EDP court challenge sees councillor drunk in charge of a child named

The public would have been kept in the dark about the actions of a local councillor who admitted being drunk in a public place while in charge of her daughter if she had succeeded in obtaining an anonymity order to protect the child, a High Court judge has said.

Mr Justice Kenneth Parker's comment came as the Divisional Court rejected an application by Lowestoft Labour councillor Teresa Gandy for judicial review of the refusal by Lowestoft Magistrates' Court to make an order under section 39 of the Children and Young Persons Act 1933 giving anonymity to her child.

Gandy had appeared in the magistrates court on 1 May last year, admitting a charge of having been drunk in a public place while in charge of a child – her two-year-old daughter – and been fined £100 and ordered to pay a £15 victims' surcharge.

She sought a section 39 anonymity order to stop her young daughter being identified in reports of the case, arguing in part that she herself should not be identified because of her health.

Immediately after the magistrates refused to make the order Gandy obtained an interim High Court injunction banning the media from naming her in reports of the case, and applied for judicial review of the magistrates' decision.

The Divisional Court – Mr Justice Kenneth Parker and Lord Justice Pitchford – rejected the application.

Mr Justice Kenneth Parker said a broad interpretation of section 39 would be supported by Article 8 of the European Convention of Human Rights ("ECHR") and the jurisprudence emphasising the best interests of children as a primary consideration.

Clearly, Gandy's child – Gandy is referred to as 'A' in the judgment, and her daughter as 'B' – was specifically referred to in any charge against her mother, and "on any sensible construction" of section 39 the proceedings concerned the child.

The application of section 39 concerned not only the welfare of the child, but also the general rights of the public and media under Article 10 of the convention, and the principle of open justice.

The Crown Prosecution Service, and Archant Community Media Ltd, publisher of the Eastern Daily Press and the Lowestoft Journal had "a powerful case indeed" under Article 10 and the principle of open justice, the judge said.

"The criminal conviction itself, although it attracted a relatively low penalty, was far from trivial. To be drunk in public in charge of a small child of two-and-a-half years of age raises very considerable concerns regarding the general welfare of the child, especially when a caution had been administered not long before for the same offence.

"The caution administered in private, and the real risk of public exposure on re-offending, had plainly failed to deter A, and this strongly suggested that there might be more serious underlying problems that needed to be addressed in the interests of B.

"Moreover, A was an elected councillor, and her conduct in public had twice fallen well below the standard that could reasonably be expected of an elected official by her constituents and by the public generally, who had an undeniable legitimate interest in learning, through media publication, of how A had behaved."

In mitigation before the magistrates Gandy's solicitor had stressed her mental health problems and alcohol dependence – which was also information about a serving councillor which arguably the public was entitled to learn through a press report of proceedings.

It was also difficult to overlook what Gandy had presented as the practical effect of a section 39 order in this case.

She had "forcefully emphasised" that Lowestoft was a small community, and argued that if any report of the criminal proceedings included her name, or the fact that an un-named convicted person was a councillor – she was the only local councillor with the care of a child under seven years of age – or even that she had admitted this offence, her daughter's identity would inevitably emerge.

Gandy was arguing that the practical effect of any section 39 order was to stop the media from naming her as the defendant, or identifying the defendant as a councillor, or, if she was named, reporting the specific charge to which she pleaded guilty, Mr Justice Kenneth Parker said, adding: "On this scenario the public would simply not know what A, an elected official, had done."

It was precisely on this scenario that Gandy obtained an interim order prohibiting the press from identifying her, and on which she sought permanent relief along the lines of the interim injunction, or, alternatively, a direction from the Divisional Court which would have the same effect.

The judge said Gandy's counsel had accepted that her daughter, who was now just three years old, would have little or no present understanding of what had happened, and that any press report of the criminal proceedings could have no direct impact on her.

But counsel had suggested that if others in the tight-knit community learnt of what had happened they would behave differently towards the child, possibly in a way which was harmful to her.

The judge said that if the community is as close as suggested, then it was quite likely that people would learn about Gandy's conviction, even if reporting restrictions were imposed.

He went on: "But the notion in any event that responsible adults would behave in a manner adverse to B's welfare, in the light of learning about A's offending, seems to me to be far fetched and not based upon any solid empirical foundation."

But even if there was some risk of such a reaction, the child's best interests did not lie unambiguously in concealing her mother's offending in respect of her from the local community.

"It may be that if such matters are brought to light, further information from the public concerning B's welfare could surface, and members of the community would in any event be aware of the fact that B was, at least potentially, a young child at risk," Mr Justice Kenneth Parker said.

He rejected as "highly speculative" suggestions that the child might, at some time many years in the future, be distressed to learn, possibly through the internet, that her mother had pleaded guilty to this offence, and that she was the child who, aged two-and-a-half years, had been the subject of the charge, and that she might also be teased or bullied by other children who learned of it.

The judge said he had concluded that the magistrates had a reasonable basis for concluding that no order under section 39 was justified.

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