Case Law: Re E (A Child), Reporting Restrictions and the foreign media, a pragmatic approach

21 01 2014

2646_MunbyIn the case of Re E (A Child) ([2014] Fam 6) the President of the Family Division, Sir James Munby, returned to the vexed question of reporting restrictions in children cases. He, once again, emphasised the importance of permitting public debate about a decision.  He stressed the need to proceed with caution where the foreign media were involved and ordered express exemptions covering broadcast and print media outside the jurisdiction.  He also permitted publication by the mother on the internet in languages other than English.

Background

The child, E, who has a Slovakian mother, was the subject of care proceedings in 2013 (when he was aged 12).  He was subsequently detained under the Mental Health Act 1983 and made a ward of court.  The mother had returned to Slovakia and the case was the subject of a media and social media campaign.

There were a number of High Court hearings.  In December 2013, Munby P approved a care plan providing for E to be placed in the care of the local authority but living with his maternal aunt. The wardship was to be discharged.  He made a reporting restriction order.

Judgment

The judgment dealt with a number of issues concerning children cases in relation to Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility regulation, commonly known as Brussels II revised (BIIR) and the Vienna Convention on Consular relations.

In relation to reporting restrictions, the Judge made one in essentially the same form as in Re P (A Child) [2013] EWHC 4048 (Fam).  This included a “territorial limitation” – namely that the order was not binding on anyone outside the jurisdiction, except

(a) the First and Second Respondents or their agents;

(b) any person who is subject to the jurisdiction of this court;

(c) any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court;

(d) any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and

(e) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

The reporting restriction provided that

Subject to the “territorial limitation” above, this order prohibits the Respondents from facilitating or permitting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service any information, including the mother’s married surname, that reveals the identity or name or address or whereabouts of the child (whose details are set out in Schedule 1), or the identity or name or address or whereabouts of her carers, or any pictures of the child or her carers if, but only if, such publication is likely, whether directly or indirectly, to lead to the identification of the child as being:

(a) A child who is or has been subject of proceedings under the Children Act 1989 or the Adoption and Children Act 2002; and/or

(b) A child who has been removed from the care of her parents; and/or

(c) A child whose contact with her parents has been prohibited or restricted.

Provided that nothing in this order prevents the publication of the mother’s first and maiden names.

The Judge noted that in this case (as in Re P), there was an “an obvious and compelling need for public debate to be free and unrestricted“. There was an equally compelling claim that she should be allowed to tell her story to the world.  However, this claim would not be advanced by identifying E or his carers.  He was in the early stages of recovery from a very severe illness and needed to avoid further stress.  The Judge concluded

“In short, the balance needs to be struck in such a way as to facilitate public debate and enable the mother, if she wishes, to tell her story, whilst at the same time protecting E’s anonymity. This is achieved, in what in my judgment is the appropriate way, by the provisos at the end of paragraphs 11 and 15 of the order” [54].

In relation to foreign media the English court had to proceed with very great caution. The media in another State were a matter for the authorities in that state, not those in England.  As the judge put it

“What would we think, what would the English media think, if a family judge in Ruritania were to order the Daily Beast to desist from complaining about the way in which the judicial and other State authorities in Ruritania were handing a case involving an English mother?” [56]

He noted t hat, in all probability, the making of such an order would be “an exercise in futility”.

Nevertheless,

“a different approach may be justified where internet or satellite technology is involved, for there the media have an extra-territorial effect. It is of the essence of the internet that, wherever the service provider or the service provider’s servers may actually be located, the information is accessible throughout the world. So, in principle, attempts by a court to control the internet are not subject to the complaint that they are thereby interfering with the purely internal affairs of a foreign State” [57].

As a result, proviso (ii) to paragraph 15 of the Order clear that the order was not seeking

“to interfere in any way with the print or broadcast media in any foreign country, including but not limited to Slovakia, even if it is the English language which is being used” [58].

In relation to internet and satellite services, proviso (iii) confines the potential application of the order to those services using the English language.

The result of the order was, therefore, that the mother could publish whatever she wants in the foreign print or broadcast media and, provided that it was not in English language, on the internet.  The only restriction placed on the mother’s freedom to publish her story was that

“she must not do so in the English print or broadcast media or, using the English language on the internet, in such a way as to identify [the child]” [59]

Comment

This is, once again, a sensible and pragmatic decision from the President of the Family Division who continues his efforts to promote openness and transparency in the family courts (see our recent post on the new Practice Guidance).   Contrary to some media reports, he did not say that the Court could not prevent the Slovak mother from speaking to the foreign media.  Rather, the order prevents anyone from “facilitating or permitting” publications by which identify the child but makes two exceptions.

The first is for the publication “of anything” in the “print or broadcast media in any country other than England and Wales”.   Although the wording is not entirely clear the intention is permit the mother to publish anything she wishes in the foreign media but not the mother from the ban on identifying the child.

The second, is for publications on the internet in languages other than English.  Once again, the intention is to permit the mother to place anything she wishes about the case on the internet provided it is not in English.

In short, the Court is continuing to assert jurisdiction over the mother, but permitting her to “tell her story” in ways in which the information about the child is unlikely to come to the attention of the child and his carers.  The order was, in this way, tailored to the harm which the Court was trying to prevent – harm to a recovering child in England.  The provisos relating to foreign media and foreign language internet publication are likely to become standard in all contra mundum injunction family cases.


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21 01 2014
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17 02 2014
Case Law: Re E (A Child), Reporting Restriction...

[…] In the case of Re E (A Child) ([2014] Fam 6) the President of the Family Division, Sir James Munby, returned to the vexed question of reporting restrictions in children cases.  […]

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