{"id":586288,"date":"2026-04-17T13:51:24","date_gmt":"2026-04-17T11:51:24","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/bbc-v-the-carer-ors\/"},"modified":"2026-04-17T13:51:24","modified_gmt":"2026-04-17T11:51:24","slug":"bbc-v-the-carer-ors","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/bbc-v-the-carer-ors\/","title":{"rendered":"BBC v The Carer & Ors"},"content":{"rendered":"
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Mrs Justice Lieven DBE : 1. by the BBC for disclosure of certain documents The Second Respondent ("the Carer") is the current carer of the children. The Third Respondent is the children, represented by their Guardian. 2. The BBC were represented by Chris Barnes, the LA were represented by Chloe Strnng, the Carer was represented by Mr Lafazanides (who, along with his instructing solicitor, acted pro bono), and the Guardian was represented by Joy Brereton KC and Jemimah Hendrick. 3. This judgment will be published, as it raises issues of wider importance, and because of the importance of open justice. However, for reasons that will become obvious I will only refer to the fact that there are two children who are now teenagers, but will not further identify either their ages, their sex, nor any identifying information about the Carer. 4. 5. 7. On 4 October 2024 two BBC journalists, Ms Berg and Mr Puri, lodged an application (through a C2 form) for (a) access to various documents nd (b) permission to report the contents of those documents subject to the limitations in an existing Reporting RestrictionsOrder ("RRO") and various agreed further restrictionsin order to protect, so far as possible, the interests of the children. The BBC's application was transferred to the High Court by HHJ Corbett on 9 October 2024. 8. 9. Private fostering agreements are regulated by s.66 and s.67 CA; provisions which are very rarely, if ever, considered by the courts and which are an element of the overall regime of the CA which receives very little public attention. A private fostering agreement is defined in s.66 as: \u201c66 Privately fostered children. (1) In this Part\u2014 (a) \u201ca privately fostered child\u201d means a child who is under the age of sixteen and who is cared for, and provided with accommodation in their own home by, someone other than\u2014 (i) a parent of his; (ii) a person who is not a parent of his but who has parental responsibility for him; or (iii) a relative of his; and (b) \u201cto foster a child privately\u201d means to look after the child in circumstances in which he is a privately fostered child as defined by this section. (2) A child is not privately fostered child if the person caring for and accommodating him\u2014 (a) has done so for a period a period of less than 28 days; and (b) does not intend to do so for any longer period. 10. The role of the local authority is set out in s.67, which as relevant states: \u201c67 Welfare of privately fostered children. (1) It shall be the duty of every local authority to satisfy themselves that the welfare of children who are or are proposed to be privately fostered within their area is being or will be satisfactorily safeguarded and promoted and to secure that such advice is given to those concerned with] them as appears to the authority to be needed. (2) The Secretary of State may make regulations\u2014 (a) requiring every child who is privately fostered within a local authority\u2019s area to be visited by an officer of the authority\u2014 (i) in prescribed circumstances; and (ii) on specified occasions or within specified periods; and (b) imposing requirements which are to be met by any local authority, or officer of a local authority, in carrying out functions under this section. (2A) Regulations under subsection (2)(b) may impose requirements as to the action to be taken by a local authority for the purposes of discharging their duty under subsection (1) where they have received notification of a proposal that a child be privately fostered. (3) Where any person who is authorised by a local authority to visit for the purpose has reasonable cause to believe that\u2014 (a) any privately fostered child is being accommodated in premises within the authority\u2019s area; or (b) it is proposed to accommodate any such child in any such premises, he may at any reasonable time inspect those premises and any children there. (4) Any person exercising the power under subsection (3) shall, if so required, produce some duly authenticated document showing his authority to do so. (5) Where a local authority are not satisfied that the welfare of any child who is or is proposed to be privately fostered within their area is being or will be satisfactorily safeguarded or promoted they shall\u2014 (a) unless they consider that it would not be in the best interests of the child, take such steps as are reasonably practicable to secure that the care and accommodation of the child is undertaken by\u2014 (i) a parent of his; (ii) any person who is not a parent of his but who has parental responsibility for him; or (iii) a relative of his; and (b) consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child. (6) The Secretary of State may make regulations requiring a local authority to monitor the way in which the authority discharge their functions under this Part (and the regulations may in particular require the authority to appoint an officer for that purpose).\u201d 11. In any application for disclosure of documents and reporting on Family Court proceedings the Court has to undertake a balancing exercise under the Human Rights Act 1998 (\u201cHRA\u201d) between the Article 8 (private and family life) rights of the children and other family members and the Article 10 (freedom of expression) rights of the media. The general approach to such an exercise has been extensively considered by the courts and is not in issue. The Court of Appeal provided a helpful summary of the law and the correct approach in Griffiths v Tickle[2021] EWCA Civ 1882 at [27]-[55]. Lord Steyn\u2019s pithy summary in Re Sat [17] remains the clearest formulation of the approach to be taken: "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." 