Al-Hilli (Children), Re [2013] EWHC 2190 (Fam)

[2013] EWHC 2190 (Fam)

Case No FD12PO2113 AND FD12C00524

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/07/2013

Before

THE HONOURABLE MR JUSTICE BAKER

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF AL-HILLI (CHILDREN)

Between

SURREY COUNTY COUNCILApplicant

(1) ZAINAB AL-HILLIRespondents

Between

ZEENA AL-HILLI

(both through their Children’s Guardian)

Between

FADWA AL-SAFFAR

AHMED MAHMOOD

- and –

Between

THE CHIEF CONSTABLE OF SURREY

TIMES NEWSPAPERS LTD

Sarah Morgan Q.C. and Sharon Segal (instructed by Local Authority Solicitor) for Applicant

Melanie Carew (of CAFCASS Legal) for 1 st and 2 nd Respondents

James Turner Q.C. and Jane DeZonie (instructed by Gordon Dadds LLP) for 3 rd and 4 th Respondents

Fiona Barton Q.C. and Robert Cohen (instructed by Force Solicitor, Surrey Police) for 5 th Respondents

Jonathan Scherbel-Ball for Times Newspapers Ltd

Hearing Hearing dates: 15 th and 16 th July 2013

Judgment

THE HONOURABLE MR JUSTICE BAKER

This judgment is being handed down in private on 26 th July 2013 It consists of 25 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved, save that all information within this judgment may be published.

The Honourable Mr. Justice Baker :

Introduction and Background

[1]This judgment addresses the important issue of the circumstances in which representatives of the media should be excluded from attending family proceedings. Reporting of the proceedings is restricted, but I am authorising publication of this judgment including the names of the children. However, reporting of any further detail of the circumstances of the children and of the arrangements for their care remains prohibited. The issue arises in the course of care proceedings which I am conducting in the Family Division. For the purposes of this judgment it is unnecessary to recite the facts of the proceedings in any detail beyond a broad outline, much of which is, in any event, already widely known.

[2]On 5th September 2012, five members of the Al-Hilli family from Surrey – Saad Al-Hilli, his wife, their two daughters, Zainab, then aged seven, and Zeena, then aged four, and Mrs Al-Hilli’s mother – were travelling in their car on holiday in Annecy in France when they were attacked by a gunman. The three adults in the car, and a passing cyclist, were shot dead. The older child, Zainab, was assaulted and badly injured. The younger child, Zeena, escaped without physical harm, apparently by hiding behind her mother’s skirts. The case attracted, and continues to attract, world-wide media attention.

[3]The tragic death of their parents made Zainab and Zeena orphans, with no person having legal parental responsibility for them. Initially, it was not possible for the children to be placed in the care of members of the extended family because one line of the police investigation concerned the possible involvement of family members in the murders. As a result, Surrey County Council started care proceedings in respect of the two girls. Zeena was returned to the United Kingdom on 9th September and placed with foster carers. Zainab recovered sufficiently from her physical injuries to be discharged from hospital and be placed with her sister. Both girls remain in foster care with the support of a care plan devised by the local authority.

[4]In view of the seriousness of the case, the proceedings were transferred to the High Court and have been reserved to me. The principal issue arising in the proceedings is whether the children should be placed with two members of the extended family, who have been joined to the proceedings and are represented by leading and junior counsel. A substantive hearing is listed to take place shortly at which the court will consider various matters concerning the proposed placement, including the level of any risk to the girls.

[5]The investigation into the killings by the police and the French prosecution authorities is ongoing. The Surrey Constabulary have been heavily involved in the investigation, in particular those aspects concerning the Al-Hilli family life in England. One line of enquiry being pursued by the investigators has been the possible involvement of a brother of Saad called Zaid Al-Hilli. It is alleged that there had been a disagreement between Saad and Zaid over an inheritance from their father. Zaid Al-Hilli has recently been assigned the status of ‘suspect’ and arrested, interviewed and released on bail.

[6]I am informed by the Chief Constable that the French investigation is subject to a confidentiality rule (secret de l’enquête et de l’instruction) set out at Article 11 of the French Code of Criminal Procedure, which provides:

“Except where the law provides otherwise and subject to the defendant’s rights, the inquiry and investigation proceedings are secret. Any person contributing to such proceedings is subject to professional secrecy under the conditions and subject to the penalties set out by articles 226-13 and 226-14 of the Criminal Code. However, in order to prevent the dissemination of incomplete or inaccurate information or to quell a disturbance to the public peace, the district prosecutor may, on his own motion or at the request of the investigating court or parties, publicise objective matters related to the procedure that convey no judgment as to whether or not the charges brought are well founded.”

[7]In the event, the French prosecutor in this case has published a considerable amount of information about the investigation, and the case generally, including his understanding that the children are to be returned to the family from social care, although in fact no decision on that issue has yet been taken by this court. In addition to the information provided by the prosecutor, the case has attracted a large amount of publicity, particularly in France and in the UK. Amongst the journalists who have taken a particular interest in the case is Mr. David James Smith, a freelance journalist who writes for the Sunday Times.

[8]The exceptional nature of these proceedings has led this court to take a series of exceptional measures.

[9]First, I have made a succession of reporting restriction orders, prohibiting the publication of a wide range of information concerning the girls in circumstances where such publication will be likely to lead to their identification. These orders, which remain in force, are largely drafted in what may be called the conventional terms and substantially follow the form of order set out in the CAFCASS Practice Note of 18th March 2005. Unusually, however, the first such orders were made without notice to the media. As is made clear in the Family Procedure Rules 2010 Practice Direction 12 I (formerly the President’s Direction of 18th March 2005) such an order should not be made without notice save where there are compelling reasons why the media should not be notified. In this case, I was satisfied that such compelling reasons existed. Subsequently, the reporting restriction orders (one covering each child) have been renewed (in an amended form) at hearings of which the media has had notice but has chosen not to contest.

[10]Secondly, by an order dated 6th December 2012, this court joined the Chief Constable of Surrey as a respondent to the care proceedings. It is, of course, extremely unusual for a court conducting family proceedings to take such a step. The reasons for that decision are set out in a separate judgment delivered on that date which will, I anticipate, be released for publication in due course.

