H v A (No.2)

This application arises out of a judgment I delivered earlier this year in the family court in the case of H v A [2015] EWFC 58 (Fam). Following the handing down of that judgment I concluded that it fell within the terms of Paragraph 16 of the President’s Practice Guidance of 16 January 2014 entitled Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733, which provides that permission should always be given to publish a judgment where the judge concludes that publication would be in the public interest.

In the circumstances, and having requested that counsel for the parties provide proposals as to the appropriate level of anonymisation of the judgment, and counsel having indicated that no anonymisation was sought beyond the anonymisation of the names of the children, the parties and their solicitors, the judgment was placed on the British and Irish Legal Information Institute (Bailii) website in accordance with Paragraph 23 of the aforementioned Practice Guidance.

Following the judgment being placed on the Bailii website Mr Brian Farmer, the Press Association reporter based at the Royal Courts of Justice, alerted me via my Clerk that it was possible using certain of the facts set out in my judgment (which facts were already in the public domain) as search terms to identify the name of the family in this case by means of information available on the Internet. Specifically, an Internet search conducted by reference to those facts revealed a number of press reports concerning the circumstances surrounding the criminal convictions of the father, which criminal convictions formed the foundation for my judgment in the family proceedings. Those press reports named the father (and therefore, by extension, the family) and identified the address of the former family home. At least one of the press reports concerning the criminal proceedings gave the full name of one of the children of the family by reference to an unrelated incident.

Mr Farmer was concerned that he had managed to work out the parties’ details from the facts contained in my judgment in very short order and considered that he should notify the court in light of what he considered to be a potential means of ascertaining the current whereabouts of the children and the mother. I agree with Mr Tughan QC, who at this hearing appears on behalf of the applicant mother, that the steps taken by Mr Farmer to alert the court to his concerns constituted responsible journalism of a very high order.

As a result of Mr Farmer’s communication I requested that Bailii, and a number of other legal websites on which my judgment had been placed or had featured, remove the judgment and invited further submissions by the parties. All sites agreed to remove the judgment (albeit that, by reason of an administrative omission, one site left the judgment up for a number of weeks following the request being made). By the time the concerns regarding the judgment became apparent a number of stories concerning these family proceedings had appeared in the press, although none identified the family.

Following the court inviting further submissions from the parties in light of the events described above the Applicant lodged an application dated 22 July 2015. The matter now comes before me for consideration and determination of two interrelated questions raised by that application, namely:

The determination of these interrelated questions highlights the wider issue of the risk of so called ‘jigsaw identification’ in cases where the judgment of the family court has been made public. In particular, this case highlights the issue of ‘jigsaw identification’ in family cases where there has been prior press reporting of related criminal proceedings that remains readily accessible to the public on the Internet provided one has the appropriate terms to type into a search engine, which Internet search terms can be gleaned from the facts set out in the judgment of the family court even where that judgment is published in a form which anonymises the details of the family.

Within this context there has also been some discussion during the course of submissions in this case concerning the rubric indicating the ambit of permitted publication that appears on the front of judgments placed on Bailii, and the effect of that rubric in family cases in which there have been prior criminal proceedings that have been the subject of reports in the media. I address this issue further below.

The father has been given notice of this hearing and of the mother’s application for a reporting restriction order. Ahead of this hearing the court was informed by the father’s solicitors that the father had given no instructions with respect to this application and that they were without funds.

The press has likewise been given notice of this hearing in the ordinary way. I have had the benefit of hearing from Mr Farmer with respect to some of the difficulties that arise for the press in circumstances where family proceedings follow criminal proceedings arising out of the same facts, which facts have already been the subject of extensive reporting in the media.

Given the relative complexity of the issues raised by this application, having heard submissions on 23 July 2015 I reserved my judgment.

By reason of the decision that I have reached regarding the two questions that fall for determination as a result of the mother’s application the background to this case can be gleaned from my original judgment, which judgment will be published in its original form, accompanied by a reporting restriction order in the terms dealt with at the conclusion of this judgment. In summary however, the background to the current application is as follows:

It will be apparent from the foregoing summary of my judgment that the criminal convictions of the father formed the basis of my findings and conclusions in these proceedings. Any judgment which explained the basis for the orders I made had, accordingly, to refer in some detail to the criminal proceedings and to the facts which underpinned the convictions obtained therein.

As the President noted in Re Webster; Norfolk County Council v Webster and others [2007] 1 FLR 1146at [122] to [123], whilstthe issue of transparency and openness in the family courts is the subject of an ongoing and sometimes vigorous debate, applications concerning the publication of information relating to family proceedings “fall to be determined by reference to the law as it is, not the law as some might think it ought to be.” The applicable law is now well settled.

The family courts have long expressed the view that the outcome of hearings held in private should be made public (see Re G (Celebrities: Publicity) [1999] 1 FLR 409, Pelling v Bruce-Williams (Secretary of State for Constitutional Affairs Intervening) [2004] 2 FLR 823 and Re H (Freeing Orders: Publicity) [2006] 1 FLR 815). In Re X, London Borough of Barnet v Y and X [2006] 2 FLR 998 at [166]–[167] the President observed that:

“[166] ... In my view the public generally, and not just the professional readers of law reports or similar publications, have a legitimate – indeed a compelling – interest in knowing how the family courts exercise their care jurisdiction. Moreover, if leave is confined in practice to those cases which are, for some reason, thought to be worthy of reporting in a law report, the sample of cases which will ever come to public attention is not merely very small but also very unrepresentative.

[167] My own view, and I make no bones about this, is that, subject of course to appropriate anonymisation, the presumption ought to be that leave should be given to publish any judgment in any care case, irrespective of whether the judgment has any particular interest for law reporters, lawyers or other professionals. It should not be necessary to show that there is some particular reason to justify why leave should be given in the particular case, let alone any need to justify leave on the basis that the judgment deals with some supposedly interesting point of law, practice or principle. For my own part, I should have thought that the proper approach ought to be the other way round. It is not so much for those who seek leave to publish an anonymised judgment to justify their request; surely it is for those who resist such leave to demonstrate some good reason why the judgment should not be published even in a suitably anonymised form.”

In Practice Guidance: Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733 the President set out guidance on the publication of judgments given by the family courts. The Practice Guidance came into effect from 3 February 2014. The Practice Guidance distinguishes between three categories of judgment. In the first category of judgments are those which the judge concludes it would be in the public interest to publish. The Practice Guidance provides that such judgments should always be published whether or not a request has been made for publication by a party of the media. In the second category of judgments are those which concern the matters set out in the first and second schedules to the Practice Guidance. Judgments falling into the second category should be published unless there are compelling reasons why the judgment should not be published. In the third and final category of judgments are those judgments in all other cases. Judgments falling into this latter category may be published whenever a party of an accredited member of the media applies for an order permitting publication and the judge concludes that permission for the judgment should be given.

Whilst the Applicant initially contended that my judgment in this case fell into the third category stipulated by the Practice Guidance, during the course of his submissions Mr Tughan conceded that the judgment does in fact fall into the first category. In particular, Mr Tughan acknowledged that it is in the public interest for a judgment by which the court, acting as an agency of the State, proscribes completely the operation of a father’s parental responsibility for the remainder of his children’s minority to be published.