12. In Tickle v A Father[2023] EWHC 2446 I set out a list of the principles that should be applied when dealing with an application to allow reporting in Family Court proceedings. At [48] \u2013 [50] I said: \u201c48. Sixthly, the child's best interest will be critical, Griffiths at [71], although they will still have to be balanced against the other rights asserted. 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 itself or cases concerning a high profile criminal case, where anonymity can only be preserved in reality to a certain degree. There may be an important distinction between cases such as the present, where the reporter is seeking to report wholly generic and systemic matters, and where the reporting is of the facts and evidence in the case, where the risk of identification of the child is much greater. The experience of the Transparency Pilot currently under way is that anonymity of the child can be effectively preserved by the use of a detailed Transparency Order. 49. Seventhly, there is a public interest in the reporting of cases in the Family Courts. This is made clear in the report of the President of the Family Division (Sir Andrew McFarlane) in his report Confidence and Confidentiality: Transparency in the Family Courts (21 October 2021). At paragraph 22 the President said: "The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects. In short, the reasons for this conclusion are as follows: \u2026" 50. The Report goes on to refer to the genuine and legitimate public interest in the Family Justice System for the purposes of gaining public confidence in the system, and greater knowledge and understanding of issues such as domestic abuse, see [30]. In my view it is relevant that because most Family Court cases are held in private and with no reporting, there is less knowledge or understanding of the challenges facing the Family Justice System than those facing the Criminal Justice System. There is a very real public interest in there being greater understanding of the work done by the Family Courts.\u201d 13. In the present case the BBC are seeking documents from the Family Court proceedings and to report on some aspects of those proceedings. During the course of proceedings any reporting is very heavily restricted by s.97 CA. However, that provision only applies during the course of the proceedings and not when they have concluded. After proceedings are ended, the relevant provision is s.12 AJA. Sections 12(1), (2) and (4) state: \u201c12 Publication of information relating to proceedings in private. (1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say\u2014 (a) where the proceedings\u2014 (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor; \u2026. (e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published. (2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication. \u2026 (4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this Section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).\u201d 14. This provision has been considered in detail by Munby LJ in A v Ward[2010] EWHC 16. The importance of Wardto the present case is that Munby LJ set out what could or could not be published pursuant to s.12 AJA. The list of what can be published is much more extensive than is commonly assumed by many Family lawyers. Although that case was in the High Court, and therefore not technically binding upon me, it has been supported in the Court of Appeal and therefore all parties accept that it is binding authority. The most relevant parts of that judgment are [76] and [111] – [113]: \u201c76. I can conveniently start with the summary which I set out in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142 , at para [82]: \u201c(i) Section 12(1)(a) of the Administration of Justice Act 1960 has the effect of prohibiting the publication of: \u2018information relating to proceedings before any court sitting in private \u2026 where the proceedings (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989 ; or (iii) otherwise relate wholly or mainly to the \u2026 upbringing of a minor.\u2019 (ii) Subject only to proof of knowledge that the proceedings in question are of the type referred to in s 12(1)(a) , the publication of such information is a contempt of court. (iii) There is a \u2018publication\u2019 for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children. \u2026 (v) Section 12 does not of itself prohibit the publication of: (a) the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing; (b) the name, address or photograph of such a child; (c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings; (d) the date, time or place of a past or future hearing of such proceedings; (e) the nature of the dispute in such proceedings; (f) anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place; (g) the name, address or photograph of the witnesses who have given evidence in such proceedings; (h) the party on whose behalf such a witness has given evidence; and (i) the text or summary of the whole or part of any order made in such proceedings. (vi) Section 12 prohibits the publication of: (a) accounts of what has gone on in front of the judge sitting in private; (b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive); (c) extracts or quotations from such documents; (d) summaries of such documents. These prohibitions apply whether or not the information or the document being published has been anonymised.