The BBC & Ors v Marten & Ors (Publicity Application) [2024] EWFC 91

[2024] EWFC 91Case No ZE20C00011Case No ZE20C00283Case No ZE23C50021
IN THE EAST LONDON FAMILY COURT
Date 24 April 2024
11, Westferry Circus,
LONDON,
E14 4HD
Before
HHJ Reardonsitting as a Deputy Judge of the High Court pursuant to s9(1) SCA 1981
Between
The BBC & OrsClaimantMarten & Ors (Publicity Application)Defendant
The BBC and Others v Marten, Gordon and Others (Publicity Application)
Hearing Hearing date: 19 April 2024
Sarah Palin for the Applicants
Ann Courtney for the Local Authority
Matiss Krumins for Ms Marten
Ogechi Duru for Mr Gordon
Amy Woolfenden for the children
Also attended: Joel Smith KC for the Crown Prosecution Service
Judgment
.............................
This judgment was delivered in private. Both a reporting restriction order and a transparency order are in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children must be strictly preserved, in accordance with the terms of these orders. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Introduction
[1]This is my decision on an application made jointly by the BBC, the Telegraph Media Group Ltd, Times Media Ltd and Associated Newspapers Ltd (“the media”) for the publication by the court of a number of judgments given in proceedings which concern the four oldest children of Mark Gordon and Constance Marten (“the parents”). It is accepted by the media that if publication takes place the names of the children and other identifying information, including their genders and dates of birth, should be redacted.[2]The proceedings in question (“the Family Court proceedings”) were public law proceedings brought by this and a different (Welsh) local authority under the Children Act 1989 and the Adoption and Children Act 2002. They took place between 2017 and 2023, and are now concluded.[3]The parents are currently on trial at the Central Criminal Court for offences relating to the death of their fifth child, Victoria. The judge’s summing up has commenced and is expected to conclude this week.[4]The application of the media is not opposed in principle by the local authority At an earlier hearing the local authority was invited to liaise with the children’s current carers, and to inform the court of any views they wished to express on the issue of publication. No such views have been conveyed to the court and I assume therefore that the carers are content to fall in behind the local authority’s position. or the children’s guardian The current guardian for the children is not the guardian who represented them in the care proceedings, who has now retired. , although there are some issues in respect of the approach that should be taken to the redaction of information from the Family Court judgments. In particular the local authority, supported by the guardian, asks that the name of the local authority itself and its social workers should be redacted.[5]At the outset of this hearing, which took place on Friday 19 April 2024, the advocates for the parents did not have instructions on the media’s application. This is despite the fact that the application was made, initially by the BBC, as long ago as October 2023. An initial hearing took place on 27 November 2023, following which I gave a judgment on a preliminary application for disclosure. Following that hearing a timetable was put in place which allowed a generous amount of time for the parties to respond to the application, and to indicate the redactions which they intended to seek in the event that the judgments were ultimately published. Neither Ms Marten nor Mr Gordon complied with those directions.[6]During the course of the hearing Ms Marten’s counsel was able to take sufficient instructions to confirm that she neither opposed nor consented to publication of the judgments, but wished to make some representations about the proposed redactions. Mr Gordon’s position was less clear. Following the hearing I permitted the parents a short period of time to make submissions in writing if there were any points they wished to clarify in respect of their clients’ positions. The mother’s counsel did not make any further submissions but the father’s solicitor did. His position, as I understand it, is that he agrees to publication in principle, but seeks further time to consider his position on particular issues of redaction. As I have explained, both parents have had several months to respond to this application. I am of the firm view that further delay, which would significantly prejudice the media’s Article 10 rights, cannot be justified.

