May 16th, 2024 by James Goudie KC

In BERG v TOWER HAMLETS LBC (2024) EWFC 92 the Court granted applications by journalists who sought the disclosure of transcripts and orders from deprivation of liberty safeguarding proceedings concerning an individual who had been subject to a deprivation of liberty order as a child, so that they could report on their contents.  It was in the public interest to know that the High Court was making orders restricting the liberty of children and young people and to be provided with the opportunity to understand the difficult decisions the Courts had to make and the competing considerations that had to be balanced when making such decisions. The former child (C) wished to contribute to the programme.

On a reading of Section 97 of the Children Act 1989 and Section 12 of the Administration of Justice Act 1960 the publication of the text or a summary of the whole or part of the Orders made in respect of C would not of itself be contempt of court, except where a Court having the power to do so had expressly prohibited the publication.  However, the publication of the transcripts of the hearings in respect of C and of the documents utilised at those hearings, or extracts, quotations or summaries of the same, would be a contempt of court unless expressly authorised by the Court.  When considering whether to relax the protection afforded by Section 2, the Court had to balance competing ECHR rights and to consider the proportionality of the potential interference with each right. The Court also had to consider carefully whether the Order sought was proportionate having regard to its aim.  Where Article 10 was engaged and fell to be considered in the balancing exercise, the Human Rights Act 1998 required the Court to have particular regard to the importance of Article 10 and, where the material in question was journalistic in nature, to the extent to which that information was already in the public domain or the extent to which it was, or would be, in the public interest for the material to be published.

By reason of C’s agreement to the disclosure and publication of the information sought, the rights engaged did not compete as starkly as in some cases.  However, where the material in issue was rendered confidential by operation of Section 12 of the 1960 Act, where the rights engaged were nonetheless in tension with each other to a degree, and in circumstances where the rights of other respondents to the proceedings were also engaged, it remained the Court’s responsibility to consider carefully the comparative importance of the competing rights and to consider the justification for interfering with or restricting each right.

The ambit of C’s Article 8 right to respect for private life was wide, encompassing the narrow concept of personal freedom from intrusion and her psychological and physical integrity, personal development and the development of social relationships and physical and social identity.  C made plain that she struggled with her mental health and has had difficulties adjusting to life as a young adult and forming relationships.  On the face of it, importance attached to C’s Article 8 right when placed in the balance. However, there were powerful justifications for interfering in those rights and in balancing the competing rights particular regard should be paid to the importance of the Article 10 right.

Here, C’s own Article 10 right was firmly engaged and constituted a powerful justification for interfering with her Article 8 right and the Article 8 rights of others.  That conclusion was reinforced where the BBC was providing psychotherapeutic support to C to safeguard her psychological integrity. Further, were was an important public interest in the public being able to understand and scrutinise the operation of the family courts.  That interest was particularly acute where the family court scrutinised and endorsed, or refused, intervention in family life by the State.  Similarly, there was a particular public interest in the applicants being able to publish information regarding orders restricting the liberty of children and young people, some of which, whilst lawful, were being made outside any statutory regime that had been the subject of democratic consultation and approval by Parliament.  Regarding proportionality, the interference in C’s Article 8 rights and the rights of other respondents was proportionate.  However, prohibiting the publication of the information sought would be a disproportionate interference with the Article 10 rights engaged (paras 30-52).

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