\u201d \u2026 111. The point can be tested by an example which was canvassed during the course of argument. Suppose that a local authority in exercise of its duties under section 47 convenes a child protection conference at a time when there are no proceedings on foot and, indeed, when there has not even been consideration of whether or not proceedings should be commenced. Now whatever other restrictions there may be upon the use of the document, section 12 plainly cannot apply and the publication of the minutes of that conference cannot be a contempt of court, because there are no proceedings on foot. But why should the self-same act \u2013 publishing the minutes but without any reference to the proceedings \u2013 be a contempt of court merely because proceedings have in fact been commenced and the minutes lodged with the court attached to some witness statement or report? Why should the question of contempt in relation to a publication which does not refer to any proceedings at all depend upon whether or not proceedings have been commenced and upon whether, if they have, the particular document has been produced to the court as an exhibit? In my judgment it makes no sense. And it makes no sense because it is not the law and because it does not focus upon the statutory language. 112. Where, then, is the line to be drawn? The key is provided, of course, by the statutory principle, reproducing the common law principle to be found in Martindale , that what is protected, what cannot be published without committing a contempt of court, is \u201cinformation relating to [the] proceedings\u201d. And from the various authorities I have been referred to one can, I think, draw the following further conclusions 4 about what is and what is not included within the statutory prohibition: i) \u201cInformation relating to [the] proceedings\u201d includes: a) documents prepared for the purpose of the proceedings; and b) information, even if not reduced to writing, which has emerged during the course of information gathering for the purpose of proceedings already on foot. ii) In contrast, \u201cinformation relating to [the] proceedings\u201d does not include: a) documents (or the information contained in documents) not prepared for the purpose of the proceedings, even if the documents are lodged with the court or referred to in or annexed to a witness statement or report; or b) information (even if contained in documents falling within paragraph (i)(a)) which does not fall within paragraph (i)(b); unless the document or information is published in such a way as to link it with the proceedings so that it can sensibly be said that what is published is \u201cinformation relating to [the] proceedings\u201d. 113. Put shortly, it is not a breach of section 12 to publish a fact about a child, even if that fact is contained in documents filed in the proceedings, if what is published makes no reference to the proceedings at all. After all, as Lord Denning MR said in In re F , it is not a contempt to publish information about the child, only to publish \u201cinformation relating to the proceedings in court\u201d. Or, as Scarman LJ put it, \u201cwhat is protected from publication is the proceedings of the court\u201d. 15. The Supreme Court in Cape Intermediaries Holdings Ltd v Dring (Asbestos VictimsSupport Groups Forum UK)[2019] UKSC 38, considered the principle of open justice in the context of access to written material placed before the court in a civil action: \u201c41. The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court\u2019s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court\u2019s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case. 42. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases – to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. In A v British Broadcasting Corpn, Lord Reed reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott [1913] AC 417, 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard \u201cwith open doors\u201d, \u201cbore testimony to a determination to secure civil liberties against the judges as well as against the Crown\u201d (para 24). 43. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties\u2019 cases. In the olden days, as has often been said, the general practice was that all the argument and the evidence was placed before the court orally. Documents would be read out. The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out. It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material. 44. It was held in Guardian News and Media that the default position is that the public should be allowed access, not only to the parties\u2019 written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing. It follows that it should not be limited to those which the judge has been asked to read or has said that he has read. One object of the exercise is to enable the observer to relate what the judge has done or decided to the material which was before him. It is not impossible, though it must be rare, that the judge has forgotten or ignored some important piece of information which was before him. If access is limited to what the judge has actually read, then the less conscientious the judge, the less transparent is his or her decision. 45. However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so. As was said in both Kennedy, at para 113, and A v British Broadcasting Corpn, at para 41, the court has to carry out a fact-specific balancing exercise. On the one hand will be \u201cthe purpose of the open justice principle and the potential value of the information in question in advancing that purpose\u201d. 46. On the other hand will be \u201cany risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others\u201d. There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings. But even then there may be good reasons for preserving their confidentiality, for example, in a patent case.