PUBLICITY: BBC v CAFCASS Legal [2007] EWHC 616 (Fam)

30 MAR 2007

(Family Division; Munby J; 30 March 2007)

Parents who had successfully resisted care proceedings wished to participate in a television documentary about the case. The baby had been diagnosed with fractures to the tibia, which raised concerns about non-accidental injury. The judge had ultimately concluded that the baby had trapped his foot between the bars of the cot and the parents' bed frame, and had fractured his leg in pulling his foot free. The parents had kept a video diary of their experiences (limited to members of the family, involving no covert filming of any of the professionals involved); the BBC sought an order permitting the parents to disclose the video footage to them, with some protection of the identities of the professionals involved. However, the social workers, police officers and many of the doctors and expert witnesses involved sought formal preservation of their anonymity.

A proper application of the ultimate balancing test came down overwhelmingly in favour of publication of the care judgment, and strongly favoured the grant of the limited disclosure of the video footage. There were important public interests and important personal interests involved in the issue of anonymity. A problem arose because, absent any injunction, there was nothing to prevent anyone from making a link between an anonymised reference in a judgment to a medical expert and the fact that the expert in question was a named individual, publication of which was not prevented by Administration of Justice Act 1960, s 12. Permitting the release of an anonymised version of a judgment so that it remained anonymised could be achieved only if the court simultaneously exercised both the disclosure jurisdiction, in order to permit the release of the judgment, and the restraint jurisdiction, in order to protect the anonymity of those whose identities ought, for proper reasons, to be protected. When considering whether to release a judgment delivered in chambers, the only principled approach was: (i) to give everyone referred to in the judgment the opportunity to apply for an order protecting their anonymity; (ii) for anyone wishing to make such an application to make it in compliance with s 12 and the President's Practice Direction (Applications for Reporting Restriction Orders) [2005] 2 FLR 120 and Practice Note (Official Solicitor: Deputy Director of Legal Services: CAFCASS: Applications for Reporting Restriction Orders) [2005] 2 FLR 111; (iii) for the court not to release the judgment, even in anonymised form, until after it had adjudicated on any application for anonymity. The orders sought by the BBC and the mother should be made only if a contra mundum injunction were imposed prohibiting identification of any of the professionals involved, until 28 days after written notification by the BBC of either the first broadcast of the programme, such notification to be given no later than 7 days after the broadcast, or a decision not to proceed with the documentary, or until further order.

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