(Family Division, Bodey J, 19 October 2015)
Publicity and reporting – Public law children – Transparency – Freelance journalist sought to include the mother’s experiences in an article – Local authority sought a reporting restriction order A contra mundum order was made permitting reporting of the public law children proceedings with restrictions on the use of names and other personal details upon the application of a freelance journalist.
A freelance journalist applied to the court for an order permitting the reporting of public law children proceedings. The local authority opposed the application and sought a reporting restriction order.
The mother and her children had been through the care system due to the mother's mental ill-health. She now spoke publicly about her experiences via social media and through speaking at universities to social workers. The journalist was preparing an article for publication in a broadsheet newspaper on the care system and relied upon the President's transparency guidelines in seeking to incorporate the mother's experiences into her article.
The draft contra mundum order was approved by the court as it appropriately balanced the public interest in the media being able to report care proceedings and the interests of privacy of those whose lives were involved.
Although there was no issue for the court to determine counsel for the journalist raised a number of criticisms of the way in which the local authority had dealt with her case. In particular, if they had taken a more collaborative stance from the outset the application would have been far less time consuming and troublesome. In future cases such as this a sensible and responsible dialogue should take place as soon as possible, with a view to finding an early modus vivendi. Even if a consensus could not be reached it should be possible to considerably narrow the issues.
Neutral Citation Number:  EWHC 2991 (Fam)
IN THE HIGH COURT OF JUSTICE
Newcastle-on-Tyne District Registry
Date 19th October 2015
MR. JUSTICE BODEY
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B E T W E E N :
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The Council of the Borough of North Tyneside
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G (a mother)
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H I and J
(children, by the Children's Guardian)
3rd – 5th Respondents
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Ms Reed represented Louise Tickle
Miss McKenzie represented the Local Authority
The Mother represented herself
Miss Hall represented the Children's Guardian
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J U D G M E N T
Mr Justice Bodey:
[Judges Note: to save time and expense this version of the ex tempore Judgment delivered today has been prepared by Counsel and approved by me. No official version need nor should be bespoken].
I am dealing with what I will loosely call cross-applications by a freelance journalist Louise Tickle and a Local Authority, the Council of the Borough of North Tyneside, which I will call the “Local Authority”. By her application Louise Tickle seeks permission to report certain care proceedings, whilst the Local Authority seeks a reporting restriction order (“RRO”).
During this short hearing Ms Reed has represented Louise Tickle. Miss McKenzie has represented the Local Authority. The mother (see below) has represented herself and Miss Hall has represented the Children’s Guardian. I have read a number of the documents in the two lever arch files, as identified by me in the course of the hearing. Notice of the application for the RRO has been duly served on the media generally through Copy Direct, but there has been no attendance other than that which I have already outlined. There are two fathers involved who are on notice of today’s hearing. They have put in written material which I have read, but they are not in attendance before me.
The mother (“the mother”) has had a number of children who have been through the care system. She supports Louise Tickle’s application. She is a mother who has had the misfortune to have had her life blighted historically by serious mental health problems which have at times made it unsafe for her to care for her children. When mentally well, she coped alright but not when mentally unwell. Happily those times appear to be behind her. Be that as it may, she and her children have accordingly come into and through the care system on a number of occasions. It is that experience which she has shared on social media sites; in particular how she fought for her youngest child (a child who was removed at birth) and how she eventually succeeded in having that child live with her, as is currently the case and has been for some time. I have read some of her articles on the social media. They strike me as balanced and reasonable. They recognise her own failings in the past. They are in some respects critical of some professionals in the care system, but over-archingly are written to help others in the care system by sensible, practical and sensitive advice to people in times of need. A reading of what the mother has written does not support an assertion by the Local Authority - and the mother told me she found it hurtful - that they constitute “complete criticism of the Local Authority in every respect” (see the Local Authority’s Skeleton Argument, not prepared by Miss McKenzie, dated 3 September 2015). The mother told me she now goes out to speak at Universities and to social workers about her experiences within the care system.
Louise Tickle is an experienced freelance journalist whose Curriculum Vitae I have read. She has written a number of responsible articles, which again I have read, on various social issues, including for example to do with the family justice system. She now has what she describes as a rare opportunity to prepare an in depth report into the care system, running to some 5,000 words, for publication in a serious broadsheet newspaper. In the process of preparing the report she would like to analyse and speak about the Mother’s experiences with her various children in the care system. Whilst relying heavily on the new(ish) ‘transparency’ within the family justice system (as championed by the President of the Family Division, Sir James Munby, in a number of well-known cases) she has equally wanted to remain within the law in what she reports. She has made a number of sensible ‘concessions’ about how she would prepare her article, for example as to anonymisation and as to how she would deal with the ages of the children and so on, to avoid “jigsaw” identification.
In very recent days, as so often happens, a draft proposed order prepared and circulated by Ms Reed has been agreed by all parties with a few minor amendments. I have been taken through that draft today and asked to approve it for issue. It cannot be a consent order, if only for the reason that it is a “contra-mundum” injunction. I have no hesitation in approving the order which, for their part, the parties have agreed. It appropriately balances (a) the public interest in the media being able to report care proceedings as against (b) the interests of the privacy of those whose lives are intimately involved. If I had had to decide this application adversarially then (having carried out the Art 8 and Art 10 “intense focus” and balancing exercise referred to in Re S
 UKHL 47) the order placed before me is likely to have been more or less the order which I would have made. I annex it, without the identifying Schedules, to this Judgment.