Background to the application

[7]Final care and placement orders were made in respect of all four of Mr Gordon and Ms Marten’s older children on 28 January 2022. A fact-finding hearing took place within those proceedings in February 2021.[8]In early 2023 there was extensive publicity relating to the family after Mr Gordon and Ms Marten’s car was discovered burnt out on a motorway in the Manchester area. A police search was initiated because of evidence that suggested that Ms Marten had recently given birth. Ms Marten and Mr Gordon were located in Brighton on 27 February 2023. The body of their newborn baby, Victoria, was discovered in a shed a few days later. In March 2023 both Mr Gordon and Ms Marten were charged with manslaughter by gross negligence and other offences in connection with Victoria’s death. The trial was listed to commence in January 2024 before the Recorder of London at the Central Criminal Court.[9]On 8 September 2023, on an application by the Crown Prosecution Service, I granted disclosure of specified, redacted documents from the Family Court proceedings pursuant to the principles in Re EC (Disclosure of Material) [1996] 2 FLR 725.[10]In October 2023 the BBC applied for disclosure of the judgments from the Family Court proceedings in order to assist them to prepare an application for publication after the conclusion of the criminal trial. In a judgment handed down on 5 December 2023 I expressed the preliminary view that it seemed “reasonably likely” that publication in some form would be permitted in due course, not least because it seemed that there was “at the very least… a realistic possibility that a considerable amount of information from the family proceedings will be placed into the public domain during the course of the criminal trial.”[11]The order I made on 5 December 2023 permitted disclosure of the judgments given in the Family Court proceedings to the BBC, on the basis that the BBC did not seek at that stage to report on or publish any information contained in the judgments, accepting that any publication prior to the conclusion of the criminal trial would create a risk of prejudice to the criminal proceedings. The purpose of the disclosure made at that stage was to allow the media and the parties to discuss and if possible agree, on a provisional basis, the redactions to the judgments that would be necessary if they were to be put into the public domain at a later stage.[12]The same judgments were later provided to The Telegraph Media Group Ltd, Times Media Ltd and Associated Newspapers Ltd on the same basis.[13]On 4 January 2024 HHJ Richards, sitting as a Deputy Judge of the High Court, made a reporting restriction order on an unopposed basis preventing the publication of information which would identify the older children. This order was necessary because the protections in CA 1989, s97 had expired.[14]As was anticipated, the information put before the jury in the criminal trial, and reported by the Press, has included information from the Family Court proceedings. I have been provided with a copy of an “Agreed Facts” document, prepared within the criminal proceedings and provided to the jury. This document does not contain (and does not purport to contain) a comprehensive account of the evidence heard in the Family Court, the findings made, or the reasons for the Family Court’s decisions. Some significant pieces of evidence and findings are not included in the “Agreed Facts”, presumably because these matters were not relevant to the criminal trial, or because their admission would have been unduly prejudicial to the defence.[15]The mother gave evidence at the criminal trial. The father did not. During her evidence the mother said, according to news reports, that she believed that the decisions of the Family Court were wrong. She said that she believed that her children had been “stolen by the state” in what she described as a “disgraceful” process. The mother also told the criminal court, according to a report in The Telegraph, that “she had gone on the run because she had ‘no faith in the system’ and feared social services would remove Victoria.”[16]There is, therefore, a close connection between the Family Court proceedings and the actions of the parents in early 2023 which formed the subject-matter of the criminal trial.[17]The criminal trial has been widely reported, and there has been considerable public discussion about the Family Court proceedings. As a result there has been public debate about the Family Court proceedings and the Family Court in general, and some speculation, especially online, about what may have led to the older children’s removal from their parents’ care.

The law

[18]I set out an outline of the legal framework in my judgment on the BBC’s application for disclosure dated 5 December 2023. I intend now to address the law in a little more detail, and in particular those principles which are likely to be relevant to the disputed redaction issues.