[11]Thirdly, on 19th April 2013, when Mr David James Smith attended an interim hearing, the Chief Constable applied orally and without notice for an order excluding the press from attending that and subsequent hearings. Having given Mr Smith the opportunity to make representations (which he accepted) and to take legal advice (which at that stage he declined), I made an order that the press should not be permitted to attend the rest of that hearing. At my request, however, and without prejudice to the right of Mr Smith or any other representative of the press to make representations to the court in respect of attendance at any future hearing, the local authority agreed to give advance notice to Mr Smith of the date of any future timetabled hearings and whether or not his attendance at each such hearing was opposed by any party. Mr Smith was duly notified of the next hearing on 11th June. He did not attend but informed the court via email that he would wish to be informed of future hearings and indicated that he might attend with counsel at the next hearing. The next directions hearing was fixed for 10th July, when I was sitting on circuit. Prior to that hearing, as set out above, on 24th June Zaid Al-Hilli was arrested and interviewed and subsequently released on bail.

[12]On 4 July, Times Newspapers Ltd (hereafter “TNL”), the publishers of the Sunday Times, wrote to Surrey Police (copied to the local authority) asking them to confirm whether they would be making any application to exclude accredited press representatives from the hearing on 10 July and to supply the relevant supporting evidence in support of the application. I understand that Surrey Police responded the following day, setting out in brief outline the basis of their application, indicating that they would rely on Article 2 and

Article 8 ECHR

and the need to maintain “judicial secrecy in France, pursuant to the provisions of the French penal code.” The police did not, however, provide any formal evidence in support of their proposed application. On 9th July, the day before the next hearing, solicitors for TNL informed the court via email that they had instructed counsel to attend the hearing the following day with Mr Smith. Later that day, a comprehensive skeleton argument was submitted by counsel for TNL, Mr. Jonathan Scherbel-Ball, “in response to an anticipated application of Surrey Police to exclude, pursuant to FPR rule 27.11(3), accredited members of the press from a hearing in these proceedings scheduled for 10th July”.

[13]In the event, the case was not reached until mid-afternoon on 10th July, and it quickly became apparent that the court had insufficient time that afternoon either to conduct a contested application on the issue of press attendance or to consider the important directions concerning evidential issues for the substantive hearing due to take place shortly. I therefore adjourned the matter until the following week, when I was able to make time for a hearing covering all issues. At that hearing, attended by Mr Smith, and another journalist from the Press Association, I dealt first (in the absence of the press and their legal representatives) with the issues concerning directions in the proceedings, and then considered the application by Surrey Police for an order excluding the press from further hearings and in particular the forthcoming substantive hearing. At the conclusion of that hearing, I reserved judgment on the latter issue until today.

The Law – (1) Statutory and Regulatory Framework

[14]It is widely accepted that the current rules concerning the reporting of proceedings in the family courts of this country are unsatisfactory and in need of reform. An attempt was made by Parliament shortly before the last election, resulting in Part 2 of the Children, Schools and Families Act 2010. These provisions were the subject of very considerable criticism and the current government has indicated that it is not planning to bring them into effect. The topic of reform in this field remains, however, high on the agenda of policy makers and of the President of the Family Division, as indicated in his comments published as “View from the President’s Chambers: The Process of Reform” [2013] Fam Law 548, in which he observed (at page 549):

“I am determined to take steps to improve access and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice. Work, commenced by my predecessor, is well under way.”

[15]That is for the future. This hearing is, of course, being conducted under the current statutory and regulatory framework which provides, in short, that, save in specified circumstances, accredited members of the media are allowed to attend private family proceedings but, save in specified circumstances, are unable to report anything that happens.

[16]It is a fundamental principle underpinning the rule of the common law that, save in certain exceptional circumstances, court proceedings should be held in public and publicly reported: Scott v Scott

[1913] AC 417

. The clearest modern statement for the rationale for this principle is in the speech of Lord Diplock in AG v Leveller Magazine

[1979] AC 440

at page 449 - 450:

“If the way that the courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be helped in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this. However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule”

[17]In addition to the common law principle, the European Convention for the Protection of Human Rights and Fundamental Freedoms, now incorporated into our law by the Human Rights Act 1998, buttresses the principle of open justice by providing, under article 6, inter alia, that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing …”, and, under article 10, that “everyone has the right to freedom of expression” (subject to qualifications set out in article 10.2).

[18]In Scott v Scott (supra), the House of Lords recognised exceptions to the principle of open justice in the case of what were then described as “suits affecting wards” and “lunacy proceedings” because (per Lord Shaw) in such cases:

“The affairs are truly private affairs; the transactions are truly transactions intra familiam; and it has long been recognised that an appeal for the protection of the court in the cases of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.”

[19]The prohibition on reporting private family proceedings is now derived primarily from section 12(1) of the Administration of

Justice Act 1960 which, in so far as relevant to family law, provides:

“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… ” (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… ”

[20]In addition, s.97(2) of the Children Act 1989 provides:

“No person shall publish to the public at large or any section of the public any material which is intended, or is 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 in respect of that or any other child or (b) an address or school as being that of the child involved in any such proceedings.”

[21]Further rules concerning communication of information relating to family proceedings held in private are set out in FPR rule 12.73 and 12.75, and in the Practice Direction 12G. Importantly, the court has the power, in the case of the High Court under its inherent jurisdiction and, in the case of all courts under FPR rule 12.73(1)(b), to relax this restriction and authorise disclosure of what would otherwise be prohibited. This power is exercised regularly by judges authorising the publication of transcripts of judgments, albeit usually on an anonymised basis.

[22]The rules governing the attendance of media representatives at family proceedings are set out in FPR rule 27.11, which applies to all family proceedings, save for certain exceptions specified in rule 27.11(1) which do not apply in this case. Only persons identified in rule 27.11(2) may be present in private family proceedings. The list includes:

“(f) duly accredited representatives of news gathering and reporting organisations and (g) any other person whom the court permits to be present.”

[23]This permissive provision is qualified by the following provisions in rule 27.11:

“(3) At any stage of the proceedings the court may direct that persons within paragraph (2) (f) shall not attend the proceedings or any part of them, where satisfied that – (a) this is necessary – (i) in the interests of any child concerned in , or connected with, the proceedings; (ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or (iii) for the orderly conduct of the proceedings; or (b) justice will otherwise be impeded or prejudiced. (4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the person listed in paragraph (5) , and in either case having given to any person within paragraph (2)(f) who is in attendance an opportunity to make representations. (5) At any stage in the proceedings, the following persons may make representations to the court regarding restricting the attendance of persons within paragraph (2)(f) in accordance with paragraph (3) – (a) a party to the proceedings; (b) a witness in the proceedings; (c) where appointed, any children’s guardian; (d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings; (e) the child, if of sufficient age and understanding. … (7) In this rule “duly accredited” refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor.” (a) this is necessary – (i) in the interests of any child concerned in , or connected with, the proceedings; (ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or (iii) for the orderly conduct of the proceedings; or (b) justice will otherwise be impeded or prejudiced. (4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the person listed in paragraph (5) , and in either case having given to any person within paragraph (2)(f) who is in attendance an opportunity to make representations. (5) At any stage in the proceedings, the following persons may make representations to the court regarding restricting the attendance of persons within paragraph (2)(f) in accordance with paragraph (3) – (a) a party to the proceedings; (b) a witness in the proceedings; (c) where appointed, any children’s guardian; (d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings; (e) the child, if of sufficient age and understanding. … (7) In this rule “duly accredited” refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor.”