\u2019\u201d 16. In Newman v Southampton City Council[2021] EWCA Civ 437 the Court of Appeal was considering an application for the release of documents in care proceedings where the decision of the first instance judge had been overturned by the Court of Appeal. Ms Newman (a journalist) sought a very wide range of documents, see [26], including expert reports and medical records. King LJ reviewed the caselaw and said at [48] – [49]: \u201c48. In my judgment, what Ms Newman seeks is beyond anything that either the guidance or authorities have to date had in mind. Ms Newman seeks to embark upon what has been referred to as an "archaeological dig". She wishes to trawl through thousands of highly confidential documents, many of which refer in detail to the most intimate medical and psychological details of this child's life, in order to see if something turns up. Almost certainly something would 'turn up' as it has long been acknowledged that things went wrong in this case to the significant prejudice to the mother, but mainly to the detriment of M. This is abundantly clear from the Court of Appeal judgment in the appeal against the making of the placement order. 49. Ms Newman is not seeking to push the boundaries of transparency in the family courts by way of a better understanding of the court process, or of the hearings which took place in respect of M, or even particularly to hold the judge or the family justice system to account. Ms Newman seeks to delve beyond the court proceedings themselves and to have access to documents such as social care and medical records in her capacity as an investigative journalist in order to track through the decision-making process which informed the decision to apply for a placement order. It should be understood that in saying this I do not in any way criticise Ms Newman's proper journalistic desire to hold the local authority to account. I am, however, seeking to establish the context in which the balancing exercise had to be conducted by the judge.\u201d 17. Ultimately the Court of Appeal upheld the decision of the judge to release limited additional documentation, but in a postscript they looked to the President of the Family Division\u2019s (\u201cPFD\u201d) Transparency Review to provide guidance on the issue of disclosure in Family Court proceedings. It should be noted that all parties in the present case agree that the Media Reporting Transparency Pilot, which is presently underway in the Family Courts, does not bear directly on the issue in this case. The Pilot concerns reporting of ongoing Family Court cases rather than applications such as this for disclosure of documents in cases that have been concluded, and which have not come within the Pilot. However, the principles espoused by the PFD in the Transparency Review, and referred to in the caselaw set out above, about the need for greater transparency in the Family Court system in order to support public confidence, are of relevance. This is necessarily subject to protecting the interests of the children concerned. Some information about the children is also already in the public domain and therefore open to the BBC and others to report upon. Derbyshire CC vMarsden[2023] EWHC 1892 (Fam), was another case where there had been a criminal trial with a great deal of media coverage, and the issue was the degree of reporting that would be allowed about the earlier Family Court proceedings. I said at [26] – [27]: \u201c26. I have put in place a RRO that limits any reporting to protect the anonymity and Article 8 rights of Child A and those caring for him\/her. Given the criminal trial, the press necessarily has information which they are restricted from publishing in the interests of protecting those privacy rights. In broad terms, the RRO restricts the publication of names, photos and information about schools which could lead to the identification of Child A or his\/her carers. I have ordered that any material disclosed as a result of this judgment is redacted to ensure that that information is not disclosed. 27. None of the parties disputed that the documents listed, subject to redactions, should be given to the press. The parents expressed some concern about releasing any information which could lead to Child A's identification. However, in the circumstances, I put very much more weight on the submissions of the Guardian and the carers, both of whom accept the principle of the documents sought being released.\u201d 19. The BBC do not seek to identify (i) the children, (ii) the name of the Carer and their partner, (iii) where the children are living (including the local authority area), (iv) their schools, or (v) 20. Mr Barnes in his submissions particularly focused on the public interest in the effectiveness of oversight (or not) of \u201cprivate fostering arrangements\u201d within the terms of the CA. He pointed out, undoubtedly rightly, that this is part of the overall scheme of child protection in the CA which very rarely comes before the courts or receives any public attention. He submits that there is a strong public interest in having greater knowledge and understanding of whether this system operates effectively to protect children. 21. 22.In relation to this material the LA submits that it gives little or no information about the children and largely, if not entirely, maintains their privacy rights. Therefore the contents of the Prosecution Note could be referred to but no information within it that would assist in identifying the children. 23. 24. The introduction to the Learning Review states: \u201cFor enduring legal and health and safety reasons, it is not permissible to publish the review, which concluded in April 2024 However, after consultation with the national child safeguarding practice review panel, it has been decided that the learning identified by the review should be widely available for professionals and published. This document represents the results of that decision.