The BBC v A London Local Authority & Ors (Press Disclosure Application)

1. This is an application by the BBC for disclosure of judgments given in previous public law proceedings relating to the four children of this family (“the judgments”). The proceedings concluded in January 2022 with care and placement orders being made in respect of all of the children.

2. I am delivering this decision in writing following a hearing on 27 November 2023. At that hearing the parents’ advocates sought and were permitted further time to obtain their clients’ instructions and to respond in writing to the BBC’s request.

3. At present, there are no live proceedings before any court in relation to any of the children. Since final orders were made in the care proceedings in 2022 there have been adoption proceedings, but these concluded earlier this year.

4. As I understand it the BBC is aware of the family proceedings, and the existence of the judgments, because they have been referred to in criminal proceedings in which the parents face charges relating to the death of their youngest child This is only an assumption. In written submissions filed by the parents concerns are expressed as to how the BBC became of aware of these proceedings. That is not a matter into which the court should enquire: see Tickle v A Father [2023] EWHC 2446 at paragraph

46. . The judgments have been disclosed to the CPS for use in those proceedings. Prior to disclosure they were redacted, with the CPS’ agreement, to remove the children’s names, dates of birth and genders. The application

5. The BBC is not seeking to publish the judgments, or any information contained in them, now. It accepts that it is unlikely that the court would contemplate disclosure in circumstances where that might prejudice a criminal trial. The BBC would like access to the judgments now in order to prepare its request for publication once the criminal trial has concluded.

6. The criminal trial is due to commence in the New Year and is likely to last approximately six weeks.

7. The point is made by the BBC that these judgments fall within the scope of the January 2014 transparency and publication guidance issued by the then President of the Family Division Practice Guidance, Transparency in the Family Courts – Publication of Judgments, 16 January 2014. . It is correct that the judgments fall within Schedule 1 of the guidance, and are therefore judgments in respect of which the starting point should be publication unless there are compelling reasons against. The only reason the judgments were not published at the time they were delivered was, I am afraid, the resource issues acknowledged by the current President in his October 2021 Transparency review Confidence and Confidentiality: Transparency in the Family Courts, 20 October 2021. , which have meant that a far lesser proportion of judgments have been published under the publication guidance than was anticipated. That issue is under consideration by the President’s Transparency Implementation Group, which is reviewing what can be done to increase the volume of published judgments from the Family Court.

8. However, even if the judgments had been published at the time they were delivered they would undoubtedly have been anonymised. That is not, of course, the basis on which publication will now be sought. Publication of Family Court judgments in a form which identifies the children and their family involves a much greater interference with those individuals’ Article 8 rights, so even if anonymised versions had previously been published, it would be necessary on this application to carry out the Article 8/ Article 10 balancing exercise (see paragraph 20 below) afresh.

9. The CPS takes a neutral position on the application. In advance of this hearing it raised concerns about the potential for disclosure to impact on the trial process, and about the interaction between this request and the role of the criminal court in managing publication of information from its own proceedings. Following clarification of the BBC’s position those arguments were not pursued.

10. The local authority and the children’s guardian have made it clear that their primary concern in due course will be the protection of the children’s identities. The guardian points out some practical difficulties with that. It was clarified during the course of the hearing that these concerns relate to the future publication application, and not to the current disclosure application. During the hearing both the local authority and the guardian confirmed that provided disclosure is made in such a way that the confidentiality of the children’s identities is not put at risk, it is not opposed in principle.

11. The parents do oppose the application. Their position is that all decisions about disclosure should await the end of the criminal trial. Alternatively, as I understand it, they say that the application should be made to the criminal court and/ or at a hearing at which their criminal legal teams should attend.

12. There is some confusion in the written submissions filed on behalf of both parents between the BBC’s current application for disclosure of the judgments and its intended future application for permission to publish. At paragraph 9 of the mother’s submissions it is said that disclosure to the BBC will increase the likelihood of information leaking into the public domain in advance of the criminal trial. However later, at paragraphs 13 and 20, concern is expressed about the prospect of information being reported prior to the criminal trial. I am satisfied that it is only the former concern that is of relevance on this application. The BBC does not seek to report on or publish the judgments until after the criminal trial has concluded. The law

13. The BBC’s application is made under FPR r.12.73(1)(b). That provision gives the court power to permit disclosure of information from family proceedings where disclosure without permission would amount to a criminal offence under CA 1989, s97 or a contempt of court under AJA 1960, s12.

