Medway Council v Root (4)

The court may extend publication restraints beyond a child’s 18th birthday where the facts justify protection of the child’s private life. The court must conduct an intense, case-specific and proportionate balancing exercise between the child’s Article 8 rights and the parent’s Article 10 rights. The child’s interests are a primary consideration, but are not paramount. Repeated publication of personal and sensitive information may justify injunctive relief even where the information is already publicly available. Any injunction and committal proceedings must comply carefully with the applicable statutory, procedural and practice-direction requirements.

Medway Council sought continuation and consolidation of injunctions restraining Sara Root from publishing information concerning care proceedings involving her two children. The children were adults by the time of the hearing, but remained in receipt of leaving-care support. The court also considered applications for non-molestation orders, the continuation of reporting restrictions concerning committal proceedings, and Ms Root’s application to discharge the earlier injunction.

The earlier injunction had been made in 2011. Subsequent committal proceedings resulted in findings of breach and a suspended custodial sentence. An appeal against those findings was dismissed by the Court of Appeal on 22 November 2017. The central issues were whether the injunction could continue beyond the children’s majority, whether the evidence justified interference with Article 10 rights, and whether the proposed non-molestation and reporting restriction orders were procedurally and substantively justified.

1. Injunction. The court held that it had jurisdiction to make an injunction extending beyond the children’s 18th birthdays. The statutory protection under section 12 of the Administration of Justice Act 1960 is not time-limited, and the court’s power to add to or limit that protection does not end when a child reaches 18.
2. The court applied the balancing exercise required by Article 8 and Article 10. No Convention right had automatic precedence. The court had to focus intensely on the comparative importance of the specific rights, assess the justification for interfering with each right, and apply proportionality. The children’s interests were a primary consideration, though not paramount.
3. The cases were fact-sensitive. This case differed from Re J (Reporting Restriction: Internet: Video) and Southend Borough Council v CO and Another because Ms Root sought no meaningful limitation on the material she wished to publish. The evidence established continuing distress and emotional harm to both children, including from repeated online publication of personal information already in the public domain.
4. The 2011 injunction was continued and amended to include the later proceedings concerning the children. It was ordered to continue until 20 November 2023, when the youngest child would be 25, or until further order, with a penal notice attached. Ms Root’s application to discharge it was refused.
5. Non-molestation orders. The elder child’s application was granted. The repeated publication of deeply personal and sensitive information amounted to molestation. The court had no jurisdiction to make the order sought by the Local Authority on behalf of the younger child, who was no longer a child and had not signed the application.
6. Reporting restrictions. The order restricting identification of Ms Root as the subject of committal proceedings was continued at that stage, subject to the Local Authority making a procedurally compliant application. The court stressed that committal hearings should ordinarily be in open court and that notice, service, clear terms and penal notices were essential.

The judgment records that HHJ Polden found breaches of the injunction and undertaking and imposed a suspended six-month custodial sentence on 30 August 2017. The Court of Appeal, comprising McCombe and McFarlane LJJ, dismissed Ms Root’s appeal on 22 November 2017. The present judgment was a first-instance determination of the continuing injunction, non-molestation applications and reporting restrictions.