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Newman v Southampton City Council - A tragic case of a child taken into care and a journalist’s bid to tell the tale with the mother’s consent

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25-01-2021

Eileen Weinert reviews the case of Newman v Southampton City Council: a tragic case of a child taken into care and a journalist’s bid to tell the tale, which first appeared in the Entertainment Law Review Ent.L.R.2021, 32(1), 14-18 and is reproduced with the kind permission of the publisher.

On 5 August 2020, the High Court of Justice, Family Division, handed down judgment in Newman v Southampton City Council[1].  It is thought to be the first recorded judgment concerning journalistic access to the court file in public law family proceedings.  The case involved a balancing exercise between Article 8 and 10 ECHR of interest to media lawyers, and is particularly interesting as it delineates the privacy rights of a child, as distinct from that of their parents, with repercussions perhaps for online posting by parents of photos of their children.

Background

The applicant in the case, Melanie Newman, is a professional journalist who previously worked at the Bureau of Investigative Journalism.  Ms Newman wanted to write an “in-depth report” on the sad case of M, a child who had been removed from her mother’s care at the age of two by the respondent local authority, after her mother, who had trained as a nurse, had twice used an EpiPen on her daughter, leaving her in need of emergency medical care.  M was first put in her father’s care and when that arrangement broke down, she was placed for adoption under a permanent care order.  M’s mother opposed the permanent care order and succeeded in having it set aside on appeal to the Court of Appeal.  In the summer of 2018, M was returned to the full-time care of her mother, where she has remained ever since.  She was then nearly six years old and had spent over three years of her life in foster care.

Lady Justice King, delivering judgment in the Court of Appeal, held that the permanent care order had been made on the “slimmest of evidence”, a statement which is sure to send shivers down the spine of any parent.  Ms Newman wanted to investigate, in particular, because of the unusually high percentage of cases within that local authority’s area which resulted in adoption orders.

In order to investigate, Ms Newman wanted access to the court file.  In an increasing bid for open justice and transparency in the Family Courts, journalists may now attend family court hearings, but under rules contained in s 12 of the Administration of Justice Act 1960 may not publish information relating to proceedings without permission of the court and are not normally given access to court documents.  Newman’s application is thought to be the first of its kind.  Her application was opposed by the local authority and by the child’s Guardian appointed for M.  M’s mother did not oppose it.

Analysis

The judge, Mrs Justice Roberts, considered developments in the Family Court towards open justice and transparency.  One important decision was that of Munby J (as he then was) in Norfolk County Council v Webster[2], a case in which the local authority sought to remove an unborn child at birth, from a mother from whom three previous children had been taken.  Their case was taken up by both the print and broadcast media, including the BBC who wanted to report on the case.  Munby J expressed a number of fundamental principles, which the judge summarised:

(i) The starting point is the fundamental and long-established principle that the English legal system is founded on its public administration.

(ii) The possibility of miscarriages of justice in the family justice system (just as in the criminal justice system) engage the need to maintain public confidence in its workings.

(iii) Freedom of speech, as guaranteed by Article 10 of the European Convention on Human Rights, constitutes one of the essential foundations of a democratic society.

(iv) The press and media played a vital role in ensuring the proper functioning of democracy and in furthering the rule of law and the administration of justice.  In this context, a court reporter fulfils a vital role: he or she is, in effect, the ‘public watchdog’ over the administration of justice.  To this end, investigative journalists and the media in general have ‘an absolutely vital role’ to play in ‘righting judicially-inflicted wrongs and highlighting miscarriages of justice’.

(v) Where the court is exercising an essentially paternalistic or quasi-parental role in relation to a child, this remains an exception to the rule of publicity.  The justification for the exception lies in the fact that the subject matter of such hearings usually concerns private affairs […].

(vi) Section 12 of the AJA 1960 does not prohibit the identification or publication of photographs of the child, the other parties or the witnesses, nor the identification of the party on whose behalf a witness has been giving evidence.  However, notwithstanding the conclusion of court proceedings, s.12 and the limitation upon reporting on information relating to the proceedings themselves are not diluted or otherwise affected.

(vii) The court retains the ability to relax and increase these restrictions.  The exercise of this power will involve the carrying out of a highly fact specific balancing exercise where conflicting rights under Arts 8 (right to respect for private and family life) and 10 (freedom of expression) will often be engaged.  The need for ‘an intense focus’ on the comparative importance of the competing rights engaged in any given individual case has to be considered.  In particular, the court must focus on the justifications advanced for interfering with, or restricting, each right and the proportionality test must be applied to each.”

Balancing exercise between Article 8 and 10 ECHR

It was this balancing exercise which lay at the heart of the case now before the judge.  In undertaking that task, she was guided by the principles laid down by the House of Lords in Re S (A Child) (Identification: Restrictions on Publication)[3].  In that case, Lord Steyn said at paragraph 17:

Four propositions [emerge from the opinions in the House of Lords in Campbell v MGN Ltd[4]].

First, neither article has as such precedence over the other.  Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.  Thirdly, the justifications for interfering with or restricting each right must be taken into account.  Finally, the proportionality test must be applied to each.  For convenience I will call this the ultimate balancing test.  This is how I will approach the present case.”

