K (A Child: Wardship: Publicity), Re

Where publicity concerning a child engages both privacy and freedom of expression, neither right has automatic precedence. The court must intensely focus on the comparative importance of the specific rights claimed, examine the justification for restricting each right, and apply proportionality to each before conducting the ultimate balancing exercise.

The child’s welfare is relevant but is not paramount. Greater transparency in family justice and public accountability may weigh substantially in favour of permitting parents to discuss their experiences with the media. Restrictions must protect the child and others from identification or harassment, but must be clear and no wider than necessary. The court should not exercise editorial control over lawful media reporting.

The proceedings concerned a 16-year-old ward of court whose adoptive parents wished to discuss their experiences with the media. Earlier care proceedings had resulted in a care order, but the order was discharged on appeal and the child was made a ward of court. The parents then sought discharge of an order made on 21 August 2012 preventing any party from discussing the case with the media without leave.

The parents relied on their wish to raise awareness of reactive attachment disorder, criticise aspects of the local authority’s conduct, and contribute to debate about transparency in family justice. The local authority and guardian relied on the risk of distress, identification and harm to the child. The central issue was whether continued restraint was proportionate.

1. Application granted in part. The order preventing the parents from discussing the case with the media was discharged with effect from 1 January 2014. The existing anonymity rubric was held sufficient to protect the child, her parents and her adoptive sisters.
2. Statutory framework. The prohibition in Children Act 1989, s 97(2), ended when the care proceedings ended on 22 November 2012. The child’s wardship engaged s 12 of the Administration of Justice Act 1960. Section 12 restricted publication of information relating to the private proceedings but did not itself prevent publication of the names of parties, children or witnesses. Its protection was unlimited in time, although the court could relax it.
3. Articles 8 and 10. The parents’ and media’s Article 10 rights and the child’s Article 8 rights were engaged. Applying Re S (Identification: Restrictions on Publication) [2004] UKHL 47 and Clayton v Clayton [2006] EWCA Civ 878, neither right had precedence. The court had to undertake an intense, case-specific comparison, examine the justification for interfering with each right, apply proportionality to each, and then perform the ultimate balancing test. The child’s welfare was relevant but not paramount.
4. Application of the balance. There was a moderate to high risk that people already familiar with the circumstances might identify the child, but the importance of transparency and public scrutiny meant that some wider risk of identification had to be accepted. The parents had a legitimate interest in telling their story, and the public had a legitimate interest in hearing it, particularly given the criticisms of the local authority and the wider issues concerning adoption, post-adoption support and reactive attachment disorder.
5. The local authority could not prevent its own identification merely by opposing the application. It had previously been identified in the published judgment and had chosen not to seek a reporting restrictions order. The court was not entitled to impose editorial control over the form of lawful media reporting. Permission was nevertheless delayed to allow the child time to establish a therapeutic relationship.

The judgment states that an earlier care order was discharged on appeal on 22 November 2012 and that the child was made a ward of court. No citation for that appellate decision is provided. The present judgment determined the parents’ subsequent application concerning media publicity.