[24]The rule is supplemented by Practice Direction 27B, entitled “Attendance of Media Representatives at Hearings in Family Proceedings (High Court and County Courts)”. Paragraph 2 of the Practice Direction sets out some general principles including, under paragraph 2.1:

“The rights of media representatives to attend such hearings are limited only by the powers of the court to exclude such attendance under limited grounds and subject to procedures set out in paragraphs (3) to (5) of Rule 27.11”

Paragraph 2.3 provides inter alia that the rules: “… do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court …” and, under paragraph 2.4: “the question of attendance of media representatives at hearings in family proceedings to which rule 27.11 and this guidance apply must be distinguished from statutory restrictions on publication and disclosure of information relating to proceedings, which continue to apply and are unaffected by the rule and this guidance”:

[25]Paragraph 4 of the Practice Direction headed “Identification of media representatives as ‘accredited’” provides as follows: “4.1 Media representatives will be expected to carry with them identification sufficient to enable court staff, or if necessary the court itself, to verify that they are “accredited” representatives of news gathering or reporting organisations within the meaning of the rule. 4.2 By virtue of paragraph (7) of the rule, it is for the Lord Chancellor to approve a scheme which will provide for accreditation. The Lord Chancellor has decided that the scheme operated by the UK Press Card Authority provides sufficient accreditation; a card issued under that scheme will be the expected form of identification, and production of the Card will be both necessary and sufficient to demonstrate accreditation. 4.3 A media representative unable to demonstrate accreditation in accordance with the UK Press Card Authority scheme, so as to be able to attend by virtue of paragraph (2)(f) of the rule, may nevertheless be permitted to attend at the court’s discretion under paragraph (2)(g).

[26]Guidance as to the application of rule 27.11(3) concerning the exclusion of media representatives is set out in paragraphs 5 and 6 of the Practice Direction. Paragraphs 5 is headed “Exercise of the discretion to exclude media representatives from all or part of the proceedings,” although the reference to the existence of a “discretion” in this respect has been the subject of judicial criticism: see Re Child X (Residence and Contact: Right of Media Attendance)

[2009] EWHC 1728 (Fam)

[2009] 2 FLR 1467

, per Sir Mark Potter P. at paragraph 56. Paragraph 5 states:

“5.1 The rule anticipates and should be applied on the basis that media representatives have a right to attend family proceedings throughout save and to the extent that the court exercises its discretion to exclude them from the whole or part of any proceedings on one or more of the grounds set out in paragraph (3) of the rule. 5.2 When considering the question of exclusion on any of the grounds set out in paragraph (3) of the rule the court should – • specifically identify whether the risk to which such ground is directed arises from the mere fact of media presence at the particular hearing or hearings the subject of the application or whether the risk identified can be adequately addressed by exclusion of media representatives from a part only of such hearing or hearings; • consider whether the reporting or disclosure restrictions which apply by operation of law, or which the court otherwise has power to order, will provide sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph (3)(a) of the rule; • consider the safety of the parties in cases in which the court considers there are particular physical or health risks against which reporting restrictions may be inadequate to afford protection • in the case of any vulnerable adult or child who is unrepresented before the court, consider the extent to which the court should of its own motion take steps to protect the welfare of that adult or child. 5.3 Paragraph (3)(a)(iii) of the rule permits exclusion where necessary “for the orderly conduct of proceedings”

“6.1 The court may exclude media representatives on the permitted grounds of its own motion or after hearing representations from the interested persons listed at paragraph (5) of the rule. Where exclusion is proposed, any media representatives who are present are entitled to make representations about that proposal. There is, however, no requirement to adjourn proceedings to enable media representatives who are not present to attend in order to make such representations, and in such a case the court should not adjourn unless satisfied of the necessity to do so having regard to the additional cost and delay which would thereby be caused. 6.2 Applications to exclude media representatives should normally be dealt with as they arise and by way of oral representations, unless the court directs otherwise. 6.3 When media representatives are expected to attend a particular hearing (for example, where a party is encouraging media interest and attendance) and a party intends to apply to the court for the exclusion of the media, that party should, if practicable, give advance notice to the court, to the other parties and (where appointed) any children’s guardian, officer of the service or Welsh Family Proceedings officer, NYAS or other representative of the child of any intention to seek the exclusion of media representatives from all or part of the proceedings. Equally, legal representatives and parties should ensure that witnesses are aware of the right of media representatives to attend and should notify the court at an early stage of the intention of any witness to request the exclusion of media representatives 6.4 Prior notification by the court of a pending application for exclusion will not be given to media interests unless the court so directs. However, where such an application has been made, the applicant must, where possible, notify the relevant media organisations and should do so by means of the Press Association CopyDirect service, following the procedure set out in the Official Solicitor/CAFCASS Practice Note dated 18 March 2005. ” • specifically identify whether the risk to which such ground is directed arises from the mere fact of media presence at the particular hearing or hearings the subject of the application or whether the risk identified can be adequately addressed by exclusion of media representatives from a part only of such hearing or hearings; • consider whether the reporting or disclosure restrictions which apply by operation of law, or which the court otherwise has power to order, will provide sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph (3)(a) of the rule; • consider the safety of the parties in cases in which the court considers there are particular physical or health risks against which reporting restrictions may be inadequate to afford protection • in the case of any vulnerable adult or child who is unrepresented before the court, consider the extent to which the court should of its own motion take steps to protect the welfare of that adult or child. 5.3 Paragraph (3)(a)(iii) of the rule permits exclusion where necessary “for the orderly conduct of proceedings”

