‘A’ is a must-read case for the media-savvy lawyer, blogs Chris McWatters

When the rules changed back in 2009 to allow the press inside the family courts, there was a real anxiety that the tabloids would run amok and hijack cases with their insensitive reporting of proceedings. So far, so that hasn’t happened, probably due to the rules preventing them from ‘jigsaw’ identification of the child.

 However, every now and then, the hacks come flooding in, and A(A Minor) [2011] EWHC 1764 (Fam) is clearly such a case. And when they do, it’s clear from A that you need to be pretty media law savvy if you want to keep them at arms length.

 Briefly, A is a case where the mother has been arrested for the murder her two and four year old sons, although as yet to be charged. A is her newborn baby, who is now subject to an interim care order whilst the murders are investigated. The mother also suffers from serious mental health problems.

 Inevitably, the death of two small children in suspicious circumstances arose press interest, but before anything was reported, the Local Authority applied for and were granted reporting restrictions in respect of the child. The Sun subsequently published a story entitled “Mum quizzed as two sons die in a month”, and went on to name the mother as well as her two dead sons.

 A psychologist reporting on the mother expressed in very strong terms how concerned he was that prolonged media pressure would put her at risk of self harm. The mother’s legal team in turn applied for an injunction preventing the press from naming her and other members of the family, which resulted in a contested hearing in the family division front of Mr Justice Baker.

 The battle that ensued between the mother (supported by the father and the guardian) and the press was a classic article 8 (right to family life and privacy) versus article 10 (freedom of expression) contest. However the legal argument was far more akin to those used in the media courts of Mr Justice Eady and Mr Justice Tugenhat, and indeed some of their recent judgments in press injunctions are referred to.

 In his judgment, Mr Justice Baker goes through this area of law since the implementation of the Human Rights Act, making extensive references to the relevant cases (such as Campbell v MGN Ltd [2004] UKHL 22, which sets out the balancing exercise that needs to be done between articles 8 and 10) as well as to the Press Complaints Commission Editors’ Code of Practice. Did, as was the issue in Campbell, the mother “have a reasonable expectation of privacy”? Or did the importance of preventing any interference in the reporting of crimes outweigh the importance of any infringement of the article 8 rights of the mother ?

 He ultimately concluded that the mother’s article 8 rights were outweighed by the importance of the media’s freedom of expression, having listened to extensive arguments by Frances Judd QC, representing mother, and Adam Wolanski, a media specialist from 5 Raymond Buildings, representing various press organisations.

 What’s striking from reading the case is just how subtle the arguments are in respect of this balancing exercise, and just how familiar any family specialist would need to be in dealing with the kind of arguments that they are likely to face from the freedom of expression camp. So if you do find yourself having to apply for a reporting restriction order in a family case, and you find yourself up against a representative of the press, then familiarisation with A, and the extensive case-law that it refers to is, in my humble opinion, almost definitely a pre-requisite.

Chris McWatters

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