The decision in Swansea v XZ and Another 2014
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)
- 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.
- 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.
- 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.
- Significant evidence has been put before me as to the risk that the children will suffer significant harm
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.