. This enables the court to address practical problems…. 5.4 Paragraph (3)(b) of the rule permits exclusion where, unless the media are excluded, justice will be impeded or prejudiced for some reason other than those set out in sub-paragraph (a). Reasons of administrative inconvenience are not sufficient. Examples of circumstances where the impact on justice of continued attendance might be sufficient to necessitate exclusion may include: • a hearing relating to the parties’ finances where the information being considered includes price sensitive information (such as confidential information which could affect the share price of a publicly quoted company); or • any hearing at which a witness (other than a party) states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives. 5.5 In the event of a decision to exclude media representatives, the court should state brief reasons for the decision.” “6.1 The court may exclude media representatives on the permitted grounds of its own motion or after hearing representations from the interested persons listed at paragraph (5) of the rule. Where exclusion is proposed, any media representatives who are present are entitled to make representations about that proposal. There is, however, no requirement to adjourn proceedings to enable media representatives who are not present to attend in order to make such representations, and in such a case the court should not adjourn unless satisfied of the necessity to do so having regard to the additional cost and delay which would thereby be caused. 6.2 Applications to exclude media representatives should normally be dealt with as they arise and by way of oral representations, unless the court directs otherwise. 6.3 When media representatives are expected to attend a particular hearing (for example, where a party is encouraging media interest and attendance) and a party intends to apply to the court for the exclusion of the media, that party should, if practicable, give advance notice to the court, to the other parties and (where appointed) any children’s guardian, officer of the service or Welsh Family Proceedings officer, NYAS or other representative of the child of any intention to seek the exclusion of media representatives from all or part of the proceedings. Equally, legal representatives and parties should ensure that witnesses are aware of the right of media representatives to attend and should notify the court at an early stage of the intention of any witness to request the exclusion of media representatives 6.4 Prior notification by the court of a pending application for exclusion will not be given to media interests unless the court so directs. However, where such an application has been made, the applicant must, where possible, notify the relevant media organisations and should do so by means of the Press Association CopyDirect service, following the procedure set out in the Official Solicitor/CAFCASS Practice Note dated 18 March 2005. ”

[27]The overall effect of the current provisions governing the reporting of, and press attendance at, private family proceedings was summarised by Sir Mark Potter P in Re Child X (supra) at paragraph 38:

“The net result of all this is that, while the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of the participating witnesses (save those whose published identity would reveal the identity of the child in the case), they are not entitled to set out the content of the evidence or the details of matters investigated by the Court. Thus the position has been created that, whereas the media are now enabled to exercise a role of "watchdog" on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.”

The Law – (2) General observations

[28]Re Child X (supra) is one of only two reported cases cited to me (both decisions at first instance) in which the provisions governing press attendance at private family proceedings have previously been considered, the other being the decision of Munby J (as he then was) in Spencer v Spencer

[2009] EWHC 1529 (Fam)

[2009] 2 FLR 1416

. (At the time of both decisions, the rules were set out in rule 10.28 of the old Family Proceedings Rules 1991, as amended, but were in substantially the same terms as the current rules.) No doubt the paucity of reported authority is in part a reflection of the reluctance of the press to attend hearings which they cannot report. Having regard to those two decisions, and to the submissions made to me in this case, I venture the following general observations.

[29]First, the media have a right to attend private family proceedings not falling within the exceptions in rule 27.11(1) and can only be excluded if the court finds that one or more of the grounds in rule 27.11(3) are established. It is for a person who wishes to exclude the media to satisfy the court of the necessity of the exclusion pursuant to one of the limited statutory criteria set out at in FPR r.27.11(3); it is not for the media to justify their attendance (see Munby J in Spencer v Spencerat paragraph 30, and Potter P in Re Child X at paragraph 57.) In my view, the right of the media is properly characterised as an “assumption” and a “starting-point” by Munby J. In Re Child X, Potter P referred (at paragraph 44) to there being a “presumption” that the media representatives should attend hearings, and at paragraph 65 to their “strong prima facie right” to attend. With respect to the former President, the language used by Munby J seems to me to be in line with the carefully-crafted words of rule 27.11(3).

[30]Secondly, the person seeking to exclude the media under rule 27.11(3)(a) must satisfy the court that it is “necessary” to do so. In Re Child X, Sir Mark Potter P cited the observation of Lord Bingham of Cornhill in R v Shayler

[2003] 1 AC 247

that the word “is not synonymous with ‘indispensable’, neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’” This interpretation of the word ‘necessary’ has recently been reiterated in another context by Sir James Munby P : see Re H-L (A Child)

[2013] EWCA Civ 655

[31]Thirdly, although the rights of the media do not extend to a right to report (save where so permitted by the court), it must not be thought that they are any less important. As noted above, in AG v Leveller Magazine, supra, Lord Diplock identified the twin pillars of the principle of open justice as being, first, the need where possible to hold proceedings in open court to which the press and public are admitted and, secondly, the ability of the press to communicate those proceedings to the wider public. I accept the submission made by Mr. Scherbel-Ball on behalf of TNL that open justice has two components – the right to attend as well as the right to report – and the fact that the second is subject to legal restriction does not undermine the importance of the first. On the contrary, it could be argued that what has been called the “watchdog” role of the press (acknowledged and endorsed by the courts on many occasions) is even more important where the right to report is restricted. As watchdog, the press scrutinises not merely the decisions reached by the courts but also the process by which they are reached. This point was lucidly expressed by Peter Jackson J sitting in the Court of Protection in Hillingdon LBC v Neary

[2011] EWHC 413 (Fam)

; [2011] COP Rep 32 at paragraph 15(4):

“there is a genuine public interest in the work of this court being understood. Not only is this healthy in itself – the presence of the media in appropriate cases has a bracing effect on all public servants, where in the field of social services or the law – but it may also help to dispel misunderstandings. It is not in the interests of individual litigants, or of society at large, for a court that is by definition devoted to the protection of the welfare of disadvantaged people to be characterised…as “secretive”

. It is part of our natural curiosity to want to know other people’s secrets, and using pejorative descriptions of this kind may stimulate interest. The opportunity, in appropriate cases, to follow a process that has welfare, not secrecy, at its heart can only help the media to produce balanced reporting, and not fall back on clichés.”

[32]Fourthly, the fact that the issue at stake is the right to attend means that the court’s powers are much more flexible. The question of media attendance can be addressed at any point in the hearing. Its representatives may be permitted to attend some parts of the hearing but excluded from others, if one or other of the grounds in rule 27.11(3) is satisfied. This flexibility is reflected in the Practice Direction and in particular the terms of paragraphs 6.1 and 6.2. Generally speaking, it will be harder for a party to persuade a court that the media should be excluded from the whole of a substantive hearing as opposed to a specific part: see Potter P in Re Child X at paragraph 57. The circumstances in which the media are excluded from the whole of a substantive hearing are therefore likely to be rare.

[33]Fifthly, I repeat the observation I made when sitting in the Court of Protection in W v M and S (Reporting Restriction Order) [2011] EWHC (COP) 1197, [2011] COPLR Con Vol 1205,

[2011] 2 FLR 1143

, which applies to judges exercising a protective jurisdiction both in the Court of Protection and in the family courts, who “must be on their guard to ensure that their naturally protective instincts, developed through years of giving paramount consideration to the welfare of children and the best interests of vulnerable adults, do not lead them to underestimate the importance of article 10 when carrying out the balancing exercise.”

