Publicity: further scope for a criminal charge
Journalists may have been allowed by Sir James Munby, President of the Family Division, into the High Court in the recent, well publicised, wardship hearing before Baker J, concerning parents who removed their child – ‘Andrew’ let us say – from a Hampshire hospital against medical advice. But does that give them full permission – and any right – to report on the proceedings? If they or anyone else publishes information about the proceedings to what extent do they risk a criminal offence?
Rights of all concerned – the child (whose welfare is paramount), the press, the parents and other members of Andrew’s family – must all be balanced before a decision is made by the court to ‘open’ the proceedings (see explanation in the context of the House of Lords case of Re S below); and to permit the overriding of the criminal consequences of Children Act 1989 (‘CA’) s 97(6). The blushes (if any) of the police, of the hospital, of the local authority (who, whether lawfully or not, applied for the wardship order – see http://wp.me/4jaDx ) or of the family justice system are not part of that rights balance.
To my knowledge, no order nor any judgement of Sir James has been published (there is nothing on the BAILII website either for his or the 29 August judgements); so we do not know how he conducted the rights balance. Why, for example, did he think that publicity would serve the welfare of the ward, Andrew? How did he deal with Andrew’s welfare requirements under Children Act 1989 (‘CA 1989’) s 97 (see below).
Permitting anyone to attend court is one thing. What is published concerning the case – eg in the press or other media – is altogether another. Judges like Sir James, have been at pains in the past (see as Munby J eg Princess Diana’s brother’s case: Spencer v Spencer  EWHC 1529 (Fam), Munby J) to stress that it is not for judge’s to advise journalists what they can publish; and it will not be Sir James – or it should not be – who deals with any criminal (CA 97(6)) or contempt (Administration of Justice Act 1960 s 12) proceedings by anyone affected by the publicity which there has been.
What can be published, even though the press etc is let in?
So the court was ‘open’ (we all assume; though we have yet to learn the terms), but does that let those present – or any of the rest of us who have information about the case – merely publish whatever and as we see fit? I do not know what newspaper’s advice is to their journalists. Certain it is, alongside this, that the family law system has got itself into a complicated – needlessly, I should say – muddle over publicity for family proceedings (see eg http://wp.me/p4jaDx-68 ). Andrew’s case does little to help that.
Almost exactly a year ago Sir James Munby P, in a case reported as Re J (A Child)  EWHC 2694 (Fam) (http://www.bailii.org/ew/cases/EWHC/Fam/2013/2694.html) defended the right of individuals aggrieved by the family courts process to post their grievances on the internet, even when expressed by them in ‘vigorous, trenchant or outspoken terms’. The President set his colours to a mast he has powerfully – and rightly, in the appropriate context – erected: ‘there is a pressing need for more transparency, indeed for much more transparency, in the family justice system’.
In Re J he set out the legislative restrictions on publicity a then goes on to explain the importance to the family justice system that it should receive publicity. He starts by pointing out the ‘automatic constraints’ on publicity.
CA 1989 s 97 (prohibits publication, but only till the conclusion of proceedings (Clayton v Clayton  EWCA Civ 878,  1 FLR 11)). The prohibition in s 97 relates to any children proceedings and prevents publication which will identify the child or certain details about him (s 97(2)). It can only be overridden by specific order of the court that information can be published which identifies the child, and if the court has found ‘that the welfare of the child [concerned] requires’ publicity (s 97(4)). We await hearing what Sir James said on this point (which is in line with his European Convention 1950 duties under Re S). Section 97(6) creates a criminal offence if it is breached.
The more long-lasting and over-arching AJA 1960 s 12 provides as follows:
(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –
(a)where the proceedings –
(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
The section relates to ‘proceedings in private’, including family proceedings, but narrows those proceedings to those in relation to children, wardship etc. It is still the case that it may be contempt to publish information from such proceedings: this is the effect of the series of negatives by which the section is drafted. The person who wishes to publish must make up his or her own mind.
Relaxing the restraints on publicity
In Re J Sir James says simply (at para ) that ‘the court has power both to relax and to add to the “automatic [ie statutory] restraints”’. He does not state his authority in law for this. To ‘relax’ the restraints, as Sir James explains, the court must conduct a balancing exercise within European Convention 1950 terms, as explained by Lord Steyn in the House of Lords in Re S (Identification: Restrictions on Publication)  UKHL 47 (at para ). It is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect, said Lord Steyn.
So, said Sir James, the interests of the child must be a primary consideration (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 at para ). The balance must be drawn between respect for the child’s private life (Art 8) and the right of the press and a parent or others who might want (as in Re J) to publicise information (Art 10). Was this balancing exercise conducted by Sir James when he made his order in Andrew’s case, and if so in what terms? We do not yet know.
In conducting that balancing exercise, the primacy of the best interests of the child must be considered. This was further explained in the Supreme Court in (not considered by Sir James) H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  UKSC 25 where Lord Kerr said:
 … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….
 ….no factor must be given greater weight than the interests of the child.
Like ZH, H(H) related to children in immigration proceedings (ie not involved with publicity), but the principles in relation to the interests of children are parallel.
Court promoting publicity
The court was not entitled, in this jurisdiction, said Sir James in Re J, to seek to prevent dissemination. But what – as in Andrew’s case – is the court’s role in encouraging ‘dissemination’ of information (if this was any intention of Sir James: his order and judgement will show)? Where is the primacy of Andrew’s interest in dissemination (if that was the aim), and of justification for interference with Andrew’s right to respect for his family life (Article 8)? Who (if anyone) applied for the relaxation of publicity, and on what terms?
Word from Sir James is awaited. In the meantime if I was thinking of publishing anything about Andrew I would look very carefully at CA 1989 s 97 and AJA s 12(1) see if overriding those statutory provisions is covered by Sir James’s order. The police have been involved in this case too much. Their further involvement under Children Act 1989 s 97(6) must be avoided.