Norfolk County Council v Webster & Ors

In care proceedings, privacy is not an overriding principle. A court considering media access, reporting restrictions or identification must apply a Convention-compliant, fact-specific balance between Articles 6, 8 and 10. Neither privacy nor freedom of expression has automatic priority.

Section 97(4) of the Children Act 1989 permits dispensation from the identification restriction wherever this is required to give effect to Convention rights, not only where the child’s welfare requires it. The privacy default for care hearings must likewise yield where the ultimate balancing exercise so requires. Safeguards may protect carers, witnesses and locations without imposing a blanket prohibition on publication.

The parents had lost three older children following earlier care and freeing proceedings. They alleged that those proceedings involved a miscarriage of justice. When care proceedings began concerning their fourth child, Brandon, the media and the parents sought access to an imminent hearing and relaxation of severe reporting restrictions.

The local authority supported some greater transparency but opposed media attendance. Brandon’s guardian opposed relaxation, relying on his privacy and welfare. The central issues were whether the media could attend the hearing, whether section 97(2) of the Children Act 1989 could be dispensed with, and what restrictions remained necessary to protect the child, carers and witnesses.

1. The applications were granted in substance. The court permitted representatives of all newspapers, broadcasters and news agencies to attend and report the forthcoming hearing, subject to the trial judge’s power to exclude them from particular parts and to continuing safeguards.

2. Open justice is a fundamental common-law and Convention principle. The Family Division has no inherent, division-specific power to sit in secret or enforce confidentiality beyond the powers available to the rest of the High Court. Any departure from publicity must rest on statutory authority or a Convention-compliant justification. This is particularly important in public-law care cases, where the State seeks to intrude into family life and may permanently remove a child.

3. Section 12 of the Administration of Justice Act 1960 restricts publication of what occurs in private children proceedings and of documents used in them. It does not itself prohibit identifying a child or party, reporting the existence and nature of proceedings, or publishing an order unless publication is expressly prohibited.

4. Following In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, the court applied the ultimate balancing test. Articles 8 and 10 have presumptive parity. The court must focus intensely on the particular rights invoked, consider the justification for interfering with each, and apply proportionality to each interference. The child’s interests are a major consideration but are not paramount in this exercise.

5. Section 97(4) of the Children Act 1989 had to be read, under section 3 of the Human Rights Act 1998, so that the court could dispense with section 97(2) wherever Convention rights required it. A construction limiting dispensation to cases where the child’s welfare required it would be incompatible with the Convention balance.

6. Rule 4.16(7) of the Family Proceedings Rules 1991 is a default privacy provision, not a strong presumption that displaces the Convention analysis. In a public-law case, the reasons for excluding scrutiny require careful examination of the case’s special features.

7. The previous order was far too broad. The alleged miscarriage of justice, the parents’ wish to speak, extensive existing publicity, and the public interest in an informed and accurate account outweighed the speculative and limited additional risk to Brandon. However, the names and locations of carers and establishments, the identities and addresses of social workers, the guardian and other witnesses remained protected. Section 12 continued to apply to all parts of the care proceedings other than the hearing opened to the media and material actually read, summarised or specifically released there.

High Court (Family Division): This was a first-instance determination of applications concerning media access and reporting restrictions in ongoing care proceedings.

The judgment records earlier County Court care proceedings concerning the parents’ three older children. Threshold findings, full care orders and freeing orders were made in 2004, and the children were later adopted. In the current proceedings, an interim care order had been made on 10 June 2006.