B, C, and D (Children), Re

Applications to relax reporting restrictions affecting birth parents require an intense, fact-specific comparison of the competing rights under Articles 8 and 10 of the European Convention on Human Rights. Neither right has automatic precedence. The court must examine the justification and proportionality of interference with each right and then carry out the ultimate balancing exercise. The welfare and privacy of adopted children and their adoptive families may justify substantial restrictions, but restrictions must go no further than necessary and proportionate. Legitimate publicity about the operation of the child-protection and adoption system may remain possible through anonymised reporting. Names, identifying images, dates of birth and other details must be prohibited where they could identify the children or enable them to recognise a birth parent.

The City of Wakefield Metropolitan District Council sought to continue and modify injunctions restraining the birth parents of three adopted children from publicising matters concerning the children and the completed care and adoption proceedings. The birth parents wished to publicise their perceived treatment and, in one case, publish a book. The children had been adopted into two families, whose views were obtained before the applications were determined.

The court also considered an application for a reporting restriction order binding the media directly if any communication by the birth parents were permitted. The central issue was how to balance the birth parents’ and media’s Article 10 rights against the Article 8 rights and welfare of the children and their adoptive families.

1. Applicable framework. The continuing statutory restriction arose under section 12 of the Administration of Justice Act 1960, as amended. The court could relax or increase the restriction. Articles 8 and 10 of the European Convention on Human Rights were both engaged. Under sections 12(1) and 12(4) of the Human Rights Act 1998, particular regard had to be paid to freedom of expression, but Article 10 did not automatically outweigh Article 8.
2. Balancing exercise. Following the approach summarised from In Re S (FC) (a child) [2004] UKHL 47 and Clayton v Clayton [2006] EWCA (Civ) 878, the court had to undertake parallel analysis. Neither Convention right had precedence. The specific importance of the rights claimed, the justification for interfering with each right and proportionality had to be assessed in the individual circumstances.
3. Children’s welfare and necessary limits. The highest importance attached to the welfare of the young adopted children and the need to avoid destabilising their placements. That consideration justified restrictions preventing publication of names, addresses, dates of birth, gender and recognisable or identifiable images where publication might connect the children with the birth parents. The birth parents’ names and identifiable images were likewise prohibited. Carefully pixellated, disguised or rear-view images could be used, and voices need not be distorted where there was no evidence that the children could recognise them.
4. Permitted publicity and orders. The restrictions had to remain confined to what was necessary, justifiable and proportionate. Publication could refer to the children’s approximate ages, expressed in whole years, because some temporal context was necessary to make the story intelligible. Legitimate reporting could name local authorities, judges, guardians and social workers involved in the public system, since they had no general immunity from identification. Orders were made against the birth parents and directly against specified media bodies, modelled on established precedents and modified to protect the children while permitting limited anonymised publicity.