\u201d 25. The Leaming Review is written at a level of generality that necessarily impacts on its usefulness. However, it does allude in a number of places to the ability (or non-ability) of the safeguarding system to identify private fostering arrangements. There are also a number of comments on the problems with assessments, multi-agency working, the impact of the Covid pandemic, poor school attendance leading to lack of oversight, and the turnover of social workers. These are depressingly familiar themes in this type of exercise, but it is of considerable public interest to understand the frequency with which the same issues come up in cases of this sort. The Leaming Review itself contains nothing that would identify the children, or even whose children are concerned, albeit there is no restriction on linking the Leaming Review to the case. 26. ZW22C50103 \u2022 28. Mr Barnes relies on a number of authorities on the approach the court should take when material is already in the public domain. The cases referred to cover a range of factual scenarios, including Attorney-General v GuardianNewspapers (No 2)[1990] 1 AC 109 (the "Spycatcher"case). In Spycatcherthe book in question was available in Australia; per Lord Goff of Chieveley at p.289D-E: "… if the information in the book is in the public domain and many people in this country are already able to read it, I do not see why anybody else in this country who wants to read it should be prevented from doing so". 29. On the other side of the line lies PJS v News Group Newspapers Ltd [2016] UKSC 26 where the Supreme Court reversed a decision of the Court of Appeal to discharge an interim injunction, pending a full trial, to prevent repeated invasions of privacy pending trial, notwithstanding that the information was circulating on social media. However, in PJSthere was a great deal of material on social media, but that was largely in breach of earlier orders. Therefore the case is primarily concerned with the need to uphold the authority of court orders where material has been published contrary to such orders. 30. In Re Stedman[2009] EWHC 935 King J (as she then was) was ) with a situation where there had been a large amount of media coverage of the children in question, to a significant degree with their consent, or that of their parents. The local authority was seeking a RRO to prevent further reporting in order to protect a number of children. At [79] and [94] King J said: "79. In Mosley v News Group Newspapers Ltd [2008} EWHC 687 (QB), Eady J said: \u201cThe extent to which material is truly \u201cin the public domain\u201d will ultimately depend upon the particular facts before the Court. In Attorney-General v. Greater Manchester Newspapers Ltd [2001] All ER (D) 32 (Dec) the test was applied as to whether certain information was \u201crealistically\u201d accessible to members of the public or only \u201cin theory\u201d. \u2026 \u201c94. In considering the important issue of proportionality the court must consider the extent to which the interference with the Article 8 rights of the children has already happened and on a consensual basis. Munby J put it this way in Re X, Y [2004] EMLR 607 [57] \u201cIn considering the proportionality of the proposed interference with the right of [the child] to respect for his private and family life, the judge must again consider the magnitude of the interference proposed. He must consider among other things \u2026.. the extent to which this additional intrusion would add to the interference which has already taken place and is bound to take place in the future\u2026\u201d 31. She concluded by refusing the local authority application saying at [95] \u2013 [97]: \u201c95. I do not underestimate the magnitude of the interference to the children\u2019s Article 8 rights brought about as a result of the manner in which Mr Patten and Mrs Stedman exercised their respective parental responsibility in allowing the press access to Chantelle and Alfie. I make no findings as to that aspect of the history and it is agreed by all the parties that any application that Mr and or Mrs Patten and\/or Alfie may make to be permitted hereafter to speak to the media is to be held over for determination on another day. 96. In carrying out the ultimate balancing exercise I unhesitatingly, if reluctantly, conclude that even taking into account the harm to Chantelle, Alfie and Maisie which may well follow, allowing the Local Authority application to amend the Reporting Restriction order by preventing publication of the DNA test and\/or of photographs and images already in the public domain would represent a disproportionate interference in the Article 10 rights of the press and of Alfie\u2019s Article 8 and Article 10 rights to rectify the erroneous information about him. 97. Not only in my judgment would it be disproportionate but it would be futile. Mr Lord accepted that s12(4)(a)(i) is case specific and that circumstances can arise where, in carrying out the balancing exercise, it may be that the availability of the material in dispute is so extensive and has been in the public domain for such a length of time that it becomes the decisive factor. This is one such case. Eady J said in Mosley [34] \u201cthe Court should guard against slipping into playing the role of King Canute\u201d. In my judgment the dam, as Eady J described it, has indeed burst and in practical terms there is no longer anything which the law can protect; the granting of the injunction at the present juncture would merely be a futile gesture.\u201d 32. Each of the Respondents strongly submits that there should be no disclosure of documentation from the Family Court proceedings. They submit that any further reporting will be highly detrimental to the best interests of the children. Mr Lafazanides goes further and submits that the Court should make a further RRO preventing any reporting about the children and their experiences. Although the Respondents all advance the same case, it is important to carefully distinguish between their interests in the proceedings. 