England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
X DISTRICT REGISTRY

		November 2010

1. MR JUSTICE HOLMAN: Over recent months, a woman called X has been the subject of considerable exposure in the press and media, principally, but not exclusively, as a participant in a well known television programme.
2. It is patent from a number of press cuttings and other materials that I have been shown today that she, herself, has fully co-operated with, and maybe even engendered some of, that publicity….
3. X is the mother of a child called Jane [a fictitious name substituted by the judge during editing], who was born on …. and so is now aged about 2. The father of Jane is a man called Y.
4. Much of the publicity to date has contained considerable references to, and indeed photographs of, Jane. By way of example only,…. There are many other pictures of Jane, and references to Jane, in much of the other material that I have been shown today, and indeed in much web-based material, at which I had briefly glanced on my own computer earlier this afternoon.
5. In November 2010 the local authority in whose area the mother and child had recently come to reside applied for a care order in relation to Jane. The reasons for that application are not known to me in any detail, nor are they relevant to the present application. I understand, however, that they certainly include …. There was a hearing on Monday of this week before the local family proceedings court, at which that court made an interim care order, placing Jane in the interim care of the local authority. It must follow that that court was satisfied by the test in section 38 of the Children Act 1989 that the welfare of Jane required at least an interim care order to be made. The proceedings themselves have now been transferred to the local county court.
6. I understand that on Monday there were some representatives of the media present outside the family proceedings court. Further, at paragraph 6 of her statement, the social worker states that the Daily Mail newspaper has already contacted the local authority regarding this matter "and has requested that it be allowed to publish material relating to the reasons for the local authority commencing care proceedings in relation to [Jane]." The social worker continues by saying that:

"The local authority was informed that the Daily Mail and at least one other newspaper, the Daily Star, had information about an alleged incident involving [the mother] and [Jane] and that both papers had been alerted to the fact that [Jane] had been accommodated as a result of this incident."

I am not quite clear whether the "alleged incident" referred to in that information is the same matter to which I am about to refer. At all events, I have been informed today that the local authority have learned, although further details are sparse, that there may exist a video, or similar film, of the mother …. in the presence of (but not, as I understand it, directly involving) Jane.

7. As a result of the making of the interim care order, Jane currently lives with short-term foster parents. It may be that she will remain fostered with professional foster parents for some time. It may alternatively be, subject to some assessments which are currently taking place, that she will move relatively soon from living with professional foster parents to living for the time being with blood relatives.
8. Arising out of that background and history, the local authority are appropriately very concerned to protect Jane so far as they properly can from the damaging effects of further media intrusion into her life and upbringing. They have accordingly applied, by an application first issued last Monday, for a reporting restriction order. That application has come before me, sitting in the High Court here today, Thursday.
9. Insofar as the local authority seek to invoke the inherent jurisdiction of the High Court, they need the leave of the court to do so pursuant to the restrictions in section 100 of the Children Act 1989. I readily grant to them that leave to invoke the inherent jurisdiction of the court to the extent necessary to make the order that I do propose to make.
10. Before coming to the substance of that order, I deal next with the matter of notice. Section 12 of the Human Rights Act 1998 makes express and detailed provision in relation to the Convention right to freedom of expression. Patently, the order which I am asked to make, and indeed will make, is one which affects the exercise of that right. Section 12(2) provides as follows:

"If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied -

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified."

11. There has been placed before me a copy in the prescribed form of the "Application for reporting restriction order checklist" as devised by the Press Association CopyDirect service. That has been completed by a solicitor on behalf of the local authority and dated last Monday. It certifies that the local authority have given notice to CopyDirect pursuant to the relevant practice note and practice direction of 18^th March 2005, and that copies of the application, the witness statement of the social worker to which I have referred, the draft order and the explanatory note have all been served upon, or supplied to, CopyDirect by email.
12. In reliance upon that checklist, signed by a solicitor, I am thus satisfied that as relatively long ago as last Monday CopyDirect was served in accordance with the practice and procedure that has been agreed through CopyDirect with all the subscribing newspapers and other media organisations who subscribe to CopyDirect. To that extent, therefore, I am satisfied that, as section 12(2)(a) requires, the applicant has taken all practicable steps to notify, and has indeed properly and fully notified, all those respondents who are subscribers to CopyDirect.
13. However, the local authority have not in any way alerted or notified any of those national media organisations, such as Guardian Newspapers Ltd or Telegraph Group Ltd, which choose not to subscribe to CopyDirect, nor have they served any local newspaper or media organisations, none of which subscribe to CopyDirect.
14. This afternoon, on behalf of the local authority, their counsel submitted that I properly could and should nevertheless make an injunction in wider terms against the media generally. Counsel says that there is a concern, for instance, that the local press in the relevant area may not yet appreciate that the mother and child had moved to that area, and that if and when they learn that fact they may become understandably interested in this matter.
15. However, the plain fact of the matter is that the concern of the local authority and the need for this injunction arose as relatively long ago as last Monday, at the very latest, when indeed they gave notice to CopyDirect. There have thus been two clear days at least between then and now upon which steps could have been taken to notify any national media organisations which do not subscribe to CopyDirect and any local media organisations about whom the local authority are particularly concerned. It is, frankly, impossible for me to be satisfied, as section 12(2)(a) of the Act requires, that the local authority have "taken all practicable steps to notify" any media organisations other than those which subscribe to CopyDirect; and impossible for me to be satisfied that there have arisen today some "compelling reasons" within the meaning of section 12(2)(b) why other media organisations should not be notified, and this is not a case in which an application is made very urgently this afternoon in the knowledge that there is some media organisation about to go to press later today.
16. For those reasons, I consider that I am simply forbidden by operation of section 12 to make any injunction which binds, or in any way purports to bind, any media organisation which does not subscribe to CopyDirect. Accordingly, paragraph 2 of my proposed order will very clearly say: "This order binds all persons and all companies… who know that the order has been made who subscribe, or whose employing company or organisation subscribes, to the PA CopyDirect service." I stress, of course, that no individual media organisation will be bound by any order at all unless and until that individual organisation has been properly served, in accordance with the provisions of paragraph 7 of the proposed order, with the order itself. It is not possible to effect service of the order (in contradistinction to the application) upon CopyDirect.
17. I return to section 12 of the Human Rights Act and refer now to subsection (4) which provides that:

