Z County Council v TS & Ors

Where publicity may identify a vulnerable child, the court must balance the competing Article 8 rights and any relevant Article 12 rights. The former automatic restrictions under section 97 of the Children Act 1989 do not apply without further justification. The court may continue protection where disclosure might reasonably lead to identification, giving pre-eminent consideration to the child’s welfare and privacy. Protection is directed to preventing identification, not to shielding professionals or public authorities from criticism. An otherwise public process may therefore remain fully discussable while the child’s identity and information tending to reveal it remain protected.

The proceedings concerned a child, aged nearly 11, with significant learning difficulties and continuing care needs. Earlier judgments established the statutory threshold and approved a care plan involving rehabilitation to the child’s mother under a care order. The original hearing had been conducted in public subject to anonymisation, and a television programme had reported it without identifying the parties.

A further programme prompted an application concerning disclosure of the family members, the school, the local authority and a former social worker. The issue was whether the existing anonymisation arrangements should be relaxed while preserving the child’s privacy.

1. Existing legal framework. Following Clayton v Clayton [2007] 1 FLR 11, the automatic restrictions in section 97 of the Children Act 1989 no longer applied. Any continuing injunction had to be justified by balancing the parties’ competing Article 8 rights and relevant rights under Article 12, as required by Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 FLR 591.
2. Guiding principle. The decisive consideration was the child’s welfare and privacy. The court was entitled to give those Article 8 rights pre-eminent weight in the circumstances. Disclosure should be refused where it would identify the child or might reasonably lead to identification. The test was confined to that risk.
3. Application. The rural setting, the unusual nature of the child’s disability, the limited number of suitable schools, the child’s vulnerability and the fact that disclosure would effectively be to the whole world made identification risks substantial. Disclosure of any family member, the school, school staff or the local authority might reasonably lead to identification. Identifying the former social worker also presented a reasonable possibility of identifying the child because public scrutiny of her conduct would necessarily concern her dealings with him.
4. The court was not protecting the social worker from criticism or inconvenience. Complaints could still be made to the relevant professional body. The proceedings remained public, and the judgments and the issues raised in them could be discussed, provided the anonymisation requirements were observed.
5. The application to vary the existing order was refused. The anonymisation order was confirmed indefinitely.