly newsworthy) and naming the mother – even though that would indirectly identify the children. Hence, the Local Authority applied for the order. (It was not intended to keep the care proceedings secret, but prevent the children from being identified as being the children of a woman who killed a baby)

 

    1. The Local Authority case is that permitting the media to report the identity of the Mother will cause very significant harm to the children. First, it is said that, for reasons I cannot explain fully in this public judgment, anyone in the locality reading a media report naming her would instantly know which family it was.

 

 

    1. It is then said that there are a number of features of this case that could well result in real danger and harm to these children. In particular, it is argued that this case involves a significant number of features that have, rightly or wrongly, caused great contention of late in this country. These stem from the family background details and that very serious harm was done to two babies; and the Mother has cared for those children notwithstanding what has happened.

 

 

    1. It is said that, as a result, the family would be at high risk of being targeted within their community by threats and reprisals if they were identified. It is argued that reprisals might be both physical against them and against their homes. There would be a real risk of serious bullying at school. I am told that the effect on the children is potentially devastating.

 

 

  1. Significant evidence has been put before me as to the risk that the children will suffer significant harm
    1. The evidence that has been placed before me comes into exactly this category. It is from a very experienced social worker, Carol Jones, who is well aware of local conditions. I also have evidence from the Guardian (albeit that she has only relatively recently been appointed in this case) and from the consultant psychiatrist, Dr D.

 

 

    1. Carol Jones says that, for reasons explained in her evidence, the family are easily identifiable. She is concerned that the community may, wrongly, feel that the family has been treated differently because of their background. She tells me that something similar happened to another family in the locality where there was a conviction for child murder. She adds that, if there is no custodial sentence, that may itself fuel resentment.

 

    1. She goes on to say that, if the application for the Reporting Restriction Order fails, the Local Authority has decided that it will have to remove the family immediately to a completely new area of the country and give them new identities. This, of itself, shows how very seriously this matter is viewed. If this happens, the children will lose the stability that has been painstakingly acquired since the tragic events of 2006 and 2007. They will also lose the consistency and security of their schools that have provided them with significant stability, notwithstanding the difficulties faced by the family. They will lose friendship groups. I accept everything that Ms Jones writes.

 

    1. The Guardian, Joanne Bamford, says that she is particularly concerned about one of the children, who is well aware of what has happened. That child has found the stress of the last few months increasingly intolerable and is exhibiting signs of anger and frustration. Ms Bamford considers exposure will have a particularly devastating impact upon that child who uses Facebook and will be exposed to what is written about the family. The child may well be bullied and threatened. There is concern as to the child’s mental health and even the possibility of self-harm or even attempted suicide. I accept all this evidence as well.

 

 

  1. As noted above, the Local Authority has prepared a Safety Plan that involves immediate relocation out of the Swansea area even before the reaction of the public is tested, so serious are the concerns. In my view, the effect of all this on the children will be nothing short of devastating. In due course, they will all know that one of their siblings has died and that another sibling was seriously injured. These events happened as a result of the actions of their Mother, who they love so much. None of this was in any way their responsibility yet they are the ones who would now suffer the most. They would have to move home and school. They would lose their friends and all that is familiar to them. They would have to change their identities. Moreover, in all likelihood, they would suffer significant vilification and abuse. Once this is all clear, it becomes immediately clear why this is such an exceptional case.

 

 

This case is a good illustration that there’s a tension between public policy and interest that people who commit crimes should be identified and their crimes reported and the privacy of children who have done nothing wrong but might face serious detriment or harm if the local community linked them to the mother who committed these crimes. It is that tension, otherwise expressed as article 10 (freedom of expression) v article 8 (right to private life) that the Court had to wrestle with.

The law as it relates to this particular case

 

    1. I have already said that, very responsibly, having considered all the evidence, the media organisations represented before me accept that this is one of those very few wholly exceptional cases in which anonymity is justified not just for the children but also for the Mother (and Father) because identifying the parents will lead to identification of the children.

