S, Re

On Friday, 14^th August this year, The Daily Mail newspaper published an updated online article. The article was removed from The Mail Online shortly before 4pm on 14^th August and, I have been told on behalf of the Associated Newspapers Limited (ANL) that it would have been removed earlier had there not been ‘technical problems’. Solicitors for the London Borough of TowerHamlets had contacted ANL complaining that it was in breach of Orders made in the Family Division. The previous day The Sun newspaper had published an article in hard copy, which, like the Mail Online article, identified a child subject to these proceedings. The articles both identified a child as having been arrested in connection with terrorist offences. It was also reported that the child was a pupil at the Bethnal Green Academy.

The local authority took the view, that it would not require any great degree of ingenuity to make the association between the arrest and these proceedings. Before turning to the substantive application before me I should like to make a few general observations which seem to me to give context. As I have already explained in earlier judgments, concerns relating to the radicalisation of minors are a new facet of child protection. Nonetheless, it is important that the professionals involved hold fast to tried and tested principles of comprehensive risk assessment and guard against the kind of moral panic that can all too quickly be generated by what are for many, not just the families involved, highly emotive issues.

The family justice system has, in recent years, taken great strides to ensure that its work becomes properly transparent to public scrutiny. There is however, and will always be, a tension between that important objective and the equally important obligation to protect children subject to proceedings, within this Division and vulnerable adults in the Court of Protection. Inevitably, this is a period of evolution. To achieve the goal of putting important information within the public domain requires the Court consistently to focus on the importance of Article 10 Rights (Freedom of expression) as well as Article 8 Rights which it instinctively protects. Similarly, and to achieve the same goals, the press must recognise that the protection of vulnerable children will always be given considerable weight in a mature, democratic society. I have had on more than one occasion recently cause publicly to thank the press for its responsible approach to cases involving both vulnerable adults and children. The tension between promoting a transparent family justice system and protecting vulnerable children is an essentially healthy one and will always require a careful parallel analysis of competing rights and interests.

This case concerns the ‘radicalisation’ of minors. There will be both proceedings within the Family Division and a concurrent police investigation. That is a familiar scenario in a wide range of cases. Radicalisation however is an issue that the public is understandably anxious about and wherever possible, within the framework that I have just broadly outlined, openness should be the load star. The Local Authority whose concern is to protect children is very concerned that any information relating to their identity and whereabouts may place them at considerable risk. I accept that evaluating risk against the kind of identified harm contemplated here is unchartered territory. It involves a combination of potentially physical as well as emotional harm. Accordingly, the Local Authority has felt that protecting the privacy of these children in order to ensure their safety and general welfare must be the priority. I am inclined to think that is the right course but I also consider that the journey of understanding these cases requires to be travelled in a way which promotes wider public understanding of these issues. To inhibit proper public scrutiny of these cases may have unacceptable consequences. An over cautious approach to the protection of children’s privacy may generate mistrust and suspicion. It can, of course, also create a vacuum of information which can be exploited by those with a nefarious agenda.

On the 14^th August 2015 the Local Authority sought a RRO before Moor J, which he granted in terms which require to be set out in full in order properly to understand them:

The order also made wider provisions:

In a detailed skeleton argument, prepared on 17^th August by Miss Christina Michalos, ANL contended that those orders (i.e. those of Moor J on 14^th August) were wrongfully made and should be set aside. I indicated that I would not hear that application until later in the week when I had begun to evaluate the shape and ambit of the evidence presented by the local authority in wardship proceedings.

I had, initially, taken the view that I would not determine this application until I had delivered the judgment in the substantive proceedings. Conscious, however, that the advocate on behalf of ANL, now Miss McMahon of counsel, had been waiting patiently, I decided to deal with this matter before judgment. That was a simple, pragmatic decision, but having received Miss McMahon’s considerable assistance in this application, I take the view that there is much sense, in fact, in hearing it before proceeding to judgment in the welfare issues.