14. There are important differences between s97 and s12. Section 97 prohibits the publication of material intended or likely to identify a child subject to Children Act/ Adoption and Children Act proceedings, but that prohibition lasts only until the proceedings are concluded: Clayton v Clayton [2006] EWCA Civ

878. Section 12 has effect indefinitely, but its scope is more limited and it does not prevent publication of specified information, including the name (and photograph) of a child who has been subject to proceedings: see Norfolk CC v Webster & Others [2006] EWHC 2733.

15. The fact that there are no current proceedings under the Children Act 1989 or the Adoption and Children Act 2002 which would fall within the scope of s97 therefore means that there is currently no restriction on any person publicly naming the four children who have been subject to these Family Court proceedings. I return to this issue below.

16. It is important to distinguish in this case between the disclosure currently sought by the BBC and the request for permission to publish which it intends to make in due course.

17. Disclosure of material from proceedings in the Family Court is governed by the guidance set out in Re EC [1996] 2 FLR

725. It is more conventionally deployed in applications by agencies such as the police or CPS for disclosure from Family Court proceedings, but was also considered by Lieven J in Derbyshire CC v Marsden [2023] EWHC 1892 on an application by the press for release of documents.

18. The essence of the Re EC approach is to balance the public interest in disclosure against the public interest in maintaining the confidentiality of family proceedings held in private. What is often referred to as the “Re EC checklist” appears in the judgment of Swinton Thomas LJ. Some of the factors are specific to disclosure sought by agencies involved in the administration of justice, such as the police. However the checklist includes the following factors which are of potential relevance to this application: “(1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor. (2) The welfare and interests of other children generally. (3) The maintenance of confidentiality in children cases. (4) The importance of encouraging frankness in children’s cases. […] (10) Any other material disclosure which has already taken place.”

19. The BBC does not currently seek permission to publish any information contained in the judgments. The current application is, however, a stepping stone to a future application for publication, so it is appropriate to set out the approach the court will take when that application is made.

20. An application to publish material from family proceedings held in private requires the court to balance the article 10 right of the press (acting as “watchdog” on behalf of the public) to freedom of expression, and the article 8 rights of the children and other family members to respect for their private and family life. The way in which those rights are to be balanced is set out in the speech of Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 at paragraph 17: "First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."

21. Re S concerned a criminal trial where a mother was charged with the murder of one of her children. S was the deceased child’s sibling. It was accepted by the press that the sibling should not be named, but there was an issue as to whether or not S’s Article 8 rights required the mother also to be anonymised in any reporting of the criminal proceedings. The application (brought on behalf of S by his guardian) was refused by the High Court and that decision was upheld by the Court of Appeal and the House of Lords.

22. The approach taken in Re S has been followed in subsequent cases. It is now standard practice in high-profile criminal trials, particularly those which involve the death of a child, for the adult defendants to be named but for orders to be made which provide that siblings are anonymised in published judgments and other reporting: see for example Cumbria CC v M and F [2014] EWHC 2596.

23. In Derbyshire County Council v Marsden [2023] EWHC 1892 Lieven J allowed disclosure of judgments and other documents from the family proceedings which related to both the deceased child, Finley Boden, and his sibling who was anonymised as “Child A”. The application for disclosure was brought following a criminal trial at which the parents had been convicted of murder. The Judge did not consider the balance between Article 8 and 10 rights in that case to be particularly complicated. There was significant public interest in the case, and a good deal of information about the family was already in the public domain by reason of the criminal trial. She summarised the competing arguments as follows: “24. The release of relevant documents allows press reporting and debate to be based on full information, as opposed to speculation and partial knowledge of the circumstances of the case. It is important here that the criminal trial, although doubtless having large amounts of information about the circumstances of Finley's death, will not have had information about the care proceedings.