There is no application by either side for costs. In effect therefore there is now no “lis” (or issue) joined by any of the parties before me. However Ms Reed has made a number of critical observations about the Local Authority and as to the lateness of the day when the Local Authority agreed to Louise Tickle’s proposed approach. This lateness, Ms Reed says, has put Ms Tickle to a great deal of hard work and aggravation and to the expenditure of time and money which could have been put to better use. Delay has inevitably been factored in. Ms Reed tells me she has been acting ‘pro bono’ for Ms Tickle, and has probably spent about eight days all told on the case, which she says would not have been necessary had there been a more collaborative approach from the Local Authority.
As I have said, there is no issue on which any judicial determination is required on an adversarial basis and the Local Authority has not in my judgment had an adequate opportunity to respond with a proper analysis of how and why it has conducted itself as it has. If it has responded unreasonably and/or too slowly to this application - which I am not deciding one way or the other - then it has not been able today to put forward any mitigation which there may be. It would not be appropriate or fair therefore for me to launch into a Judgment critical of the Local Authority. However, what I will say is that this application demonstrates how time consuming and troublesome applications like this can be; not only for the media, but also for the court and for all parties. These are not easy applications. They require time, effort, research and expense on what is essentially a satellite issue. For these reasons it is important that if and when Local Authorities and the media (and/or the other parties) do come to realise there is an issue between them about how much should be reportable and on what terms, there should be sensible and responsible dialogue as soon as possible, with a view to finding an early modus vivendi. With the application of give-and-take, a measure of common-sense, and the engagement of the Children’s Guardian, it should be possible in most cases to come up with a formula based on decided authority which steers a path between (a) the need for greater transparency in the public interest, and (b) the need to respect the privacy and sensitivities of those whose lives are involved. Even if complete consensus cannot be reached through such a collaborative approach, it should be possible considerably to narrow the issues.IN THE HIGH COURT OF JUSTICE (FAMILY DIVISON)
NE14C01382 / UY13C00070 / SITTING IN NEWCASTLE COUNTY COURTNS13P00248 / UY12C00058
BEFORE THE HONOURABLE MR JUSTICE BODEY
SITTING IN PRIVATE
IN THE MATTER OF THE INHERENT JURISDICTION AND IN THE MATTER OF THE HUMAN RIGHTS ACT 1998 REPORTING RESTRICTION ORDER
IMPORTANT If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge the order.EXPLANATION
AOn 19 October 2015 the Court considered applications for an order concerning reporting of these proceedings.
BThe following persons and/or organisations were represented before the Court (and are identified in Schedules 1A, 1B and 2 of this order: The Applicant Louise Tickle, represented by counsel (public access), Lucy Reed The Mother in person (“the Mother”) North Tyneside Council represented by Lesley McKenzie The children identified in Schedules 1A via their Guardian represented by Miss Hall and Hadaway & Hadaway Solicitors The interests of the children identified in Schedule 1B were represented through their parents
CThe Court read the following documents: Application of the Applicant and supporting documents Application of North Tyneside Council and supporting documents Skeleton Arguments and written submissions prepared by or on behalf of the parties Case summary Guardian’s analysis Statements of Louise Tickle Representations by the fathers of two of the children concerned Examples of articles posted by the mother on the social mediaORDERDuration
Subject to any different order made in the meantime, paragraphs 2-3 of this order shall have effect until 23 October 2021.Who is bound
1This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.Publishing Restrictions
2This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of:
a. The name, town of residence or home address or school of ithe Children specified in Schedule 1A and 1B (“the Children”); iithe Childrens’ parents ("the parents") or adult siblings, whose details are set out in Schedule 2 to this order;
b. any identifiable picture being or including a picture of either the children, their carer or parent;
c. The matters relating to the composition of the family set out in schedule 3 of this order IF, BUT ONLY IF, such publication is likely to lead to the identification of the children or their adult sibling as being the current or previous subject of proceedings pursuant to the Children Act 1989.
3No publication of the text or a summary of this order (except for service of the order under paragraph 8 below) shall include any of the matters referred to in paragraph 2 above.What is specifically permitted by this Order
4Pursuant to Family Procedure Rules 2010 rule 12.73(1)(b) and Family Procedure Rules 2010 rule 12.73(2) and section 12(1) Administration of Justice Act 1960 the publication of information relating to the current or past proceedings relating to the children or their adult siblings is permitted and shall not be a contempt of court save insofar as set out in paragraphs 2 to 3 above.
5For the avoidance of doubt it is permitted to identify the Mother of the children as the operator of the anonymous twitter account “@survivecourt” and as the writer of the anonymous blog “Surviving Safeguarding” (http://www.survivingsafeguarding.co.uk), provided that the Mother must not be identified by her real name.
6Pursuant to Family Procedure Rules 2010 rule 12.73(1)(b) any party to the current or previous proceedings relating to the children may disclose to Louise Tickle documents produced for the purposes of those proceedings, for the specific purpose of informing her journalism, and provided that those documents themselves may not be published in full or further distributed by her.What is not restricted by this Order
7Nothing in this Order shall prevent any person from:
a. publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication.Service
b. Publishing the information contained in the judgment delivered today
c. seeking or publishing information which is not restricted by Paragraph 2 above.
d. inquiring whether a person or place falls within paragraph 2(a) above.
e. seeking information relating to the Children while acting in a manner authorised by statute or by any court in England and Wales.
f. seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 4 to this order.
g. seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
h. publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.
8Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by North Tyneside Council (and may be served by any other party to the proceedings) aby service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or bon such other persons as the parties may think fit, by personal service.
Further applications about this Order
9The parties and any person affected by any of the restrictions in paragraphs 2-3 above may make application to vary or discharge it to a Judge of the High Court on not less than 48 hours notice to the parties.
DATE OF ORDER: 19 OCTOBER 2015 [The identifying Schedules which now follow have been omitted].