General principles

[19]The starting point, as I said in December, is the well-known speech of Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47. Lord Steyn identified the need to conduct a balancing exercise which takes into account the right of the media, on behalf of the public, to freedom of expression under Article 10 of the UNCHR, and the rights of individuals and particularly children to respect for their private and family life under Article 8. Lord Steyn set out four principles derived from earlier case law: “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." [17] (original emphasis.)[20]Section 12(4)(a)(i) of the Human Rights Act 1998 requires the court, when considering whether to make an order which will affect Article 10 rights, to the extent to which the material has, or is about to, become available to the public. Where partial or incomplete information is already in the public domain, there is often a strong public interest in allowing disclosure of information which will provide a fuller or more accurate picture. In Blunkett v Quinn [2004] EWHC 2816 (Fam); [2005] 1 FLR 648 Ryder J said: “In considering the competing rights [under Articles 6, 8 and 10], I have come to the clear conclusion that having regard to the quantity of the material that is in the public domain, some of it even in the most responsible commentaries wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court’s silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself.” [22][21]The relationship between Convention rights in the context of the application of the principle of open justice was considered by the Court of Appeal in Abbasi and Another v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] 3 WLR 575. The Lord Chief Justice said:
“77. All of these cases demonstrate the high value attached to freedom of speech in our domestic common law order which is reflected in article 10 of the Convention. The use of the language of the need for "compelling" evidence to curtail free speech reflects that importance recognised in domestic authority and Strasbourg caselaw. The cases cited by Lord Rodger in the Guardian case (see [66] and [67] above) are examples of the latter. The Strasbourg Court affirmed the importance of the right to freedom of expression in Handyside v. United Kingdom App. No. 5493/75, (1976) 1 EHRR 735 at [49] when it said, "freedom of expression constitutes one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man". It has said repeatedly that exceptions to freedom of expression must be construed strictly and the need for any restrictions must be established convincingly: see, for example, Stoll v. Switzerland App. No. 69698/01 at [101] summarising earlier authority. 78. The absence of hierarchical primacy between articles 8 and 10 shows that there is no separate legal test arising from the use of the word "compelling" in discussion of the balancing exercise. Rather, the practical realities of the balance in such cases will be that evidence of a compelling nature is needed to curtail the legitimate exercise of free speech. That explains the use of the term "as such" in Lord Steyn's formulation in Re S at [17] and the emphasis he gave to it.”

Anonymisation of children and “jigsaw” identification

[22]In cases under the Children Act 1989 and the Adoption and Children Act 2002 concerning the welfare and upbringing of children, particularly public law cases, the subject child’s rights to confidentiality and privacy will usually found a strong Article 8-based argument in favour of steps being taken to preserve his or her anonymity. However it will not always, or even usually, be possible to achieve complete anonymity. In most cases, even where all identifying markers are removed, it will be likely that those who know the family well will recognise them from the published judgment. There are also cases where, as Lieven J observed in Tickle v A Father [2023] EWHC 2446 (Fam), the anonymity which can be achieved is only partial because of the extent of the information which is already in the public domain.[23]Where issues of anonymity are concerned, the court must be alert to the possibility of jigsaw identification: that is, the ability to piece together information from different sources, particularly online sources, and in so doing to identify the family involved. This risk was highlighted by research carried out by the Nuffield Foundation in 2016, and the guidance subsequently published was annexed to Practice Guidance issued by the President of the Family Division in December 2018: Anonymisation and Avoidance of the Identification of Children and the Treatment of Explicit Descriptions of the Sexual Abuse of Children in Judgments Intended for the Public Arena.[24]That guidance, together with the 2014 publication guidance Practice Guidance on the Publication of Judgments in the Family Court (16 January 2014) , is soon to be superseded but the approach to confidentiality and jigsaw identification will not change. I have had regard to the checklists appended to the guidance when considering the risks of jigsaw identification.

Adoption proceedings

[25]Adoption proceedings in the Family Court are treated differently from other public law proceedings. These proceedings are excluded from the categories of hearings which the Press are entitled to attend as of right under FPR 2010, r.27.11, and from the Reporting Pilots currently operating within the oversight of the Transparency Implementation Group. In most public law cases under the pilot scheme, but not in adoption applications, the Press are permitted not only to attend hearings but to report, on an anonymised basis, on what they see and hear.[26]The reason for the exclusion of adoption proceedings from the Family Court’s transparency provisions is that once a decision has been taken in principle that a child should be adopted, it will usually be necessary, in order to protect the child’s welfare and sometimes his or her physical safety, to throw a ring of confidentiality around the identity of the prospective adopters and the details of the adoptive placement.

