Stuart Black & Anor v Kaspars Kalvans & Ors

Applications to relax restrictions on publication in family proceedings require an evaluative balancing of the competing Art.8 and Art.10 rights. The children’s welfare must be treated as a primary consideration, but it is not automatically determinative. The court must assess the nature of any risk, its likelihood and its probable consequences. It should protect the integrity of confidential child-protection processes, while recognising the legitimate public interest in reporting and criticism. The court is not an editor and should ordinarily adopt broad, workable restrictions rather than determine every document or passage in detail. Where appropriate, responsibility for applying those limits may be left to trusted holders of parental responsibility. The decision was highly fact-specific.

The applicants were special guardians of three children following the death of their mother and the father’s inability to care for them. They sought relaxation or removal of the restrictions imposed by Administration of Justice Act 1960, s.12, so that they could publish a book or otherwise discuss their experience of the care proceedings and special guardianship process.

The local authority and children’s guardian accepted that some publication could occur, but sought protection for the children, private medical and therapeutic information, and the confidentiality and effectiveness of child-protection procedures. The central issue was how far publication could proceed while protecting the children and the relevant processes.

1. Balancing exercise. The application was granted in part. The court had to balance the applicants’ Art.8 rights to tell their personal story and their Art.10 rights of expression against the children’s privacy and welfare interests. The children’s welfare was a primary consideration under Art.3 UNCRC, but it did not have automatic or determinative weight.
2. Risk assessment. Risks to the children had to be assessed by reference to the type of risk, its likelihood and its likely consequences. The assessment was necessarily future-facing and could draw on previous publications, professional evidence and the circumstances of the particular children.
3. Confidential processes. The integrity of child-protection procedures was a legitimate consideration. Whole reproduction of LAC reviews, fostering-panel minutes and multi-agency assessment documents was prohibited. However, material concerning the possible removal of the children could be quoted where the applicants’ Art.8 and Art.10 rights outweighed the confidentiality interest. Discussion and criticism of the processes were permitted, subject to protection of sensitive information.
4. Scope of the court’s function. The court was not an editor. It should give broad and practicable directions capable of implementation, rather than determine every proposed document or passage. Residual uncertainty could be left to the applicants’ editorial discretion, having regard to their parental responsibility and the children’s welfare.
5. Children’s identities and private information. The children could be named. Medical and therapeutic reports, detailed accounts of the children’s statements and play therapy, and sensitive historical information were not to be reproduced. The fact that assessments or therapy occurred, and general commentary on those processes, could be published. The judgment was expressly exceptional and fact-specific.