London Borough of Sutton v MH (No 2)

Permission to withdraw public law care proceedings is determined primarily by the child’s welfare. The court must also consider the overriding objective, including proportionality, expedition, expense and efficient use of resources.

Reporting restrictions require an intense, fact-specific balancing of the competing rights under Articles 8 and 10. Neither right has precedence. The child’s best interests are a primary, but not paramount, consideration. Existing internet publication does not by itself justify further identification, and repetition may still be restrained. The court may permit reporting of matters of legitimate public interest while preserving the anonymity of a vulnerable child and protecting the private life of an uninvolved third party.

The London Borough of Sutton brought care proceedings under Part IV of the Children Act 1989 concerning NH, a 16-year-old child detained under the Mental Health Act 1983. NH left England and Wales with his mother while an interim care order, port alert and collection order were in force, and was believed to be in Zimbabwe.

The local authority sought permission to withdraw the care application. The court also considered whether to continue, vary or discharge an existing reporting restriction order, and whether anonymised judgments should be published. The central questions were whether the proceedings could still serve a welfare purpose and how the competing rights to private life and freedom of expression should be balanced.

1. Withdrawal of care proceedings. Permission was granted to withdraw the application for a care order. Although the mother had removed NH from the jurisdiction while an interim care order was in force and despite a collection order, continuing the proceedings could no longer safeguard or promote NH’s welfare. Orders seeking his return would be futile because they could not effectively be enforced, and NH, aged 16, had expressed a wish to remain in Zimbabwe. Continuing the proceedings would not be in his best interests and would be inconsistent with the overriding objective in FPR 2010 r 1.1.
2. Reporting restrictions. The court applied the established parallel analysis under Articles 8 and 10. Neither right had precedence. The court had to focus intensely on the specific rights claimed, examine the justification for interfering with each right, and apply proportionality as the ultimate balancing test. NH’s best interests were a primary consideration, but could be outweighed by other considerations.
3. There was a strong public interest in reporting the operation of public law care proceedings, including the fact that proceedings had been brought for a temporary visitor, their duration and cost, and the circumstances in which NH left the jurisdiction. That interest justified permitting reporting of the facts as fully as possible. It did not justify publishing information identifying NH or identifying him as related to BD, a public figure who had played no part in the proceedings.
4. The existence of information on the internet did not determine the application. Further publication could still constitute a significant interference with privacy, particularly where the existing material resulted from breaches of the reporting restriction order. NH remained vulnerable and emotionally fragile, and the court had doubts about whether the application to discharge the order represented his genuine wishes.
5. The reporting restriction order was varied to permit reporting of the facts while preserving NH’s anonymity, including the prohibition on publication of his relationship with BD. An anonymised version of this judgment and the earlier judgment of 22 March 2016 was ordered to be published. The interim care order was discharged and the final hearing was vacated.

First-instance decision. No appellate history is stated in the judgment.