Identification of local authorities and other professional witnesses

[27]The issue in Abbasi, cited above, was the continuation, after the end of proceedings, of reporting restriction orders imposed to protect the identity of clinicians involved in the care of children in end-of-life cases. The NHS Foundation Trusts involved in the two cases before the court argued that experience showed that medical professionals involved in treating children involving in high-profile end-of-life cases were sometimes exposed to a high level of public vilification and threats. The Court of Appeal held that the risk of a future interference with the clinicians’ Article 8 rights did not justify a concrete interference with the right to free speech. On the evidence, the Article 8 risks to any identified individual were low and speculative, and the approach taken at first instance by the President of the Family Division, which continued the RROs on the grounds of wider systemic issues, could not be upheld.[28]One of the NHS Foundation Trusts appealed to the Supreme Court and the appeal was heard last week. The decision of the Supreme Court is awaited.[29]In Tickle v Herefordshire CC [2022] EWHC 1017, which was heard after the President’s original decision in Abbasi but before the Court of Appeal overturned that decision, Lieven J refused to anonymise professionals involved in a public law Children Act case. She said: ““However, the powers of the Court to order anonymisation in relation to professionals need to be exercised with considerable care. Social workers are employees of a public authority conducting a very important function that has enormous implications on the lives of others. As such, they necessarily carry some public accountability and the principles of open justice can only be departed from with considerable caution.” [78][30]Reflecting the relevant authorities, the current Practice Guidance on the Publication of Judgments in the Family Court (16 January 2014) provides that public authorities and expert witnesses should be named in any judgment approved for publication, “unless there are compelling reasons why they should not be so named.” Social workers are not explicitly referenced, but it is stated that “anonymity in the judgment as published should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.”

Article 6 and linked family and criminal proceedings

[31]In Re C (A Child) [2016] 1 WLR 5204 an application for permission to publish Family Court material followed immediately after the conclusion of a related criminal trial, but the convicted defendant applied for permission to appeal. The trial judge refused the application on the basis that publicity might prejudice any future retrial, should permission be granted and the appeal succed.[32]The Court of Appeal overturned that decision on two grounds. First, the trial judge had failed to carry out a proper assessment of the likelihood of a retrial. Permission to appeal had not been granted, and so a retrial was “at best a speculative possibility”. Secondly and decisively, even if there were a retrial, there was no real possibility that publication would prejudice the defendant’s Article 6 rights to the extent that these would outweigh the Article 10 rights of the media. The Court pointed out that there was no case in which the EctHR had found a violation of Article 6 on account of adverse publicity affecting the fairness of the trial itself, and pointed to authorities such as Beggs v the UK (app. No. 15499/10), where a defendant’s Article 6-based complaint had failed despite a ”virulent and prejudicial press and media campaign”.

