“20.The exercise of balancingarticle8andarticle10rights has been described as “analogous to the exercise of a discretion”:AAAvAssociatedNewspapersLtd [2013] EWCACiv554at [8]. While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention.”
“Where a representative of the media in attendance at the proceedings applies to be shown court documents, the court should seek the consent of the parties to such representative being permitted (subject to appropriate conditions as to anonymity and restrictions upon onward disclosure) to see such summaries, position statements and other documents as appear reasonably necessary to a broad understanding of the issues in the case.”
“Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ”
“I am a freelance journalist who has previously applied for reporting restrictions to be relaxed in this case…. I was previously home editor at the Bureau of Investigative Journalism where I reported on the high rates of under-fives being put up for adoption in Southampton. I have an interest in fabricated illness on which I have previously reported, as well as in the circumstances in Southampton. I hope to write an in-depth report on this case which sheds light on both these factors. However the judgments alone do not provide sufficient insight into the case to allow this. M’s mother has consented to let me see the court file so long as I have the permission of the court. I do not intend to report on or quote from these documents however I believe it is important I view them so that I have as full a picture as possible of what went on before I do any reporting.”
“Contains details relevant to LA decision making or is necessary to understand case.”
“[45] However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. … the court has to carry out a factspecific balancing exercise. On the one hand will be “the purpose of the open justice principle and the potential value of the information in question in advancing that purpose. [46] On the other hand will be “any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”
“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.”
“133.The starting point, in the particular circumstances of this case, is that the State is no longer involved with Mr and Mrs Ward and their family. The care proceedings came to an end without the making of any order. The local authority does not have parental responsibility for William and he is not a ward of court. The only persons with parental responsibility for him are Mr and Mrs Ward. Insofar as the disclosure of information about a child of William's age involves an exercise of parental responsibility then it is for Mr and Mrs Ward to exercise that responsibility, not the court or any other public authority. There are no grounds for any interference by the State – whether the state in the guise of the local authority or the state in the form of the High Court – with the exercise by Mr and Mrs Ward of their parental responsibility…... 134. Accordingly, in my judgment, so far as concerns any decision as to whether or not it is in William's interest for any of this material to be put into the public domain, and if so how and for what purpose, the decision is one for Mr and Mrs Ward. It is a matter for them. And it is for them, not the court, to assess the wisdom or otherwise of what they are proposing to do: Re B; X Council v B (No 2)[2008] EWHC270 (Fam),[2008] 1 FLR 1460 , at para [20(iv)].”
“123. In this case, M’s mother has given her consent to the release of her own and M’s personal information to Ms Newman. She has consented on behalf of them both to every last detail of this case being released to a journalist whose objective ultimately is to “write an in depth report” which has the potential to expose the family, and the child in particular, to further press intrusion into, and exposure of, intimate details of their private family history. 124. On behalf of Ms Newman, Ms Proops QC has taken me to the email which the mother sent to the court before this hearing commenced. In that email she confirms that she has no financial interest in the outcome of any future publications about the case. She says she has not been subjected to duress or other pressure to agree to the disclosure request. She continues in this way: “It is my believe [sic] that issues in this case are now in the public interest. In regards, to maintaining the privacy of my daughter, [M], and her family, this is now unachievable. This is due to the fact that the Family Court Division has published documents currently available in the public domain that contains unique private information, leading to her identification. Hence the matter of protecting [M’s] privacy and Human Rights is now beyond repair. The family is currently accessing privately funded counselling services to help [M] cope with the effects of the trauma she has experienced and the impact it has on her family, including that of future generations. The help that [M] and her family has received from the Local Authority and with the input of the Children’s Guardian including play therapy, has been inadequate and obstructive throughout the reunification process of [M] returning back to her birth family. My hope now is that lessons can be learnt from the systematic failures of this case and spare others from the unimaginable trauma that [M] and her family has endured. I can confirm that this is also [M’s] verbalised wish for her case to be utilised to benefit others. It gives [M] great comfort knowing that her suffering has not been in vain.” 125.On the basis of this email, Ms Proops QC seeks to persuade me that because the mother holds parental responsibility for the child and has consented on her behalf to the waiving in their entirety of her child’s Article 8 rights in connection with this material, the local authority is not entitled to put before the court a contrary view of what a responsible parent would do in this situation. She maintains that this email, and its contents, are a complete answer to the objections raised by both the Guardian and the local authority. 