Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email editor@familylaw.co.uk.
A day in the life Of...
Kara Swift
Kara Swift
Read on

Wardship and the right to publish

Date:12 SEP 2014
Third slide
Solicitor Advocate

Publicity and a ward of court

The right to publish details of family proceedings and the operation of the wardship jurisdiction have cropped up recently in the case of A, the 5 year old taken by his parents from a hospital in Southsea against medical advice. He was made a ward. Subsequent High Court proceedings were well publicised – with permission the President of the Family Division (later confirmed by Baker J). A is no longer a ward.

These orders prompt two questions at law: what are the local authority’s powers to seek wardship; and what are the High Court’s powers to permit publicity. (None of this can proceed in the Family Court: wardship is a High Court matter only (Senior Courts Act 1981, s 41(1)).

Wardship, the common law and application to the High Court

The High Court can exercise an inherent and protective jurisdiction over children. If it does so, the usual result will be that a child generally becomes a ward of court and the court then stands in the position of a child’s parents. By contrast if any family court is to take a child into the care of a local authority it can only be by care proceedings (Children Act 1989 Part 4) save in a very narrow range of cases sanctioned by CA 1989, s 100. The court’s inherent jurisdiction cannot be used to place a child in the care of a local authority (s 100(2)), unless the court gives the local authority permission (s 100(3)). The court may not give permission, till it finds: (1) that, but for an order, the child is likely to suffer significant harm (s 100(4)(b)); and (2) that there is no other order the local authority can apply for (s 100(4)(a) and (5)).

In Re A (Jurisdiction: Return of Child) [2013] UKSC 60, [2014] 1 FLR 111 Lady Hale explained wardship in relation to a child born in Pakistan, the brother of children with dual British and Pakistani nationality. The question was whether he could be made a ward of the English court. The Supreme Court said that in principle he could. Lady Hale explained the inherent jurisdiction by reference to ‘common law rules’ and that, in the case of a child who is a British national, the ‘Crown had a protective or parens patriae jurisdiction over the child wherever he was’. She cites Lord Cranworth LC in Hope v Hope (1854) 4 DeGM &G 328, at 344–345, and Lord Denning MR in Re P (GE) (An Infant) [1965] Ch 568, in support of this.The fact that a child is a British national enables the court’s jurisdiction to be called upon to protect a child.

The position described by Lady Hale remains the common law position; unless Parliament says otherwise and by statute specifically restricts High Court jurisdiction (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33). Parliament has imposed restrictions in the case of CA s 100 to prevent application by a local authority to invoke the inherent jurisdiction to protect children (save as in s 100(4)).

Publicity and children

Once the child is a ward what then are the rights of anyone to publish information about him/her? Rights of all concerned (eg A (whose welfare is paramount), the press, the parents and other members of A’s family) must all be balanced before a decision is made by the court: (1) to ‘open’ the proceedings (Re S below); and (2) to permit the overriding of the criminal consequences of CA 1989, s 97(6). In A’s case, the direction for publicity has not been published (other than a reference in the later order of Baker J of 2 September 2014), so it is not known how the Court defined the welfare of A in its decision (s 97(4)).

To permit anyone to attend court is one thing. What is published afterwards concerning the case – eg in the press or other media – is a separate question, which cannot be answered by the judge. Sir James has been at pains (see eg as Munby J in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416; and see Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), [2014] 2 FLR (forthcoming)) to stress that it is not for judge’s to advise journalists.

What can be published?

In A’s case the court was ‘open’, but does that permit carte blanche publication? Almost exactly a year ago Sir James (in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 253) defended the right of individuals aggrieved by privacy in the family court to post their grievances on the internet, even when expressed by them in ‘vigorous, trenchant or outspoken terms’. He set out the legislative restrictions on publicity. CA 1989, s 97 he said, prohibits publication, but only till the conclusion of proceedings (Clayton v Clayton [2006] EWCA Civ 878, [2006] 1 FLR 11)). It prevents publication which will identify the child or certain details about him (s 97(2)). It can only be overridden by specific order of the court that information can be published which identifies the child, and if the court has found ‘that the welfare of the child [concerned] requires’ publicity (s 97(4), and in line with the court’s European Convention 1950 balance duties under Re S (below)). Section 97(6) creates a criminal offence if s 97 is breached.
Article continues below...
He went on to Administration of Justice Act 1960, s 12 is more long-lasting and pervasive:

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –
(a)where the proceedings –
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.

The section relates to ‘proceedings in private’, including family proceedings, but narrows those proceedings to those in relation to children, wardship etc. It is still the case that it may be contempt to publish information from such proceedings: this is the effect of the series of negatives by which the section is drafted. The person who wishes to publish must make up his or her own mind whether contempt proceedings are risked (see eg Spencer (above)).

Relaxing the restraints on publicity

In Re J Sir James explains (at para [22]) that the court may ‘relax’ the statutory restraints. The court must conduct a balancing exercise within European Convention 1950 terms, as explained by Lord Steyn in the House of Lords in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591 (at para [17]). It is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect, said Lord Steyn.

So, said Sir James, the interests of the child must be a primary consideration ( ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 1 FLR 2170, at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and the right of the press and a parent or others who might want (as in Re J) to publicise information (Art 10).In conducting that balancing exercise, the primacy of the best interests of the child must be considered. This was further explained in the Supreme Court in H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 where Lord Kerr said:

'[144] … It is unquestioned that in each of these cases, the children's article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children's rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference …
[145] … no factor must be given greater weight than the interests of the child.' 

Court promoting publicity

The court was not entitled, in this jurisdiction, said Sir James in Re J, to seek to prevent dissemination. But what is the court’s role in making open the court, perhaps to encourage ‘dissemination’ of information? There must be primacy of A’s interest in dissemination, and of justification for interference with his right to respect for his family life (Art 8)? The exercise proposed by Lord Steyn in Re S and explained later by Lord Kerr must be conducted in each case by the judge who proposes to open the court or who hears an application to permit publicity (and see CA 1989, s 97(4)).

Questions remain in A’s case. Permission was needed for the local authority to proceed under CA 1989 s 100. An order backed by a judgment (to explain how the welfare of the child is ‘satisfied’: s 97(4)). It is not clear that AJA 1960, s 12 can be overridden at all: that must be for each individual who wishes to publish to decide how to proceed.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.