 

 

    1. I agree with that assessment. I am solely concerned in this regard with the effect on the children, not the effect on their Mother but the evidence points inexorably to serious harm being done to the children if their identity was to become known. The fact that the Local Authority considers, rightly in my view, that it would have to uproot them immediately from the area where the children have lived for many years, if I was to refuse to make the Reporting Restriction Order, is clear evidence of the serious damage such exposure will do.

 

 

    1. I am, however; equally clear that I must permit reporting of anything that does not lead to the identification of the children. I must therefore assess what is likely to lead to their identification and what can safely be put in the public domain without leading to their identification. I accept the submission of the Local Authority and the parents, with which the media organisations do not dissent, that, in dealing with this area, I must consider “the jigsaw effect“. In other words, I must remember that there may be an individual piece of evidence that itself may not lead to identification but that is likely to do so if combined with other pieces of information also placed in the public domain.

 

    1. It is accepted that they would be identified if their name was known. It is for this reason that it is accepted that the Mother and Father’s names must be given anonymity as well as those of the children. I also remind myself that there may be a significant number of people who know that this family lost a baby in 2006.

 

The individual issues

    1. The first issue I had been asked to consider was whether or not to permit reference to the family’s origin. I am absolutely clear that such reporting must be prevented as was agreed by the media once they had read the further papers. Having considered the statistics relating to persons from that country living in the Swansea area, I am quite satisfied that, if any reference had been made to their origin, there would have been a likelihood of exposure.

 

    1. I will therefore now turn to deal with the areas that remain in dispute.

 

 

    1. The first issue was whether or not there could be reference to their religious faith. Again I have considered the statistics in relation to this and I have come to the clear conclusion that permitting disclosure of her religious faith would also be likely to lead to identification of the children. I therefore refuse to do so.

 

    1. I consider that it also follows that the media should not be entitled to name AZ. It certainly points to a family of their origin. I have come to the conclusion that AZ should be referred to as “A” and BZ as “B”.

 

    1. Ms Gallagher perfectly properly pointed out at the end of the submissions that the draft Reporting Restrictions Order would appear to permit the media to report how the Mother came to be in this country. The other parties were surprised by this as they had assumed that this would not be possible. I was therefore additionally asked to decide on that.

 

    1. I am particularly aware of the fact that the Z family are not living in an area where there are a significant number of people who might potentially have this background. I have come to the same conclusion in relation to this aspect. In other words, I consider that permitting disclosure would run too high a risk of identification.

 

    1. Finally, there is the question of the composition of the family. I consider that very different considerations apply here although I am still concerned about naming the exact number of the children. To do so would immediately show that this is a family with a particular number of surviving children plus one deceased in 2006. I do not believe there are likely to be many families in the Swansea area in that category and certainly not where they live. It therefore follows that I consider it would be to run too high a risk to permit naming of the number of the children.

 

  1. I do not, however, see that there is any reason to prevent reporting that the parents are separated. Indeed, it would be surprising if they were not. Equally, I consider there is no reason to prevent the media saying that there is more than one surviving sibling and that they see their Mother. Further, I consider that it is appropriate to report, if the media wishes to do so, that, since the institution of care proceedings, her care of them when with her has, at all times, been exemplary.

 

[This latter bit explains the earlier suggestions about how giving much of the family's background would easily identify them - let's pretend for hypothesis sake that they are Martians, and have green skin and surnames like M'Hxtelkraw, and you can then see what is being hinted at, and also the talk of 'how the family entered the country' makes sense of the earlier suggestion that the local community might, wrongly, feel that they had been treated differently because of their background]

 

The Press were very responsible in this case – reading between the lines, this would be a very newsworthy story, particularly for the more erm… ‘traditional’ newspapers for whom the story would have pursued several agendas, but they recognised and accepted the balance between the children’s welfare and running a juicy story.

“Don’t put your daughter on the stage – if you want to claim Disability Living Allowance for her”

The High Court have just published twin judgments on an interesting case, relating to reporting restriction orders – Re Z  v News Group Newspapers 2013

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/1150.html

 Is the first one, at which the Reporting Restriction order was sought and obtained  (I think with a late sitting hour)

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/1371.html

 Is the second one, at which the Court determined how that Reporting Restriction Order would be altered if the outcome of the criminal trial was that mother was convicted.

