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 14^th May and 28^th May 2012. It is clear to this court that the local authority knew about these risks on 14^th 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.