Sir Mark Potter’s decision came as he rejected an application for an injunction which would have prevented the press and media from identifying a couple and two of their children who died in reports of the inquest into the death of one of the children.
HIs ruling comes at a time when the Government is consulting on proposals to give coroners the right to ban identifying the victims in inquests under the draft Coroner’s Bill.
A local authority, supported by the parents and the guardian of the couple’s surviving child – who is five years old and is known only as LM – had applied for an injunction banning the media from identifying any of the family members involved in the inquest.
The case arose after Mr Justice Charles found in Family Division proceedings, on the basis of the civil standard of proof, that the mother’s ill treatment had caused the death of her daughter, who was almost four years old, in February 2004.
A younger brother, aged seven months, had died in August 2003. No cause of death was ascertained.
But the mother also had a third child, LM, who was now in foster care, and for whom adoptive parents were being sought.
The local authority wanted an injunction to prevent the media identifying not only LM – who who was suffering from post-traumatic stress disorder, and had other serious difficulties – but also the parents and their deceased children.
It was argued on behalf of the authority, LM and the parents that publicity in which any family members were named would have an adverse impact on LM, and could affect the chances of her being found an adoptive placement.
Guy Vassall-Adams, representing a media group led by Times Newspapers and the BBC, argued that the facts of the case bore a close similarity to those in the case of Re S (A Child) (Identification: Restrictions on Publication)( 1AC 593) in which the House of Lords set out the principles to be applied in relation to the liberty of the press freely to report criminal proceedings for homicide.
Mr Vassall-Adams said the media agreed that LM herself needed to be protected from direct publicity, and were content for her to be the subject of an injunction which would prevent them identifying her, referring to her, or giving any details as to her whereabouts, care or education.
But the media’s view was that that protection should be limited to LM, and should not prevent the media identifying the parents, and the deceased children, when reporting the inquest.
Sir Mark said: “In approaching this difficult case, I consider that I should apply the principles laid down in Re S, save to the extent conceded by Mr Vassall-Adams, which will in my view go a long way to protect LM from any intrusion into her private and family life with minimal impact (if any) on the right of the press freely to report the inquest proceedings.
“I do not think that in this case the principles recited in Re S require modification or qualification in light of the fact that the relevant proceedings will be inquest proceedings as opposed to criminal proceedings. Inquest proceedings are court proceedings similarly subject to the principles of open justice and the remedies contained and limitations implicit in section 39 of the Children and Young Persons Act.”
This case involved an inquest into the killing of a child, when a High Court Judge had already found as a matter of fact that the mother was responsible for the child’s death.
The application for the injunction was made because of the fear of harm to a child who was not concerned with the investigative process.
He had concluded that it would be a “substantial, and in principle undesirable” interference with the media’s rights fully to report the inquest and the surrounding circumstances if they were banned from identifying the mother, father, and the two children who had died.
There would be an injunction prohibiting the reporting of any reference LM’s identity or existence, or her school or carers or publishing any photographs or other information likely to lead to her identification.
Sir Mark said he did not believe that the case would provoke long-term publicity, once the publicity surrounding an inquest or criminal proceedings had subsided – it was not comparable to other sensational cases which had continued to attract the attention of the tabloid press over the years.
Fears that publicity might adversely affect LM’s chances of adoption were “entirely speculative”, and it was apparent that what had discouraged potential adopters so far was the general nature of LM’s problems and the difficulties they would present in any event.
Sir Mark concluded: “In the circumstances, I am not satisfied that the Article 10 rights of the media in this case are outweighed by the Article 8 considerations relating to LM’s unhappy position.
“In a situation where a child has suffered from a homicide within the family, there are inevitable difficulties which require to be faced in respect of the disturbance to that child’s life and the issues which he or she must face and overcome.
“In the light of the weight generally to be attributed to the rights of a free press and the interests of open justice (see Re S) the question whether the circumstances are sufficiently unusual or exceptional to justify a restriction on those rights must be viewed in that context.”
He was not satisfied that identifying the mother and the child who died would operate as a barrier to LM’s future adoption, or would result in a long-term stigma, and would not grant an injunction in the form sought by the local authority.