[34]Finally, the resolution of the issue as to whether or not, consistently with the rule and Practice Direction, the media should be excluded involves a parallel analysis and balancing of the various human rights arising, as explained in the context of reporting restriction orders by Lord Steyn in the House of Lords in Re S (A Child)(Identification) Restrictions on Publication)

[2004] UKHL 47

;

[2005] 1 AC 593

and Sir Mark Potter P in A Local Authority v W

[2005] EWHC 1564 (Fam)

[2006] 1 FLR 1

. This will involve, in the former President’s phrase at paragraph 58 in the latter case, an “intense focus on the comparative importance of the specific rights being claimed”. There must, as Peter Jackson J observed in Hillingdon LBC v Neary, supra, at paragraph 15(3), be a proper, factual basis for the concerns said to amount to an infringement of the rights claimed.

The law – (3) The parallel analysis and article 2

[35]Most cases involving an application to exclude the media will involve balancing article 10 (freedom of expression) with article 8 (the right to respect for private and family life). These rights are qualified rather than absolute. As Potter P observed in A Local Authority v W, supra at paragraph 58, “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”. Some cases will also involve article 6 (right to a fair hearing). Although this right is absolute, its components are not, so they too may be subject to a process of parallel analysis and balancing.

[36]It is said that this case, exceptionally, engages article 2 – the right to life – and in particular the first sentence – “everyone’s right to life shall be protected by law”. This is an absolute right with none of the qualifications to which articles 8 and 10 are subject. How should the court approach the process of parallel analysis when article 2 is engaged? On this point, there is a disagreement between the parties in this case. It is therefore necessary to consider the case law in some detail.

[37]Under section 6(1) of the Human Rights Act 1998, it is unlawful for an authority, including for these purposes a court (subsection (3)), to act in a way that is incompatible with a Convention right. Article 2 has been interpreted by the European Court of Human Rights as covering not only a negative obligation not to take the life of another person but also imposes on the State a positive obligation to take certain steps to prevent loss of life at the hands of others. As a result, it is submitted by the Chief Constable that this Court – alongside the other public authorities involved in this litigation, namely the local authority, CAFCASS and the Surrey Police – is under a positive duty to take measures to protect Zainab and Zeena from an identified risk to their lives.

[38]The leading European authority on this positive obligation is Osman v United Kingdom

[1998] 29 EHRR 245

and in particular paragraphs 115 – 6 of the judgment:

“115. The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction …. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. …. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case…..”

[39]The impact of article 2 on the reporting of proceedings was considered by the House of Lords in Re Officer L

[2007] UKHL 36

[2007] 1 WLR 2135

. That case concerned a public inquiry in Northern Ireland into the death of an individual, with terms of reference directed to the conduct of the police. An application for anonymity was made on behalf of police officers whom the inquiry proposed to call as witnesses, on the ground that they would be in fear for their lives due to terrorist attack if they were publicly identified. It was contended that to compel them to give evidence without anonymity would constitute a breach of article 2. The inquiry rejected the claims, and although a judge allowed an appeal and the Court of Appeal in Northern Ireland dismissed an appeal from his decision, the House of Lords allowed a final appeal on behalf of the inquiry. Having cited paragraphs 115 and 116 of the judgment in Osman, Lord Carswell, with whom the rest of the constitution agreed, observed at paragraphs 20 – 21 that two matters had become clear in the subsequent case law. “20 …. First, this positive obligation arises only when the risk is "real and immediate". The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in Re W's Application[2004] NIQB 67 at paragraph 17, where he said that:

"… a real risk is one that is objectively verified and an immediate risk is one that is present and continuing."

It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high …. In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to be real means that it must be objectively well-founded …. 21. Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the ECtHR stated in paragraph 116 of Osman, the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available.”

[40]On the facts of Officer L, Lord Carswell noted (at paragraph 23) that, although the inquiry had not expressly said so, it was inherent in its ruling that it did not consider the pre-existing risk to the officers to be sufficiently severe to reach the article 2 level of a real and immediate risk. Having analysed what he regarded as the erroneous conclusions of

the judge and the Court of Appeal, he observed (at paragraph 24):

“If there is not a real and immediate risk to the life of an applicant before he or she gives evidence, then ex hypothesi to reach that threshold there must be some increase in risk occasioned by giving evidence. Only if that is the case can the requirement to give evidence "give rise to"a real risk to life.”

[41]At paragraph 25, Lord Carswell went on:

“The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain whether giving evidence would give rise to a materially increased risk to life. Having found that it did not, it did not require then to go on to consider whether such an increased risk, if found to exist, would come up to the threshold required of a real and immediate risk to life.”

[42]In R (on the application of M) v Parole Board

[2013] EWHC 1360 (Admin)

, the Divisional Court considered an application to discharge an order for anonymity granted at the outset of judicial review proceedings brought by a convicted murderer who had unsuccessfully challenged the refusal of the Board to recommend his transfer to open conditions. The circumstances of the original offences had been exceptionally grave, and the claimant had been attacked in prison on a number of occasions, resulting in his placement in a vulnerable prisoners unit. It was claimed that, were the judgment of his unsuccessful claim for judicial review to be published without the protection of anonymity, he would again be at risk to his life or of serious injury. The Court (Pitchford LJ and Simon J) adopted the test in Re Officer L namely whether the unrestricted reporting of the judicial review proceedings would create or materially increase a risk to the claimant’s life or of serious injury or ill-treatment. At paragraph 50, Pitchford LJ said:

“Both the Secretary of State and the Court are for present purposes manifestations of the state. Both have obligations towards the claimant which derive from the claimant's Convention rights. The means by which those obligations are met, however, are very different. The Secretary of State is responsible for managing the risk, if any, to the life and well being of the claimant in custody, open or closed, and, if it should occur, on his release. He will need to assess the requirement for additional steps to be taken should disclosure of the claimant's details take place. The Court's obligation is to assess the impact of disclosure upon the ability of the Secretary of State effectively to manage any risk to the claimant's life and well being. It is, in our view, material to the question whether there is or would be a real and immediate risk to the safety of the claimant occasioned by disclosure that means are available to the Secretary of State to protect the claimant from the unwelcome consequences of disclosure. The media interveners are right, in our view, to concentrate their present submissions upon the protection available to the claimant in closed conditions and, if necessary, in a VPU environment, since those are the conditions in which the claimant will be held in the near future whether or not disclosure takes place. If the Secretary of State has the means at his disposal, by taking reasonable steps, to protect the claimant from the risks inherent in disclosure, that is a matter which the Court must consider when assessing its own obligation to take "necessary" steps.”