 It is a peculiar one, since although the children in the case were pivotal to the offences, they were neither victims of the alleged offences, nor witnesses in the criminal trial, which meant that all of the restrictions on reporting from the criminal trial which would otherwise ensure the anonymity of the children were dislodged.

 It became apparent to the children’s father that the national press were interested in the story (for reasons which will become apparent) and he therefore made a stand-alone application to the family courts for a Reporting Restriction Order.   These two cases are a very good summary of the competing interests of article 8 privacy, and article 10 freedom of the press.

 Why was the Press interested?  Well, this background  (and the current context of ‘benefit cheats’ ) explains why

  1. Mrs Z is the mother of eight children. They are A (aged 23), B (aged 21), C (aged 19), D (aged 16), E (aged 15), F (aged 12), G (aged 9), and H (aged 7).
  1. The Applicant is the father of D, E, F, G, and H. It is the Applicant’s case (see para.4 application) that the oldest six children (A, B, C, D, E and F) all have special needs. Five of the mother’s children, A, C, D, E, and F are cited in the indictments to which I have referred (and which I discuss more fully below); of those, three of them (D, E and F) are currently minor children.
  1. The trial of Mrs Z focuses on a number of claims for Disability Living Allowance (DLA), Carer’s Allowance (in respect of the child C) and other tax credits which Mrs Z is alleged to have made in respect of a number of her children, over an extended period of ten years.
  1. The prosecution case, in summary, is that Mrs Z was not entitled to those non-means tested benefits, and she knew that she was not so entitled. It is alleged that Mrs Z had made these claims based on the assertion that five of the children “suffered from problems with their speech and language, physical disabilities, mental health problems and severe learning disabilities and behavioural problems” (§1.4 prosecuting opening note) including “handicaps, phobias and intolerances e.g. ‘difficulty with walking’, ‘poor co-ordination’, ‘poor spatial awareness’, ‘unclear speech’, ‘fear of crowds’, ‘difficulty following instructions’, ‘difficulties getting dressed’, ‘cant wash or bathe’ and ‘needs help with toilet’” (§1.4 ibid.). These claims were reported to be independently verified, including (in some respects) by a consultant paediatrician, Dr. K.
  1. Proof of the falsity of the claims, asserts the prosecution, is that the disabilities and problems which Mrs Z claimed her children were suffering were not compatible with their various activities and other achievements. In particular, for periods of time when Mrs Z was asserting (for the purposes of the benefit claim) that the children suffered “various disabilities and conditions which materially affected their care and/or mobility needs” (see §1.3 prosecuting opening note), they were (according to the Crown) all in mainstream school, successful in their academic subjects, and apparently able to undertake physical exercise in school.
  1. Perhaps most notably, it is said that three of the children attended a specialist theatre school, became successful child actors/actresses and appeared in amateur and professional productions in regional theatres, and even on the West End stage, including appearances in a number of well-known and successful productions; they appeared on the television. In their theatrical and public roles they were said to be involved in acting, dancing, and singing – “wholly inconsistent” (says the Crown: §1.9) “with the care and mobility needs described by the defendant“.

 

 

Yes, one can see in the light of that, and the information that the total sum of alleged fraud with which mother was charged amounted to £365,000 , why there were print journalists at the trial, frantically licking their pencil tips and writing punning headlines   (for shame, punning headlines are a dreadful sin)

 So, the competing interests here were in the press being able to report on a criminal trial   [see the quotation below from the Trinity Mirror case] and on the protection of children who were, although not victims per se of the alleged offences, were certainly innocent of them and who might very well be stigmatised were their identities made public

 

  1. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill’s memorable epithet, is the defendant’s “birthright”. From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case“.

