RESTRICTING PUBLICITY IN CHILDREN PROCEEDINGS: a summary

Restrictions on publicity and children: naming children

 

Anyone who tries to work out what is the law of contempt in relation to children proceedings is met by a variety – some might say a jungle – of statutory provision which taken at face value is not easy to unravel. When may a parent post information of Facebook; when may a keen family lawyer relate a case in his or her blog or on Twitter; when may a mature child tell his/her story to the press? The starting point – and often the end-point, with inherent jurisdiction leavening – is Administration of Justice Act 1960 s 12.

 

In Re J (A Child) [2013] EWHC 2694 (Fam) (a case where a father was extensively publicising information about care proceedings), Sir James Munby P summarised the legislative provisions which restrains publicity in respect of children. He started by pointing out the ‘automatic constraints’ – that is, the statutory constraints – on publicity. Children Act 1989 s 97 prohibits publication, but only till the conclusion of proceedings (Clayton v Clayton [2006] EWCA Civ 878, [2006] 1 FLR 11)); Administration of Justice Act 1960 s 12 is limited to ‘proceedings in private’, including family proceedings, but narrows those proceedings to those in relation to children and only to ‘proceedings before any court’ (para [24]); and Children and Young Persons Act 1933 s 33 which applies only to children who are directly involved in court proceedings eg as parties, witnesses etc.

 

Statutory and common law provision

 

The primary statutory and common law limitations on publicity in relation to publicity for children and children proceedings are as follows:

 

  • Administration of Justice Act 1960 s 12
  • Children Act 1989 s 97
  • Children and Young Persons Act 1933 s 33
  • Inherent jurisdiction of the High Court (Senior Courts Act 1981 s 37; and as extended by County Courts Act 1984 s 37)
  • Crown court: limited powers.

 

Administration of Justice Act 1960

 

Administration of Justice Act 1960 s 12(1) operates to make publicity of children cases an exception to the general rule as to open court proceedings, with full publicity:

 

12 Publication of information relating to proceedings in private

(1) The publication of information relating to proceedings before any court sitting in private shall not in itself be contempt of court except in the following cases, that is to say:

(a) where the proceedings –

(i) relate to exercise of the inherent jurisdiction of the High Court in respect of minors

(ii) are brought under the Children Act 1989 or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor…

(2) Without prejudice to the foregoing subsection, the publication of the text or summary of the whole or part of an order made by a court sitting in private shall not in itself be contempt of court except where the court (having power to do so) expressly prohibits publication….

(4) Nothing in this section shall be construed as implying with any publication is punishable as contempt of court which would not be so punishable apart from the section and in particular where the publication is not so punishable by reason of being authorised by rules of court.

 

Publication of information from the proceedings listed in s 12(1)(a), where the person publishing knows that they are such proceedings, is a contempt (see eg Kent County Council, Re B (A Child) v the Mother [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Munby J); and the same applies to the person to whom the publication is made (eg to a journalist, MP, Minister of the Crown etc). However, s 12(1) does not, on its own, prohibit publication of certain factual information (name, photographs of parties or child or witnesses; or the text of any court order: though in practice eg the name of the child may be ordered not to be published). Conversely s 12(1) prohibits the following (whether or not the documents concerned have been anonymised), says Munby J:

 

a) accounts of what has gone on in front of the judge sitting in private;

b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);

c) extracts or quotations from such documents;

d) summaries of such documents.

 

Section 12 does not prevent the court from making such necessary injunction orders in its inherent jurisdiction. Munby J stressed this point in Re B: the provisions of s 12 remained subject to ‘any specific injunction or other order that a court of competent jurisdiction may have made in any particular case’. The section imposes statutory limitations, but does not prevent a court taking other steps to restrain or restrict publicity, should these be needed.

 

Children Act 1989 s 97

 

Children Act 1989 s 97 (as amended) provides as follows:

 

Privacy for children involved in certain proceedings:

(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify –

(a) Any child as being involved in proceedings before the High Court, a County Court or a Magistrates’ Court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b) An address or school as being that of a child being involved in any such proceedings….

(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order.

(5) For the purposes of this section –

“publish” includes –

(a) include in a programme service (within the meaning of the Broadcasting Act 1990); or

(b) caused to be published; and “material” includes any picture or representation….