The balancing exercise

[33]The media says, and I believe it is accepted, that there is a strong public interest in this case in support of the publication of material which will allow the public to have a full understanding of the Family Court proceedings and the Family Court’s decision-making process.[34]First, there is a significant and legitimate public interest in understanding the background to Victoria’s death. That is so, in my judgment, regardless of the outcome of the criminal trial. Whether or not the parents are convicted of the offences with which they are charged, their actions in seeking to live “off-grid” in order to avoid child protection enquiries have generated, and are likely to continue to generate, public debate. The proceedings in the Family Court form an integral part of the background to those actions.[35]Secondly, as I have already observed, the information about the Family Court proceedings which is currently in the public domain as a result of the criminal trial is partial and incomplete. If there is to be public debate about the decision-making process that took place in the Family Court it is very much in the public interest that the debate should be fully-informed.[36]In this context it is relevant that during the criminal proceedings Ms Marten gave various accounts of the Family Court proceedings which, in a number of respects, were inaccurate. Her accounts were widely reported. I give two examples:a. On 19 February 2024 it was reported by the Mail Online that Ms Marten said in her police interview that she “had a fall from a window. There were no bruises on me, no signs of domestic violence”. In fact, the (undisputed) evidence before the Family Court was that in this incident Ms Marten had suffered very serious injuries, including a shattered spleen. The court’s finding was that Mr Gordon had caused these injuries.b. On 11 March 2024 The Times reported that Ms Marten had said in evidence that her family had colluded with social services to have her children removed, and had alleged that she was bearing children to sell on the black market and was a drug addict. In fact allegations of this nature played no part in the Family Court proceedings.[37]On the Article 8 side of the balance the children’s welfare, and their rights to confidentiality and privacy, deserve a very high degree of respect. I have been concerned with the welfare of these children for a long time and am well aware of their individual needs and vulnerabilities. To varying degrees they have already suffered harm. I am very conscious of the significant burden that they will have to bear throughout their lives as a result of the information about their parents which is already in the public domain. So far as it can now be achieved, they need to live out at least the remainder of their childhoods in peace and without having to endure public scrutiny, speculation and intrusion into their lives.[38]However the Article 8 rights of the children fall for consideration in a context where, because of the actions of their parents, a significant amount of distressing information about their family is already accessible to the public as a whole. As Ms Palin put it in her skeleton argument, “the starting point must be that this family have already been the subject of intense media focus. It is thus not a question of moving the children into a floodlight of publicity but a matter of refocusing the lens of publicity so that it includes the findings and decision-making process of the (Family) Court.”[39]It is accepted by the media that if the judgments are published this court should take all reasonable steps to prevent the identification of the children, including by way of “jigsaw” identification. It is of course inevitable that some of the people who know these children and their carers will know that they are the children of Constance Marten and Mark Gordon. However it is in their interests that the pool of people who do know that information should be as small as is reasonably possible, and ideally that this information should not spread beyond those caring for them and trusted friends. I accept that the more information about the children that is published, and the more reference there is to them in public discourse, the greater the likelihood that the pool will widen. This risk needs to be managed carefully and particular attention given, if publication is to take place, to the risks of jigsaw identification.[40]The parents also have rights under Article 8 and under Article 10. The positions of the parents are not entirely clear but both have said that they would wish to speak about the Family Court proceedings in telling their own story, and Ms Marten has already done so. Inevitably there is some sensitive and personal information about them in the judgments, although their limited engagement in the Family Court proceedings means that this information is much less detailed than is often the case in proceedings of this nature. However, as I understand their positions, neither parent is pressing strongly for their personal information to be redacted, or indeed for publication to be refused on this basis In written submissions filed after the hearing, the father suggested that he would wish for information about his previous criminal convictions to be redacted. As I explain later in this judgment, that issue will not be decided by me but by the Recorder of London at the conclusion of the criminal proceedings. .[41]I conclude in principle that the compelling arguments in favour of publication of information that will enable the public as a whole to understand the Family Court’s decisions outweigh the considerations of privacy and confidentiality which, in this case, have been already diluted by widespread publicity.[42]The more difficult issues in this case concern how that “in principle” decision should be worked out in practice.

The substantive care and placement proceedings

[43]Proceedings relating to these children took place in Wales in 2017/2018 and in London between 2020 and 2022.[44]During the course of these proceedings three substantive judgments were delivered:a. A decision of District Judge Taylor DJ Taylor has confirmed that she is content for me to make decisions in respect of publication and redaction of this judgment as part of my decision on the publicity application generally. in the Family Court at Swansea on 20 July 2018. This was a welfare judgment dealing with the outcome of the first set of care proceedings relating to the parents’ oldest child.b. A fact-finding judgment delivered on 23 February 2021 following a hearing before me. In this judgment I made findings on the local authority’s allegations that the children were suffering or likely to suffer significant harm, pursuant to s31 of the Children Act 1989.c. A final welfare judgment, dated 28 January 2022, in the care proceedings involving all four children.[45]Taken together, these are the key documents which set out the decision-making process conducted by the Family Court in relation to the welfare of these children. They all fall to be disclosed.

