X children, Re

Applications concerning disclosure from private care proceedings and restrictions on reporting related criminal proceedings require a fact-specific, proportionate balancing exercise. The court must conduct a parallel analysis of the engaged Convention rights, followed by an ultimate balancing test. Children’s interests are important but are not paramount in this exercise. Disclosure may be ordered where it materially assists the fair and proper disposal of serious criminal proceedings, subject to editing, confidentiality and restrictions on onward use. The media’s right to report criminal proceedings in open court is strong and may be restricted only in unusual or exceptional circumstances, and only to the extent strictly necessary to protect competing rights. Exceptional vulnerability may justify continuing anonymity for children and limited restrictions preventing identification or disclosure of particularly sensitive information.

Care proceedings concerning four children were heard in private. The children’s father had pleaded guilty to attempted murder and awaited sentence in the Crown Court. The Crown Prosecution Service sought disclosure of selected family-court documents to assist sentencing. The local authority sought reporting restrictions to protect the children and their mother from identification and intrusive publicity, particularly because statutory protection under Children Act 1989, section 97(2), would cease or might shortly cease for one child.

The issues were whether disclosure should be permitted, whether section 98(2) prevented disclosure or use of the documents, and what restrictions could properly be imposed on reporting the criminal proceedings.

1. Convention balancing. The court was required to identify, evaluate and weigh the competing private and public interests protected principally by Articles 6, 8 and 10 of the Convention. The exercise required a parallel analysis of the specific rights engaged and an ultimate proportionality assessment. The children’s interests were important but were not paramount.
2. Disclosure. The interests in the proper administration of criminal justice, accurate sentencing and avoiding a miscarriage of justice outweighed the competing interests in family-court privacy and confidentiality. The children themselves had an interest in the criminal proceedings being fairly and accurately disposed of. Disclosure was therefore ordered, but initially on a limited and controlled basis, with anonymisation, confidentiality conditions, restrictions on onward dissemination and liberty to apply for further disclosure or relaxation.
3. Section 98(2). Section 98(2) of the Children Act 1989 protected statements or admissions from use in evidence against the maker or spouse, but did not prevent disclosure to the CPS for the limited purpose ordered. It did not prevent use in a police inquiry, and the Crown Court judge, not the family judge, retained responsibility for deciding whether and how the provision applied in the criminal proceedings. Inconsistent statements could be put to a witness to challenge credibility without being used against that person within the section.
4. Reporting restrictions. The children’s exceptional vulnerability justified continuing protection of their anonymity and of information linking them to the father, the criminal proceedings and the care proceedings. The media nevertheless remained entitled to report the criminal proceedings substantially in full, identify the father and his victim where those matters arose in open court, and report the offence and its circumstances.
5. Proportionality and final orders. The open-court proviso was qualified only to prevent publication of the children’s names, their involvement in care proceedings and the father’s precise address. The order was necessary and proportionate. The CPS disclosure application and the local authority’s application for reporting restrictions were granted in the terms of the orders made on 4 and 8 May 2007.

First-instance judgment. The judgment explains orders made by the High Court (Family Division) on 4 May 2007 and 8 May 2007.