ANL take issue with the following provisions in Moor J’s Order:

The objection is to the prevention of publication of the names of the five members of this family who were arrested, three of whom were minors. The restriction is resisted on essentially three bases:

There is a degree of overlap in the above propositions but I set them out largely as advanced.

The framework of the applicable law is now well settled but, as I have already alluded to above, it requires a balance to be struck on the facts of each individual case, having regard to the relevant competing interests in focus. The exercise was identified with rigorous clarity by Lord Steyn in Re S (a child) [2005] 1 AC at [17]:

“The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN limited [2004] 2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test ...”

Ms. McMahon has also referred me to Birmingham City Council v Riaz [2014] EWHC 4247 (Fam) particularly paras [47] to [61] and, in the course of submissions: London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam). She contended that a number of features weighed more heavily in favour of the Article 10 rights, as she put it, ‘of the media and the public’, perhaps better, or at least more simply, stated as the right ‘to freedom of expression’.

It isn’t necessary for me to burden this judgment with each of the arguments recited in the Skeleton. I have each of those arguments in mind. In summary however: The importance of justice being open to public scrutiny. I was referred to the judgment Coulson J: R v William Cornick [2014] EWHC 623:

“9.

In my view, the most powerful recent statement on this topic can be found in the judgment of a five person Court of Appeal in R v Croydon Crown Court ex parte Trinity Mirror PLC and Others[2008] EWCA Crim 50. There, the then President of the Queen's Bench Division, Sir Igor Judge, said:

"In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime…From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case."

10.

In my respectful opinion, this observation properly stresses the general principle that, in the vast majority of cases, a defendant in a criminal case can be expected to be named, unless there is an absolute necessity for anonymity.”

I hope Ms. McMahon will forgive me if I distil her rather more extensive argument on this point by summarising. She contended that the principles identified above in relation to a criminal trial apply, by parity of analysis to a minor, or indeed an adult, who has been arrested but not charged. With respect, I am bound to say that this argument, which is presented as if the logic were axiomatic, is to my mind highly controversial. Moreover, there is no ‘starting point’, to use Ms. McMahon’s phrase in favour of publication. That is entirely to distort the exercise that Lord Steyn has identified and on which Ms. McMahon purports to rely. The analysis is now well established by case law. See Clayton v Clayton [2006] EWCA Civ 878:

It is not difficult to see how the need to protect the privacy and safety of a minor who has been arrested but not charged with any offence may weigh more heavily in the balancing exercise than that of a child charged with offences or standing trial. The point however is that each situation will require an ‘intense focus’ on the actual facts in each case predicated on a parallel analysis in which neither Article 8 nor Article 10 is afforded precedence.

Consistent with this analysis is information that I have been given by Miss Connolly QC, who appears in this case on behalf of the Metropolitan Police. With the benefit of senior police officers behind her and perhaps from her own knowledge, she tells me that it is not police practice to identify a minor upon arrest or indeed upon charge. Consideration in respect of the identification of a minor will only arise at the first court appearance. Miss McMahon, with entirely appropriate professional candour, also acknowledges that Parliament has enacted legislation, albeit not yet in force, which provides for the anonymisation of minors in the criminal justice process.

In addition to the above I must have regard to s.12 (1) (a) of the Administration of Justice Act 1960, the consequence of which is to make it a contempt of court to publish:

As is emphasised to me, the prohibition on publication extends only to ‘information relating to the proceedings’. Specifically, s.12 does not prohibit the publication of the fact that a child is a ward of court: see Re B [2004] EWHC 41 (Fam).