25. On the Article 8 side of the balance, it is of great importance to protect the privacy of Child A and of those caring for him/her, including the wider family. They have had to deal with the tragic loss of Finley, and the trauma of the criminal trial.”

24. The issue of anonymity generally in the reporting of family proceedings has been considered in two recent private law cases: Griffiths v Tickle [2021] EWCA Civ 1882 and Tickle v A Father [2023] EWHC 2446 (Fam). In both cases the court has considered what Dame Victoria Sharp P described in the former case as “an increasingly sophisticated regime of transparency in the Family Courts”.

25. In Griffiths the Court of Appeal observed that: “The “intense focus” [per Lord Steyn in the passage from Re S set out above] must be brought to bear on the particular facts of the case. As Sir Mark Potter, P, memorably put it, the Re S approach “is not a mechanical exercise to be decided on the basis of rival generalities”: A Local Authority v W [2005] EWHC 1564 (Fam), [2006] 1 FLR 1.”

26. Tickle v A Father Lieven J discussed the approach taken in Griffiths and observed: “In practice, in most cases in the Family Court, it will be of great importance to preserve the anonymity of the child, so far as is reasonably practicable. I note this caveat because there will be cases, such as Griffiths Griffiths v Tickle [2021] EWCA Civ 1882. itself or cases concerning a high profile criminal case, where anonymity can only be preserved in reality to a certain degree.” Discussion

27. Jurisdiction to control the publication of information from criminal proceedings lies, obviously, with the criminal court. I appreciate that because the judgments have been disclosed to the CPS for the purposes of deployment within a criminal trial, it is likely that the criminal court will be required to consider issues of further disclosure and publication. The primary purpose of any reporting restrictions in the criminal court is to protect the integrity of those proceedings, although the court has power to restrict publication for other purposes, for example the power under CYPA 1933 s39 to protect the identities of children concerned in the proceedings.

28. The Family Court has its own separate responsibility to consider requests for disclosure and/ or publication of information from Family Court proceedings, particularly judgments, and to carry out a balancing exercise of the factors for and against in accordance with the authorities. In this case as in many others, one factor that the Family Court will take into account is the fact that there are concurrent criminal proceedings, and therefore in most cases it is unlikely that the Family Court will permit publication where there is a risk that it will prejudice the criminal process.

29. Because permission to publish is not yet being sought, I am not at this stage making a final decision as to where the balance is likely to fall in terms of publication. However, as the BBC has made it clear that the purpose of seeking disclosure is to inform a subsequent request for permission to publish, it is necessary at least to form a provisional view as to where the balance of Article 8/ Article 10 rights might lie. If it were clear at this stage that there were no real prospects of the judgments ultimately being published, there would be little or no purpose in providing them now to the BBC.

30. My preliminary view as to publication is that it seems reasonably likely that the balance will come down in favour of publication of the judgments in some form after the conclusion of the criminal trial. I have not yet conducted the full Re S balancing exercise but have at this stage identified the following relevant factors: (1) Without wishing to second-guess the outcome of future arguments in the criminal court about admissibility, at the very least there must be a realistic possibility that a considerable amount of information from the family proceedings will be placed into the public domain during the course of the criminal trial. I am aware, as a result of the previous application by the CPS for disclosure from these proceedings, that the prosecution case in respect of the foreseeability limb of the main offences with which the parents are charged rests, at least in part, on what the parents knew or should have known as a result of their involvement in the earlier proceedings in the Family Court. Even if some material from those proceedings is ruled inadmissible I find it difficult to imagine that the public will remain completely unaware, at the conclusion of the criminal trial, of the existence of the parents’ older children, or the fact of their previous involvement with children’s services. (2) Whether or not that is correct, it seems to me that the BBC is right when it says that after the conclusion of the criminal trial, whatever the outcome, there is likely to be widespread debate and discussion about the background to the events which took place early this year. The issues under discussion are likely to include the conduct of the parents, the actions of the local authority and other agencies, and the decisions taken by the Family Court. If the judgments are not published, it is inevitable that there will be a good deal of uninformed speculation about these issues. There is therefore a strong public interest in allowing public access to the judgments which set out the evidence which was before the court in the family proceedings, and the reasoning process that led to the decisions which were made. (3) The children’s Article 8 rights will be engaged in the decision and are likely to be impacted even if – as the BBC agrees should be the case – publication is achieved in such a way that their identities are protected. However, when the court comes to evaluate the extent to which publication would amount to an interference in those rights it will have to do so in a context where considerable information about the parents’ relationship and background, and quite probably the fact of the children’s existence, is already in the public domain. Inevitably that will impact on the balancing exercise.

