J (A Minor), Re (application for permission to Appeal)

Permission to appeal a reporting restrictions order requires an arguable error in the balancing exercise or a properly formulated point of general legal importance. The court must undertake a parallel analysis of the competing rights and interests. Article 8 and Article 10 rights have presumptive parity, as do competing Article 8 rights, including those of a child. The court must examine both the justification for interference and its proportionality. Where publication of a parent’s account would probably identify the child, disclose highly private information and damage the parent-child relationship, anonymisation may provide no practical solution. The assessment remains highly fact-specific, particularly where the trial judge is best placed to evaluate the evidence.

In public law care proceedings concerning J, the court had made a reporting restrictions order. Associated Newspapers Limited sought permission to appeal the order, arguing that insufficient weight had been given to the mother’s Article 8 and Article 10 rights and that the judgment raised a general question about how welfare considerations beyond a child’s Article 8 rights should enter the balancing exercise.

No party challenged the substantive care judgment, its factual findings or its welfare analysis. The application therefore concerned the reporting restrictions order and whether it disclosed an arguable error or a point requiring clarification by the Court of Appeal.

1. Application refused. The court found no merit in the proposed appeal and identified no general point of law warranting permission.
2. The governing approach was settled. The court was required to undertake a parallel analysis of the competing rights and interests, beginning from presumptive parity between Article 10 and Article 8 rights and between competing Article 8 rights, even where one right belonged to a child. The court had to assess both the justification for interference and the proportionality of that interference.
3. The proposed media interview could not realistically present the mother’s perspective without referring to J’s life and behaviour as she perceived them, including her belief that he was gender dysphoric or identified as female. In the unusual factual circumstances, those details were likely to identify J despite anonymisation or silhouetting.
4. Publication created three material risks: disclosure of private information not contained in the judgments; identification of J by people who knew him; and J’s realisation that his mother had disclosed the information, with adverse consequences for their relationship. The local authority’s aim of promoting and repairing that relationship was relevant to the welfare assessment.
5. The court also concluded that journalists and editors could not safely separate innocuous details from material likely to violate J’s Article 8 rights. The assessment was highly fact-specific and could not readily be made by someone who had not heard the evidence. The proposed general question about welfare considerations extending beyond Article 8 did not, in the judge’s view, disclose a properly formulated point of general principle.

• High Court (Family Division): In [2016] EWHC 2430 (Fam), the court gave its substantive judgment in the care proceedings. In [2016] EWHC 2593 (Fam), it determined the reporting restrictions order.
• High Court (Family Division): Permission to appeal the reporting restrictions order was refused in the present judgment.