In Webster, Munby J undertook his own “ultimate balancing exercise” and many of his views which led to a relaxing of reporting restrictions fell for consideration in the present case:

(i)            the case involved an allegation that there had been a miscarriage of justice;

(ii)           the parents’ own wish for publicity;

(iii)         the very extensive publicity there had already been; and

(iv)         the need in the circumstances for the full facts and the “truth” – whatever it may be – to emerge in a way which will command public confidence.

Roberts J also considered the case of Re X (Disclosure of Information)[5], where the judge at paragraph 24 identified factors pointing towards confidentiality, including:

(i)            the interest of the particular child in maintaining the privacy and confidentiality of the proceedings;

(ii)           the interests of litigants generally who do not suffer the consequences of placing in the light of publicity their truly domestic affairs as a consequence of seeking the court’s assistance and protection.  All too often those domestic affairs might involve the most intimate, personal and painful issues which ought properly to be shielded from the public gaze;

(iii)         the public interest in encouraging frankness in children’s cases and securing the cooperation of doctors, school teachers, neighbours, the child in question and other close relatives who should not be deterred from giving evidence by fear that their affairs or privately held views would be exposed to the public gaze;

(iv)         encouraging frankness from the perpetrators of all forms of child abuse;

(v)          preserving faith with those who have given evidence in the belief that proceedings would remain confidential.

Against this background, Roberts J considered the competing submissions of the parties in the case.

The submissions

The applicant, Ms Newman

For Ms Newman, Anya Proops QC argued that the application was for access to the court file only, not at this stage, for permission to publish.  In those circumstances, there could be little harm in granting access to the file as a preliminary step.  Newman could have attended the initial hearing at which the evidence contained in the file was heard.  There was an important public interest in the basis on which the respondent local authority made decisions.  Further, a great deal of information about M had already been published in the judgments.  Ms Newman wished to undertake a holistic evaluation of the entire case to understand whether the local authority acted unlawfully in applying for a placement order.  There were public interest issues in permitting Ms Newman to embark on the investigative journalism she proposed to undertake including the open justice principle and the Article 10 rights of the journalist to impart – and the corresponding rights of the public to receive – such information.

Local Authority

Ms Rogers QC on behalf of the local authority objected to the breadth of the request for information, which was unprecedented.  What was sought represented a significant intrusion into matters which, by their nature, concerned private rights.  Whilst it was open to the court to authorise such an intrusion, the court must look for a proper justification.  There was nothing particular of the present case which warranted the intrusion.  It was one of a daily number.  Ms Newman already had access to the judgments of the courts, including the Court of Appeal judgment which explained precisely why the trial judge was reversed and his placement order set aside.  To the extent that there had been flaws in the judicial process, they had been set right by the higher court.  Family proceedings involving children are held private for a good reason.  Apart from the privacy rights of the child, or children, and their family, others who provide documents or disclosure for such proceedings often do so in the legitimate expectation that the information will remain private.  Article 10 was not a standalone right of access to documents nor did it impose on a court an obligation to impart information.  Lord Mance in Kennedy v Charity Commission (Secretary of State for Justice and others intervening)[6] at [58] said: “[Article 10] is concerned with freedom to receive information, freedom of thought and freedom of expression.  It does not impose on anyone an obligation to express him- or itself or to impart information”.  Creating a “duty to disclose information” under Article 10 would, said Lord Toulson JSC at paragraph 147 of the same case (citing Leander[7]), “amount to a European freedom of information law established on an undefined basis without the normal checks and balances to be expected in the case of freedom of information legislation introduced by a state after public consultation and debate.”

The Guardian on behalf of M

Ms Fottrell QC on behalf of the Guardian, stated that the Guardian did not believe that disclosure was in M’s best interests.  She did not believe that M should be further burdened with any direct involvement with the court process now that it had come to an end.  Ms Fottrell QC pointed to published research which demonstrates the extent to which children who are the subject of such proceedings invariably resist wider publication about their private family circumstances.  They worry about general publicity and being the subject of speculation amongst their peers, friends, neighbours and classmates.  The preservation of confidentiality (or privacy) in relation to the intimate details of their family lives is there to protect them as individual children as well as for purposes of protecting the public interest and nothing in the transparency initiative dilutes that principle.  The mere fact that M's mother is prepared to consent to disclosure on behalf of her child is not a good reason to avoid the careful balancing exercise which has to be undertaken by the court which ultimately controls the process of disclosure.  Article 3.1 of the United Nations Declaration on the Rights of the Child 1989 ("UNCRC") provides as follows: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."  This imperative was reflected in s 11 of the Children Act 1989 which places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.

Decision

While Roberts J acknowledged that the application was for access only to the court file at this stage, she considered that it would be artificial to proceed on any other basis than that the application had been launched with a view to ultimate publication.

