British Broadcasting Corporation v CAFCASS Legal & Ors

After care proceedings have ended, section 97(2) of the Children Act 1989 no longer restricts publication. Section 12 of the Administration of Justice Act 1960 may still restrict publication of judgments and discussion of evidence. Applications for disclosure and anonymity must be determined through a parallel analysis of the engaged Convention rights, followed by an ultimate proportionality balance.

Publication of an anonymised care judgment and disclosure of relevant material to the media may strongly serve open justice, freedom of expression and the parties’ interest in vindicating reputation. Those interests must nevertheless be balanced against the private and public interests supporting witnesses’ anonymity. Ordinarily, a judgment delivered in chambers should not be released, even in anonymised form, until affected persons have had an opportunity to seek anonymity protection and any such application has been determined after compliance with section 12(2) of the Human Rights Act 1998 and the applicable practice directions.

The BBC sought permission to receive video footage made by parents whose child had suffered fractures and to broadcast a documentary about the family’s successful resistance to care proceedings. The parents also sought publication of the fact-finding judgment. The care proceedings had ended when the local authority’s case was dismissed.

The parties generally accepted publication of an anonymised judgment and disclosure of the footage, but several social workers, police officers, treating doctors and expert witnesses sought protection from identification. The court therefore had to determine the extent of the disclosure jurisdiction, the restraint jurisdiction and the appropriate interim safeguards pending fuller argument on anonymity.

1. Disclosure and publication. The court held that, subject to anonymisation, there was overwhelming justification for making the county court judgment publicly available and for permitting the parents to disclose the video footage to the BBC. The BBC’s and the parents’ rights under Articles 6, 8 and 10, together with the public interest in open justice and reputation, carried substantial weight.
2. Applicable approach. The disclosure jurisdiction and restraint jurisdiction had to be exercised by a parallel analysis of the specific Convention rights engaged, followed by an ultimate balancing exercise reflecting proportionality. The court had to focus on the particular rights and interests in the individual case rather than rival generalities.
3. Anonymity. Witnesses could rely on personal privacy interests and wider public interests, including frankness in children’s cases, co-operation by experts and confidence in the confidentiality of evidence. The positions of treating doctors, social workers, police officers, children’s guardians and expert witnesses were materially different and required individual assessment.
4. Procedural safeguards. The principled approach was that everyone referred to a judgment should have an opportunity to seek anonymity before the judgment was released, any application should comply with section 12(2) of the Human Rights Act 1998 and the relevant practice directions, and the judgment should not be released until such applications had been adjudicated. The court warned that the exceptional interim course adopted here should not be treated as a precedent.
5. Orders. The anonymised judgment was made publicly available. Disclosure of the footage to the BBC was authorised. A contra mundum injunction prohibited identification of specified professionals, subject to liberty to apply and a notice period, and the BBC was required to give at least 28 days’ notice of intended publication or broadcast.

This was a first-instance directions decision in the High Court (Family Division). The underlying care proceedings had been dismissed by Her Honour Judge Plumstead in the Cambridge County Court on 8 December 2006. The present court authorised publication of the anonymised judgment and disclosure of video footage, while imposing interim identification restrictions.