Bristol City Council v C & Ors

Applications for reporting restriction orders require an intense, parallel analysis of the competing rights under Articles 8 and 10 of the ECHR. Neither right has automatic precedence. The court must identify the specific rights engaged, assess the justification and proportionality of interference with each, and consider the public domain, public interest and relevant privacy codes.

Publication may be authorised where it serves a genuine public interest, including scrutiny of child-protection practice, while prohibiting identification of a child and persons whose Article 8 rights would otherwise be substantially infringed. Anonymising a person may be insufficient where publication creates a real risk of jigsaw identification. Applications made without notice to the media should be exceptional and require compelling justification.

The local authority applied for a reporting restriction order after care proceedings concerning a five-year-old child disclosed allegations of child pornography in a foster home, an alleged assault on the child and possible failures in the local authority’s response. A temporary order had been made without notice to the media by a deputy High Court judge.

Following negotiations, the parties agreed that the child should remain anonymous and that some information could be published. The remaining issues concerned publication of information about the foster household, social workers, the foster father’s apparent suicide, use of the term strangling, a public-domain proviso and the form of the order.

1. Reporting restriction principles. Care proceedings are generally private under Children Act 1989 and the Family Procedure Rules. The High Court may relax or increase the statutory restrictions. The governing exercise is the balancing of Articles 8 and 10 of the ECHR, applying the four propositions identified in Re S (A Child) (Identification: Restrictions of Publication): neither Article has precedence; the specific rights require intense comparative focus; the justifications for interference must be examined; and proportionality must be assessed in relation to each right.
2. The court must consider the extent to which information is already public, the difference between what interests the public and what is in the public interest, editorial independence, and the Press Complaints Commission Editors’ Code. Re-publication may create a fresh intrusion even where information is not secret. The internet makes the public domain difficult to define.
3. Publication of a redacted version of the magistrates’ facts and reasons was authorised because the findings disclosed matters of general public concern about the local authority’s discharge of child-protection duties. Publication of information concerning the application, the failure to notify the media, the local authority’s initial position and its subsequent response was also authorised.
4. Identification of the child was prohibited. Publication identifying the status or relationships of other members of the foster household was prohibited because it infringed their Article 8 rights and created a substantial risk of jigsaw identification, especially after reports of the inquest. It was sufficient to describe them only as persons present in the foster household.
5. Publication of the names of the key social worker and team manager was permitted. There was no evidence of a significant risk that naming them would identify the child, and there was a clear public interest in open discussion of child-protection decisions. Publication of the foster father’s apparent suicide was also permitted because no evidence showed that it would increase the risk of identifying the child.
6. The word strangled could be used to describe the allegation that the child’s neck had been grabbed and marked. No public-domain proviso was included, since re-publication could constitute a further intrusion. A single reporting restriction order was made rather than separate restraint and disclosure orders.