London Borough of Waltham Forest v AD

A reporting restriction order affecting the press and broadcast media is an exceptional remedy. The court must conduct an intense and fact-sensitive proportionality assessment between the child’s Article 8 rights and the media’s Article 10 rights. Neither right has presumptive priority. Clear or cogent evidence of likely harm is required; speculation about possible future distress or misuse of published information is insufficient. The child’s welfare alone does not determine the application. Where the evidential threshold is not met, the question whether to identify the child should ordinarily be left to the good sense and professionalism of editors.

The local authority sought a reporting restriction order to prevent the identification of a three-year-old child whose mother had been fatally stabbed in her presence and whose father was standing trial for murder. An earlier application to the criminal trial judge under section 39 of the Children & Young Persons Act 1933 had failed because the child fell outside that provision’s remit. The application was then made in the Family Division. The central issue was whether the evidence of possible psychological harm from identifying the child was sufficiently clear and compelling to justify restricting freedom of expression.

1. The application was refused. Such an order is highly unusual and should be granted only in the most compelling circumstances.
2. The court applied the approach in Re S (A Child) (Identification: Restriction on Publication) [2005] 1 AC 593: the competing rights under Articles 8 and 10 require intense focus and neither has presumptive weight. The statutory direction in section 12(4) of the Human Rights Act 1998 requires particular regard to freedom of expression.
3. The evidence established that identification might cause the child distress, including if she later encountered material on the internet. It did not establish by clear or cogent evidence that identification would thwart or undo the benefits of her therapy. The asserted additional harm was therefore speculative and did not satisfy the high threshold for an order.
4. The fact that the child witnessed the killing was unusual and compelling as a matter of human sympathy, but it also made the case of legitimate interest to the media. The court could not decide the matter solely by reference to the child’s welfare; proportionality had to be assessed between Articles 8 and 10.
5. Following the approach in Re Guardian News & Media Ltd & Ors [2010] 2AC 6897, the possibility that some media coverage might be abusive was only one factor and did not justify restricting the freedom of the press as a whole. The naming issue was left to editors’ good sense and professionalism.
6. The judge criticised the local authority’s inexcusable delay and its failure to give proper notice to the media. Local authorities should first consider less costly alternatives, such as writing to editors or the relevant press standards body requesting that a child not be named.