Submissions – (1) Police

[43]The primary case advanced on behalf of the Chief Constable by Miss Barton Q.C. and Mr. Cohen is that the exclusion of the press is necessary under rule 27.11(3)(a) (i) and (ii) in the interests of the girls and for the safety and protection of the girls and their carers. In addition, it is argued that the press should be excluded under rule 27.11(3)(b) because justice will otherwise be impeded or impaired.

[44]The Chief Constable bases her application on the details and consequences of the events of 5th September 2012. It is accepted that no formal evidence has been filed by the police but asserted by Miss Barton and Mr. Cohen that there is no obligation to do so. At most, a party seeking to exclude the media should merely indicate in outline the basis for the application and in this case the solicitor for the police provided an outline in correspondence with TNL. In any event, the events of 5th September are very well known. The children were the victims of an attack upon their family. Three members of their family were killed in that attack and Zainab suffered life-threatening injuries and would have died but for prompt and skilled medical intervention. Zeena successfully hid from the attacker. A French cyclist at the scene was also killed. It is reasonable to infer from those facts that the attacker intended to kill all those present. The girls were thus both intended victims and witnesses. The attacker is still at large. As a result, the children are in the protective care of the state. The Chief Constable contends that those facts create a real and immediate risk to the lives of the children and that article 2 is therefore engaged.

[45]Furthermore, as the joint police investigation has developed, the Chief Constable submits that the evidence has given rise to reasonable grounds to suspect the girls’ paternal uncle of conspiracy to murder, a possible motive being a dispute over the inheritance of the estate of the girls’ paternal grandfather. The girls are themselves potentially beneficiaries of that estate. It is submitted on behalf of the Chief Constable that this reinforces the article 2 risk to the girls. (This court, of course, is in no position to evaluate the strength of any evidence concerning the paternal uncle. Nothing in this judgment should be taken as a criticism by me of anyone who is not a party to the action. That would not be fair.)

[46]In those circumstances, Miss Barton and Mr. Cohen submit on behalf of the police that this case is distinguishable from both Re Officer L and R(M) v Parole Board. In those cases, article 2 was not previously engaged so the positive duty only arose if the step being contemplated materially increased the risk to a level where it crossed the threshold required of a real and immediate risk to life. In this case, the police submit that there is a pre-existing real and immediate risk to the lives of the girls and consequently there is a positive duty on the court and the police under article 2 to take reasonable steps to mitigate the risk. The court is obliged to exclude the media because, it is submitted, the presence of the press at future hearings, and in particular substantive hearings where their future is under consideration, will increase the risk to the girls. The Chief Constable submits that the degree of increase of risk attributable to the attendance of the press is irrelevant because the article 2 threshold is already met.

[47]In seeking to identify the increase in risk, Miss Barton and Mr. Cohen draw attention to the worldwide publicity which the murders have attracted and submit that, as recognised by Potter P in Re Child X (at paragraph 52, in the context of a case concerning celebrities), the more media interest in a case, the greater the need for protection of the child and the greater the risk of leakage of information from the court. They acknowledge the existence of the reporting restrictions imposed by statute and supplemented by the contra mundum injunctions, but argue that the degree of media interest leads to an increased risk of leakage. In particular, the international media interest in the case leads to an inevitable danger of details being published in a country beyond the reach of this Court. Miss Barton and Mr. Cohen point out that the scheme operated by the UK Press Card Authority, which has been approved by the Lord Chancellor as providing sufficient accreditation for the purposes of rule 27.11, extends to some, although not all, foreign journalists, so that there is a real risk that details of the case will be published outside the jurisdiction of the High Court.

[48]In addition to the article 2 risk and the need to protect the interests and safety of the girls, and the safety of their carers, the police make two submissions in support of an argument that justice will be impeded by the attendance of the press. First, it is submitted that parties and witnesses will feel inhibited by the presence of the press from expressing fully and frankly all facts and matters which impinge on the risk to the girls. The hearing to take place shortly will consider, inter alia, the location and type of the girls’ future accommodation, the arrangements for their education, and protective measures to be taken for their safety. Witnesses giving evidence about these matters are likely to be reluctant about giving evidence if the press are present.

[49]Secondly, Miss Barton and Mr. Cohen submit that information leaked from these proceedings may be disseminated in France without the authority of the French prosecutor, in contravention of Article 11 of the French Code of Criminal Procedure. There is thus a risk that any leakage from these proceedings may jeopardise the French investigation and any subsequent French criminal trial if a defendant at such a trial is able to argue that such leakage amounts to an unlawful release of information in contravention of the French code.

[50]The principal submission made by Miss Barton and Mr. Cohen is that the fact that article 2 is engaged in the way they assert means that there is no room in these circumstances for any balancing exercise at all. In the alternative, any balancing exercise that is carried out would clearly come down in favour of excluding the media since the article 10 freedoms are in this case outweighed by the article 2 rights of the children, the article 8 rights of the children and their carers, present and future, and the article 6 considerations - the need to encourage frankness in the witnesses and the risk of leakage of information, in particular overseas, and the consequent risk that the French criminal investigation may be undermined.

Submissions – (2) TNL

[51]On behalf of TNL, Mr. Scherbel-Ball first submits that, as Surrey Police has failed to provide any evidence to TNL in support of its application, let alone evidence of sufficient clarity and force to merit the exceptional step of excluding the press from the hearing, the application should fail ab initio. It is, he argues, insufficient merely to assert vague and unspecified details of unknown risk to the two girls unsupported by any evidence.

[52]Mr. Scherbel-Ball’s principal submission is that the fact that the two young girls have been witnesses to a brutal and horrific crime many hundreds of miles away in a different jurisdiction does not, of itself, and without more, mean that there is a risk to their lives in this jurisdiction. It certainly falls well short of the high threshold criteria necessary to engage Article 2, as summarised by the House of Lords in Re Officer L, namely an objectively verified risk which is present and continuing. Mr. Scherbel-Ball submits that the relevant question for the court is as identified in Re Officer L, namely whether permitting the press to attend the hearing in those circumstances would give rise to a materially increasedrisk to life and, if so, whether that increase raises the risk to the threshold required of a real and immediate risk to life. In contrast to Miss Barton, he submits that, irrespective of whether there is a pre-existing real and immediate risk to life, absent clear and cogent evidence of a materially increased risk which results from press attendance, Article 2 is not engaged and does not fall to be considered.