31. On the basis then that it is reasonably likely that a decision will be taken in due course to permit publication in some form, it seems to me that there are strong arguments in favour of the judgments being disclosed to the BBC now. That will enable the BBC to make an informed decision as to scope of its request for publication and to engage with the other parties in respect of any proposed redactions. Respect for the BBC’s Article 10 rights carries with it the obligation on the court not to impose unnecessary barriers in the way of freedom of speech: see eg Tickle v A Father [2023] EWHC 2446 at paragraph

51. As Ms Palin put it for the BBC, there are real advantages in putting in place a “calm and measured” process which will allow time for all parties to make representations about both the principle of publication and the extent of redaction if publication is granted, rather than waiting until the trial has concluded and then dealing with all issues under pressure of time.

32. In advance of this hearing it was suggested by both the CPS and the local authority that disclosure of information to the BBC at this stage might prejudice the criminal trial. Neither the CPS nor the local authority sought to maintain that position at the hearing. However in written submissions following the hearing the mother’s counsel suggested that disclosure to the BBC ahead of the criminal trial might increase the risk of prejudicial information leaking into the public domain.

33. Such a submission can only be based on the suggestion that if disclosure is provided to the BBC, the BBC may intentionally or otherwise breach the provisions of AJA s12. I do not think that submission is sustainable. It is by no means unusual for the press to have access to information that cannot be reported because to do so might prejudice a criminal trial, or for other reasons. It is very common that information is heard in open court in a criminal trial that is subject to reporting restrictions and cannot be reported either during course of the trial or, less commonly, at all. The press are used to operating within those restrictions. As Lieven J pointed out in Marsden, “Given the criminal trial the press necessarily has information which they are restricted from publishing in the interests of protecting [the] privacy rights [of the child and those caring for him/ her].”

34. Looking at the wider context, the landscape of the Family Court as far as transparency is concerned is shifting. The effect of the transparency pilots The Transparency Reporting Pilot, Guidance from the President of the Family Division, November 2022. , which are shortly to be rolled out more widely, is that in future all accredited members of Press will be permitted to access a wide range of information from the Family Court, including documents and information referred to in court hearings. Much of this information inevitably will be subject to statutory reporting restrictions, and the right of the press to report is subject to those restrictions. PD12I, which deals with applications for reporting restriction orders, emphasises that the press must be assumed to be capable of distinguishing between information provided for background purposes or for a court application, and information that can be used for editorial purposes and published.

35. The BBC has confirmed that it has no intention, now or at all, of publishing any information which might identify the children, and is content to receive the judgments in redacted form so that the children’s names, dates of birth and genders are withheld. It has offered assurances as to the basis on which it will hold the disclosure (ie there will be no publication without permission being granted), and as to its compliance with AJA 1960, s12. I have been offered formal undertakings to that effect by both the journalist seeking disclosure and a member of the BBC’s legal department, but do not consider these to be necessary in circumstances where s12 applies.

36. I am confident that providing the disclosure sought, on the basis that it is sought, would not put either the integrity of the criminal process or the confidentiality of the children’s identities at risk.

37. For those reasons, the BBC’s application is granted and the local authority is directed to provide the judgments to the BBC in the redacted form in which they have been disclosed to the CPS. Proceedings after January 2022

38. In April 2023 the CPS made an application for disclosure of various documents from the family proceedings. Judgment was delivered on that application on 8 September 2023. It may well be that the BBC concludes that judgment contains little of interest, but it forms part of the picture as far as the court process is concerned and should be provided.