Identification of a child as having been involved in proceedings does not, on its own, necessarily involve harm to the child’s welfare. Sir Mark Potter (in Clayton (above)) explained this as follows:

 

[51] It is plainly open to be argued in relation to s.97 that, headed as it is “Privacy for Children Involved in Certain Proceedings”, the focus should be on Article 8 considerations and thus a Convention compatible construction should lead to an interpretation in accordance with previous judicial assumption that the wording, though inapt, should be read as extending to prevent publication of any material likely to identify the child as having been involved in the proceedings once complete…. I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child’s family or private life.

 

The period of any restriction under Children Act 1989 s 97 cannot last beyond the ‘duration of the proceedings’ (para [52]).

 

Children and Young Persons Act 1933

 

Children and Young Persons Act 1933 s 33 provides as follows:

 

(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 proceedings are taken, or 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 limits of this provision were recognised by Cobb J in Z & Ors v News Group Newspapers Ltd (1) [2013] EWHC 1150 (Fam) at paras 27 – 31. Protection only applies to children and young persons involved in the proceedings and ‘who are victims, defendants or witnesses [in those proceedings], but not otherwise’ (para 30). In that case, though the children’s welfare benefits and their alleged disabilities were the subject of the criminal proceedings against their mother, none were covered by s 39.

Inherent jurisdiction

 

In the High Court and the county court (per Matrimonial and Family Proceedings Act 1984 s 31E(1)), and to the extent that CA 1989 s 97 and s 12 are inadequate, it remains open to the judge – if s/he sees it to be in the best interest of the child – to protect privacy (eg within the terms of European Convention 1950 Art 8) by an injunction which can protect the child (as mentioned in connection with s 12, above). This could be for a much longer period than the conclusion of the case, perhaps throughout childhood. It is open to the child, if s/he wishes, later to apply to vary or revoke the injunction, or otherwise to seek its review by the court (Torbay Borough Council v News Group Newspapers [2003] EWHC 2927, sub nom Re Roddy (A Child)(Identification: Restriction on Publication) [2004] 2 FLR 949 Munby J).

 

Where the court is asked to exercise its inherent jurisdiction it will have to balance the Art 8 rights of the child against those of the freedom of expression of the press or of others (eg a parent) under Art 10. This was explained by Sir Mark Potter in Clayton v Clayton (above) as follows:

 

[54] … However, in deciding to make a long-term injunction aimed at restricting the reporting and publication of proceedings involving children, the court is obliged in the face of challenge to conduct a balancing exercise between the Article 8 rights of the child and the Article 10 rights of the parent asserting such right, and/ or, where press or media interest is involved, the Article 10 right to report and discuss the circumstances surrounding, as well as the issues arising out of, a case of public interest….

 

In so doing the court will consider the principles within the terms of European Convention 1950 rights (Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593). After Re S (Identification), older authorities are of restricted application.

 

Crown Court proceedings

 

In R (Trinity Mirror) v Croydon Crown Court [2008] EWCA Crim 50, [2008] QB 770 the Court of Appeal considered the extent to which the Crown Court has power to prevent publicity concerning a child. In that case, a Crown Court judge had made an order limiting reporting restrictions concerning a defendant’s children under Contempt of Court Act 1981 s 11 where the defendant faced allegations that he had downloaded paedophile images. The judge’s order was made for the protection of the defendant’s own children. His jurisdiction to make the order was challenged by the press.

 

A five judge Court of Appeal held that he had no statutory jurisdiction to do this and that the Crown Court has no inherent jurisdiction to grant an injunction:

 

[30] …. Unless the proposed injunction is directly linked to the exercise of the Crown Court’s jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking.

 

Inherent jurisdiction lies only with the High Court under to grant orders (confirmed by Senior Courts Act 1981 s 37(1)), if such an order is ‘appropriate to be made’ (para [31]).

 

If the High Court is asked to make an order its dilemma, said the Court of Appeal, was as summarised by Sir Mark Potter P in A Local Authority v W [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, where he said, of European Convention 1950 Arts 8 and 10 (quoted at para [31] of Trinity Mirror):

 

[31]… each article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or ‘trumps’ the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out.

 

And so the dispersed hierarchy of statutory provision: the starting point remains s 12 bolstered by any need for the court to exercise its inherent jurisdiction (eg to redact any references to a child’s name; perhaps that of a parent or foster parent).

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