Within this context, and in circumstances where the Applicant seeks to persuade the court that the judgment should remain unpublished, the question arises as to whether the court retains a discretion not to publish a judgment which falls into the first category of the Practice Guidance. In my judgment it does. Paragraph 13 of the President’s guidance makes clear that:

“Nothing in this Guidance affects the exercise by the judge in any particular case of whatever powers would otherwise be available to regulate the publication of material relating to the proceedings. For example, where a judgment is likely to be used in a way that would defeat the purpose of any anonymisation, it is open to the judge to refuse to publish the judgment or to make an order restricting its use.”

In the circumstances, it is clear in my judgment that even where the judge considers that a judgment falls into the first category in the Practice Guidance, comprising those judgments which it is in the public interest to publish, the court retains a discretion not to publish the judgment.

Further, and having regard to the circumstances that have arisen in this particular case, once published, in my judgment the court has jurisdiction to remove the judgment from the public domain or otherwise make orders restricting its use. The Court of Appeal made clear in Re C (A Child) [2015] EWCA Civ 500 at [23] that the decision whether or not to publish the judgment constitutes a case management decision. In my judgment it is open to the court to remove the judgment from the public domain or otherwise make orders restricting its use in light of new evidence or changed circumstances as part of the courts case management powers regarding disclosure and the wide powers under FPR 2010 r 4.1(3)(o) to further the overriding objective of ensuring the case is dealt with justly.

Paragraph 19 of the Practice Guidance makes clear that in considering whether to publish a judgment the judge “shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.” Within this context I set out the legal principles governing both the question of publication of a judgment and the determination of the application for a reporting restriction order below.

It is important to note that whilst, given the particular difficulties that have arisen in this case, and in circumstances where there is also an application for a reporting restriction order, I consider below the legal principles referred to in Paragraph 19 of the Practice Guidance in some detail, ordinarily the exercise of discretion concerning the publication of the judgment will be a simple case management decision to be taken at the conclusion of the judgment and following a broad consideration of the applicable principles with basic reasons (see Re C (A Child) at [23]).

Finally on the subject of publishing judgments, as noted above, Mr Famer raised with the court the operation of the standard rubric that appears at the beginning of judgments placed on Bailii. Subject to modification in individual cases, the standard rubric tends to adopt the following wording or a formulation close to it:

“This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”

The President’s Practice Guidance makes clear in respect of the rubric at Paragraph 10 that “In every case the terms on which publication is permitted are a matter for the judge and will be set out by the judge in a rubric at the start of the judgment.” Accordingly, it is important to note that the terms of the rubric are not fixed and can be altered by the judge to suit the circumstances of a given case.

The principles governing the publication of information relating to family proceedings, which principles apply to both to the question of publication of a judgment and the determination of the application for a reporting restriction order, were summarised succinctly by the President in Re J (Reporting Restriction: Internet: Video) [2014] 1 FLR 523 as follows:

Thus, outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights under the ECHR rather than the inherent jurisdiction of the High Court and, accordingly, applications for orders restraining publication are determined by balancing the competing human rights engaged (Re S (Identification: Restrictions on Publication) at [23]). In the majority of cases concerning the publicity of family proceedings the competing rights to be balanced will include those enshrined in Art 8 (right to respect for private and family life) and Art 10 (right to freedom of expression) of the European Convention. In some cases other rights will also fall to be placed in the balance.

When conducting a balancing exercise between Art 8 and Art 10, the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) at [17], namely:

In A Local Authority v W, L, W, T and R(by the Children’s Guardian) [2006] 1 FLR 1 at [53], Sir Mark Potter P summarised the approach to the requisite balancing exercise as follows:

In undertaking the requisite balancing exercises, the impact of publication on the children must be weighed by the Court (Re S (A Child) (Identification: Restrictions on Publication) at [25]). Whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In particular, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child (see Clayton v Clayton [2006] Fam 83 at [51]).

Within the balancing exercise, the child’s best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations (Re J (Reporting Restriction) [2014] 1 FLR 531 at [22]). This position reflects the fact that it is not only the rights of the subject child that are engaged in the requisite balancing exercise but also the rights of other parties to the proceedings and the rights that protect the freedom of the press and which underpin our democratic society more widely.

In applying what Lord Steyn described as the “ultimate balancing test” of proportionality it is important that the court consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve. In JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 Moore-Bick LJ said:

“[17] The identities of the parties are an integral part of civil proceedings and the principle of open justice requires that they be available to anyone who may wish to attend the proceedings or who wishes to provide or receive a report of them. Inevitably, therefore, any order which prevents or restricts publication of a party's name or other information which may enable him to be identified involves a derogation from the principle of open justice and the right to freedom of expression. Whenever the court is asked to make an order of that kind, therefore, it is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required for that purpose. The approach is the same whether the question be viewed through the lens of the common law or that of the European Convention on Human Rights, in particular articles 6, 8 and 10."

Other rights in addition to those enshrined in Arts 8 and 10 may also have to be placed in the balance when reaching a decision regarding the publication of information concerning family proceedings. In this case, by way of a supplemental Skeleton Argument, Mr Tughan contends that the Art 2 right to life of the children and the mother is also engaged.

As I have already noted, the balance of the rights set out above must be decided in each case based on evidence. Within this context, the courts have made clear that when the court is considering whether to depart from the principle of open justice (in this case by reference to the interference in the Art 2 and Art 8 rights of the children and the mother) it will require clear and cogent evidence on which to base its decision. In R v Robert Jolleys, Ex Parte Press Association [2013] EWCA Crim 1135 Leveson LJ said at paragraph 16:

“It was for anyone seeking to derogate from open justice to justify that derogation by clear and cogent evidence: see R v Central Criminal Court ex parte W, B and C [2001] 1 Cr App R 2 and in civil cases, the Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1033 and Derispaska v Cherney [2012] EWCA Civ 1235 per Lewison LJ (at paragraph 14). The order was made when defence counsel asserted the likelihood of the defendant's son suffering ‘the most extraordinary stigma through no fault of his own’ which caused the Recorder to ask the reporter what the need for identifying the son was, rather than whether it was necessary to restrict his identification.”

The courts have recognised that some of the evidence on which the requisite balancing exercise is undertaken will be necessarily involve a degree of speculation (see Re W (Children)(Identification: Restrictions on Publication) [2006] 1 FLR 1). The court should use its common sense and there is certainly no need for evidence from child psychiatrists or specific evidence, for example, of psychological harm to the child (see Re J (Reporting Restriction Order) at [75]). However, I respectfully agree with, and adopt the observation of Keehan J in Birmingham City Council v Riaz and others [2014] EWHC 4247 (Fam) that:

“There comes a point, however, where evidence is not merely speculative but is pure speculation, even from experienced professionals, with no sound or cogent underlying evidential basis. Given the Draconian and wide ranging nature of RROs, I am of the view that evidence of this nature will not be sufficient or adequate to provide an evidential basis to justify the making of an order.”

