H v A (No.2)

A judgment falling within the public-interest category of the Practice Guidance may nevertheless be withheld or published subject to restrictions where anonymisation would be defeated. The court retains case-management jurisdiction to remove a judgment from the public domain or restrict its use if circumstances change.

Publication and reporting restrictions require an intense, evidence-based balancing exercise between the competing rights under Articles 8 and 10 of the European Convention. Neither right has automatic precedence. The child’s best interests are a primary, but not paramount, consideration. The risk of jigsaw identification is not by itself sufficient to prevent publication. Clear and cogent evidence is required to justify derogation from open justice.

The application followed an earlier family judgment concerning the complete restriction of a father’s parental responsibility after his convictions for grave offences against the mother and children. The earlier judgment was published in anonymised form but was removed after it became apparent that facts already reported in the criminal proceedings could be used as search terms to identify the family.

The mother sought continued non-publication or heavy redaction of the earlier judgment and a reporting restriction order without a public-domain proviso. The issues were whether the judgment should be republished and whether publication of the family’s identity or whereabouts should be prohibited, having regard to the risk of jigsaw identification and the competing Convention rights.

1. Publication discretion. Although the earlier judgment fell within the first category of the President’s Practice Guidance, comprising judgments considered to be in the public interest, the court retained a discretion under paragraph 13 to refuse publication or restrict use where publication would defeat anonymisation. The decision was also a case-management decision, and the court had jurisdiction to remove a judgment from the public domain or regulate its use in light of changed circumstances.
2. Balancing exercise. The court applied parallel analysis between Articles 8 and 10. Neither right had precedence. The court had to focus intensely on the comparative importance of the specific rights, examine the justification for interfering with each, and apply proportionality. The children’s best interests were a primary consideration, but could be outweighed by the cumulative effect of competing interests, including open justice and freedom of expression.
3. Article 2. The positive operational obligation under Article 2 required a real and immediate risk to the life of identified individuals, together with a failure by the authorities to take measures reasonably expected to avoid it. The suggested chain of identification and indirect harm was highly speculative. The father was incarcerated, already knew the relevant facts, and the information was already publicly available. The high Article 2 threshold was not met.
4. Evidence and jigsaw identification. The risk of emotional harm from publicity had to be assessed on the evidence, not presumed. Assertions and speculation did not amount to clear and cogent evidence sufficient to derogate from open justice. Jigsaw identification was a relevant consideration in every comparable case, but was not itself a reason to withhold publication.
5. Outcome. The judgment was ordered to be published in its original format. A tightly drawn reporting restriction order prohibited publication of the names, current addresses and whereabouts of the mother and children, however obtained, but permitted publication of the other facts, including facts concerning the criminal proceedings, subject to a public-domain proviso. The rubric was amended accordingly.

The application followed the earlier family judgment in H v A [2015] EWFC 58 (Fam). The present judgment was a first-instance determination of publication and reporting restrictions.