Cumbria County Council v M and F

Applications for reporting restrictions must be carefully analysed by the applicant, particularly where the applicant is a public authority. The court should be asked only for restrictions that can reasonably be justified.

Disclosure from private family proceedings may be permitted to identified media legal advisers where it is necessary to enable an informed challenge to reporting restrictions. Disclosure should be limited to what is necessary, made for an identified purpose, and controlled by strict undertakings. Disclosure to legal advisers may be appropriate even though the media have no right to attend the proceedings, particularly where the conduct of public agencies is under scrutiny.

Continuing care proceedings concerned five children following the death of a sixth child. The court had made a fact-finding judgment and a reporting restriction order. Media organisations sought disclosure of the fact-finding judgment and a Schedule of Failings to their legal advisers so that they could consider whether to challenge or seek revision of the reporting restrictions.

The local authority and the parents opposed disclosure, relying on privacy, confidentiality, possible leakage, prejudice to criminal proceedings, and unfairness to agencies. The central issues were whether disclosure was justified and, if so, what material and safeguards were appropriate.

1. Reporting restrictions. An applicant seeking reporting restrictions must analyse the need for them and seek only restrictions that can reasonably be justified. A public authority should not adopt a broad, scatter-gun approach on the assumption that the court will reduce the request.
2. Disclosure framework. The legal framework for disclosure from private family proceedings had been summarised in A Local Authority v A Mother and ors [2014] EWHC 278. The court applied that framework while recognising the distinction between the media and the police. The media had a right to attend the hearing, although not to report it. That strengthened the case for disclosure to legal advisers, even though legal advisers themselves had no right to attend.
3. Balancing exercise. Disclosure was justified where it enabled media lawyers to understand the court’s findings and assess the continuing justification for reporting restrictions, especially where public agencies were under scrutiny. Limited disclosure would not cause appreciable harm or unfairness, and strict controls could prevent leakage and reduce the risk of prejudice to other proceedings. Waiting until the final hearing would cause expense and delay without resolving the present issue.
4. Extent and safeguards. The fact-finding judgment, but not the Schedule of Failings, was to be disclosed to identified media legal advisers for the limited purpose of considering applications concerning reporting restrictions or disclosure. Each recipient had to provide a written undertaking restricting access to legal advisers, prohibiting copying or electronic retention, requiring secure storage, and acknowledging that breach would constitute contempt of court. The disclosure application was therefore granted in part.