R (A Child)

When deciding whether to relax automatic reporting restrictions in family proceedings or impose additional restrictions, the court must give reasons, consider relevant existing judgments and transparency case-law, and conduct the necessary balancing exercise between Article 8 rights and Article 10 freedom of publication. A consented replacement order applying against the world still requires judicial consideration. Where information is already publicly available in an earlier judgment, the court should not prevent ordinary linking of that judgment with later reporting unless the Article 8 rights involved are compromised to a degree justifying restriction.

The appeal arose from care proceedings concerning a young child. After an earlier appeal and redetermination, three journalists attended the hearing before His Honour Judge Levey in the Portsmouth Family Court. On 19 October 2018, he made a reporting restrictions order which also restricted reporting of information already contained in the earlier Court of Appeal judgment.

The journalists challenged the order. By the hearing before this court, the parties agreed the terms of a replacement order, and the BBC was joined as a second appellant. The issues were whether the appeal should proceed on wider questions concerning transparency and the priority of the child’s welfare, and whether the proposed order should restrict references linking later reporting to the earlier judgment.

1. Disposition. The appeal was allowed. The reporting restrictions order made by His Honour Judge Levey on 19 October 2018 was set aside. A fresh order was to be made in accordance with an amended draft approved by the court.
2. Procedural requirements. The judge had failed to give reasons for not referring to the existing Court of Appeal judgment, failed to consider the existing case-law on transparency in the family courts, and failed to undertake the necessary balancing exercise between the Article 8 rights engaged and the freedom of publication under Article 10 of the European Convention on Human Rights. Those procedural irregularities made the order wrong.
3. Consent and orders against the world. Although the replacement order was largely agreed, it was a reporting restrictions order against all the world. The court therefore had to consider and determine whether the replacement order should be made. The matter could not simply be disposed of on paper.
4. Information already public. The mother sought a restriction preventing reference to her country of origin and limiting links to the earlier judgment. The court had no detail of the detrimental impact that disclosure would cause. Since the information was already publicly available, it would be wrong to prevent ordinary linking and connection of the earlier judgment with the later reporting. The Article 8 rights of the mother and child were not compromised to a degree justifying that restriction.
5. Wider guidance. The proposed wider question concerning the priority to be given to the child’s welfare warranted full consideration in an appropriate case. This appeal, however, was not a suitable vehicle because no party wished to oppose the media’s proposed propositions. The planned full hearing was therefore vacated. Lady Justice King agreed with the judgment.

• Court of Appeal (Civil Division): [2019] EWCA Civ 482. Appeal allowed. The reporting restrictions order was set aside and a fresh order was directed.
• Portsmouth Family Court: His Honour Judge Levey made the reporting restrictions order on 19 October 2018 at the conclusion of the care proceedings.
• Earlier proceedings: An earlier order by His Honour Judge Hess concerning discharge of the care order and authorisation for adoption had been appealed and the case was subsequently redetermined by a different judge. The citation of that earlier judgment was not stated in this judgment.