LM, Re

Applications to restrict reporting of court proceedings engage the child’s Article 8 rights and the media’s Article 10 rights. Neither right has automatic precedence. The court must conduct an intense, fact-sensitive comparison of the specific rights claimed, assess the justification for interfering with each, and apply proportionality to each right.

Open justice and the freedom to report court proceedings carry substantial weight. Restrictions require unusual or exceptional circumstances and must be necessary and proportionate. The same approach applies to inquests, although the factual context may produce a different result. Protection may properly extend to information identifying a child who is not involved in the proceedings, while the identities of parents and deceased siblings need not be restricted merely because publicity may cause indirect distress.

The proceedings concerned a young child, LM, who was living in foster care after the death of her sister, L, and the earlier death of her brother, H. A judge had found in care proceedings that LM’s mother caused L’s death. An adjourned inquest into L’s death was due to resume.

LM’s Guardian, supported by the local authority and her parents, sought restrictions preventing identification of LM, her parents and her deceased siblings. The media accepted restrictions protecting LM’s identity and existence but opposed restrictions concerning the other family members. The central issue was whether the risk of harm to LM’s private and family life justified the resulting interference with open justice and freedom of expression.

1. Applicable test. The application required a balancing exercise between Articles 8 and 10 of the Convention. Neither Article had precedence. The court had to focus intensely on the comparative importance of the specific rights, examine the justification for interfering with each, and apply proportionality to each right.
2. Open justice. The ordinary rule is that the press may report what takes place in court. This principle supports scrutiny of the judicial process, informed public debate and public confidence in the administration of justice. It is a strong rule which can be displaced only in unusual or exceptional circumstances where justice requires it.
3. Inquests. The same general principles applied to an inquest as to other courts of record. The fact that an inquest is inquisitorial and does not determine criminal guilt did not require modification of the approach. Differences between criminal trials and inquests might affect the weight given to competing Convention rights in other cases, particularly where Article 2 was engaged.
4. Application. It was necessary and proportionate to prohibit reporting of LM’s identity or existence, her school and carers, and information or photographs likely to identify her. That protection was accepted by the media and was required to protect her Article 8 rights. The wider restriction sought was refused. The potential harm from publicity concerning the parents and siblings was indirect and uncertain. The evidence did not establish that publicity would prevent adoption, cause lasting stigma, or produce sufficiently likely lasting harm to outweigh the media’s Article 10 rights and the interests of open justice.
5. The injunction was therefore granted in the limited form set out in the draft order. The court also observed that experts should confine their reports to fact, diagnosis and opinion and should not express arguments or views that usurp the court’s function.