Medway Council v L & Anor

After statutory anonymity under Children Act 1989, s 97 ends, the High Court may continue to protect a child’s identity through a reporting restrictions order where publication would create a real risk of harm. The court must conduct an intense, fact-specific balancing exercise between the child’s rights under art 8 and the rights of expression and public scrutiny under art 10. Transparency and criticism of the family justice system remain important. They do not justify identifying a child where identification is harmful or risks harm. An order may restrain identifying particulars while permitting general criticism of the local authority and the family justice system. Personal injunctions and restrictions on attendance at a child’s school may also be granted where the evidence establishes a continuing risk to the child’s welfare.

Medway Council applied for a reporting restrictions order and injunctions against the father of a 13-year-old child. The applications followed care proceedings in which the child was placed with foster carers and the father continued a public campaign concerning the local authority and the proceedings.

The local authority sought to prevent publication of information identifying the child, disclosure of information about the recent care proceedings, and the father’s attendance at the child’s school. The father relied on transparency, freedom of expression and the information already in the public domain. The central issue was whether protection of the child’s anonymity should continue after s 97 of the Children Act 1989 ceased to apply.

1. Applications granted. The court made a reporting restrictions order, a personal injunction restricting the father’s dissemination of information, and an injunction restricting his attendance at the child’s school. The orders were made until 6 pm on 16 October 2020, or further order. There was no order as to costs.
2. The court recognised the importance of transparency, public scrutiny and criticism of the family justice system. The fear of criticism, even vigorous criticism, is not by itself a justification for prior restraint. However, freedom of expression is subject to limitation where its exercise is inimical to the welfare of the child.
3. After s 97 of the Children Act 1989 ceases to apply, the court must undertake the balancing exercise required by Re S [2005] 1 FLR 591, with an intense focus on the comparative importance of the specific rights engaged. The relevant interests included the child’s art 8 rights and the father’s and media’s art 10 rights.
4. The balance favoured continued anonymity. The evidence established a real and continuing risk that the father would identify the child or disclose information capable of producing jigsaw identification. Identification risked embarrassment, distress, bullying, psychological harm and instability in the child’s placement and education. The order was sufficiently narrow because it permitted generalised criticism and public discussion of the family justice system.
5. Personal restraints were also justified because earlier orders had not controlled the father’s conduct and there was a real risk that he would circumvent them through the media. The school injunction was justified by the likelihood of further attendance and the demonstrated distress and disruption caused by the father’s attendance at the school.
6. The order was framed with territorial limitations and an undertaking that the local authority would not seek enforcement outside England and Wales without permission.