This post is about a case called : A and B (Children) [2018] EWHC 3491 (Fam) (20 December 2018).
In this case the recently retired President of the Family Division Sir James Munby had to deal with an application for reporting restriction orders arising from care proceedings, and a cross application by a journalist for orders permitting disclosure of the majority of the case papers and subsequently permission to report on it. As will be seen, Sir James spent much of his judgment rehearsing points he (and other judges) have made elsewhere on numerous occasions, in particular in the case of Re J (see below).
Note : Although we think it will be of interest to the general public, it contains some learning points for lawyers and journalists dealing with these types of application and so we’ve written this post with them in mind. That might mean its a bit more tricky for non-lawyers to follow than some of our posts, because we’ve assumed readers will have some basic legal knowledge of this area.
The journalist in question was one Stephen Green of Christian Voice. Green had previously attended a hearing in care proceedings, and had failed when ordered by the judge to take down material about that case which he had published online. In fact he had gone on to publish more information after the order was made. He had also failed to return copies of documents as ordered.
The judgment we are looking at doesn’t set out the detail of what the articles said because part of the problem with them was that they contained very sensitive private information about a child’s background and behaviour that would be both distressing to the child if read and likely to put him or her at risk of identification. Obviously, therefore, the judgment could not repeat the harm by repeating the contents of the article (we pause to note that we think we saw the article at the time and were concerned that it was likely to be a breach of privacy rules).
Shortly after the publication of this material MR Green was suspended from the British Association of Journalists. From the timing it seems likely that this was connected to his activities in relation to this case, but the judgment is not explicit. It is also apparent that Mr Green does not accept that he should have been suspended and that may be the subject of legal challenge.
The judgment doesn’t deal with the interesting issue of what status Mr Green had under the rules, i.e. whether he should have been treated as a ‘duly accredited journalist’ (see FPR Rule 27.11(7)). It’s not completely clear, but it appears that when the original judge dealing with the case refused Mr Green’s applications for permission to report, she must have treated him as not ‘duly accredited’ – we know this because Munby LJ says that if Mr Green didn’t like her decision about his status he should have appealed it (which he hadn’t). It is certainly clear that he wasn’t one by the time the application was dealt with by Munby LJ, because the judgment says he does not hold a press card, but that might be as a result of the suspension, which took place after the original hearing. What is clear from the timeline is that by the time Mr Green ever went to court and sought permission to publish, he had already published the offending article, because it is on the very same day that he is ordered to come back to court to deal with those issues and to take it down.
However, it is interesting to note that the local authority’s argument
‘based on the fact (if fact it be) that Mr Green is not a duly accredited journalist but merely a member of the public in my judgment takes [them] nowhere. Mr Green is as much entitled to invoke his arguments under Article 6 and Article 10 as anyone else. Duly accredited journalists have a privileged position in relation to attendance at family courts, but that is all.’
This of course is of direct assistance to legal bloggers who might attend under the current pilot scheme, albeit that the scheme itself gives them at least temporarily a status under the rules similar to accredited journalists. Whilst it should be obvious that any person wishing to exercise their freedom of speech may rely upon Article 10, it is helpful to have it spelt out.
The local authority and guardian were hopping up and down to ensure that Mr Green was prevented from further reporting on this case, as summarised here :
Ms Magee on behalf of the children’s guardian makes similar points. The guardian, she says, is “extremely concerned” that Mr Green, in pursuit of his agenda in exposing perceived injustices within local authority children’s services and the family court system, has in this instance unlawfully published information in breach of section 12 of the 1960 Act, has distorted the facts and provided information that could readily identify the children. Ms Magee records the guardian as being “deeply concerned” about the impact on the children, A in particular, of what Mr Green has written and records A’s own view, as reported by the guardian: A “is very clear that he does not wish to have his family circumstances published. Having endured an unhappy start to his childhood he is trying to re-build his life and move on.” Ms Magee submits that the children’s Article 8 rights outweigh Mr Green’s rights under Article 10.
They were in ‘debatable’ and ‘dangerous territory’ in trying to argue that Mr Green should be prevented from reporting because of his perceived motivation or because his writing was ‘irresponsible’ or ‘negative’. As he emphasised in the case of Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, para 39), the court is not a censor – and other legal remedies can and should be pursued if something that is published is defamatory or inaccurate. Even the ‘unprincipled charlatan’ is entitled to freedom of speech within those limits.
Somewhat surprising was the attempt by the local authority to rely on Re J itself in support of the proposition that the public interest in maintaining public confidence in the system meant that negative reports should be suppressed – this is of course the diametric opposite of what Lord Justice Munby himself had said in that case. On the contrary, said Munby (again) “the remedy to be applied is more speech, not enforced silence”.
