Medway Council v G & Ors

Care proceedings are ordinarily private. Publication of information concerning them may engage the statutory restrictions in the Children Act 1989 and the Administration of Justice Act 1960, even where the child’s identity is protected. General judicial encouragement of anonymised judgments does not establish a rule permitting publication before final welfare decisions have been made. The court must balance the child’s Article 8 rights and welfare against Article 10 rights and the public interest in open justice. A limited departure may be justified where proceedings are unusually prolonged, public controversy is substantial, the child’s anonymity can be preserved, and a carefully restricted factual summary adequately protects confidential information. Identification of the local authority requires a convincing case showing a real risk of identifying the child; local geographical prominence alone is insufficient.

Times Newspapers Ltd sought clarification of its ability to report on care proceedings concerning an anonymised child, including permission to interview the child’s stepfather about his criminal proceedings and to publish anonymised judgments delivered during the care case.

The care proceedings had been ongoing for several years and had been interrupted after the mother and stepfather removed the child from foster care and took him abroad. The child’s welfare proceedings had not been finally determined. The central issues were whether the proposed interview was prohibited by the existing injunction, whether the local authority could be identified, and whether the earlier care judgments could be published.

1. The application was allowed in part. The court authorised the requested proviso permitting an interview with M about the public criminal proceedings, his emotional state, prison experience and support from family and friends, subject to strict protection against identifying S. Such matters constituted a permissible journalistic enterprise if handled with care.

2. Care proceedings under Part IV of the Children Act 1989 were private under Rule 4.16(7) of the Family Proceedings Rules 1991. Section 97(2) of the 1989 Act prohibited publication likely to identify a child involved in proceedings, subject to the welfare-based power in section 97(4). Section 12(1)(a) of the Administration of Justice Act 1960 also restricted publication of information relating to proceedings heard in private.

3. The encouragement of anonymised publication in Re PB (Hearings in Open Court), [1996] 2 FLR 765, Clayton v Clayton, [2006] EWCA Civ 878, and Re H (Children), [2005] EWCA Civ 1325, did not contemplate publication before final orders and final adjudication of the child’s welfare. The court therefore rejected any general assumption that those observations authorised publication at this stage.

4. The identity of the local authority was not itself prohibited by section 12. Following Kent County Council v B, [2004] EWHC 411 Fam, the authority had to show a convincing case that publication would create a real risk of identifying the child. That threshold was not met: Medway’s relatively small geographical area and the number of looked-after children did not establish a sufficient risk.

5. The strong Article 10 interest arising from the public controversy, the prolonged hiatus in the care proceedings, and the need for informed public scrutiny justified a limited departure from section 12(1) of the 1960 Act and section 97(2) of the 1989 Act. Publication was authorised only to the extent set out in an agreed and anonymised Summary of Facts. Publication of the detailed care judgments was not required.

6. The welfare exception identified in Re S (Identification: Restrictions on Publication), [2004] 1 UKHL 47, did not require continued prohibition of references to the child’s foster placement in the circumstances. The agreed summary and the existing anonymity provisions sufficiently protected S.

First-instance decision of the High Court (Family Division). The judgment describes earlier orders and directions in the care proceedings but does not identify an appeal from the present decision.