 

 

 

The Court were unsurprisingly taken to a very recent authority balancing article 8 and article 10, particularly on preserving anonymity of children in a case where their mother was convicted of remarkable offences clearly in the public interest to report  – the case bears careful reading, if you have not already encountered it

 

 

  1. The application of the balancing exercise can be found in a number of cases in the Family Division, and increasingly in the Court of Protection. One of the most recent decisions is that of Peter Jackson J in A Council v M, F, and others [2012] EWHC 2038 (Fam) in which he said this (at §82-84):

82. The resolution of this conflict of legitimate interests can only be achieved by close attention to the circumstances that actually exist in the individual case. As Sir Mark Potter has said, the approach must be hard-headed and even, from the point of view of this jurisdiction, hard-hearted.

83. Rights arising under Art. 8 on the one hand and Art. 10 on the other are different in quality. Art. 8 rights are by their nature of crucial importance to a few, while Art. 10 rights are typically of general importance to many. The decided cases, together with s.12(4) HRA, act as a strong reminder that the rights of the many should not be undervalued and incrementally eroded in response to a series of hard cases of individual misfortune.

84. On the other hand, there is no hierarchy of rights in this context and there are cases where individual rights must prevail. In highly exceptional cases this can even include making inroads into the fundamental right to report criminal proceedings, but only where that is absolutely necessary.

 

I respectfully adopt this analysis.

 

 

The Court tried very hard to balance what could or could not go into the public domain, and recognised the legitimate public interest in the public knowing that taxpayers money earmarked for the most deserving and needy of families had been diverted by means of fraud.   Whilst the criminal trial was pending, a widely drawn Reporting Restriction Order was in place.

 

The Press, understandably, wanted to test whether this would be more narrowly drawn if the mother went on to be convicted at trial, hence the second judgment.

 

The Judge did indeed draw the order more narrowly, whilst still striving to protect the anonymity of the children,

 

  1. In reaching conclusions on the supporting information, I have sought to strike the appropriate balance between competing Convention rights, guarding against disproportionate interference with each. In this respect I have concluded that if, but only if, such publication is likely to lead to the identification of the children, adult children, or Mr Z as being involved or named in the criminal proceedings heard at the named Crown Court, and/or as being the children of the defendant (hereafter Mrs Z):

i) There shall be no publication or broadcasting of the forenames of the children, including the adult children, so as to protect, as far as I am able, some cherished rights to privacy; this applies particularly for the child E, and to a lesser extent D and F, but in view of my intention to reduce identification and unwarranted intrusion into family life for their sake and generally, the other children too;

ii) For the same reason, there shall be no reporting of any picture being or including a picture of either the children, the adult children, or the Applicant Mr Z;

iii) Given that the Applicant, Mr Z, is likely to be assuming the care of the younger children in the event that Mrs Z receives a custodial sentence, there shall be no reporting of his forename, consistent with my desire to respect so far as is possible some Article 8 privacy for the children;

iv) There shall be no reporting of any medical conditions or disabilities which the children (whether adult or minor) are said to suffer other than those conditions or disabilities which were said to have been reported by Mrs Z in the context of her claims for benefit; for the avoidance of doubt, there shall be no public reporting of the contents of the recent CAMHS letter concerning child E;

v) There can be identification of the Crown Court (and the trial Judge) at which the trial has taken place, and the County in which the family live. No more specific information relevant to the address or location of the family is justified;

vi) There will be no restriction on reporting of the fact that the children concerned are a sibling group of eight. In reaching my conclusion on this aspect, which I found less easy than other aspects to resolve, I took the view that this information did not of itself materially add to the identification of the family in such a way as to interfere with their Article 8 rights, given the general availability of other information which will be available in accordance with my order.

 And you will note that this obviously allows the naming of Mrs Z, and publication of photographs of her, allows for the facts outlined in the background already included to be published.

 The Judge ends with a very pithy conclusion

 In my judgment, those who cheat the over-stretched resources of the welfare state can neither generally nor reasonably expect to escape the proper reporting of their wrongdoing, or hope to achieve the concealment of their identities. It is with considerable regret that in varying the Reporting Restriction Order in the event of a conviction, I will expose the children of Mrs Z to the risk of identification. A guilty verdict would reflect the jury’s satisfaction that Mrs Z had improperly used her children as innocent instruments of her crime; if this is the outcome of the criminal process, then it is she alone who has unhappily heaped upon her family the misery, shame and disadvantage, which is the inevitable consequence of her offending.