126. I do not accept that the situation is as simple as this. 127. Plainly, appropriate respect and weight must be accorded to the wishes and feelings of any individual who holds legal responsibility for a child as a result of being that child’s parent. That concept is in itself central to the private family rights recognised and protected by Article 8 whenever those rights are engaged. However, each of M and her mother has rights to a private family life and those rights are engaged together, as a family unit, and separately as individual human beings. What the mother’s email tells me about M is that I am dealing here with a child who has been severely traumatised by these proceedings. That trauma has been such that the child requires ongoing therapeutic intervention to mitigate its continuing effects. She is still only 7 years old. Her mother has clearly engaged her in discussion about these proceedings and I know not, and do not speculate, about the extent to which the mother’s own views may have been projected onto her child in terms of [M’s] “verbalised wishes”. 128. I am not in this judgment expressing views of more general application. I am dealing with the balancing exercise I must conduct in respect of this particular child in these particular circumstances. I find it difficult to conclude that M could be treated as a Gillick competent child capable of expressing considered, informed and independent views about this issue. That is why she is independently represented by a children’s court-appointed Guardian. None of the views I have expressed detract in any way from the important point which Ms Proops QC makes about the mother’s parental responsibility for M but I do not agree with her that the exercise of it is conclusive in this case. It may well be that the mother believes her own and M’s interests to coincide in relation to the issue of access / publication but my focus must be on M’s interests not just now but in the years to come as she comes to terms with her own emerging identity as an individual in psychological, social and physical terms.” “It is my believe [sic] that issues in this case are now in the public interest. In regards, to maintaining the privacy of my daughter, [M], and her family, this is now unachievable. This is due to the fact that the Family Court Division has published documents currently available in the public domain that contains unique private information, leading to her identification. Hence the matter of protecting [M’s] privacy and Human Rights is now beyond repair. The family is currently accessing privately funded counselling services to help [M] cope with the effects of the trauma she has experienced and the impact it has on her family, including that of future generations. The help that [M] and her family has received from the Local Authority and with the input of the Children’s Guardian including play therapy, has been inadequate and obstructive throughout the reunification process of [M] returning back to her birth family. My hope now is that lessons can be learnt from the systematic failures of this case and spare others from the unimaginable trauma that [M] and her family has endured. I can confirm that this is also [M’s] verbalised wish for her case to be utilised to benefit others. It gives [M] great comfort knowing that her suffering has not been in vain.”
“30. … in the case of a child too young to have a sufficient idea of privacy, the question whether a child in any particular circumstances has a reasonable expectation of privacy must be determined by the court taking an objective view of the matter including the reasonable expectation of the parents as to whether the child’s life in a public place should remain private.”
“In considering the proportionality of the proposed interference with the right of [the child] to respect for his private and family life, the judge must again consider the magnitude of the interference proposed. He must consider among other things ….. the extent to which this additional intrusion would add to the interference which has already taken place and is bound to take place in the future…”
“The press discharges vital functions as a bloodhound as well as a watchdog”
“I take a similar view in terms of the witness statements which were put before the court in 2017 and 2018. These statements will have informed the narrative of this family’s life as it was put before the court. The later statements set out the new narrative which underpinned the family’s situation following the mother’s marriage to M’s stepfather. Insofar as these details were relevant to decision-making, they have been referred to in the published judgments. Weighing these matters carefully in the balance, I cannot see any justification for prioritising Ms Newman’s wish to conduct a trawl through this material over and above this child’s expectation of privacy for the intimate details of her family life. In circumstances where I would be unlikely to permit the publication of this information in any media article which Ms Newman might wish to write for consumption by the general public, I can see no principled reason to elevate her wish to read the material over the importance I attach to M’s Article 8 right to confidentiality in respect of that information. Unlike the specific reports and assessments which relate to the mother, who has given her consent to their release, these statements have been provided by third parties. They are likely to cover much ground which touches and concerns the private family life of M and other family members.”
“[162]… targeted and fact-specific exercise which has involved a careful balancing exercise of all the competing rights as between the individual parties to this case… to the extent that I have interfered with either the mother’s or M’s article 8 rights and/or Ms Newman’s Article 10 rights, I have done so in what I judge to be an entirely proportionate manner.”
“There have been significant developments towards greater transparency in the Family Courts”
“one that can only be determined by the court in accordance with established legal principles”
“47. Also relevant must be the practicalities and the proportionality of granting the request. It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day to day control of the court process. The non-party who seeks access will be expected to pay the reasonable costs of granting that access. People who seek access after the proceedings are over may find that it is not practicable to provide the material because the court will probably not have retained it and the parties may not have done so. Even if they have, the burdens placed on the parties in identifying and retrieving the material may be out of all proportion to benefits to the open justice principle, and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time-consuming, to discharge. On the other hand, increasing digitisation of court materials may eventually make this easier. In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.”