Finally, it is submitted there is ‘an important and inherent Article 10 weight in the press being able to identify the names of individuals who are subject of their press reports’. I am not entirely sure what is meant there by ‘inherent’. If it is to suggest that naming an individual is a facet of Article 10 then that is plainly correct but if it is subtly to insinuate that reporting and naming should be regarded, at least prima facie, as indivisible, that is plainly wrong, for all the reasons considered above (see paras [12]-[14]). Ms. McMahon placed considerable weight on Re Guardian News and Media Limited [2010] UKSC 1, 2010 2 AC 697 especially paras 63-68 per Lord Rodger:

It is contended that the report of the fact of the arrest of this family without revelation of their name would be ‘disembodied’, with the consequence that editors would tend to give the report a lower priority. The consequence of this, it is argued, is that reporting of these very important issues is, for a combination of financial and simple human interest reasons, given a much lower profile. Thus it follows that important material is not released into truly informed public debate to the extent that the subject matter properly demands. Again, I have summarised the argument in a way which I hope does justice to Ms. McMahon’s fuller analysis. This point is one that I have given great consideration to. It is possible to contemplate circumstances in which it might prevail. I am however entirely satisfied that this is not the case here.

All children who are subject to child protection proceedings have either sustained significant harm or are considered to be at risk of it. For the avoidance of any ambiguity, I have found that applies here. However, certain categories of children within the system are also perceived to be a risk to others. Society’s reaction to such children can often be alarming. These children frequently become particularly vulnerable within the system. The findings I make will, I suspect, cause real alarm to those who read the judgment. I am required to sift and analyse facts and to establish those facts within the framework of the law, inevitably that requires consideration of a raft of information within the judgment itself. Cases of this kind are, happily, still relatively rare but the consequence is that this only makes it easier to link child protection proceedings with concurrent criminal investigation. Thus the potential for very sensitive information to enter the public domain as a result of journalists recognising the link (‘the jigsaw effect’) is manifest. Here, it is not only a real risk, it is a probability. Not only is the child identified and therefore vulnerable but there is, in my judgement, a real risk that the criminal investigation itself might be compromised. In short, I do not consider the competing Article 8 and 10 rights here to be delicately poised. I would however observe, that which I hope is obvious from the above reasoning, that the essence of such an exercise is so fact specific that, as events unfold, there will be occasions when the balance might shift.

As I have outlined above, the application for the injunction before Moor J arose after, indeed as I understand it in consequence of, the publications referred to. Of course, it does not follow that information in the public domain is irretrievable, indeed this is not argued on behalf of ANL see: Doncaster MBC v Haigh, Tune and X [2011] EWHC B16 (Fam); F v Newsquest [2004] EWHC 762 (Fam) (Munby J); re A [2011] EWHC 1764 (Fam) (Baker J); MXB v East Sussex Hospitals Trust [2012] EWHC 3279 (Tugenhadt J). The case is advanced solely on the basis that the Article 8 and Article 10 balancing exercise needs to be conducted, alongside the framework of s.12 of the Human Rights Act 1998. The key provisions of s.12 require to be stated:

It is argued on behalf of ANL that having balanced and factored in each of the above, publication should prevail. In summary:

It is also informative to consider the guidance in the Editors Code of Practice. The general importance to be given to privacy is set out thus:

More particularly, there is specific guidance, firstly, in relation to children generally and secondly, in respect of children involved in sex cases:

As is clear in 7 (2) (ii) there is not in fact an assumption that an adult will be identified, let alone a child. I have on a number of occasions during the exchanges with counsel in this case compared radicalisation cases to those involving the sexual exploitation of children. The identification and grooming of minors often through internet connection has striking parallels with sexual grooming. I made the observation in TowerHamlets LBC v M & Ors [2015] EWHC 869 (Fam). Of course, when these codes of practice were written abuse of minors by way of radicalisation was not in contemplation. The comparisons I have identified trigger, to my mind, the same need for protection. In any event the entire balancing exercise here again falls heavily towards the protection of the children even when, as here, that affords collateral protection to a parent who, in isolation, might not obtain it.

Accordingly, having regard to: the framework of statute and case law; police practice in maintaining the anonymity of minors both at arrest and charge; the contemplated changes in criminal procedure geared to protect minors involved in the process; the Editors Codes of Practice and most importantly, my own focus on the competing rights and interest in play, I am driven to the clear conclusion that the RRO granted by Moor J should continue in the terms drafted.