Proceedings after January 2022

[46]Since January 2022 there have been adoption proceedings concerning the children. A number of judgments have been given in the adoption proceedings, which are now concluded.[47]In December 2023 when I gave judgment on the BBC’s preliminary application for disclosure I expressed the provisional view that the adoption judgments might well fall to be disclosed after the Article 8/ Article 10 balancing exercise was carried out. I have now reconsidered that decision.[48]In January 2022, through the making of final care and placement orders, the court gave effect to its conclusion that all four children should be permanently removed from their birth family and placed for adoption. The subsequent judgments given in the adoption proceedings do not reflect the core decision-making process of the Family Court, but the working-out of the substantive decisions taken in January 2022. Despite the features of the adoption proceedings identified in my judgment dated 5 December 2023, the public interest in the publication of the adoption judgments is therefore less strong than it is in the case of the earlier judgments.[49]It is impossible to know at this stage what form the public discussion of this case will take, and how much interest there may be in the Family Court proceedings. However during the criminal trial Ms Marten spoke freely about the injustice her family has suffered, as she sees it, in the Family Court, and her wish to continue to fight for the return of her children. Given the support that those views have apparently received from some members of the public, it is reasonably likely that there will be considerable interest in the current whereabouts and legal status of the children. The adoption judgments include that information.[50]The information about the children which the adoption judgments contain is both more personal to them, and more specific in terms of their current circumstances, than the information in the earlier judgments. In my judgment the risk of the children being identified in their local community[ies] or more widely by the publication of these judgments is greater, and the likely harm to them if that happens is more significant. It is not possible to redact these judgments without removing core parts of the reasoning.[51][This paragraph has been redacted. It explains why, with reference to specific information contained in the adoption judgments about the children, publication of these judgments would increase the risk of identification.][52]I have come to the conclusion, therefore, that the judgments from the adoption proceedings which took place after January 2022 should not be published. In order to give effect to this decision I intend also to redact the final January 2022 welfare judgment so that some of the detail about the local authority’s plans for the children’s placements is removed.[53]The local authority made a further application in January 2023 for an interim care order for the parents’ fifth child, whose name and gender was not at that stage known to them. I gave a short judgment on that application. That application was a significant step taken by the local authority in furtherance of its statutory child protection duties and there is no reason why the judgment should not be published.

Procedural decisions

[54]My judgment on the CPS application for disclosure of material for use in the criminal proceedings is dated 8 September 2023. This judgment is an example of the approach which the Family Court will adopt to the disclosure of information where criminal proceedings follow family proceedings, and there is therefore value, from a transparency perspective, in it being published. The judgment sets out in some detail the different approach taken to different categories of documentation, but does not itself contain any sensitive or confidential information. The balance falls down clearly in favour of publication.[55]In order to understand the decisions of this court with respect to issues of publicity this judgment, and the judgment of 5 December 2023, should both be published. Redactions The children: names, genders and ages[56]It is agreed by the media that in any published version of the judgments the children’s names, dates of birth and genders should be redacted in order to minimise the risk of jigsaw identification.[57]In advance of the hearing the guardian proposed that the years of the children’s births should also be redacted. There are, however, two difficulties with that approach. The first is that the births of the children are important milestones in the chronology and it would be difficult to understand the local authority’s actions or the steps taken by the court if this information were excluded completely from the judgments. The second is that in any event the years and months of the children’s births appear in the Agreed Facts put before the jury in the criminal trial, and so are already in the public domain.[58]On this issue I have determined that the years and months of the children’s births should not be redacted from the published judgments, but that some specific dates should be removed and replaced with more general periods of time so that the exact dates of birth cannot be ascertained.