33. \u200b the LA\u2019s interest is now only as the holder of the relevant documents. The children\u2019s interests are fully represented by the Guardian and her legal team, and the Carer\u2019s interests represented by Mr Lafazanides. In those circumstances I questioned the basis of the LA\u2019s interest, or their ability to rely on the restrictions in s.12 AJA. There might be cases, most obviously where the children are not represented, where the local authority is effectively putting forward the children\u2019s interests. But that was not this case. In the hearing Ms Strong relied on the Article 8 rights of other children and individuals whose names appear in the papers. However, her Skeleton Argument focused entirely on the Mother\u2019s children and their vulnerabilities and did not raise an issue with any other third parties. In any event, such third parties can entirely be protected by a process of redaction. I asked at the hearing that the LA undertake that exercise, which has now been carried out. 34. I am concerned that the LA\u2019s representation at the hearings, and submissions that there should be no disclosure, had more to do with protecting the reputation of the LA than any legal interest in, or forensic need, to protect the interests of the children. As I have said, that was very ably done by the Guardian and her team. Restrictions on the reporting of Family Court cases and the terms of s.12 AJA are there to protect the interests of children in the proceedings, not the reputations of public authorities or professionals. There will be cases where it is appropriate to redact the names of professionals working with the children, or the name of the local authority, to protect the anonymity of the children or sometimes their welfare interests in working with those professionals, but that is not this case. There may be an entirely separate category of case where it is appropriate to redact the names of professionals because of a specific risk to them, but again that is not this case. 35. The Guardian . She produced a very helpful report for these proceedings. The personal circumstances of the children are not relevant to the BBC reporting and I do not intend to set them out here. 36. 37. 38. Mr Lafazanides represents the children's Carer. I am not going to identify their relationship to the children in order to do my utmost to protect the children's anonymity. They feel angry at the BBC because they feel that they were not properly consulted about the application. I note this is strongly contested by the BBC. 39. 40. Ms Brereton KC for the Guardian submits that the Article 8\/10 balance is in favour of non-disclosure given the clear evidence of detriment to the children from further reporting. She highlights the following points from King LJ's judgment in Newman: i) Children have independent privacy rights of their own: PJS[72]; ii) Rights of privacy are not confined to preventing the publication or repo1iing of information. To give a third party access to information by allowing them to see it, is in itself an incursion into the right of privacy for which there must be a proper justification: see Imermanv Tchenguiz[2011] Fam 116 CA at [69], [72] and [149]; iii) Even "the repetition of known facts about an individual may amount to unjustified interference with the private lives not only of that person, but also of those who are involved with him": JIH v NewsGroup Newspapers Ltd[2011] EMLR 9, [59], per Tugendhat J; iv) Repetition of disclosure or publication on further occasions is capable of constituting a further invasion of privacy, even in relation to persons to whom disclosure or publication was previously made-especially if it occurs in a different medium. It follows that the court must give due weight to the qualitative difference in intrusiveness and distress likely to be involved in what is now proposed: PJS[32(iii)] and [35]. 41. Ms Brereton submits that this case is analogous with Newmanbecause it involves the BBC unde1iaking what could be described as a "fishing expedition" or what King LJ called an "archaeological dig" through old papers to see if anything interesting was turned up. 42. 43. Even if the risk of jigsaw identification could be prevented (or limited), which the Guardian considers will not be possible, there is the greater concern about the impact Conclusions 44. The BBC's application is for disclosure of specific categories of documents_ and permission to report in respect of that material, subject to not disclosing the names, photos or other identifying features in respect of the children. The Court must apply a balance between the Article 8 rights of the children and carer (as well potentially of third pa1ties) and the Article 10 rights of the press to repo1t. The case law makes clear that neither right takes precedence, but a detailed scrutiny needs to be applied. Although the children's rights are not paramount, close regard needs to be given to them. I note at the outset that any third party rights can be fully protected by a process of redaction and I make no futherr reference to them. 45. Any judge faced with the facts of this case would wish to protect the children as far as 46. I am also very conscious that it is not possible to be confident about being able to protect the identity of the children given the nature of the coverage that has already taken place and the facts that are in the public domain. However, any attempt by the Court to protect the children's Article 8 rights has to be done in the real world and in particular in light of what has already be reported 47. In my view, the critical issue in this case is that there is a large amount of info1mation about the matters upon which the BBC wishes to report which is alreadyin the public makes clear that the fact of the Family Court proceedings and many of the factual acknowledged failures of the LA to properly safeguard their interests. 