The Streisand effect and care proceedings

A discussion of Bristol City Council and Others 2012

This is the decision in the High Court that the Sun newspaper, and in due course no doubt many others, be permitted to report on a case (subject to restrictions about anonymity) whereby a girl who was in care made allegations that the foster carer had grabbed her by the throat, the allegations might not have been properly investigated, and that there was strong reason for suspicion that the foster carer had been viewing child pornography.  The LA had originally sought to restrict any reporting, but moved forward within the court proceedings to accepting that there was a legitimate public interest in reporting the broad facts, but wanted the details kept out.

As you may know, the Streisand Effect is the term given when an attempt to prevent publication makes the story even more delicious and juicy and gets ten times the attention it would have got. See also, the welsh footballer whose name you all know, but I still probably can’t say, save that you can find it if you search google for John Hemmings, plus footballer, as Mr Hemmings MP was legitimately able to name the footballer with the superinjunction in parliament – I am not an MP.

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3748.html

The reporting restriction order made here, applies to me, of course, so am going to only give the information which is in the judgment – in fact, lets stick to the background given in the magistrates facts and reasons, and the preamble that was in the order itself

    1. In their written reasons for making a care order, the Justices set out the evidence that had been placed before them about these matters and in their findings of fact added these observations:

 

“We have heard and read considerable evidence concerning the care provided to A whilst subject to an interim care order. This is extremely concerning and deserves to be examined fully within a different forum. This bench is, however, of the view that these events are not germane to its decision as to whether care and placement orders should be made. All references to these highly regrettable events are made for the sake of completeness.

This bench believes that the local authority did not follow child protection procedures. As soon as A disclosed the assault and the contact worker noted the injuries, she should have informed A’s social worker, Ms P, or the emergency duty team. No such report was made and it was left to B, A’s father, to make the referral via the police. The bench does not consider that the local authority has been involved in a cover up which has been suggested by B.

The contact worker should not have disclosed the allegation to the foster mother until A had been interviewed. The foster mother denied the allegation on R’s behalf immediately. Having already been aware of the difficulties in the placement and of A’s fear of R, the authorities should not have allowed A to return to the foster home whilst the allegation was unresolved and it is reasonable to suppose that this increased the risk to A. We believe an immediate strategy meeting should have been called and A’s guardian should have been involved. It is a matter of very great concern that Mr N, A’s guardian, was not told by Miss P of the allegation at an earlier stage.

We strongly believe that A should have been referred to a doctor. A grasp to the throat accompanied by red marks to the front of a young child’s neck could denote internal injuries. In any event, the injuries would have been properly documented and their cause commented upon. It appears to us that the explanation provided for the injury by R was inconsistent with the injury itself.

A’s allegation of being assaulted does not appear to have been taken seriously by the authority….

It concerns us greatly that the alleged assault by R occurred at 2 am when T was cuddling S apparently whilst the foster mother was downstairs and that information did not cause the authority to act immediately.

At the time of the allegation of physical abuse, the local authority were already aware of other allegations relating to child pornography at the address. Despite this, and having parental responsibility through the interim care order, they failed to remove A for a period of 14 days.

With hindsight, Miss P acknowledged the risk of sexual, physical and emotional harm to A during the authority’s care of A between 14th May and 28th May 2012. It is clear to this court that the local authority knew about these risks on 14th May and did not take protective action as it should have done.

These matters concern us greatly and we believe should be thoroughly and forensically investigated and reviewed in an independent forum.”

