H v A (No 2) [2015] EWHC 2630 (Fam)

(Family Division, MacDonald J, 17 September 2015)

Publicity and reporting – Concurrent family and criminal proceedings – Father’s parental responsibility limited for safety of mother and children – Publication of judgment – Jigsaw identification – Whether the judgment should be published in its original format, redacted or remain unpublished

The full judgment is attached below

The judge ordered that the judgment should be published in its original format. A reporting restriction order was made preventing the identity of the children and their current whereabouts from being reported.

The married mother and father had three children together. The father was convicted of violent offences inflicted on the mother and children and was given a discretionary life sentence. In family proceedings the father’s parental responsibility was limited for the safety of the mother and children.

Following the hand down of the judgment H v A [2015] EWFC 58 it was agreed that anonymisation beyond removal of the names of the children, the parties and their solicitors was not necessary and the judgment was posted on the Bailii website. Subsequently the Press Association Court Reporter contacted the judge advising him that using the facts set out in the judgment alongside information available on the internet from connected criminal proceedings it was possible to identify the family. As requested by the judge the judgment was removed from the website and a hearing was scheduled to determine whether the judgment could be published in its original format or whether it should remain unpublished or in a heavily redacted format.

In respect of the Art 2, European Convention rights of the mother and children, although the father remained a highly dangerous individual he was securely incarcerated at the discretion of the authorities. He was in no position to threaten the life of the mother and children by direct action. He had also agreed to the substantial curtailment of his parental responsibility for the purposes of ensuring the whereabouts of the mother and children remained confidential.

If the father were to find out the whereabouts of the mother and children he would be likely to seek to do them harm at arm’s length. However, publication of the judgment in its original form would not permit the father any greater opportunity of locating the family. Therefore, their Art 2 rights were not engaged.

After consideration of the competing Art 8 and Art 10 rights engaged in the case and the respective justifications for interfering with them and considering each of the children’s best interests as a primary consideration, then applying the ultimate balancing test of proportionality, it was appropriate for the judgment to be published in its original form accompanied by a tightly drawn reporting restriction order.

In the age of the internet, jigsaw identification arose as a potential issue in every case where the family court published a judgment in proceedings arising out of a set of facts that had also led to criminal proceedings that have been the subject of reports in the media. The risk of jigsaw identification was not, however, a reason in itself to withhold the publication of a judgment. The question in each case would be whether, having regard to the evidence before the court and all the circumstances of the case, the interference in the Art 8 rights constituted by the risk of jigsaw identification arising out of publication outweighed the interference in the Art 10 right of freedom of expression constituted by withholding publication.

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Neutral Citation Number: [2015] EWHC 2630 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION