Family Law

Reporting restrictions and child sex exploitation

The two judgments of Keehan J in child sexual exploitation (CSE), and later reporting restrictions order (RRO), cases provide food for thought on a variety of aspects of family law, human rights and jurisdictional law (extent of a High Court judge’s inherent jurisdiction). The second of the two cases, Birmingham City Council v Riaz, AB and Others [2015] EWHC 1857 (Fam), [2015] 2 FLR (forthcoming), and the case under consideration here, raises the following questions:

• Is the High Court entitled in exceptional circumstances to make a life-time reporting restrictions order (‘RRO’) to restrict publicity for the adult life of a child, say a survivor of CSE; and if so
• What types of facts and back-ground might justify such an order?

In December 2014 in  Birmingham City Council v Riaz and Others [2014] EWHC 4247 (Fam), [2015] 2 FLR (forthcoming) the first of the two cases, Keehan J made an order against 10 men to prevent their sexual involvement with a 17-year-old girl (AB). He held that he could make the order in his inherent jurisdiction on an application by AB’s local authority relating to the CSE inflicted on her. His order included a RRO for AB to last till she was 18 years old, in August 2015. No RRO was made in respect of her assailants though whether such an order should be made was part of the court’s consideration.

In Birmingham City Council v Riaz, AB and Others (above; ‘Riaz, AB’), Keehan J considered an application, by the City Council with support from AB, that the RRO made by him in December 2014 should last for AB’s lifetime. Those newspapers represented before Keehan J The Press Association and Time Newspapers Ltd) said they had no intention of reporting on AB nor intruding on her privacy; but they were concerned, as their advocate explained (quoted by Keehan J at para [35]), at the exceptional nature of the order the court was being asked to make:

‘… the concern is that for the court to make an order such as that requested would be an extraordinary, exceptional, and, we submit, unjustified extension of the court's use of its jurisdiction, and an unwarranted and unjustifiable intrusion on and limitation of the public and the media's rights to freedom of expression under Article 10. The concern of the PA and TNL is that if the court makes an order in a case such as this, it will extend the range of injunctions available to local authorities far beyond anything considered in [earlier cases]. An injunction would leave the press bound for the rest of AB's life.’

Jurisdiction

In Riaz, AB the first question for the court was, given the imminence of AB’s 18th birthday: had the court any jurisdiction to continue the RRO beyond that birthday? This resolved itself into whether the court had jurisdiction to make an order at all; and if so, whether it should be applied in respect of AB.

In Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591 Lord Steyn stressed the extent of existing statutory provision (cited by Keehan J at para [26]):

‘[20] There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.’

Lifetime order in damages approval cases

Early on in his judgement Keehan J referred to JX MX v Dartford & Gravesham NHS Trust and Others [2015] EWCA Civ 96 in which the Court of Appeal had recently explained how, at common law, the open justice principle can be overridden (for short commentary see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/). A mother was concerned at her and her daughter’s loss of privacy following court approval of her substantial damages settlement. The Court of Appeal set out clear statements of principle in favour of open justice from cases such as Scott v Scott [1913] AC 417, and A v British Broadcasting Corporation [2014] UKSC 25. However, the court concluded that the criterion for a decision as to whether a RRO should be made was whether it was ‘necessary’ to derogate from the principle of open justice (paras [33] and [34]); and that in this type of case – ‘dealing with… essentially private business’ the claimant was entitled to a RRO. Generally such orders should be made for a protected party in a case such as that of JXMX, subject to the press having a chance to object in an individual case.

Keehan J sets out his view of the JXMX decision as follows:

He considered the cases where RROs had been made to protect a new identity (Thompson and Venables, Mary Bell and Maxine Carr) (§§[14]-[18]) and to the age limitations – to 18 for any reporting restriction on a child in court proceedings – in Children and Young Person's Act 1939, s 39 (R (ota JC and RT) v The Central Criminal Court and others [2014] EWCA Civ 1777). He drew attention (§[20]) to the fact the ota JC and RT case had led to a life reporting direction protection being granted for life to under 18 witnesses and victims in criminal proceedings (Youth Justice and Criminal Evidence Act 1999, s 45(2) and (3)).

Conclusion and reporting restrictions order

The passage from Lord Steyn’s opinion in Re S (above) had been cited to the judge by the advocate for the press. In response Keehan J drew attention to Lord Steyn’s concluding exception for ‘the most compelling circumstances’ (para [27]) for his being able to find further exceptions to the open justice principle. He went on:

The judge held that he was entitled to make a life-time RRO, even though AB would no longer be a child for most of the period it covered. Should he do so in AB’s case?

In making this decision the judge must balance the private interests of AB against the public interest in freedom of expression. He addressed the public interests – as advocated by the press representative – as against AB’s private interests as follows:

‘[40] It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.
[41] What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.
[42] AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.’

He concluded from this that these private interests of AB overrode any public interest there might be in press publicity:

‘[46] I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB's history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.’

Public interest in victims being encouraged to come forward

Finally the judge emphasised the public interest of the importance of victims of CSE coming forward if they might be capable of being guaranteed life-time reporting restrictions (though each case will depend on its individual facts (injunction applications to be ‘determined on their own merits’: italicised passage below).

‘[47] I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.’

Each case will depend on its own facts: the public/private balance must be tested in each instance. However, if Keehan J is followed – and he explains why he considers that the common law in 2015 is with him – then children, who may justify continued anonymity (including survivors of child sexual abuse), can seek orders for restrictions of the reporting of their cases beyond childhood.

A final word can perhaps be referred back to JXMX (see above) where the Court of Appeal said that the criterion for a decision as to whether a RRO should be made was whether it was ‘necessary’ to derogate from the principle of open justice. The court concluded that group of cases could be identified where a protected party should automatically have a life-time RRO, subject to the press having a chance to object in an individual case. Could a similar approach be adopted by the courts for CSE survivors?

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