AB v CD

Where an abducted child cannot be located despite extensive investigative and disclosure measures, the court may relax confidentiality restrictions and authorise publicity to assist the child’s recovery. The court must balance the likely benefits of publicity against the potential harm to the child and others. The assessment is fact-sensitive and must include the child’s best interests and the urgency of locating the child. Although relaxing anonymity under Administration of Justice Act section 12 and Children Act 1989 section 97 is unusual, it may be proportionate where publicity materially increases the prospects of locating a child exposed to a credible risk of imminent danger.

The father applied for orders permitting publicity concerning the mother and two children, who had not been returned from England to the United States in accordance with Colorado court orders. The children were the subject of Hague Convention return proceedings in England, but the mother and children could not be located despite repeated disclosure, enforcement and investigative orders.

The application was made without notice. The mother did not attend, and the children were not separately represented. The central issue was whether confidentiality and anonymity restrictions should be relaxed so that the father could publicise information to the media and other third parties in order to locate the children.

1. Jurisdiction to locate. The High Court has a broad jurisdiction to take steps to locate abducted children. That jurisdiction may include releasing information obtained through disclosure orders where this assists further enquiries: In Re HM (vulnerable adult: abduction) [2010] EWHC 870 (Fam).
2. Applicable approach. On an application for publicity, the court must weigh the benefits of publicity against the potential harm caused by it. The assessment is fact-sensitive and must be conducted proportionately, with the children’s best interests central to the evaluation.
3. Application. The children had been missing for two months. Five hearings and extensive disclosure measures had produced no useful information. The Colorado court had found a credible risk that the children were in imminent danger. Publicity was therefore likely materially to increase the prospects of locating them, while the likely harm of failing to locate them outweighed the potential harm caused by publicity.
4. Confidentiality. Although it was not normal to relax the anonymity protections under Administration of Justice Act section 12 and Children Act 1989 section 97, doing so was proportionate in the circumstances.
5. Procedure and order. The court declined to adjourn to invite press attendance because delay was contrary to the children’s best interests and attendance by the press was uncertain. Judgment was given on the basis that it, or part of it, could be divulged in accordance with the publicity order. The judgment was to be published in anonymised form, but the order did not prohibit identification of the parties or children.

Not stated in the judgment.