[53]In considering whether there is any material increase in risk, he submits that the court should have regard to the statutory restrictions under s.12 of the Administration of Justice Act 1960 and s.97(2) of the Children Act 1989, supplemented in this case by the two contra mundum injunctions granted , which, inter alia protect the publication of any address at which the children are living, and any picture of the children or their carers. Any publication in breach of these provisions would be contempt of court and punishable by imprisonment. Mr. Scherbel-Ball accepts that membership of the UK Press Card Authority scheme is open to some foreign journalists, but contends that this does not give rise to an uncontrollable risk of leakage because(a) those foreign journalists who are members are attached to organisations with bases in this country and

(b) in any event it would be open to the court at any stage in the proceedings to exclude foreign journalists if satisfied that the grounds for their exclusion were made out.

[54]Mr. Scherbel-Ball is dismissive of the police’s argument that press attendance may compromise the French investigation. He submits that the court should be slow to accept such arguments in the absence of expert evidence about the French procedure and the sanctions for breaches of the French code. In any event, he points out that the French prosecutor has published a considerable amount of information about the investigation, including information that might be thought to go beyond what is relevant to his investigation and to include information that properly comes within the ambit of this court’s jurisdiction to protect the welfare of the girls.

[55]Mr. Scherbel-Ball submits that, when carrying out the parallel analysis and balancing exercise of the rights arising, the court should have regard in particular to the very strong public interest in the welfare of these children arising partly out of the tragic circumstances in which their parents were killed but also including their situation caught up in processes in two legal systems and the fact that they are currently in care and not with their family. He submits that there is a strong public interest in the “bracing effect” of the press being present at any hearing to ensure that any questions of risk are not overstated or understated by the authorities and therefore that the purported risk does not have a prejudicial effect on the children’s welfare. He further argues that, in light of the high profile nature of this case and the interaction of two different jurisdictions’ state authorities, there is a strong public interest in the press being able to observe and consider those interactions, to see not only whether the system functions properly and efficiently, but also to ensure that those interactions do not unfairly prejudice the welfare of the children. On a wider level, there is, he submits, a clear interest that the workings of the family courts should be transparent and open to press inspection so as to promote public confidence in the proper and fair working of the system, an issue about which TNL has established a longstanding, genuine and serious journalistic purpose. This high-profile case affords a good opportunity for such inspection.

[56]It is accepted by TNL that, if the court refuses this application by the police for the general exclusion of the media from these proceedings, it will remain open to the court, on the application of any party or of its own motion, to exclude all or some of the media from parts of hearings if satisfied that any of the grounds in rule 27.11(3) are satisfied in respect of that part of the proceedings.

Submissions – (3) Other parties

[57]It is to my mind significant that none of the other parties support the police’s application to exclude the media. The local authority and the guardian appointed by CAFCASS are both neutral. As public authorities, they too are subject to s.6 of the Human Rights Act and under a positive obligation to protect the article 2 and 8 rights of the children. That obligation would, in my judgment, extend to giving support to the police application if they had reasonable grounds for thinking that the presence of the media created or materially increased a risk of breach of those rights. The fact that they do not lend their support to the police does not, however, obviate the need for the court to reach its own conclusion on the matter since the court is under an independent duty as a public authority.

[58]On behalf of the 3rd and 4th Respondents, who are the members of the family seeking placement of the girls in their care, Mr. James Turner QC and Miss Jane DeZonie lean in favour of TNL rather than the Chief Constable on this issue. In particular, they agree with the interpretation of the case law on article 2 put forward by Mr. Scherbel-Ball. The question is whether permitting the press to attend the hearing in those circumstances would give rise to a materially increasedrisk to life and, if so, whether that increase raises the risk to the threshold required of a real and immediate risk to life. Whether or not there is already a real and immediate risk to the girls’ lives, the press should only be excluded if the court is satisfied that their presence will materially increase that risk and that as a result, pursuant to rule 27.11(3) (a), their exclusion is necessary in the interests of and/or for the safety or protection of the girls and/or any person connected with them. Having regard to the observations of Lord Carswell in Re Officer L at paragraph 21 (quoted above) that the standard expected of a public authority is based on reasonableness and “involves consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available”, the court should be slow to exclude the press given the assumption that they should be present, the importance of their watchdog role, in particular in this case, and the existence of sanctions in the event of a breach of the reporting restrictions.

Discussion and Conclusions

[59]It is, in the words of Sir Mark Potter P in A Local Authority v W (quoted above), incumbent on a court in these circumstances to conduct “an intense focus on the comparative importance of the specific rights being claimed”. As in Re Officer L and R(M) v Parole Board, that involves an intense focus on the circumstances that are said to create a risk to life so as to engage article 2. In conducting that focus, the court must, as I have mentioned above, guard against giving excessive weight to its naturally protective instincts. The risk to life in this case must be assessed as objectively and dispassionately as the risk to prisoners such as the claimant in R(M) v Parole Board.

[60]In the dreadful moments of the attack in Annecy, and in the period immediately afterwards, there was manifestly a real and immediate risk to the lives of the girls. Since then, the French authorities, the British police, the local authority, and this court have taken a series of measure, separately and together designed to reduce the risk. The girls are currently in the care of foster parents whose identity has not been published. They are living at a location which is unknown to the outside world. The arrangements for their education are also unknown, save to a limited number of professionals. The children are subject to an extensive and comprehensive protection regime devised and controlled by Surrey Police about which little if anything has been published, although an outline is known to this court. The court has imposed wide-ranging reporting restrictions in addition to the statutory limitations imposed by s.12 of the Administration of Justice Act 1960 and s.97(2) of the Children Act 1989. So far as this court is aware, there has been no infringement of those orders.

[61]These measures taken together have reduced the risk to the girls’ lives which arose from their being the intended victims of, and witnesses to, the shootings in Annecy. I do not accept the submission made on behalf of the Chief Constable that the arrest of Zaid, and the emergence of the alleged inheritance dispute involving the grandfather’s estate from which the girls may be beneficiaries, increases the risk to the girls’ lives. If (and I stress if) that was the motive for the shooting, it explains why they were the intended victims but does not add to the risk which arises from their having been intended victims.

[62]In all the circumstances, I do not consider that there is currently a real and immediate risk to the girls’ lives. I therefore accept the submission made by Mr. Scherbel-Ball, supported by Mr. Turner and Miss DeZonie, that the question is whether permitting the press to attend the hearing in those circumstances would give rise to a materially increasedrisk to life and, if so, whether that increase raises the risk to the threshold required of a real and immediate risk to life.