39. There has been an adoption application, which has now concluded. During the course of the hearing this week there was some discussion about the proceedings under the Adoption and Children Act and I expressed the tentative view that the judgments given in those proceedings, which relate to the “workings out” of the final welfare decisions I made in January 2022, were perhaps in a different category to the judgments which dealt with the decision-making process prior to that point. At the back of my mind was an awareness that adoption proceedings are excluded from the provisions in r.27.11 which permit accredited media representatives to attend hearings in the Family Court, and so the press would not have been entitled as of right to attend those hearings, although they could have sought permission to do so.

40. I have reflected on this issue since the hearing and come to a different view. The reason that adoption proceedings are excluded from the permission granted in r.27.11 is, I assume, because the information before the court in adoption applications is highly confidential and usually the identity of the applicant is protected. Also, the public interest in adoption applications is perhaps less strong, because in most cases the substantive welfare decision will have been taken earlier, at the end of the care proceedings, and not revisited during the adoption itself.

41. However in this case the situation is different. The adoption proceedings included both an application by the parents for permission to oppose and an application by a family member for joinder. In both applications very similar arguments were made as were put forward during the care proceedings and there was therefore a greater focus on the parents, and their current circumstances, than is the case in most adoptions. The public interest in the decisions taken in the adoption proceedings is correspondingly higher.

42. For those reasons I have concluded that the judgments given in the adoption proceedings should be included in the disclosure which is provided to the BBC. I will, of course, review the public interest arguments and conduct a full balancing exercise when it comes to making a decision as to publication in due course. I will also allow an opportunity for the children’s carers to make representations about publication, via the local authority if they would prefer. Summary of disclosure to be provided

43. The following judgments are to be disclosed to the BBC: a. The judgment of DJ Taylor dated 20 July 2018 (delivered at the conclusion of the Wales proceedings); b. The fact-finding judgment in these proceedings, dated 23 February 2021; c. The final welfare judgment dated 28 January 2022; d. The note of the judgment delivered on 20 January 2023, on the application for an interim care order for the parties’ fifth child [case number ZE23C50021]; e. [Judgments in the adoption proceedings]; f. The written decision on the CPS disclosure application, dated 8 September 2023.

44. The judgment given on the ICO hearing for the parents’ fifth child (item d) was not specifically requested by the BBC, simply because the BBC was unaware that any proceedings relating to that child existed. This judgment records a significant step in the actions taken by the local authority exercising its child protection responsibilities and it seems likely, if the other judgments are ultimately published, that this one will be also. At the very least, the BBC should be given an opportunity of addressing the court in respect of publication. Next steps

45. The main purpose of allowing disclosure to the BBC at this stage is to allow the parties and the BBC to put in place a process which will mean that later decisions as to publication are taken on a well-informed basis.

46. It seems sensible to me that steps should be taken now to establish which information from the judgments is likely to require redaction if the judgments are ultimately published. I recognise that any redactions agreed at this stage will be provisional because they may be affected by developments in the criminal trial. However if that work can be undertaken now it is likely to make the ultimate decision as to what, if anything, should be published much more straightforward.

47. I therefore intend to direct the parties to provide the BBC, by a date which I hope can be agreed, with the redactions they propose in the event that publication is permitted. This will help the BBC to focus its application for publication and to identify any disputed areas of redaction.

48. I conclude with some observations about the redaction process which I hope may assist the parties, and provide some reassurance to the parents as to the court’s likely approach. First, it is accepted by the BBC that the children’s identities should not be disclosed. By identities in this context I mean their names, dates of birth and genders – that is, information that would allow others in the community(ies) where they are living to identify them as the birth children of these parents. Identification would pose a high risk to the children’s physical safety and psychological wellbeing, and therefore the court is likely to scrutinise the redactions to ensure that confidentiality is achieved. It is possible, although I have not gone back to the judgments to check, that they contain other information that might reveal the children’s identities through what is known as “jigsaw” identification. It will be important to ensure any such information is removed.

49. Secondly, there is likely to be other particularly sensitive information in the judgments that should not, ultimately, be included in any published version. For example, some of the judgments contain personal medical information in respect of which the public interest in disclosure is minimal but the interference with Article 8 rights would be acute.

50. Thirdly, although I do not have a concluded view about this, there may be arguments in this case that the names of professionals, particularly front line professionals, should be redacted. The parties will need to consider the Court of Appeal’s decision in Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ

331.