The question which Ms Newman sought to investigate was “did this local authority act unlawfully in commencing care proceedings in respect of this child”.  Roberts J considered that the answer to this particular question was one which could only be determined by a court in accordance with established legal principles.  At the end of the day, it was not for journalists to determine the lawfulness of any particular decisions taken by judges or public bodies.  In this case, the important function of the appellate process intervened to put right the potential injustice for this child which had occurred.  The judgment of the Court of Appeal explained precisely what mistakes had occurred, what questions had not been answered by the trial judge and the defects in the process of decision-making which had exposed M to the risk of being permanently separated from her birth family.  There was no criticism of the local authority in launching the care proceedings, nor for defending the mother’s appeal.  None of this, however, adequately answered the legitimate questions which Ms Newman raised as to why this case ever came before the Family Court; how social workers and others make their decisions.  Her Article 10 rights were plainly engaged and fell to be balanced against M’s Article 8 rights.

The fact that the mother had given consent to the release of her own and M’s personal information to Ms Newman was not conclusive.  Each of M and her mother had rights to a private family life and those rights were engaged together, as a family unit, and separately, as individual human beings.  Since M was too young to express her own views, she had been appointed a Guardian.  It might be that the mother believed her own and M’s interests coincided in relation to the disclosure issues, but the court’s focus must be on M’s interests, not just now, but in the years to come, as she comes to terms with her own emerging identity as an individual in psychological, social and physical terms.  As the judge observed, “We are all crucially aware in this age of digital social and media platforms that once information is released, it remains available for all to see for all time”.

Weighing the competing Article 8 interests of M against Ms Newman’s Article 10 rights to report on the proceedings, Roberts J concluded (in all respects save in a few limited categories of information) that the “ultimate balancing act” favoured confidentiality rather than transparency.  The following passage, taken from the Roberts J’s analysis of the competing interests in respect of medical records, reflects her general approach (paragraph 136):

In considering where the balance lies, it seems to me that the overarching factor which I have to weigh in the balance is whether it is in M’s overall best interests to release to a journalist the most intimate details of her own and her mother’s medical records even if the dissemination goes no further than that.  Such a step would represent a clear court-directed intrusion of this child’s most basic and fundamental rights to a private family life.  If those rights are to be the subject of court-sanctioned interference, there has to be a proper justification.  I appreciate that Ms Newman cannot justify that interference on any specific basis because she has not yet seen the medical and other records.  She wants to read them in order to see what they contain.  Having reflected carefully, and because of the intimately personal and sensitive nature of this material, I do not consider the mother’s consent to its release on her own or M’s behalf to be sufficient to displace the overwhelming need to ensure that such information remains confidential from public scrutiny and I would include Ms Newman within this embargo.  In the context of this application, I am satisfied that she has sufficient material about the medical history of both M and her mother.  It is either already in the public domain and recorded in the judgments to which I have referred or it is likely on the balance of probabilities to be irrelevant to any decisions which were made in those proceedings.  To the extent that those judgments have not recorded the full detail of the medical evidence available in the bundles, I am satisfied that such confidence will have been preserved for a very good reason.

Comment

This case throws up interesting questions concerning the law of privacy as between parents and children.  It is clear from this judgment and the cases quoted within it, that a child of six years old has a distinct right to privacy, protected by Article 8, from that of its well-meaning parents.  Media lawyers will know the seminal cases in which parents have acted to protect their child’s privacy (Murray v Express Newspapers plc[8]; Weller v Associated Newspapers[9]) but this is the first, where the court has intervened on the child’s behalf to protect its privacy, despite parental consent to a journalist reporting on the case and accessing court records.  The nuance of this case, that the child was represented by a Guardian who was able to speak for the child, is probably a special one.  

It is of course not unheard of, in other fields of law, for the court to intervene on a child’s behalf, against the express wishes of a parent.  Readers will perhaps remember the case of Charlie Gard, a boy born with a rare genetic disorder whose parents were in a legal battle with Great Ormond Street Hospital about taking him to New York for experimental treatment.  The case attracted widespread media attention and triggered a passionate debate over his right to live or die, his parents’ right to choose for their child and whether his doctors had an obligation to intervene in his case.  Charlie’s parents took the case to the European Court of Human Rights, and at each stage, the courts sided with the hospital.

This case, making clear a child’s distinct rights of privacy, casts a light on some other behaviours of parents.  It is not uncommon for parents to set up Facebook and Instagram profiles for their children at birth, which, a la Truman Show, charts in pictorial form, the child’s progress through this world to adulthood.  Should this be regarded as legally objectionable?

These, and other, questions may well find themselves before the Court of Appeal.  Ms Newman is seeking permission to appeal and told the Press Gazette: “I am not satisfied the judge drew an adequate distinction between the harm caused by me being able to see the documents and by publishing their content”.


[1]                 [2020] EWHC 2103 (Fam).

[2]                 [2006] EWHC 2733, [2007] EMLR 7

[3]                 [2004] UHL 47.

[4]                 [2004] 2 AC 457.

[5]                 [2001] 2 FLR 440.

[6]                 [2014] UKSC 20, [2015] AC 455.

[7]                 9 EHRR 433.

[8]                 [2007] EWHC 1908 (Ch)

[9]                 [2015] EWCA Civ 1176