England and Wales County Court (Family)

IN THE STOKE-ON-TRENT COUNTY COURT                        Case No.  UN12C00103

Stoke-on-Trent Combined Court

Bethesda Street

Hanley

Stoke-on-Trent

ST11 3BP

Friday, 3^rd January 2014

Before:

HIS HONOUR JUDGE DUGGAN

In the matter of:

Re:  B (A Child)

______________________

Solicitor for the Local Authority:                                                                       MISS A HUME

No attendance for the Mother

No attendance for the Father

No attendance for the Maternal Grandmother

No attendance for the Guardian

______________________

 JUDGMENT APPROVED BY THE COURT

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JUDGMENT

1.                  THE JUDGE:  This is my judgment on this open court application by Staffordshire County Council seeking a reporting restriction order.  I propose to deliver the judgment in anonymised terms for obvious reasons in an open court case.

2.                  The application was served on the mother, the father and the maternal grandmother but none of them have attended or responded to the court.  My attention has been drawn to an entry on the grandmother’s Facebook page dated 14^th December 2013 which is a clear indication that she has received this application and further that she opposes the relief sought.

3.                  The child is 2 years old and on 23^rd May 2013 the Family Proceedings Court made her the subject of care and placement orders.  There had been extensive assessments of the problems faced by these parents.  The mother and the father came to the courageous and wise decision that they would not oppose the local authority’s plan for their child to be placed for adoption.  The maternal grandmother had a different view and she made an application to the court for an order that she should care for the child.  The grandmother was also the subject of extensive assessment which concluded that the child should not be placed with her.

4.                  At the end of the day the mother and the father opposed the grandmother at the Family Proceedings Court when she challenged the recommendation that the child should not be placed with her.  The grandmother was unsuccessful at that court and appealed to the County Court.  The case was listed before me and the grandmother was again unsuccessful.  She appealed my decision to the Court of Appeal and once more, on 29^th November 2013, the grandmother was unsuccessful.  No further challenge is available to the grandmother.  Under the placement order the child has now been placed with prospective adopters.

5.                  The grandmother is clearly very disappointed by this outcome and she has complained that the outcome is unfair.  No one suggests that the grandmother should be prevented from commenting on this saga or from criticising the local authority or the court.  However, the local authority says that the grandmother has gone beyond that.  They say that she has caused harm to the child by using her name and her photograph.  Examples have been shown to me.  I have seen the grandmother’s Facebook postings in the bundle at C13, C15 and C17.  There is a further very relevant Facebook posting at the back of the local authority’s written submissions, an entry which I am told is dated 13^th December 2013 and starts by an indication that it was posted 11 hours ago.  In addition the grandmother has started an online petition bearing the name and photograph of the child.  Details are in the bundle at C17.  The grandmother has contributed to an internet radio station where there was a discussion forum to which the grandmother contributed the name of the child.  This is accessible from a link which appears on page C19 of the bundle.

6.                  The local authority’s application for a reporting restriction order seeks to prevent this identification of the child but otherwise does not seek to prevent discussion, comment and criticism of the local authority and court processes.

7.                  I have open in front of me the President’s recent judgment in the Staffordshire case of Re: J [2013] EWHC 2694 (Fam).  I also have a full copy of the order that was granted at the conclusion of that hearing.  Today’s application by the same local authority largely follows the order granted by the President at the conclusion of that hearing.  There are a few small modifications sufficiently addressed in argument which represent no departure in principle.  I unhesitatingly adopt the President’s account of the legal framework and relevant considerations which I read in the old judgment from paragraph 20 onwards. 

8.                  In a short judgment at an uncontested hearing I can summarise briefly that I accept the very important principle that open and public debate about the family justice system is essential in our society.  I apply the guidance given by the President together with the earlier guidance in the case of Re: S [2004].  My task is to balance the right to freedom of expression under Article 10 of the European Convention of Human Rights and the right to respect for private and family life under Article 8 of the same Convention.  Neither Article takes precedence over the other.  In the event of conflict there must be intense focus on the competing importance of the rights claimed.  The claimed justifications for interference with each right must be taken into account.  A proportionality test must be applied, which represents the ultimate balancing test.  The best interests of the child are not paramount but are, nevertheless, a primary consideration.