"The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-

(a) The extent to which -

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published…"

18. As is now well established, applications like this require the court to give intense scrutiny to, and to weigh, competing rights in particular of individuals under Article 8 of the European Convention on Human Rights, and of the media and public generally to the freedom of expression under Article 10 of that Convention. As section 12(4) of the Act makes plain, the court must have "particular regard" to the importance of the right of freedom of expression because, of course, the right of freedom of expression, and the rights of a free press and other media, are the absolute bedrock of a free and democratic society which we all benefit from and enjoy. By the time which I have taken this afternoon to weigh and consider this application, and by the many alterations I have made to the original draft order sought by the local authority, I have applied that intense scrutiny.
19. I wish to make absolutely plain that by the order which I make today I do not in any way at all restrict, or seek to restrict, further or continuing publication in relation generally to the mother, X, or indeed the father, Y, with neither of whom the child is currently living. It seems to me, however, that the utmost importance in this situation is to protect completely from the intrusive effect of press or media publicity the name, address or whereabouts, or any picture or image of any person or persons with whom Jane is for the time being living. Currently, that would protect the foster home within which she is living; and, if she later moves to live with a relative or relatives, protect them. More generally, there is a need to protect the name and address of people having day-to-day involvement in her care or any medical concerns, and very specifically there must, in my view, be protection of the address or whereabouts of any place at which either parent has contact with the child. It would be potentially highly damaging to Jane, and indeed intolerable, if there was press or media presence at, or in the vicinity of, any place where (as they do) they were having contact with her.
20. It seems to me, also, that the very fact that she is the subject of the present care proceedings ought not to be made the subject of publicity, still less any detailed information in relation to these proceedings. Although, as I have said, the social worker says that the local authority have been approached by certain media organisations to try to find out about the care proceedings, I have been assured that so far as the local authority are aware there is not yet any information in the public domain as to the existence of the care proceedings, still less their basis.
21. Perhaps the most difficult question is whether, and to what extent, there should now be a restriction on publishing pictures, photographs or images of, or including, Jane. The fact of the matter is that she herself is still relatively young, namely about 2, and to a degree photographs of her have already been widely publicised in the press and other media….
22. By section 12(4)(a)(i), one of the matters to which I must have regard is the extent to which the material has already become available to the public, or is, in the jargon of lawyers, already in the public domain. Even in relation to a vulnerable child such as Jane, there is a point after which, frankly, one cannot shut the door on a horse which has already escaped. Since pictures of her are already all over the press and on the internet, it does not seem to me that I can now sensibly, properly or justifiably restrain further publication of those pictures, still less attempt now to have those pictures removed from the web.
23. However, new pictures of Jane, which are not yet in the public domain, are a very different matter. The public can already see, if they wish, what Jane currently, or very recently, looks like. They only have to buy…, or go into a number of websites. I cannot see that there is any legitimate public interest in further pictures of Jane, whose appearance will not change markedly during the subsistence (six months or earlier further order) of the order which I propose to make today. On the other hand, in my view, this child should be completely protected from any further attempts by, or on behalf of, the media to take photographs of her.
24. Further, if, as I have mentioned, there already exists some video which is not yet in the public domain which depicts the mother..…in the presence of Jane, it would be highly damaging for that video now to be published or broadcast…..
25. For those reasons, I propose to restrain any publication or broadcasting of any picture, photograph or image of, or including, Jane which is not already in the public domain prior to the making of this order today. I wish to make crystal clear, therefore, to any representative of the media who later reads a transcript of this judgment, that that which has already clearly been published may be further published, but there is an absolute embargo on publishing any further photograph or image at all of, or including, Jane which the publisher cannot later demonstrate was clearly already in the public domain prior to today's date.
26. For those reasons and with that explanation, I now propose to make an order in the terms which I have already drafted and discussed with counsel. A transcript should be made of this judgment and the local authority will have to pay for it. Therefore, I am going to add a provision as paragraph 9, that the local authority must obtain as a matter of urgency an approved official transcript of the judgment given today which may be supplied to any media organisation which is bound by this order and requests a copy of it, but which must not be quoted from in any way whatsoever without leave of the judge. [NB The embargo under paragraph 9 of the order and this paragraph of this judgment remains strictly in full force and effect in relation to the original, not anonymised version of this judgment; but the present, anonymised version may be freely reported and quoted from.]