(Family Division, Cobb J, 7 May 2013)
The mother of eight children was standing trial for 24 counts of benefit fraud amounting to £365,000. The prosecution asserted that the mother had exaggerated and misrepresented the particular needs of her children in her claims for Disability Living Allowance, Carer's Allowance and other tax credits over a period of 10 years. In view of the fact that the trial would involve a detailed examination of the medical records of the children, at a pre-trial hearing an order was made pursuant to s 39 of the Children and Young Persons Act 1933 forbidding identification of the four minor children.
When they became aware of the order, News Group Newspapers Ltd applied to discharge the order. The application was successful, the order discharged on the basis that the children were not caught by the provisions of s 39 of the Act. The father made an application to the Family Division under the inherent jurisdiction to prevent identification.
There were powerful arguments on both sides. On the one hand there was the intense and entirely legitimate public interest in knowing of an alleged fraud upon the State particularly a fraud of such magnitude and in the present climate when the concerns about welfare dependency and alleged abuses of the welfare system were prominent in the arenas of politics, society and the media. On the other side of the argument, was the fragile emotional state of one of the children specifically, and the consequences of an invasion of privacy. There was the further prospect of the public reporting of all of their medical histories.
Applying the principles of Re S, and treating Arts 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 with equal weight, the father had discharged the burden of proving at this stage that the case was made out exceptionally for the grant of a reporting restriction order.
The alleged exploitation of the children placed them at the heart of the trial which would involve a serious intrusion of their private lives constituting very powerful Art 8 considerations. However, while the balance currently fell in favour of the Art 8 rights of the children, if a criminal conviction of the mother resulted then different considerations were likely to apply in the balancing exercise.