Where, as in this case, the regulation by the family court of publication of material relating to family proceedings may impact adversely on the reporting of related criminal proceedings the following principles also fall for consideration within the context of the balancing exercise set out above.

The statutory regime governing publicity concerning children within the context of criminal proceedings is to be found in the Children and Young Persons Act 1933 s 39 (which also applies to family proceedings) and the Youth Justice and Criminal Evidence Act 1999 s 45A. The Children and Young Persons Act 1933 s 39 provides as follows:

“39 Power to prohibit publication of certain matter in newspapers.

(1)

In relation to any proceedings in any court…, the court may direct that—

(a)

no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;

(b)

no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

except in so far (if at all) as may be permitted by the direction of the court.”

The protection provided by the Children and Young Persons Act 1933 ceases to apply when the child concerned reaches the age of 18. However, s 78 of the Criminal Justice and Courts Act 2015 has amended the Youth Justice and Criminal Evidence Act 1999 to insert the following provision allowing for a lifetime prohibition on reporting any matter that it is likely to lead members of the public to identify a witness or victim under the age of 18 as having been concerned in the criminal proceedings:

“45A Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18

(1)

This section applies in relation to—

(a)

any criminal proceedings in any court (other than a service court) in England and Wales, and

(b)

any proceedings (whether in the United Kingdom or elsewhere) in any service court.

(2)

The court may make a direction ("a reporting direction") that no matter relating to a person mentioned in subsection (3) shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.

(3)

A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—

(a)

a witness, other than an accused, in the proceedings;

(b)

a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.

(4)

For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—

(a)

the person's name,

(b)

the person's address,

(c)

the identity of any school or other educational establishment attended by the person,

(d)

the identity of any place of work of the person, and

(e)

any still or moving picture of the person.

(5)

The court may make a reporting direction in respect of a person only if it is satisfied that—

(a)

the quality of any evidence given by the person, or

(b)

the level of co-operation given by the person to any party to the proceedings in connection with that party's preparation of its case, is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.”

Whilst the provisions of s 45A of the Youth Justice and Criminal Evidence Act 1999 plainly represent a legislative choice to extend to child witnesses and victims the right during and following the conclusion of the criminal proceedings to restrain throughout their life publicity which might lead to their identification, it is equally plain that those provisions are drawn in narrow terms and, having regard to the wording of s 45A(5), are directed at protecting the integrity of the criminal proceedings rather than at the welfare and rights of the child witness or victim per se.

Within the context of these statutory provisions, the courts have consistently emphasised that it will be only in exceptional circumstances that the Art 8 right to respect for private and family life of a child witness or victim will prevail over the principle of ‘open justice’ as it applies to criminal proceedings, and then only to the extent provided by the aforementioned express statutory provisions governing publicity.

Thus, in Re B (A Minor)(Wardship: Restrictions on Publication) [1994] 2 FLR 637 Sir Thomas Bingham MR (as he then was) made clear that, in the absence of statutory restriction, reports of proceedings in a public court of law should only be restrained where and to the extent that restraint is shown to be necessary for the purposes of protecting the proper administration of justice. Within this context, in Re B (A Minor)(Wardship: Restrictions on Publication) the Court of Appeal doubted in the strongest terms that a judge sitting in the Family Court has power to restrain reporting of a criminal trial. In any event, even if having the power to restrict publicity relating to criminal proceedings, the Court of Appeal was firmly of the view that family judge should not exercise it; any decision as to restraining the publicity relating to the identity of persons concerned in criminal proceedings being a matter for the discretion of the criminal trial judge under Children and Young Persons Act 1933 s 39 (and now the Youth Justice and Criminal Evidence Act 1999 s 45A).

In Re Trinity Mirror Plc (2008) 2 Cr App R 1 the then Lord Chief Justice, Lord Judge said at [32] and [33]:

This strict position has been recognised and endorsed by the family courts when determining applications for injunctive orders to protect the Art 8 rights of children, the effect of which would be to prohibit the reporting of criminal proceedings. In Re LM (Reporting Restriction Orders: Coroner's Inquest) [2008] 1 FLR 1360 Sir Mark Potter P recognised that the principle of open justice “extends to the right of the media freely to report the identity of the defendant and witnesses in criminal proceedings despite the adverse effects on the Art 8 rights of a child who was not so involved.” In A Local Authority v M and Others [2012] EWHC 2038 (Fam) Peter Jackson J held that a conclusion that the Art 8 rights of individuals should prevail over the Art 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, although not one that is beyond the contemplation of the courts.

Thus, it will only be in exceptional circumstances that the family court will grant a reporting restriction order on the basis that such an order is necessary to protect the right of a child of the defendant to respect for private and family life which has the effect of restricting publication of information concerning criminal proceedings. In Re S (A Child) (Identification: Restrictions on Publication) at [26] Lord Steyn concluded:

“While Art 8(1) is engaged, and none of the factors in Art 8(2) justifies the interference, it is necessary to assess realistically the nature of the relief sought. This is an application for an injunction beyond the scope of s 39, the remedy provided by Parliament to protect juveniles directly affected by criminal proceedings. No such injunction has in the past been granted under the inherent jurisdiction or under the provisions of the European Convention. There is no decision of the Strasbourg court granting injunctive relief to non-parties, juvenile or adult, in respect of publication of criminal proceedings. Moreover, the United Nations Convention on the Rights of the Child 1989, which entered into force on 2 September 1990, protects the privacy of children directly involved in criminal proceedings, but does not protect the privacy of children if they are only indirectly affected by criminal trials: see Arts 17 and 40(2)(vii); see also Geraldine Van Bueren, The International Law on the Rights of the Child (Brill Academic Publishing, 1995), at pp 141 and 182. The verdict of experience appears to be that such a development is a step too far.”

When considering the applicability of the foregoing principles in this case, it is important to recognise that the relevant criminal proceedings in this case have now been concluded. Those proceedings were the subject of extensive press reporting, which reporting met the objectives of the principle of open justice described in R v Legal Aid Board ex parte Kaim Todner (A Firm) [1999] QB 966 (see below). In the circumstances, any injunction made by this court restraining the publication of information in the family proceedings will not risk restraining the contemporaneous reporting of the criminal proceedings. In Re X Children [2008] 1 FLR 589 at [73] the President made clear, in the context of reiterating the principle that whilst it was a strong thing to omit or qualify the public domain proviso, the Court can, where there is a pressing need, construct a reporting restriction order so as to prevent the further reporting of aspects of the criminal proceedings which have already been reported.

However, in my judgment consideration of the ambit and applicability of the principles outlined above is still required in this case in circumstances where, were the court to accede to Mr Tughan’s submission that this is a case in which it is proper to do the ‘strong thing’ and omit a ‘public domain’ proviso from the reporting restriction order he seeks, an injunction made by this court restraining publication of the identity of the mother and the children would operate to prevent further reference being made by the press to the fact of, the circumstances of and the outcome of the criminal trial.

Finally in the context of Mr Tughan’s submission that the reporting restriction order that he seeks should not contain an exception in respect of information that is already in the public domain, the Human Rights Act s.12(4)(a)(ii) reiterates the principle that amongst the matters to be taken into account (as opposed to being determinative) when deciding an application is the extent to which the information is already in the public domain. This principle pre-dates the Human Rights Act 1998. In A-G v Guardian Newspapers (No 2) [1990] AC 109 Lord Goff of Chievely observed that:

In recent times the principles governing what may be termed the ‘public domain proviso’ have undergone considerable development to the point where (in cases where the complaint under Art 8 is one of intrusion rather than simply breach of confidentiality per se) even if the relevant information is in the public domain the repetition of that information will, in an appropriate case, be restrained as amounting to unjustified interference with the private lives not only of that subject but also of those who are involved with him or her (see F v Newsquest and Others [2004] EMLR 607, JIH v News Group Newspapers [2010] EWHC 2818 (QB), [2011] EMLR 177, CTB v News Group Newspapers Ltd and Thomas [2011] EWHC 1326 (QB), MBX v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB) and Re A (Reporting Restriction Order) [2012] 1 FLR 239).

Within this context, and as noted above, whilst it is a strong thing to omit or qualify the public domain proviso, the court can, where there is a pressing need, prohibit publication so as to prevent the further reporting of aspects of the criminal proceedings which have already been reported (Re X Children at [73]). In Re A (Reporting Restriction Order) at [78] Baker J held that the fact that a child has been already named or identified on the Internet is no justification in itself for permitting repetition of such publication. In some cases, repetition of material that has been placed in the public domain can be damaging to a child (see F v Newsquest and Others [2004] EMLR 607 at [49]).

Notwithstanding the arguments set out in his original Skeleton Argument, at the outset of his submissions Mr Tughan made clear that he accepted that, by reference to the terms of the Practice Guidance, the judgment falls within Paragraph 16 of that guidance. However, Mr Tughan submits that the balance of competing rights in this case in respect of the publication of the judgment mandates that I refrain from publishing the judgment or publish the judgment only in a heavily redacted form limited to setting out the law I have applied and the decision I have reached.

Mr Tughan further submits that the outcome of the balancing exercise mandates the making of a reporting restriction order to further bolster the anonymity of the children and the mother in this case. As I have recounted, Mr Tughan contends that I should make a reporting restriction order without a public domain proviso to ensure that there is no further publication of information related to the criminal proceedings, the publication of which information he submits would be likely to lead to the ‘jigsaw identification’ of the identity and the whereabouts of the children and the mother.

To make good his case that the Art 2 and Art 8 rights of the mother and the children outweigh the Art 10 right to freedom of expression in the circumstances of this particular case, in summary Mr Tughan advances the following submissions:

As can be seen, Mr Tughan’s submissions concerning the interference with the Art 2 and Art 8 rights of the children and the mother divide, essentially, into two broad themes. First, that the publication of the judgment will lead to an unacceptable risk of grave or fatal physical harm to the family in circumstances where it will permit the father to locate their whereabouts and do them harm, either directly or through the agency of third parties. Second, that publication of the judgment will in any event present a risk of emotional harm by compelling the children and the mother to live with the knowledge that information has been placed in the public domain that could permit the father to establish the whereabouts of the family and that information that is deeply personal and upsetting is, once again, the subject of public knowledge and debate. These circumstances, submits Mr Tughan, constitute a breach of the Art 2 right to life of the children and the mother (such as to engage the positive obligation to take preventative operational measures to protect the lives of the children and their mother) and a disproportionate interference in their Art 8 rights. Overall, Mr Tughan submits that there would be an inherent contradiction in the court finding that it is not safe to send certain information to the father for fear of accidentally revealing the whereabouts of the family and that there is a need to protect the emotional integrity of the children’s placement with their mother, only then to permit publication of details that he submits go against, or undermine both of these stated aims.

The court has also had the benefit of hearing representations from Mr Farmer of the Press Association addressing the issues that arise for the press where an anonymised judgment in family proceedings follows related criminal proceedings that have been the subject of extensive publicity. In particular, Mr Farmer highlighted five matters. First, he suggested that there is a strong public interest in permitting the publication by the media of judgments in family proceedings that demonstrate the consequences of crime for family life. Mr Farmer suggested that a parent contemplating criminal conduct may think twice if aware of the potential consequences of that conduct for contact with his or her children. Within this context, Mr Farmer suggested that publication in this case of a judgment demonstrating that the commission of grave offences can lead to the complete proscription of parental responsibility is consistent with one of the wider aims of the justice system, namely, deterring the commission of crime. Second, and related to the first point, Mr Farmer observed that publication of the judgment will serve to highlight the consequences for those who perpetrate domestic violence and that, accordingly publication would be consistent with wider public interest in preventing domestic abuse. Third, Mr Farmer reminded the court that the facts set out in my judgment are all already in the public domain, either because they have already been reported in the press or because they are facts which were aired in open court during the course of the criminal proceedings. Fourth, Mr Farmer contended that, whilst it was his job as a journalist to use the Internet as a tool to investigate whether there is story arising out of a judgment of the family court that it may be in the public interest to publish (Mr Farmer concluding in this case that there is for the reasons already set out) it is doubtful that many, if any, member of the public unconnected with the case would undertake such an exercise. Finally, Mr Farmer highlighted a concern regarding the terms of the rubric set out at the commencement of judgments published on the Bailii. Mr Farmer asserted that, depending its wording, the rubric can act to prevent further reporting of all or part of concluded criminal proceedings in cases which have previously been the subject of press reports. This, says Mr Farmer, can lead to a position whereby the press is prevented from reporting material that is covered by the cardinal principle of open justice applicable to criminal proceedings, that the press is, in a different context, permitted to report and that the press has already reported lawfully. I am most grateful to Mr Farmer for his considered and measured assistance in this case.

I have decided that my judgment in this case should be published in its original format. I have further decided that there should be a reporting restriction order in the terms set out at the end of this judgment prohibiting the names of the children and their current whereabouts being reported. My reasons for so deciding are as follows.

For the reasons set out above, the proper approach in relation to both the decision whether to publish the substantive judgment in this matter and whether to make a reporting restriction order is for the court to identify the various rights that are engaged, conduct the necessary balancing exercise between the competing rights by maintaining intense focus on the comparative importance of those specific rights, by examining and accounting for the justifications for interfering with or restricting each right and by applying the ultimate balancing test of proportionality.

Dealing first with the Art 2 rights of the children and the mother, Art 2 of the ECHR provides as follows in respect of the right to life:

The importance of the right to life to the children and the mother is self evident, life being the basis of the existence and efficacy of all other human rights. In addition to prohibiting the deprivation of life, Art 2 has been interpreted by the European Court of Human Rights as imposing on the State a positive obligation to take steps to prevent the loss of life at the hands of others. This positive obligation will, in certain well defined circumstances, include an obligation on the State to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v United Kingdom [1998] 29 EHRR 245 at [115]).

In order to establish a positive obligation it must be shown to the satisfaction of the court that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. For these purposes, it is sufficient for an applicant to show that, in the light of all the circumstances of any particular case, the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge (see Osman v United Kingdom [1998] 29 EHRR 245 at [116]). It is important to note that the positive obligation arises only were the risk to life contended for is “real and immediate” in the sense that it is an objectively verified risk that is present and continuing. Within this context the threshold is a high one (Re Officer L [2007] 1 WLR 2135 at [20]). Where this test is met the applicant is then also required to show that the State has failed to do all that was reasonably to be expected of them to avoid the risk of life in the circumstances of the case, including the ease or difficulty of taking precautions and the resources available (Re Officer L at [21]).

Mr Tughan submits that a real and immediate risk to the life of the children and the mother presented by publication of the judgment is made out in this case by the circumstances of the father’s convictions and the findings of risk on which the father’s discretionary life sentence was predicated, and by the fact that publication of the judgment will permit the father to identify the whereabouts of the children and their mother. I do not accept Mr Tughan’s submissions in this regard.

As I have observed in my judgment, the father remains a dangerous individual. However, it is also the case that he remains securely incarcerated at the discretion of the authorities. In such circumstances he is not himself in a position to threaten the life of the children or the mother by direct action. I acknowledge of course that, historically, the father has attempted to engage the services of third parties to pursue conduct which, if followed through, would have presented a real and immediate risk to the life of the children and their mother. I bear in mind that the outcome of these attempts was that those whose malign assistance the father sought to engage instead turned him in to the authorities, leading to his current discretionary life sentence. There is no evidence that the father has sought to repeat his efforts to encourage others to find and harm the children or the mother. Within the context of these proceedings the father has agreed to the substantial curtailment of his parental responsibility for the purposes of ensuring the whereabouts of the children remain confidential. Nonetheless, at the forefront of my mind is my finding that were the father to ascertain the whereabouts of the children and the mother he would once again seek, albeit at arms length, to engage in conduct that would be entirely antithetic to their personal safety and emotional wellbeing, being an individual who is likely to seek to exploit any opening available to him to project himself harmfully into lives of the mother and the children.

Within the context of my finding that were the father to ascertain the whereabouts of the children and the mother he would once again seek at arms length to do them harm, in order to make good his case that a real and immediate risk to the life of the children and the mother is presented by publication of the judgment Mr Tughan not only has to establish the that the father presents a risk of fatal harm per se having regard to his past conduct but, in the circumstances of this case, also that the publication of the judgment will permit the father to locate the whereabouts of the children and the family such that he will be able to make manifest that risk.

In seeking to establish this, and in circumstances where the father already, of course, knows the facts set out in the judgment and where those facts are already in the public domain, Mr Tughan was compelled to resort to a degree of speculation centering on a scenario whereby the publication of the judgment may cause a member of the public previously unaware of the information in the judgment, or a member of the public who knew of but had forgotten about the information in the judgment, to use the facts set out in the judgment as search terms to establish the identity of the family and then, either having prior knowledge of the family’s whereabouts or having used the family’s identity to establish the same, notify the father of those whereabouts, at which point the father would seek to harm the children and the family through the agency of a third party.

I am not however persuaded that the publication of the judgment in its current form would, even were the identity of the family to be established by reference to information already published regarding the criminal proceedings, permit the father any greater opportunity to locate the children and their mother in order to do them fatal harm through the agency of a third party than he has at present. First, the father already, of course, knows the identity of the family. Withholding publication of the judgment would not prevent him communicating their identity to a third party with a view to that party seeking to identify the whereabouts of the mother. It should be noted that there is no evidence that he has, subsequent to his latest conviction, again sought to use those facts himself to seek to identify the whereabouts of the mother. Second, the identity of the family is already in the public domain following the criminal proceedings. Withholding the publication of the judgment would not prevent a member of the public or the press already aware of their identity from using the publically available information set out in the judgment to seek to locate the whereabouts of the mother if they were so minded. The mother makes clear in her statement in support of this application that the media have not located the whereabouts of her and the children following the brief publication of the judgment in this case. Finally, as to Mr Tughan’s submission that the publication of the judgment may cause a member of the public previously unaware of the information in the judgment, or a member of the public who knew of but had forgotten about the information in the judgment, to use the facts set out in the judgment as search terms to establish the identity of the family and notify the father of those whereabouts, this is extremely speculative, particularly when set alongside the clearly identified and appreciable systemic risk of location presented by the provision of anonymised school reports to the father that drove the decision set out in my judgment. There is no evidence to suggest that it is likely that a member of the public previously unaware of the case (or who had forgotten about the case but was reminded of it by the judgment) would take the steps outlined above with a view to assisting the father to do fatal harm to the children and their mother. In these circumstances, I am not persuaded that the publication of judgment would materially increase the risk of the location of the children and their mother being revealed from its current level.

Having regard to the matters set out above, I have come to the conclusion that it cannot be said in this case that there exists a real and immediate risk to the life of the children and the mother from the criminal acts of the father or agents acting on his behalf arising out of the publication of the judgment such as to cross the high threshold under Art 2. In the circumstances in my judgment the rights of the children and their mother Art 2 are not engaged in this case and do not fall to be considered in the balancing exercise.

Dealing next with the importance of, and the justifications for interfering with the Art 8 right to respect for private and family life, Art 8 of the ECHR provides as follows:

It is important in the context of applications to restrain publicity to consider the proper ambit of the Art 8 right of the children and the mother to respect for private life. In R (Countryside Alliance) v A-G [2008] 1 AC 719 Lord Roger observed that the European Human Rights Commission long ago rejected any Anglo-Saxon notion that the right to respect for private life was to be equated with the right to privacy. In Botta v Italy (1998) 26 EHRR 241 at [32] the European Court of Human Rights made clear that:

“Private life, in the court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Art 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”

In Bensaid v United Kingdom (2001) 33 EHRR 205 at [46] and [47] the European Court of Human Rights reiterated that:

“Art 8 protects the right to identity and personal development, and the right to develop and establish relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensible precondition to the effective enjoyment of the right to respect for private life.”

Accordingly, when considering the balance to be struck between the Art 8 right of the children and the mother to respect for private life and the Art 10 right to freedom of expression, it is important in the context of the risks contended for by the Applicant in this case to recognise that the ambit of the private life of the children and the mother is a wide one, encompassing not only the narrow concept of personal freedom from intrusion but also psychological and physical integrity, personal development and the development of social relationships and physical and social identity.

As regards the narrow concept of personal freedom from intrusion, the private nature of family issues that come before the courts has long been recognised. In concluding unanimously in Scott v Scott [1913] AC 417 that so far as its powers to sit in private were concerned the Probate, Divorce and Admiralty Division (the pre-cursor to the Family Division) stood in principle in no different position than the Queen’s Bench and Chancery Divisions, Lord Shaw of Dunfermline nonetheless recognised that family matters are:

It is plain that the Art 8 right of the children and the mother to respect for both private and family life is engaged in this case. It is further plain that publication of the judgment would interfere with their respective right to respect for private and family life. Having regard to the history of this matter and to the impact of the father’s conduct on the children and the mother, their right to freedom from intrusion, psychological and physical integrity, personal development and the development of social relationships and physical and social identity is extremely important, as is their right to respect for family life more widely. The right to respect for private life under Art 8 has particular resonance for children who have experienced a home environment in which they have witnessed violence and who require safety, security and stability to recover their emotional equilibrium. Within this context, I remind myself that in my judgment I concluded that the children have an imperative need to be protected from the risk of physical and emotional harm that their father represents and that it is important not only to protect the children and the mother from any risk of physical harm but also to ensure the emotional integrity of the household.

The justifications for interfering with or restricting the Art 8 rights of the children and the mother in this case can be summarised as follows:

Turning finally to the importance of, and the justifications for interfering with the right to freedom of expression in this case, Art 10 of the ECHR provides as follows in respect of the right to freedom of expression:

Art 10 of the ECHR must read in the context of s 12(4) of the Human Rights Act 1998 which provides as follows in relation to the right to freedom of expression:

“(4)

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 appear 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, [and] (b) any relevant privacy code.”

The right to freedom of expression has been described as the “touchstone of all human rights” (UN General Assembly Resolution 59(1) of 14 December 1946). The importance of the Art 10 right to freedom of expression has been articulated fully by the domestic courts. In R v Secretary of State for the Home Department ex parte Simms and Another [2000] 2 AC 115 Lord Steyn said at 126:

“Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfillment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market”: Abrams v United States (1919) 250 US 616, at 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.”

The right to freedom of expression has been further recognised as being of seminal importance to the proper administration of justice, embodying as it does in the principle of ‘open justice’. In the case of Scott v Scott Lord Shaw of Dunfermline (in a passage that often does not accompany the quote set out in Paragraph 68 above) observed:

“It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice”. “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial”. “The security of securities is publicity”. But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: “Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.” I myself should be very slow indeed (I shall speak of the exceptions hereafter) to throw any doubt upon this topic. The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary – and they appear to me still to demand of it – a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves. I must say frankly that I think these encroachments have taken place by way of judicial procedure in such a way as, insensibly at first, but now culminating in this decision most sensibly, to impair the rights, safety, and freedom of the citizen and the open administration of the law.”

The importance of the principle of open justice enunciated in Scott v Scott has been repeatedly endorsed by both the domestic and the European courts (see for exampleAG v Leveller Magazine [1979] AC 440, Reynolds v Times Newspapers Limited [2001] 2 AC 127 and R (Guardian News and Media Ltd) v City of Westminster Magistrates Court and the Government of the United States of America [2012] EWCA Civ 420). In Diennet v France [1996] 21 EHRR 554 the court stated at [33]:

“The court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Art 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means where confidence in the court could be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Art 6(1), namely a fair trial, the guarantee of which is one the fundamental principles of any democratic society…”

In R v Legal Aid Board ex parte Kaim Todner (A Firm) [1999] QB 966 at 977 the purpose of open justice was described by Lord Woolf MR as being (a) to deter inappropriate behaviour on the part of the court; (b) to maintain the public's confidence in the administration of justice; (c) to enable the public to know that justice is being administered impartially; (d) to result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with the parties' or witnesses' identities concealed; and (e) to make uninformed and inaccurate comment about the proceedings less likely.

Within the foregoing context, the importance of the principle of open justice in family proceedings has likewise been repeatedly emphasised. In Scott v Scott [1913] AC 417 Lord Shaw of Dunfermline said, at 475 and 687 respectively:

“These sections of the [Divorce] Act of 1857 were declaratory in another sense. They brought the matrimonial and divorce procedure exactly up to the level of the common law of England. I cannot bring myself to believe that they prescribed a standard of open justice for these cases either higher or lower than that for all other causes whatsoever...The old private examination of witnesses is abolished; the new system is an open system.”

In Clibbery v Allan [2002] 1 FLR 565, at para [16], Dame Elizabeth Butler-Sloss P said of the Family Division:

“That principle of open justice applies to all courts and in principle the family courts are not excluded from it, although for good reasons which I shall set out later, many family cases...require confidentiality.”

Mr Tughan acknowledges, as he must, the importance of the right to freedom of expression under Art 10. However, Mr Tughan submits that two factors affect the weight the court should accord to Art 10 in this case. First, Mr Tughan submitted that the Art 10 right to freedom of expression must, in this case, be seen in the context of these proceedings arising in “the private law sphere”. Within this context, Mr Tughan submits that whilst there may be private law cases which involve issues of “public interest” such that the outcome of the proceedings should be published, this is not one of those cases. Second, Mr Tughan contended in his Skeleton Argument that this is not a case in which the court is required to consider the impact of information already in the public domain pursuant to s 12(4) of the Human Rights Act 1998 as there has been no publication of the identity of the family to date.

During the course of his oral submissions Mr Tughan had to concede that this second submission was plainly unsustainable by reference to the extensive local and national coverage that had taken place in respect of the criminal proceedings. As already noted, there has been widespread publicity in this case arising out of the criminal proceedings concerning the father, both in the local and national press. A brief search of the Internet reveals publicity that refers extensively to the surname of the family, the number of children in the family and their former address. In at least one publication available online, one of the children is named fully by reference to a previous news story concerning an unrelated incident.

I likewise cannot accept Mr Tughan’s first submission that, in the context of these being private law proceedings under Part II of the Children Act 1989, this case raises no issues of public interest (in contradistinction to issues of interest to the public).

It is correct that the importance of the principle of open justice in family proceedings has most often articulated in the context of public law proceedings under Part IV of the Children Act 1989 and proceedings under the Adoption and Children Act 2002. By way of example, in Re Webster; Norfolk County Council v Webster and others the President observed at [74]:

“I draw attention to the important distinction here drawn by the Strasbourg court between (to use our terminology) private law cases and public law cases. There are two aspects of the latter which in the present context, as it seems to me, are of fundamental importance. The first I have already touched upon. In a public law case the state – public authority – is seeking to intrude into family life and, indeed, very frequently is seeking to remove children from their families. The second is the point I made in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [101]: ‘As I pointed out in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, at para [150]: “... it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever.” When a family judge makes a freeing or an adoption order in relation to a 20-year-old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 years, and the baby for what may be upwards of 80 years. We must be vigilant to guard against the risks.”

However, acknowledging the distinction Mr Tughan seeks to draw between private and public law cases, the principle of open justice is equally important in private law proceedings. Whilst the issue that comes before the court in such proceedings comprises a dispute between private individuals, the court, as a public authority, is required in determining that private dispute to make orders which proscribe the operation of a parent’s parental responsibility and which constitute an interference in that parent’s right to respect for family life. Where an order is made, private law proceedings involve a public authority regulating the rights, duties, powers, responsibilities and authority that comprising parental responsibility conferred by society on a parent. By the order I made in this case, I proscribed completely the operation of the father’s parental responsibility in respect of his children. Within this context, the objectives of the right to freedom of expression as embodied in the principle of open justice are in my judgment as important in private law proceedings as they are in proceedings concerning public law applications.

It is plain that Art 10 is fully engaged in this case. It is likewise plain that a decision not to publish my judgment or to publish it and restrict the manner in which it could be reported by making a reporting restriction order would constitute an interference with the Art 10 right to freedom of expression. In this case the justifications for interfering with or restricting the Art 10 rights are said by Mr Tughan to be as follows.

First, Mr Tughan submits that interference with the right to freedom of expression is justified by the need to prevent physical and emotional harm to the children and their mother arising from the father ascertaining their whereabouts as a result of the publication of the judgment. Although Mr Tughan concedes the degree of conjecture that is involved in establishing this point, which I have described in detail when dealing with his submissions concerning Art 2, he submits that even a speculative risk of harm should weigh heavily in the balance where that harm is extremely serious both in nature and degree. Within this context, Mr Tughan argues that the risk of physical and emotional harm to the family arising out of the judgment being used to locate the family is so severe in this case that it plainly outweighs considerations under Art 10.

As I say, I have dealt substantially with this point when addressing Mr Tughan’s submissions concerning Art 2. I again acknowledge that the father remains a dangerous individual within the context of the criminal behaviour of the father towards the mother and the children. However, once again, the father remains securely incarcerated at the discretion of the authorities. In such circumstances he is not himself in a position to commit grave physical harm on the children or the mother by direct action.

Further, whilst I again acknowledge my finding that were the father to ascertain the whereabouts of the children and the mother he would once again seek, albeit at arms length, to engage in conduct that would be entirely antithetic to their personal safety and emotional wellbeing, for the reasons I have already given I am not persuaded that the publication of judgment would materially increase the risk of the whereabouts of the children and their mother being revealed to the father from its current level in circumstances where the father is already aware of the information that it contains and the information is in any event already in the public domain. Insofar as there is a risk that publication of the judgment will result in that information capable of leading to the identification of the family by reference to previous publicity being brought once again into the public consciousness, again for the reasons I have given, this does not in my judgment materially increase the risk of the father locating their whereabouts from its current level in circumstances where there is no evidence to establish a likelihood that an unconnected member of the public would take action to assist him to this end.

The second justification for interfering with the right to freedom of expression is, Mr Tughan contends, the fact that publication of the judgment will present a risk of emotional harm to the children and the mother by compelling them to live with the knowledge that information that risks revealing the whereabouts of the children and the mother and, in any event, is deeply personal and upsetting is, once again, the subject of public knowledge and debate.

Again, within the context of the criminal behaviour of the father towards the mother and the children, and the impact of that behaviour has had on them, I acknowledge my conclusion that the children have an imperative need to be protected from the risk of emotional harm and that it is important to ensure the emotional integrity of the household. Mr Tughan reinforced these matters by submitting that it is important that the mother and the children are not only safe from emotional harm but that they feel safe, any publicity militating against this to a significant degree. Nonetheless, I regret that I am not persuaded by Mr Tughan’s submission.

First, whilst I acknowledge that I found that the children need to be brought up in an environment that is a free as reasonably possible from anxiety that their location will be disclosed, and that it is important that the mother not be placed in a position whereby her ability to meet the children’s needs is impaired by worry and anxiety associated with a persistent and pernicious fear that the father will locate the family, I have also found that, in contradistinction to the provision of anonymised documents from the children’s school, publication of the judgment setting out information already in the public domain does not in fact increase the risk of the whereabouts of the mother being revealed from its current level.

Second, I am not satisfied on the evidence that is before the court that publication of the judgment will result in further emotional harm to the children and the mother such as to defeat the ends I have articulated in the paragraph above. Again, I recognise that I have found that the children need to be brought up in an environment that is a free as reasonably possible from anxiety that their location will be disclosed, and that it is important that the mother not be placed in a position whereby her ability to meet the children’s needs is impaired by worry and anxiety associated with a fear that the father will locate the family. However, the conclusion that the mother and the children need, as far as reasonably possible, to be insulated from further emotional harm cannot automatically lead to the conclusion that the publication of the judgment, and any publicity consequent thereon, will defeat that end. As I have already recounted, the law is clear that in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child (see Clayton v Clayton [2006] Fam 83 at [51]). The evidence justifying derogation from the principle of open justice must be clear and cogent (R v Robert Jolleys, Ex Parte Press Association [16]).

As regards evidence supporting his submission that, whatever the level of objective risk, publication of the judgment will present a risk of emotional harm by compelling the children and the mother to live with the knowledge that information that at least has the potential to reveal the whereabouts of the children and the mother and, in any event, is deeply personal and upsetting is, once again, the subject of public knowledge and debate, once again Mr Tughan was compelled to fall back on bare assertion and speculation in the absence of evidence.

Having asserted in her statement that media coverage during the criminal proceedings compelled the family to move, in two short sentences the mother contends that she has difficulty achieving the aim of moving on with the family’s life, of feeling safe and secure in their own home, and of putting the past behind her when the media publishes information. Beyond that bald statement however, the mother’s evidence does not further particularise the impact that publication will have on her and provides no evidence whatsoever as to the emotional or other impact of publication on the children, either in the past or looking forward. For example, beyond the assertion that the family was forced to move (which I accept would have been both disruptive and upsetting for her and the children), the mother offers no evidence at all of how the previous publicity affected the children emotionally or to what degree they were affected, for example whether such publicity made life difficult for the children at school or in their community. As I have recounted above, following the publication of the judgment and before it was removed from Bailii and other sites, a number of reports concerning the case appeared in the press. The mother does not seek to assert that the children were aware of these reports or that they were distressed by them.

It is within this context that Mr Tughan simply asserts that publication of the judgment will have an emotionally harmful impact on both the mother and the children in that it will prevent them from feeling safe and will resurrect emotional trauma for the family. Whilst, I accept that, as a matter of common sense, publicity can have an adverse emotional impact on the children should they become aware of that publicity there is no evidence before the court to ground that assertion in this case. Tempting as it is to simply proceed on the assumption that any publicity arising out of the publication of the judgment will have a negative emotional impact on the children, such an assumption is no basis for interfering in a right as fundamental as the right to freedom of speech and certainly cannot constitute clear and cogent evidence. Mr Tughan also made reference during the course of his oral submissions to work that has been done on the impact on children of publicity in the context of family proceedings, which records that those children who have been consulted on the issue consider that publicity in respect of their private affairs will have an adverse impact on them (see Safeguarding, Privacy and Respect for Children and Young People & The Next Steps in Media Access to the Family Courts, Brophy, J. Perry, K, Prescott, A. and Renouf, C. (2014) NYAS/ALC). Once again, tempting as it is, it would not be a forensically sound approach to extrapolate from that important work evidence of harm in respect of an individual child in the given circumstances of a particular case.

Having regard to the parallel analysis of the importance of the rights engaged in this case and the respective justifications for interfering with the same set out above, in which I have considered each of the children’s best interests as a primary consideration, and applying the ultimate balancing test of proportionality, I have concluded that my judgment should be published in its original form accompanied by a tightly drawn reporting restriction order.

In the age of the Internet, where today's news story no longer becomes tomorrow's discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms, 'jigsaw identification' will arise as a potential issue in every case where the family court publishes a judgment in proceedings arising out of a set of facts that have also led to criminal proceedings that have been the subject of reports in the media. The risk of 'jigsaw identification' is not however a reason in itself to withhold the publication of a judgment. The question in each case will be whether, having regard to the evidence before the court and all the circumstances of the case, the interference in the Art 8 rights constituted by the risk of 'jigsaw identification' arising out of publication outweighs the interference in the Art 10 right of freedom of expression constituted by withholding publication.

I accept that in this case, as has been demonstrated by Mr Farmer, the publication of my judgment on Bailii will, even though anonymised as to the identity of the children and their mother as I intend it to be, provide a source of search terms by which prior reports of the criminal proceedings can be accessed, which reports, if accessed, will lead to information already in the public domain being looked at again and to the name of the family who is the subject of the judgment in the family proceedings becoming known to those who undertake such a search. I am not however satisfied on the evidence I have before me (and in circumstances where I intend to make a reporting restriction order in the terms discussed in detail below, prohibiting the reporting of the name and whereabouts of the children and the mother, whether ascertained by an Internet search or otherwise) that this leads on to the conclusion that, having regard to all the circumstances, the Art 8 rights of the children and the mother to respect for their private and family life outweigh the Art 10 right to freedom of expression such that publication should be withheld.

Balancing the right to freedom of expression (in the context of the importance of that right and the cardinal importance of the principle of open justice which it embodies, the gravity of the orders made in this case, the fact that the information contained in the judgment is already in the public domain and the fact that to restrain publication in the manner sought by the Applicant would restrain publication of information concerning the criminal proceedings) against the Art 8 right of the children and the mother to respect for their private and family life (in the context of my not being satisfied that the evidence establishes that publication will result in either an increased risk of the father locating the whereabouts of the family or in further emotional harm to the children) leads me to conclude that in this case the Art 10 right to freedom of expression outweighs the Art 8 right to respect for private and family life when it comes to the question of publication of the judgment. In the circumstances of this case, applying the ultimate balancing test of proportionality, in my judgment it cannot be said that withholding the publication of the judgment represents a proportionate response to the risk presented by 'jigsaw identification' given the level of that risk as I have found it to be on the available evidence. Rather, the proportionate response is, in my judgment, for the judgment to be published in its original format accompanied by a reporting restriction order.

As to the terms of the reporting restriction order, the reporting restriction order I make today will prohibit the publication of the names and whereabouts of the children and their mother, howsoever ascertained. It will not however prohibit the publication of information “which could lead to the identification of” the children and the mother, which words will be deleted from Mr Tughan's helpful draft order. The order drafted thus will not prevent the publication of the facts of the case (including the criminal proceedings) already in the public domain from which I accept the identity of the family may be established by a process of ‘jigsaw identification’ using the Internet. It will however prevent the publication by anyone of the names and whereabouts of the children and the mother if they are established, whether through the process of 'jigsaw identification' using the Internet or otherwise. Thus, a member of the press or the public who uses the facts set out in the judgment as search terms to establish the identity or whereabouts of the family will be prohibited from publishing that information on pain of punishment for contempt. The order will also contain a public domain proviso which will permit publication of information already in the public domain save for the names and whereabouts of the children and the mother. Whilst there will be cases where the repetition of material already in the public domain will constitute a disproportionate interference in the Art 8 rights of the child or family member having regard to the impact of that repetition, there is simply no evidence to support such a conclusion in this case. The precise terms of the order which I intend to make are set out in the Schedule to this judgment.

Finally, in light of my conclusions as set out above, the rubric on the front of my judgment requires to be amended to make clear that there is a prohibition on publishing the names and whereabouts of the mother and the children (howsoever ascertained) but not on publishing the other facts of the case, notwithstanding that the publication of the latter may lead to 'jigsaw identification'. Again, this formulation of the rubric will not prevent the publication of the facts of the case but will prevent the publication of the names and whereabouts of the children and the mother by anyone who ascertains the same through the process of 'jigsaw identification' or otherwise.

It is important, once again, to reiterate the matters set out at paragraph 22 of this judgment, derived from the observations of McFarlane LJ in Re C, concerning the case management nature of the decision whether or not to publish the judgment in a suitably anonymised form. It would be undesirable for the question of whether or not a judgment should be published to become an issue that is the subject of the kind of detailed examination I have been required to engage in this case. I repeat, for the avoidance of doubt, that, ordinarily, the exercise of discretion concerning the publication of the judgment will be a simple case management decision to be taken at the conclusion of the judgment and following a broad consideration of the applicable principles with basic reasons (see Re C (A Child) [2015] EWCA Civ 500 at [23]).

As this case demonstrates, there will be occasions where a judgment of the family court is published when it will be possible to identify the family name or other details of the family case using search terms gleaned from the anonymised facts set out in the judgment where those facts have been the subject of prior reporting in relation to criminal proceedings, unless steps are taken to prevent that from occurring. This does not however require any change of approach from that set out in the President's Practice Guidance. It simply introduces an additional consideration which the court will need to feed into the case management decision of whether or not to publish the judgment and, if so, the level of anonymisation that is required to maintain the confidentiality of those matters which the court decides need to remain confidential.

In addition, the existence of related criminal proceedings in respect of which there has been publicity and which create a risk of 'jigsaw identification' may (as in this case) require the court to think about the need to amend the wording of the standard rubric to address the specific requirements of the case in question, as expressly recognised by paragraph 10 of the President's Guidance.

I have found this a very difficult issue to decide. The right to respect for private and family life and the right to freedom of expression are both rights that are of cardinal importance to children. Where the court is required to balance one against the other a solution that comprehensively satisfies all interests is not possible. In particular, I am very conscious that I have had to balance rights that are important to the individual children who are the subject of this case, and who have been subjected to significant personal trauma, against a cardinal right that is important for all children and for society as a whole. That tension is further exacerbated where the information that is the subject of the balancing exercise concerns the criminal justice process. The foregoing represents my considered attempt to reconcile the competing rights in this case on the basis of the evidence available to the court.

That is my judgment.

Statement of H.

Duration

Who is bound

Publishing restrictions

Publication of this order

Restriction on seeking information

What is not restricted by this Order

Service

Further applications about this Order

H is the Mother of 3 children. A is their Father. A was convicted of very serious offences against both H and the children. Their safety requires that he does not know of their whereabouts.

The purpose of this order is to seek to protect H and the children from A and to reduce the risk of their whereabouts becoming known to him or people acting on his behalf.

The Court has found that the children and their Mother would be at serious risk of physical and emotional harm should their whereabouts become known to A and that he poses a continuing risk to them.

In the circumstances the court has ordered that the name, current address, present whereabouts or any picture of the Mother and the children or of any establishment set out in Paragraph 3 of the order must not be published by anyone.

The prohibition on publishing the name, current address, present whereabouts or any picture of the Mother and the children or of any establishment set out in Paragraph 3 of the order applies irrespective of how those details are ascertained, including where such details are ascertained from material already available in the public domain.