Mr Green’s lawyer’s submissions were criticised for amounting to an invitation to change the law (an invitation which Lord Justice Munby did not accept). Lord Justice Munby said :
…I need to deal with two of the points made by Mr Green in his witness statement and picked up by Miss Obi-Ezekpazu in her submissions, namely his contention that “there is a clear tension between section 12 … and the Family Procedure Rules on the one hand, and Article 10 … and the Human Rights Act 1998 on the other” and his invitation to me “to consider that the media … should have the ability, in its own right, to receive and publish information within family proceedings without the need to apply for permission.” Miss Obi-Ezekpazu submits that it should not be necessary for a journalist to have to seek the permission of the court to publish; that where information has come to light about the family justice system which should be placed in the public domain the media should have the freedom to publish the information without threat of sanction; and that the current regime – a system which requires a journalist to apply to the court, which in turn requires him to pay a fee – infringes Article 10. “Having to negotiate a freedom is not a freedom at all.” She submits that only Guidance or a change in legislation will meet the requirements of Article 10.
Lord Justice Munby’s response to this was :
…there is simply no basis at all for the suggestion that there is any “tension” between, let alone any incompatibility of, the 1960 Act (and the FPR) with the Human Rights Act 1998. Ample authority…is absolutely clear on the point. In relation to the second point, I can only agree with Miss Tawfik’s pithy submission that it is “both wildly ambitious and wholly unjustified”, given the by now well-established jurisprudence. I am, with all respect to her, quite unable to accept Miss Obi-Ezekpazu’s submissions, except that if there is to be any change in the law of the kind she postulates that can, in my judgment, be achieved only by primary legislation.
Lord Justice Munby was explicit in stating that his job was to apply the law as it IS not how it perhaps SHOULD be (or as others might think it SHOULD be).
Alongside these wholly unsuccessful submissions, Ms Obi-Ezekpazu made broad transparency based points, which Lord Justice Munby (unsurprisingly) accepted as uncontroversial.
She also made submissions that :
concern about how Mr Green might use [the] material could be overcome by incorporating appropriate safeguards and restrictions in any order I make so as to safeguard the Article 8 rights of those concerned. What those safeguards might be was never really explained, let alone in appropriate detail, and no draft of a possible order including such safeguards and restrictions was ever provided.
So, Mr Green’s application was in part refused because he had asked for access to a wide range of documentation, but had made no proposals as to what restrictions should be placed upon his use of them at all (for example to prevent identification, or to keep them secure).
Mr Green’s counsel also relied upon Articles 6, 8 and 10 of the European Convention on Human Rights (rights to fair trial, private and family life and freedom of speech). Whilst those are undoubtedly the relevant rights to be thinking about in an application of this sort, it appears that the suggestion by Mr Green’s counsel that he had a good grasp on the importance of the Article 8 right to privacy was not entirely consistent with his preceding behaviour. That previous behaviour was a further part of the reasoning behind refusing his application.
The final important feature in the decision, was the likely impact of the reporting on the child, who was ‘acutely aware of the essence and reality of the matter and the situation’.
What is particularly interesting about this case is that it emphasises that there is in fact no need for the court to make a specific order to give effect to the privacy rules :
It is perfectly obvious that, on the face of it, the publication of the Article on the internet was a contempt of court. The effect of section 12(1)(a)(ii) of the Administration of Justice Act 1960 is that, unless a judge has previously give permission, it is a contempt of court (see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 58) to publish:
“‘information relating to proceedings before any court sitting in private … where the proceedings … are brought under the Children Act 1989.”
Although Mr Green’s application was ultimately decisively rejected, Lord Justice Munby also refused the application for an injunction restricting reporting, saying :
...an order is not necessary to prevent Mr Green doing what section 12 of the 1960 Act would in any event prohibit.
Secondly, it is important for Mr Green, and others like him, to appreciate that what he has been doing hitherto is prohibited by section 12 and that if he breaches section 12 he is guilty of contempt of court and can and will be punished for that contempt – the punishment being up to two years imprisonment or an unlimited fine – whether or not there was any express injunction in place. In that sense, to make an order may be to send an unhelpful message.
So : the message is : just because the court hasn’t made a specific order doesn’t mean you can wriggle out of s12. The impact of this warning shot may be somewhat lessened we think by the fact that the local authority were not pursuing committal proceedings against Mr Green for his breach of the order.
Once again, the court was forced to note that the terms of the injunctive order sought had been far too wide – the effect of it would have been to prevent publication ‘in a ‘stand-alone’ story, wholly innocuous, and indeed entirely positive, information about the child.’ Whether the application is to impose / tighten or to relax reporting restrictions applications should be focussed and specific and go no further than is necessary and proportionate bearing in mind the competing privacy and free speech rights that the court will need to balance.
Feature pic : Private No Entry by Brad Highham on Flickr – thanks (Creative commons)