51. Fourthly, there are inevitably references in the judgments to non-professional third parties, such as family members. Again without expressing a concluded view, it may well be that their Article 8 rights are such as to outweigh the public interest in disclosure of their identies or other information concerning them. The need for a reporting restriction order (“RRO”)

52. In the order I made on 19 October 2023 listing this hearing I recorded the position, as it then was, in respect of the ongoing adoption proceedings and the operation of CA 1989, s97. I went on to direct that any party seeking additional reporting restrictions beyond those already in force pursuant to s12/ s97 should ensure that an application for a RRO was issued and served in accordance with PD12I. No such application was issued.

53. Since the order of 19 October 2023 was made, the adoption proceedings have concluded and the s97 prohibition has expired.

54. During the course of this hearing I invited the CPS to clarify the scope of any reporting restrictions currently or likely to be in force within the criminal proceedings. I was told that (contrary to my assumption) no reporting restrictions had yet been imposed, as thus far the content of my judgments has only been discussed in chambers during the course of bail applications. Mr Smith also confirmed my understanding that these children are unlikely to fall within the scope of CYPA 1933, s39. So there is, at present, no restriction on the publication of material that would identify these children, including their names and photographs of them.

55. In those circumstances it seemed obvious to me, and no party (I thought) disagreed, that an application for a RRO was likely to be appropriate. The local authority agreed to make the application.

56. I said during the hearing that if the application was issued in the High Court, as it must be under PD12I, the local authority should explain in a covering note the background to the case so that if the High Court considered it appropriate the RRO application could be transferred here for me to deal with as a Deputy Judge of the High Court. At that stage I had forgotten that I had in fact already contacted the Family Division Liaison Judge, Francis J, much earlier this year when it appeared to me that there might be a need for a RRO, and had been granted authorisation to sit s9 to hear any such application. Once I checked my emails and realised this, I asked my clerk to notify the parties that this authorisation had been granted and that the local authority should confirm as much to the High Court when issuing the application.

57. Paragraph 21 of the submissions filed on behalf of the mother following the hearing reads: “It is noted that the Learned Judge has already decided the issue of disclosure having made enquiries from the High Court Family Division Liaison Judge as to whether any Reporting Restriction Order application (which would follow from the disclosure order) could be released to Her Honour for hearing.”

58. I was surprised to see that assertion After this decision was circulated in draft form, the mother’s solicitor apologised for what she described as an “error” in the submissions and asking for the judgment to be amended. As this was a serious accusation of bias, contained in a document submitted by leading counsel, I did not consider it appropriate to amend my judgment, but I record here the mother’s solicitor’s acceptance that it should not have been made. . As it happens my contact with the FDLJ took place well before the hearing, not after it. More importantly, the suggestion needs to be corrected because it betrays a fundamental misunderstanding of the limitations of s12 and s97 (set out at paragraph 13ff above). The need for a RRO arises irrespective of my decision on the BBC’s application, and does not “follow from” the disclosure order. That is because there are currently no restrictions in place which prevent the children being named publicly as subjects of the family court proceedings involving these parents, and it seems to me very likely – as I pointed out during the course of the hearing – that at some point during the criminal trial their names will be mentioned. In the absence of a RRO, that information will be fully reportable by any person – press or not – who attends the trial.

59. It seems unlikely to me that there will be any opposition on the part of the press to a RRO which simply extends the s97 protections to ensure that these children are not identified by name as a result of publicity surrounding the criminal trial. The BBC has already confirmed, as I would expect, that it has no intention of publishing anything which might identify the children. In those circumstances I will make the following directions: a. The local authority must circulate its draft RRO to the parties in advance of issuing the application; b. The parties are directed to inform the local authority, by no later than 4pm on Monday 4 December 2023, whether they have any observations on the draft order; c. Once issued, and assuming the application is transferred to me, the application for a RRO will be listed for a short hearing on notice to the press, pursuant to the PD12I procedure; d. No party save for a representative of the local authority is to attend that hearing. If there is no press opposition to an order being made in the terms sought, it can be made then. If there is opposition, the application will be listed for a further hearing which the parties may attend.