9.                  The importance of the Article 10 right to freedom of expression is self-evident.  The importance in the context of the family justice system has been stressed by the President in the judgment to which I have made reference and I adopt those points.  The application of Article 8 in the present case is more subtle.  This child has a qualified right to privacy and family life.  The courts of this country have decided that her future lies in adoption, which means that she has a qualified right to successful, stable, undisturbed family life within adoption.

10.              The evidence presented to me leaves me in no doubt that the grandmother has embarked upon a campaign to undermine these rights enjoyed by the child.  The Facebook entry of 13^th December 2013 attached to the written submissions can only be described as a call for others to help a search for the depicted child in her new adoptive placement.  The accompanying text and other text refer to the child as a stolen child but by that date the Court of Appeal had determined that the plan for adoption could not be challenged.  This kind of publication is very harmful at a number of levels.  It is harmful to the child in the present if the search established her whereabouts and led to disturbance and destabilisation.  It is harmful in the present even if the search does not succeed in that it exposes the prospective adopters to anxiety at a time when the child’s best interests would be served by them accepting her into their household from a standpoint of emotional stability.  It is very harmful to the child in the future in that these internet postings can remain so that when a little older and accessing the internet herself the child may encounter these destabilising messages and find her own wellbeing undermined.  Alternatively these postings might be accessed by friends of the child and form the basis of comment or even bullying.

11.              I remind myself that the courts of the land at the highest level have determined that placement for adoption is the only appropriate outcome for this child and an outcome which is inherently lawful.  In these circumstances it is clear that Article 8 and Article 10 are in conflict.  Both represent important rights.  However, as so often in these cases, a proportionate balanced reconciliation emerges.  The right to freedom of expression does not need the elements of personal identification which are so harmful.  The right to respect for family and private life does need a prohibition to be placed upon identification but does not need to prevent all comment and debate.  It is clear to me that the proportionate outcome is to allow discussion but to prevent identification.

12.              This application is made to me under the inherent jurisdiction.  It is clear to me that the provisions of section 100 are met to allow the application to proceed.  Automatic restraint under the statute comes to an end with the termination of the proceedings.  The proceedings have ended but the need for restraint remains.  The posting of 13^th December 2013 followed the unsuccessful appeal to the Court of Appeal on 29^th November 2013.

13.              A personal order addressed to the grandmother would not, in my judgment, be sufficient to address the crucially important need to protect the child’s privacy.  It seems clear to me that an order is needed to bind third parties.

14.              As to duration this is not a case in which the need for protection is going to slip away with the passage of time.  Indeed, arguably, as the child gets older and reaches a position where she would understand comments and criticisms in the world around her, the need for protection would be the greater.  So, as in Re: J [2013] EWHC 2694 (Fam), restraint until the child’s eighteenth birthday is appropriate.  As in Re: J I am persuaded that the fact that material is in the public domain already is no protection against the infliction of further harm.  As in Re: J I adopt the appropriate procedure concerning the restraint of persons overseas.

15.              There is one area in which I find the present case to differ from the President’s case of Re: J [2013] EWHC 2694 (Fam).  In that case the restraint of publication of photographs of a tiny baby was considered to be inappropriate.  The present case I find to be very different.  This child is significantly older and correspondingly easier to identify from photographs.  Indeed, the grandmother has used a photograph as part of her campaign to seek out the whereabouts of the prospective adoptive placement.  This is one of the most harmful aspects of the case and an element from which the child needs protection.  Carrying out the same balancing exercise as did the President I reach a different conclusion and find that the publication of photographs must be restrained alongside the publication of names.

16.              In the course of argument a refined draft order emerged which I find it necessary to grant to the local authority today.  There will be a clause in that order providing that the local authority will obtain, file and serve on all parties a transcript of this judgment.

17.       I shall conclude with a note addressed to the grandmother. I am sorry that she has chosen not to attend court today. There may be points which she could raise which are relevant to my decision. I have done my best in her absence to anticipate them. However if there are other points I invite her to apply to the court. The worst thing she could do would be to act in breach of this order and only when steps are taken to enforce the order against her, to raise points which should have been raised today. The order does not prevent campaigning, discussion or debate. However as in many other cases, these must not include the use of the true names or photographs of the child as this would be harmful to her.

Approved 24/1/14

RD