A Local Authority v The Mother & Ors

Where reporting restrictions are sought to protect adult professionals from the effects of identification, the application should ordinarily be made to the judge conducting the related criminal trial. That judge is better placed to assess the Article 8/Article 10 balance, open justice considerations and the submissions of the media. This is particularly so where the professionals may be witnesses in the criminal proceedings. The Family Court may have jurisdiction, but it may properly decline to exercise it. The position differs from cases such as Re S, where reporting restrictions were directed principally to protecting a child’s identity.

A local authority and CAFCASS applied for reporting restriction orders concerning two social workers and two CAFCASS officers involved in family proceedings relating to children, one of whom had died. The children’s parents had been charged with murder and the criminal trial was imminent.

The applications were based on potential interference with the professionals’ private lives and possible adverse criticism, rather than protection of the children’s identities. The central issue was whether the Family Division should determine the applications or leave them to the judge presiding over the criminal trial.

1. Applications refused. The court declined to make the reporting restriction orders sought.
2. The judge accepted that the Family Court possessed an inherent jurisdiction which could, in principle, support a reporting restriction order because related care proceedings remained in existence. However, the criminal trial judge was better placed to conduct the relevant assessment. She would have greater knowledge of the Article 10 issues and would have the reporting media before her, enabling submissions on open justice and the appropriateness of naming the professionals.
3. That conclusion was especially compelling in relation to the social workers. At least one, and possibly more than one, was a witness in the criminal trial. It was significantly preferable for the trial judge to decide whether a witness in her trial should be protected by reporting restrictions.
4. The applications did not concern the identification of a child. They related to possible Article 8 interference with adult professionals and potential adverse criticism. The case was therefore materially different from Re S, in which reporting restrictions were made to protect a child’s identity.
5. The criminal judge was considered capable of making an order in the terms sought, potentially under section 46 of the Youth Justice and Criminal Evidence Act 1999, or, if necessary, by sitting as a High Court judge. Any order made for the criminal proceedings might later require reconsideration in relation to an inquest, safeguarding review or other subsequent process.