The two local authorities, the guardians and other professional witnesses

[59]The (London) local authority has asked the court to redact both the name of that local authority and the names of individual social workers named in the judgments.[60]On the morning of the hearing Ms Courtney filed a position statement for the local authority which set out a range of arguments based on an asserted risk of reprisals, vilification and similar harm to social workers involved in this case if their names were to be put into the public domain. No evidence was filed; no notice had been given to the media or the other parties that this argument would be run; and there was no reference in the position statement to the legal principles which govern arguments of this nature – particularly those canvassed in Abbasi.[61]In my judgement, these arguments carry little weight in this case and provide insufficient justification for restricting the media’s right to publish information in respect of which there is, otherwise, a powerful public interest in publication. Given the parents’ lack of engagement with the local authority during the care proceedings, the social workers’ direct interactions with the parents were quite limited and their involvement was some time ago. There is no evidence of reprisals or likely reprisals against them.[62]I have concluded however that it is necessary to redact the name of the local authority – and by extension the names of the social workers, through whom the local authority could easily be identified – solely in order to protect the identities of the children and thereby to protect their Article 8 rights. [The remainder of this paragraph has been redacted. It explains the risks of identification in more detail].[63]For those reasons the local authority will be referred to in the published judgments as “a London local authority”.[64]The local authority also suggests that the name of a hospital where one of the children was born should be redacted. There are in fact a number of hospitals and medical centres mentioned in the judgments, some of which are also referenced in the Agreed Facts put before the jury. They are in different areas of London, because, as the judgments make clear, the parents lived in different places and when they did access health care they did so in areas that were sometimes quite far from where they lived. In my view, identifying these facilities, to the extent that they are not already in the public domain, does not increase the risk of identifying the children.[65]For similar reasons I do not consider there is any reason to redact the names of any other professionals who are referred to in the judgments, including the names of the social workers involved when the parents’ first child was born in Wales, the name of the Welsh local authority, and the two previous children’s guardians. Naming them will not increase the likelihood of the children being identified. There is no evidence that any of these people are likely to be the subject of adverse publicity to the extent that their Article 8 rights might be engaged, or indeed at all. The parents’ almost complete disengagement from the child protection process and the proceedings in the Family Court means that there was no professional or group of professionals on whose evidence the decisions of the court turned, and therefore none has a prominent role in any of the judgments.

Third parties

[66]There is reference in the 2021 and 2022 judgments to members of Ms Marten’s family. Her mother attended some of the hearings and was very briefly made a party. I accept in principle that family members of the children and parents involved in confidential Children Act proceedings, and other third parties, have Article 8 rights in respect of the information about them which is contained in Family Court judgments.[67]However, given the extent of information about Ms Marten’s family which is already in the public domain, including allegations of abuse made by Ms Marten against them during the course of the criminal trial, and the quite limited references to them in the judgments, I am satisfied that in reality, and subject to one exception, publication would not give rise to any further interference with their Article 8 rights.[68][Part of this paragraph has been redacted. It sets out the exception, which concerns personal and sensitive information.] Ms Marten herself opposes any redaction of this information. The media, which had originally agreed to a redaction, changed its position on learning of Ms Marten’s views and now argues that the information should be published.[69]The information in question was referenced only briefly in the judgment and was irrelevant to the decisions taken by the court; the public interest in publication is therefore very limited. My view is that the interference with Article 8 rights which publication would represent is not justified by the open justice principle, or the Article 10 rights of the media and the public as a whole.[70]I accept that Ms Marten has rights under Article 10 to tell her story, subject to any legal constraints outside the scope of this judgment. However it seems right to me that the decision to do so, if she wishes, should be hers and not mine, and if this information is put into the public domain, it should not be as a result of the balancing exercise conducted by this court.[71]This information will therefore be redacted from the published version of the judgment in question, and must not be reported by the media as part of its reporting of the Family Court proceedings. However if Ms Marten chooses to speak publicly about it, she will not be in contempt of court under section 12 of the Administration of Justice Act 1960 on the basis that the information has been referred to in confidential Children Act proceedings. As HHJ Bellamy observed in Re K (A Child: Wardship: Publicity) (No 2) [2013] EWHC 3748 (Fam), the mere fact that a fact or allegation has been referred to in proceedings heard in private does not of itself mean that reporting of that fact will be a contempt of court: “In other words one has to distinguish between, on the one hand, the mere publication of a fact (fact X) and, on the other hand, the publication of fact X in the context of an account of the proceedings, or the publication of the fact (fact Y) that fact X was referred to in the proceedings or in documents filed in the proceedings. The publication of fact X may not be a breach of section 12; the publication of fact Y will be a breach of section 12 even if the publication of fact X alone is not.” [114] Other

