Identity of social workers may be published following fostering bungle

 NGN responded in correspondence that the proposed order was far too wide. It therefore became necessary for Baker J, Family Division Liaison Judge for the Western Circuit, to consider what restrictions, if any, should be imposed upon the publication of information relating to the proceedings over and above the prohibitions imposed by statute.

Most care proceedings involving children are held in private, although certain accredited members of the press have the right be present. The right to report such proceedings, however, is restricted by s.12 of the Administration of Justice Act 1960 which has the effect of making it a contempt of court to publish “information relating to proceedings before any court sitting in private … 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, or (iii) otherwise relate wholly or mainly to the … upbringing of a minor”. Since the incorporation of the Human Rights Convention under the Human Rights Act 1998, the foundation of the jurisdiction to restrain publicity is now derived from ECHR. Applications for reporting restriction orders are determined by analysing and balancing the competing rights under ECHR: Campbell v MGM Ltd [2004] UKHL 22, [2004] 2 AC 457, Re S (A Child) (Identification: Restrictions of Publication) [2004] UKHL 47, [2005] AC 593. The key rights in this context are Article 8 (the right to respect for his private and family life) and  Article 10 (the right to freedom of expression). In some cases, Article 6 (the right to a fair hearing) may be engaged.

When considering Article 10, the court must have regard in particular to the provisions of s. 12 of the 1998 Act, headed “Freedom of Expression”. This provision requires the court to consider, in balancing the rights of press freedom against the right to privacy, the extent to which the information is already in the public domain. Furthermore, the court today has to grapple with the fact that the concept of the “public domain” has changed as a result of the revolution in information technology. As Mumby J has observed , whilst

The advent of the internet and explosion in information technology means, in other words, that it is now impossible to see the concept of the ‘public domain’ as one which has clear boundaries.

In Baker J’s view, the following rights were engaged in this case:

(1) the rights of A and other members of her household under Article 8 to respect for their private and family life;
(2) the rights of the media under Article 10 to publish the matters which gave rise to concern in the minds of the justices, including the allegations that pornography was downloaded in the foster home; the allegation that A was assaulted in the foster home; and the allegation that the local authority failed to protect A in those circumstances;
(3) the rights of the local authority under Article 10 to respond to those allegations;
(4) the rights of A’s parents under Article 8 and 10 to comment on the allegations;
(5) the rights under Article 8 of the other foster child present in the home, and the members of the foster household, to respect for their private and family life.

The parties agreed in general that a reporting restriction order should be made to prevent the publication of information likely to lead to the identification of A. At issue was whether the restrictions should be lifted in relation to reporting the proceedings, which might lead to the identification of members of the foster family and social workers. A’s father’s argument was that this case had demonstrated a systemic failure in the local authority’s children and young people’s services and that it is in the public interest, and indeed in A’s interests, for the relevant information to be published. To the extent that the press should have been alerted to the ex parte hearing in which the original restriction order was granted, Baker J agreed:

I have observed elsewhere that there is a danger that those who practice in the family justice system fail to give proper consideration to the Article 10 rights of the media. It is not the first time that an ex parte order has been made without notice to the media in circumstances which could not be described as exceptional. This must now cease. The media are undoubtedly and rightly aggrieved by this practice. In my judgment it is in the public interest for NGN to be entitled to publish its account of the failure to give proper notice in this case.

But the real problematic issue was the extent to which the members of the foster household should be mentioned or identified in any publication or information relating to these proceedings. A’s father maintained that, since the substance of the case against the local authority was that this matter had not been properly investigated, it was ncessary, in order to explain the seriousness of that matter, to identify the position of the alleged assailant within the household. NGN contended that it was “potentially misleading” for any report to recount the allegations concerned individuals in the foster home without reference to their status or position in that household.

The judgment

Baker J concluded that the publication of information which identified the status and relationships of those individuals would be an infringement of their rights under Article 8, particularly as they had not been represented in the proceedings. These details were of “marginal importance” to the case as a whole. On the other hand, he found that the balance came down clearly in favour of permitting the publication of the name of the key social workers:

there is a clear public interest in facilitating an open discussion of the issues relating to child protection and fostering that arise in this case. In all the circumstances, I find no evidence of any pressing social need for a restricting exercise of the right to freedom of expression on that issue.

As to the local authority’s submission that the reporting restriction order  should be extended so as to prevent any publication of the fact or allegation that the foster father committed suicide, Baker J found that the balance again came down in favour of publication. Broadly agreeing with NGN’s submission that it was an important part of the story, the publication of which was a crucial component of the exercise of the freedom of expression in this case, he concluded that there were insufficient reasons for restraining publication, as there was no evidence to support the assertion that publication in reports of the care proceedings of the suicide would increase the risk of identification of A when subsequent reports of the inquest are published. There was also a public interest in the reporting of events surrounding the discovery of the pornographic images on the foster family’s computer.

Since no evidence had been advanced in relation to anything in the public domain relating to this case, Baker J proposed to exclude the public domain proviso from the reporting restriction order made in this case. In other words, no one who breaks the order concerning the publication of information prohibited by the reporting restriction order will be able to rely on the fact that the information had previously been published.

The order was therefore granted in such terms as to balance “the competing interests of the child for privacy on the one hand and the media and public interests for publication on the other, by permitting the reporting of certain facts but preventing the identification of the child as more particularly set out in the Order”. The order is to have effect until the 18^th birthday of A.

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