Kirklees Council v P & Ors [2023] EWHC 3470 (Fam) (03 November 2023)

As the Family Court opens more of its doors to reporters and legal bloggers being able to sit in and report on our cases, with the expansion of the Transparency Project, this is a case whereby, reporting restrictions have also been put in place at it’s conclusion.

The Local Authority in this case applied for a reporting restrictions order which was supported by the parties to the case but opposed by the BBC.

This public law case concerned 4 children aged from 1 to 10 years old. The Father in this case who was named, Marcus Osborne, murdered the children’s Mother, Katie Highton and another man. He also raped another woman. Within criminal proceedings he pled guilty to all these offences and there was no trial and he will therefore be sentenced to life in prison.

A transparency order was made within these proceedings until 2040, when the youngest child attains the age of 18, and the Court was alive to both Section 12 of the Administration of Justice Act 1960 and Section 97 (2) of the Children Act 1989.

The court also had to carry out a balancing exercise having regard to the principle of open justice and Convention rights, particularly those under Articles 6, 8 and 10. The transparency order provided that:

‘no person covered by the order may publish, includes the name or date of birth of any subject; the name of any parent or family member who is a party or who is mentioned in the case or whose name may lead to the children being identified; the name of any person who is a party to the proceedings; the address of any child or family member; the name or address of any foster carer; the school, hospital, placement name or address, or any identifying feature of the school of the child; photographs or images of the child, their parents, carer or any other identifying person; the names of any medical professional who is or has been treating any of the children or family member; and for the purposes of Section 97 of the Children Act 1989, any other information likely to identify the child as a subject child or former subject child.’[18]

Also the identity of agencies and professionals were not to be published save for the identity of the Local Authority and reporting was not permitted until the conclusion of the criminal proceedings.

Such order was not made against the media generally, save for the pilot reporters, unless they became aware of the content of the order.

Time was afforded in this case for the Local Authority and BBC to have discussions as to the terms of any reporting restrictions order, prior to a return to the court. The Court noted that even had an agreement been reached, which it had not, ‘it is a matter for the Court not the parties to decide whether to make such an order.’ [16]

The Local Authority sought, with a reporting restrictions order, to restrict reporting to all media organisations and extend it to the criminal proceedings involving the Father. The BBC maintained that the transparency order, already in place, met the balance of Convention rights in relation to the Family proceedings and the reporting restrictions in the Crown Court ought to be left to that Court to make the determination on reporting. There was an acceptance that the Family Court has the power under the inherent jurisdiction to extend the reporting restriction to the reporting of criminal proceedings.

It remains for the applicant to make out their case for the reporting restrictions to be put in place and the Court would need to identify exceptional circumstances to justify the making of the reporting restriction order.

The Court in this case was well aware of the terrible history and the ‘exceptionally disturbing and […]brutal criminal acts with the children present or in the vicinity’ [50] and the impact and concerns of distress caused to the children being identified. Mr Justice Poole noted ‘their suffering is unimaginable and will have life long consequences’[32] but also noted that the ‘court cannot control or cancel the knowledge that those in their community already have, or will have as discussions within the community, including at the children's schools, continue. Furthermore, it is inevitable that there will be reporting of the criminal proceedings of which members of the local community and people from further afield will become aware.’[32]

The Court in this case made a reporting restrictions order but did not extend the prohibition on publishing the names or photographs of Mr Osborne and of Ms Highton and did not extend the restriction to publishing information from the criminal proceedings. The purpose of the reporting restriction order, which runs alongside the transparency order, is to prohibit information that would lead to the identification of the children subject to proceedings before the Family Court and restrict reporting rather than promote it.

The Court also considered that some provisions in the draft reporting restrictions order were too vague and too wide and needed to be more precise with consideration to Section 97(2) of the Children Act 1989. A reporting restrictions order binds all persons and all companies who know the order has been made and has a further reach than a transparency order.

The reason the Mr Justice Poole decided not to extend the reporting restriction to the Criminal proceedings is set out at paragraph 49 as follows:

  1. ‘The extension of reporting restrictions beyond the statutory restrictions should only be made when fully justified and in exceptional cases. There is a danger of creeping prohibition as was identified by the House of Lords in Re S.
  2. Previous publication of the names and photographs of the children's mother and Mr Osborne, mean that the children's identities are already known to those who know the family, who know of it, or who are in the local community.
  3. The court should be slow to seek to bind the hands of another court which, in my judgement, would be better placed to consider whether reporting restriction orders of the kind now sought are necessary in relation to the criminal proceedings.
  4. It has been suggested that since the media will not report, as a matter of fact, the matters set out in the proposed reporting restriction order, there is no harm in making the reporting restrictions order. That is not the proper approach. For me to make an injunction, I must be satisfied that it is justified as necessary and proportionate after conducting a balancing exercise of the competing Convention rights and the principle of open justice. The onus is on the Local Authority and not on the media in any application of this kind.
  5. The approach advocated by the Local Authority that since the Crown Court will be likely to make such orders, this court may as well do so is also wrong in principle. Any reporting restriction order needs to be justified to court that makes the order. As I have already said in my judgment, the criminal court is better placed to consider the relevant matters.
  6. There has, in fact, been no reporting of the specific matters that the Local Authority now seeks to restrict even though the criminal proceedings began three months ago.
  7. The harm that the Local Authority seeks to prevent being caused to the children by the making a reporting restriction order which extended to the criminal court, will not in fact be prevented. That is because their parents have already been and will in the future be identified and their images and names published.
  8. There are many cases in which there are parallel and related criminal and family proceedings where orders of the kind sought could be made but are not. Very sadly, many of those cases involve horrifying events which have resulted in the death of the child or a parent or significant harm to a child or a parent. It would be unacceptable, bearing in mind the competing Article 8 and Article 10 rights, for it to become routine for this court to make reporting restriction orders that sought to bind the criminal courts in those cases.’

It was also suggested to the Local Authority and the Guardian that they could contact the Crown Prosecution Service at that time to make enquiries about an application being made by them as to reporting restrictions in the Criminal proceedings in order for this to give the elder children some reassurance an application will be made and considered by a Crown Court Judge in those proceedings.