Redactions

[72]The media has provided a schedule of proposed redactions to the judgments. The redactions suggested include some details of the children’s emotional presentation during the course of the care proceedings, particularly during periods when their parents ceased attending contact. Ms Palin explained that the media saw this as information relating exclusively to the children’s welfare, in respect of which there was no real public interest in publication.[73]I understand the media’s point of view, but in considering the format in which the judgments should be published I have a separate responsibility to ensure that sufficient information is provided to ensure that the court’s reasoning and the decision-making process are understood. The information in question was, from the perspective of the Family Court, crucial in terms of evaluating the children’s welfare. It is not, in my judgement, particularly personal or sensitive: what are described are the natural and expected reactions of very young children to their parents’ unexplained disappearance from and reappearance in their lives. In my view, redaction of this information would bring about an unjustified distortion of the welfare evaluation contained in the judgment.

Timing of publication

[74]It is not suggested that any publication should take place until after the jury has delivered verdicts in the criminal trial.[75]Both Mr Gordon and Ms Marten suggest that publication should be delayed until, if they are convicted, any appeal process has concluded. In my judgement, the arguments for delay are even weaker in this case than in Re C, where the Family Court judgment and the criminal trial concerned exactly the same subject-matter. On the basis of the approach set out in Re C, it does not seem to me that such a delay could be justified.[76]The media agrees, however, that a mechanism for publication should be put in place to allow for the possibility of a hung jury and any consequent delay (I am told that the conventional period is 7 days) while the CPS makes any necessary decision in respect of seeking a retrial.[77]During the course of the hearing Mr Smith informed the court that the Central Criminal Court has made an order under section 4(2) of the Contempt of Court Act 1981 which has prevented any reporting of Mr Gordon’s previous convictions during the criminal trial. That order has been made until further order, although I am told that the usual expectation is that it will be discharged immediately after a verdict is delivered.[78]I intend, in the first instance, to link the publication of these judgments to the discharge of the s4(2) order made in the Central Criminal Court. In both contexts the issue is the risk that information will enter the public domain that may prejudice a retrial. The information about Mr Gordon’s previous convictions is significantly prejudicial, probably much more so than any of the other information contained in the Family Court judgments. It seems to me that once the Recorder of London is satisfied that the need for that order no longer exists, this court can be confident that publication of the Family Court judgments will no longer give rise to any risk to the integrity of the criminal proceedings.[79]The media has made it clear that even if there is to be a retrial they will seek publication. It will therefore be open to the media, in this scenario, to renew its request for publication and I will consider the issue at the earliest opportunity.[80]The judgments in respect of which publication has been granted will therefore be sent in their redacted form to The National Archives as soon as I am notified by the media that the s4(2) order made in the criminal proceedings has been discharged.[81]Until then, the restrictions in AJA 1960 s12, together with the current RRO dated 4 January 2024, will remain in force.

Orders

[82]The following judgments will be published on The National Archives, once the order made in the Central Criminal Court under CCA 1981, s4(2) has been discharged, with redactions applied as set out above:a. The judgment of District Judge Taylor dated 20 July 2018;b. The judgment following the fact-finding hearing dated 23 February 2021;c. The judgment following the final welfare hearing dated 28 January 2022;d. The judgment on the application for an interim care order for Victoria, dated 20 January 2023;e. The judgment on the CPS application for disclosure, dated 8 September 2023;f. The judgment on the BBC application for disclosure, dated 5 December 2023;g. This judgment.[83]There is no permission to publish any other version of any of these judgments. That includes the redacted versions previously provided to the BBC pursuant to the order of 5.12.23 and to other media organisations pursuant to the order of 3 April 2024. I will direct that all previous versions of the judgments disclosed to the media under those orders should be destroyed, save that the legal departments of the various media organisations may retain copies on their files.[84]The current RRO will require some amendment to ensure that it is congruent with my decisions in respect of publication of the judgments, and to make it clear that there is no restriction on publishing the names of the parents.[85]I will make a Transparency Order in respect of the hearing on 19 April 2024, which was attended by a number of members of the press. That order must be drafted so as to ensure that the confidentiality of the redacted information is preserved.[86]The orders made on this application will bear today’s date, but will not take effect until the s4(2) order has been discharged.