The answer to the question is yes, in very limited circumstances and where no harm can be shown as likely to the children. In Southend Borough Council v CO and DW [2017] EWHC 1949 (Fam), reported on BAILII last month, the High Court judge decided not to order parents to remove an online petition about their children, although they had been subject to proceedings in a family court (routinely described as ‘secret’ courts).

The local authority wanted the mother to take down everything she was putting online, for a range of reasons relating to the children’s welfare: the effect on them of being exposed publicly, putting off potential carers etc.

However, the mother was not by this stage technically in breach of any law about what can and can’t be published. Although her name was on the petition and her children might be identified by people who knew them, she was not in breach of either section 97 Children Act 1989, nor section 12 Administration of Justice Act 1960. She was not in breach of s 97 (forbidding identification of a child) because that protection ends when the court case ends, nor s 12 (because she was not publishing any information about the proceedings. The extent of what ‘publication’ means was set out in Kent CC v B [2004] EWHC 411 (Fam)). In the Southend case, the mother just said she didn’t agree with the outcome.

The facts in this case

The original court case was about four brothers and sisters aged from 15 to 3, who were made subject to care orders in September 2016. The two younger children are to be adopted. Although the parents did not attempt any appeal against any of the orders, they complained by way of an online petition on the website. The mother had put photos of the children and other identifying details on the website and on her Facebook page.

At a court hearing in May 2017, following an application by the local authority for an injunction to order the parents to remove all information about the case from the website and from Facebook, an agreement was reached. This was that the parents agreed to an order that they remove all information and identifying material, but they did not agree to remove the petition itself and the order did not say they had to.

The position at the time of that hearing was that the parents and the local authority were in disagreement about whether the petition itself should stay. The parents argued they had a right to make their views felt through  but the local authority argued this interfered too much with the children’s privacy. The judge adjourned the case, on the basis of what could in the meantime be agreed.

However, before the matter came back to court, the local authority had sent letters to the family saying that if they signed the petition, they would be disobeying a court order. The judge was unhappy that the local authority had misinterpreted the order in that way but did not blame the social worker who had sent the letter. He said:

The social worker, as one would expect, sent the letter to the legal department of the local authority for checking before sending it out and the legal department returned the letter to the social worker un-amended for dissemination.  The actions of this local authority legal department in permitting a letter in the terms drafted by the social worker to be sent are strongly to be deprecated.  It is a matter of very grave concern that a local authority would seek to pass off an order of this court as something that it is not.  There must be no repeat of this.

He explained:

The current front page of the petition, which names the mother, reads as follows:

“In May 2017 family court granted, a full care order and placement order on all 4 of my beautiful children, despite me having solid evidence and this case was heard without evidence of emotional harm, neglect so I am applying to appeal to higher court so I can put evidence before a judge to prove to them i have never neglected my children , nor would i ever put them at risk of any sort of harm (i love my children with all my heart <3 my focus on life is them) Having my children is my greatest achievement, they are my saviour they switched my focus from the outside to the inside. My children are gifts, they remind me of what’s important. please help by signing this petition to reunite my family.<3”

The judge decided that this wording did not say anything about the private court hearings that was unlawful. This was because she had not ‘published’ anything that had been part of the court proceedings. All the mother was saying was that there had been care orders and she didn’t agree with the evidence or outcome. (According to the judgment, there were only placement orders for the two youngest children, not all four, and the orders had been made in September 2016 not May 2017.)

What did the mother achieve?

Sadly, it was her perception that her children had been removed without evidence and that she could still appeal.

Mr Justice MacDonald was careful to emphasise that his judgment was about these facts only. The law about what a parent can and can’t publish is complex, as we explain in our guide. Although there is a perception that judges start from the premise that children must be protected from publicity, this case is one of several that shows how much weight judges give Article 10 of the European Convention on Human Rights – the right to freedom of expression. There is no assumption that the Article 8 right to respect for a child’s privacy will outweigh Article 10.

However, it’s no real victory for the mother, who is not going to get ‘change’ through a website and could have been putting her energies in to getting legal advice on any remedies she might have, and also in to working with the local authority and foster carers to maintain positive contact with her older children.

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