Jane (A Child), Re

When an application for a reporting restriction order affects freedom of expression, the court must comply strictly with Human Rights Act 1998, section 12. Unless compelling reasons justify proceeding without notice, all practicable steps must be taken to notify intended respondents. An order cannot bind media organisations that have not been notified and served. The court must intensely scrutinise and balance the child’s privacy and welfare under Article 8 against freedom of expression under Article 10, giving particular regard to the importance of the latter. Material already in the public domain may not be restrainable merely because it concerns a vulnerable child, but genuinely new images and information may justify protection where publication would cause serious harm and serves no legitimate public interest.

A local authority had obtained an interim care order concerning a young child and applied urgently for a reporting restriction order because of extensive media publicity about the child’s mother and existing photographs of the child. Notice had been given through the PA CopyDirect service, but not to non-subscribing national or local media organisations.

The application concerned the extent to which the court could restrict publication of information about the child, her care proceedings, her carers and contact arrangements, together with further photographs, images and video. The central issues were whether the statutory notice requirements had been met and how the competing privacy and freedom of expression rights should be balanced.

1. Notice. The court was satisfied that the local authority had taken all practicable steps to notify media organisations subscribing to the PA CopyDirect service. It was not satisfied that it had taken all practicable steps to notify non-subscribing national or local organisations. Nor were there compelling reasons for dispensing with notification. Under section 12(2) of the Human Rights Act 1998, the order therefore could not bind media organisations outside the notified group.

2. Applicable balance. Applications of this kind require intense scrutiny and the weighing of the child’s Article 8 rights against the media’s and public’s Article 10 rights. Section 12(4) required particular regard to freedom of expression and to the extent to which material was already available to the public or publication was in the public interest.

3. Scope of protection. The order did not restrict continuing publication about the parents generally. It protected the child’s name, address, whereabouts, images and information identifying foster carers, relatives, persons involved in her day-to-day care or medical concerns, and places where parental contact occurred. Publicity revealing the existence or details of the care proceedings was also restrained.

4. Existing and new images. Photographs already widely published could continue to be published because they were in the public domain. The court would not sensibly or justifiably restrain their further publication or require their removal from the internet. New photographs, images and video not previously in the public domain were different. There was no legitimate public interest in further images of the child during the life of the order, and publication could be highly damaging. Their publication or broadcasting was restrained.

5. The reporting restriction order was made in the revised terms discussed with counsel. The local authority was directed to obtain an official transcript for supplying to bound media organisations, subject to the stated restriction on quotation.