    1. An order restricting publicity was originally made in the following circumstances. A journalist from The Sun attended the hearing of this matter in the Magistrates Court at Bristol on 9 October 2012. On the afternoon of 10 October 2012 Mr Cusack, an agency journalist attending the Magistrates Court hearing in this case on behalf of News Group Newspapers, was told that none of the legal representatives in the case were present at court but were instead at Bristol Civil Justice Centre seeking an injunction against The Sun. Mr Cusack went to Bristol Civil Justice Centre and attempted to take contact details for the local authority lawyer and to urge her to contact the in house lawyer for NGN. However Mr Cusack was unable to speak to the local authority lawyer until the hearing had finished and the order had been granted.

 

    1. At around 4.30 on that day, 10 October, HHJ Barclay, sitting as a s.9 judge, made an order preventing any reporting of the case, and of the names of the parties including Bristol. During that hearing no one appears to have drawn the judge’s attention to the Practice Direction applying to such applications, nor to s.12 of the Human Rights Act 1998, nor to Article 10 of the ECHR. The judge did note, despite this, that the press had not been given notice of this hearing and “arguably they should have been“. He also noted that it was a ‘great pity‘ that the press had not been notified.

 

    1. Bristol City Council at the hearing sought an order for Bristol City Council’s identity, and the social workers’ identities, to be “kept undisclosed pending an investigation”. It is unclear what “investigation” was referred to.

 

    1. Bristol City Council subsequently contended that they had been “prevented” from providing notice to News Group by the “urgency of the position”, and maintained that Bristol City Council had been correct to take this course. This is not a tenable position, given the presence in court on 9 October and the morning of 10 October of journalists who the parties knew were attending on behalf of The Sun. There was in fact no excuse at all for not putting the Sun, at the very least, on notice of the application.

 

    1. On 12 October Bristol City Council completed the checklist for applications for a reporting restriction, with a view to a video link hearing taking place before Baker J on the afternoon of 15 October. The application included a draft order, which provided for prohibitions upon (amongst other things)

 

a. Publishing anything at all relating to the care proceedings;

b. Publishing anything which identified the local authority;

c. Seeking information about the case from any employee of the local authority.

    1. In the skeleton argument served in support of the application, the LA maintained:

 

a. That there could be no public interest for the ‘unproven’ allegations about the use of pornography by the foster carer to be publicised.

b. That there could be no public interest for ‘unsubstantiated allegations of negligent social work practice made by the parents’ to be publicised.

    1. Bristol City Council subsequently changed its position concerning the reporting of the proceedings, conceding that News Group should be free to publish certain matters which News Group identified as being in the public interest, including the identity of Bristol City Council as the applicant in these proceedings. Bristol City Council maintained that certain items of information which News Group wished to disclose from the proceedings were inaccurate and should not be publishable.

 

    1. Bristol continued to maintain however that certain allegations made during proceedings should not be reportable on the basis that complaints were “ properly investigated by the local authority” and found to be without substance.

 

    1. During the course of these proceedings for an injunction, it became apparent to News Group that there was in existence a document entitled ‘Facts and Reasons’ dated setting out the findings of the Magistrates on the care application. News Group applied for permission to see this document, and then for permission to publish its contents in anonymised form. News Group maintained that the Facts and Reasons raised issues of considerable and legitimate public interest concerning the manner in which Bristol City Council had sought to discharge its duties.

 

    1. Bristol initially resisted the application by News Group for permission to publish the contents of the Facts and Reasons, then, during a hearing, conceded that the contents of the Facts and Reasons should be publishable in anonymised form.

 

  1. News Group made further submissions in respect of whether particular points of detail within the Facts and Reasons should be publishable. News Group contended that all the information within the Facts and Reasons should all be publishable in anonymised form, together with a limited amount of additional information from the proceedings.

Although the Court allow the naming of the social worker, I have chosen not to do so.

The case obviously contains very useful information on the balancing exercise between article 8 right to privacy and article 10 freedom of the press, and is helpful for that.  I don’t think there’s anything particularly novel in the law here.

The LA were obviously in a tight spot – they clearly didn’t want the girl to be identified, and were worried that she might be. The problem is, of course, that once the Sun got the story, they were always going to want to run it, and LA loses attempt to stifle the Sun is an even bigger story.  A tough position to be in.

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