In the case of Swansea v XZ ( EWHC 212 (Fam)), which Moor J described as “wholly exceptional”, an order was made preventing the reporting the name of a defendant who had pleaded guilty in a criminal case (“the Mother”).
She had pleaded guilty to the infanticide of one child and wounding another but, by the time of the hearing, had the care of her children and was awaiting sentence.
The Mother was charged with murder of one child, AZ, and grievous bodily harm against another child, BZ. A reporting restriction order was made on 6 March 2013 and was renewed on 11 March 2013. The media were given notice of the application but were not represented.
On 16 December 2013, the Mother pleaded guilty to infanticide and wounding but, at the time of the hearing, she had not yet been sentenced by the Crown Court. The local authority applied for an extension of the reporting restriction order until the youngest of the surviving children was 18.
Times Newspapers Ltd, Guardian News and Media Ltd (publishers of the Guardian and the Observer), the British Broadcasting Corporation and the South Wales Evening Post (“the media organisations”) opposed the the reporting restrictions order. However, when they were served with the full papers they agreed that, in the exceptional circumstances of the case, they were a need for anonymity to protect the welfare of the surviving children. The only dispute before the court was as to the extent of the restrictions necessary to ensure that the children were not identified.
The Judge began by setting out the history. Child AZ had died in 206. At that stage the police and the local authority took no action. BZ was appeared to hospital and was found to have injuries. In November 2007 and interim care order was made.
The Mother’s mental health deteriorated and she was assessed as being a high risk to dependent demanding children and a high risk of self-harm. After inordinate delays she was charged with the two offences. The children have, however, returned to live with her. It seems likely that a non-custodial sentence will be made.
The local authority submitted that if the Mother was identified this would cause very significant harm to the children. There was a high risk of the family being targeted in the community by threats and reprisals if there were identified.
The Local Authority had indicated that, if a Reporting Restriction Order was not made, they would move the family immediately to a completely new area of the country and give them new identities.
The Judge then when on to consider the relevant legal principles, beginning with the strong presumption at common law in favour of open justice:
This strong presumption can only be rebutted in exceptional circumstances (where there is a pressing social need requiring its restriction and, even then, the restriction must be proportionate). There must be anxious scrutiny of the legal and evidential basis for such requests. The open justice principle is regarded as integral to protecting the rights of those involved and essential to maintaining public confidence in the administration of justice. 
The Court had to balance Article 8 and Article 10 and to apply section 12 of the Human Rights Act 1998.
The Judge considered Re S (A child) (Identification: Restriction on Publication) ( 1 AC 593) and the a number of first instance cases in which these issues had been considered, in particular Re P (A child) ( EWHC 4048 (Fam)).
The Judge agreed with the media organisations’ concession that this was a wholly exceptional case in which anonymity was justified for the Mother and Father as well as for the children. He went on to say that he had to permit reporting anything that did not lead to the identification of the children. In dealing with this issue he had to consider the “jigsaw effect” .
The Judge then decided that the media could not refer to the religious faith of the family and could not name AZ.
Finally, the Judge set out a list of “matters which were permitted for publication” which could be included in the order.
This is a very rare example of an order being made preventing the reporting of the name of a defendant who pleaded guilty in a criminal court in order to protect the interests of children. The exceptional nature of the case is demonstrated by the fact that media accepted the need for anonymity.
The Judge, nevertheless, did not make the order by on the basis of the the concession but considered the applicable principles and decided that serious harm would be done to the children if the identity of the Mother and Father became known. An anonymised public judgment was then made available in accordance with the new guidance on Transparency in the Family Courts [pdf].
Although the full background is not set out in this public judgment the material which is disclosed makes it clear that this was an extremely unfortunate case where a Mother with serious mental health issues had harmed her own children but then recovered. The criminal proceedings took place more than 4 years after a Family Judge had found that it was likely that the Mother had caused injuries to her child. By the time of her guilty plea, the Mother appeared to have recovered and was caring for her children. There was general agreement that disclosure of her name would have very serious adverse effects on her family.
This case demonstrates that there are factual situations in which Article 8 considerations can outweigh the requirements of open justice, even in the context of a criminal prosecution.
[Update] The Mother was sentenced on 13 February 2014 by Wyn Williams J to a 3 year community order. He described the case as “very rare and unusual” and told the Mother.
“I am satisfied your actions were caused by severe post-natal depression, which you were suffering. And I am satisfied you were subject to very difficult social and family circumstances. I reached the conclusion that your culpability for what happened is properly regarded to be low. In these circumstances I consider it wholly disproportionate to impose a sentence of imprisonment upon you.”
The full story of the sentencing hearing can be found on Media Lawyer at this link.