[63]At the substantive hearing to take place shortly, the court will be asked to consider proposals for the future care of the girls, including proposals that they move to live with members of their extended family. The court will also be asked to consider questions of accommodation, education and therapy which will be contained in their future care plan, and also the future security measures that will be put in place to protect the girls. In the first place, evidence about those matters will be in writing, supplemented by oral evidence. As mentioned above, paragraph 2.3 of Practice Direction 27B provides that “… the provisions of the rule do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court …” The court will therefore be in a position to control the extent to which there is reference to documents in oral evidence and submissions. If I refuse the Chief Constable’s application today, it does not follow that the media will inevitably be permitted to sit through the entire hearing. On the contrary, the court and the parties retain the right, and indeed the duty, to keep the issue of their attendance under review at all points. Under rule 6.3, legal representatives and parties should ensure that witnesses are aware of the right of media representatives to attend and should notify the court at an early stage of the intention of any witness to request the exclusion of media representatives. The flexibility that characterises the Practice Direction means that the court is able to address problems, in the words of paragraph 6.2, “as they arise and by way of oral representations”. This flexibility helps to ensure that any interference with the right of the media to attend is kept to a minimum.

[64]In addition, the court retains the power to determine which members of the press are allowed to attend. Those who are not “duly accredited” may only be permitted to attend under rule 27.11(2)(g), that is to say with the permission of the court. Those who are accredited may nevertheless be excluded if the court is satisfied that one or other of the grounds in rule 27.11(3) are satisfied. In this context, I can foresee circumstances in which the court may exclude foreign journalists who, although accredited, may escape the sanctions imposed by the Administration of Justice Act 1960 and the contra mundumreporting restrictions orders. In short, I consider that the court will retain the power to address any risk of “leakage” as and when it arises, and thereby limit any risk of prejudice either in these proceedings or to the French investigation or criminal process.

[65]There is, however, an important point that needs to be made in response to the Chief Constable’s submissions about the risk of leakage. I acknowledge the point made by Sir Mark Potter P in Re Child X that the more media interest in a case, the greater the need for protection of the child and the greater the risk of leakage of information from the court. It is, however, a cardinal principle underpinning the provisions of rule 27.11, as approved not only by the President but also by Parliament, that the duly accredited representatives of news gathering and reporting organisations are to be trusted not to abuse their right to attend by publishing information unlawfully. Media representatives sit through other types of litigation that engage article 2, including some criminal proceedings, listening to information that they cannot publish. In my judgment, when evaluating the risk of leakage, the court is entitled to take into account the fact that Parliament has thought it appropriate to trust accredited representatives of the media to attend private family proceedings notwithstanding the fact that they cannot report what goes on.

[66]Furthermore, as already stated, I accept the general submission made by Mr. Scherbel-Ball that the right to attend afforded by rule 27.11 is an important aspect of the media’s watchdog role, and that the existence of reporting restrictions, rather than lessening the importance of that role, arguably increases it, particularly in the light of ongoing concerns about the lack of transparency in the family courts. In addition, I accept the specific submission that in this case there is a particular public interest in the watchdog role, given the high public interest in the case, the interaction between the legal and investigatory systems of England and France, and the impact of that interaction on the girls and their welfare.

[67]Drawing all these threads together, I conclude that there is no likelihood that the attendance of accredited representatives of the media at the substantive hearing will materially increase the risk to the girls’ lives. The police have not demonstrated that there is a general risk of leakage and any specific risk that can be addressed as it arises. Accordingly, the court is not under a positive obligation under article 2 to take steps to reduce the risk by excluding the media from the outset of the hearing. The attendance of the media will not, in my judgment, substantially interfere with the article 8 rights of the girls or their carers or members of their extended family, nor, in my judgment, will it interfere with any article 6 rights either in these proceedings or elsewhere.

[68]Having conducted the parallel analysis of the rights involved, I conclude that the balance in this case comes down firmly on the side of allowing the media to attend the substantive hearing. I am not satisfied that excluding the press from the outset of the substantive hearing is either necessary in the interests of either child, or for the safety of any party, witness, or person connected with a party or witness, or that justice will be otherwise impeded or prejudiced by their attendance.

[69]I repeat, however, that the flexibility of the rule and Practice Direction affords the court the opportunity to address this issue again if it arises in the course of the hearing.

[70]Accordingly, the application by the Chief Constable is refused.

[71]In the course of submissions, various arguments were addressed to me concerning procedural issues. Particular attention was devoted to the question whether an applicant for an order to exclude the media is under a duty to file evidence in support of the application. This argument focussed on paragraph 6.4 which I have set out above but recite here again for ease of reference:

“6.4 Prior notification by the court of a pending application for exclusion will not be given to media interests unless the court so directs. However, where such an application has been made, the applicant must where possible, notify the relevant media organisations and should do so by means of the Press Association CopyDirect service, following the procedure set out in the Official Solicitor/CAFCASS Practice Note dated 18 March 2005. [emphasis added]”

[72]It should be noted that the last words of paragraph 6.4 of the Practice Direction emphasised above were added following the observations of Sir Mark Potter P in Re Child X at paragraphs 86 – 87. The CAFCASS Practice Note of 18th March 2005 is directed to applications for reporting restriction orders. It is to my mind clear from his judgment that the former President was only intending to import the provisions regarding service in section 4 of the CAFCASS note, as opposed to the other provisions such as those dealing with the application and evidence in support set out in section 3. As he observes at paragraph 87:

“I consider that it is incumbent upon an applicant who wishes to exclude the media from a substantive hearing ab initio to raise the matter with the court prior to the hearing for consideration of the need to notify the media in advance of the proposed application, and that if this is done, the court should require the applicant to notify the media via the CopyDirect service in accordance with the procedure provided for in the CAFCASS Practice Note.”

Unless the judge specifies that evidence should be served, the applicant is not in my view under an obligation to provide evidence to the media, although when giving notice he should outline the reasons for the application. It follows that, on this point, I find that the course adopted by those representing the Chief Constable was consistent with the Practice Direction as currently drafted.

[73]As I indicated in the course of the argument, however, I am not entirely happy with aspects of the drafting of paragraph 6.4 of the Practice Direction, and I respectfully suggest that it should be reconsidered by the President and his advisers in the course of the ongoing review of “transparency” issues.

Al-Hilli (Children), Re [2013] EWHC 2190 (Fam)

The Law – (1) Statutory and Regulatory Framework

Justice Act 1960 which, in so far as relevant to family law, provides:

The Law – (2) General observations

The law – (3) The parallel analysis and article 2

the judge and the Court of Appeal, he observed (at paragraph 24):

Submissions – (1) Police

Submissions – (2) TNL

Submissions – (3) Other parties

Discussion and Conclusions

Cited in 4 later judgments