48. Putting this information together the BBC (and any other media outlet) could publish extensive details and commentary about this case without the Court ordering any further disclosure. As such, this case is very different from Newmanwhere much of the information that the journalist wished to see related to matters that were not in the public domain. In terms of the balancing exercise, the BBC has made clear that it will accept considerable limitations on what it can report in an effort to prevent (or at least limit) the risk of identification of the children, and any information about their present circumstances. 49. Mr Lafazanides on behalf of the Carer asks the Court to make a RRO to prevent the BBC from any further reporting in respect of the children. However, this information is already readily available to the public, as set out above. In my judgement it would be entirely wrong to try now to prevent further reporting of material in the public domain. It would be a very significant interference with the media\u2019s Article 10 rights, quite apart from the principles of open justice as set out in Dring. This is the type of situation that King J dealt with in Re Stedman, where she rejected the argument for further restrictions on the basis that they would be futile. 50. I accept Ms Strong and Ms Brereton\u2019s submission that each further release of information, including in principle going so far as each court document, is in law a further interference with the children\u2019s Article 8 right to privacy. However, taking a proportionate approach, the real further harm comes from the fact of further reporting rather than the specific information disclosed in the court documents. The Court will not disclose medical reports or psychological assessments which may contain highly personal information and which are not central or important to the issues the BBC is interested in. This is a key distinction from Newmanwhere the reporter was seeking access to extensive highly confidential documents, such as medical reports. However, to prevent any further reporting would be to go far further than refusing the BBC\u2019s application. 51. On the other side of the Article 8\/10 balance, I accept that there is a real public interest in reporting on this case Firstly, as the PFD has made clear, there is a strong public interest in better public knowledge and understanding about the working of the Family Justice System and therefore of the courts and local authorities working within it. This entirely accords with Dringat [43] and the public interest in understanding how the Family Justice System generally works. Secondly, this case raises a little known issue within the CA, that of private fostering arrangements and the local authorities\u2019 duties of oversight over such arrangements. These provisions very rarely come before the Court and I accept are rarely considered. Private fostering arrangements are not subject to court oversight and thus the media necessarily has a greater role in casting any public light on the question of whether the statutory scheme is effective or not. 52. There are also a number of other issues raised in the case, such as inter-agency working and school oversight of children, which are highly topical. Thirdly, the Learning Review and the LA\u2019s statement make clear that there have been serious failures by the LA and a lack of coordinated information-sharing between various state agencies. This is a depressingly familiar scenario which there is a real public interest in the media reporting on and generating a wider public discussion. As I have said above, it is not the statutory purpose of s.12 AJA to be used to prevent local authorities being made publicly accountable. 53. Ms Brereton and Ms Strong submit that without the disclosure of the Court documentation sought by the BBC, any further reporting would be necessarily more limited and might not take place at all. It does not seem to me that it is for the Court to speculate as to whether the BBC will or will not report further on the case if they are not allowed to see the Court documents. I should proceed on the basis that they would be entitled to do so, and that the harm that I accept would be caused to the children would therefore largely follow in any event. This is not a case where without the documents there is simply nothing to report upon. 54. In those circumstances, in my view the Article 8\/10 balance tilts quite clearly in favour of allowing reporting. If there is going to be reporting, or it can be assumed, then there is a strong public benefit in it being as well informed as is possible. There is no benefit in the media being required to speculate as to what happened in proceedings if the information can be given to them without any material additional harm to the children. There is a danger in cases such as this in the refusal of permission to disclose documents generating more and less well informed public interest than if the Family Justice System is open and shows that there is nothing to hide. 55. The terms of the order will do its utmost to protect the children\u2019s identities and their current circumstances. Subject to those detailed terms I allow the BBC\u2019s application.<\/p>\n<\/div>\n

\n

Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Mrs Justice Lieven DBE : 1. by the BBC for disclosure of certain documents The Second Respondent (“the Carer”) is the current carer of the children. The Third Respondent is the children, represented by their Guardian. 2. 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