Human rights

Surrey County Council v Z A-H and others: Family Division: 22 July 2013

In September 2012, a family was travelling in their car on holiday in France when they were attacked by a gunman. The three adults in the car were killed and the children were orphans with no person having parental responsibility for them. Initially, it was not possible for them to be placed into the care of members of the extended family because one line of the police investigation concerned the possible involvement of family members in the murders.

The father’s brother was subsequently arrested for his possible involvement, interviewed and released on bail. As a result, the applicant local authority started care proceedings in respect of the children. On their return to the UK, they were placed with foster carers with the support of a care plan devised by the local authority. The principal issue arising in the substantive proceedings was whether the children should be placed with two members of the extended family, who had been joined to the proceedings.

In July 2013, the sixth respondent newspaper asked the fifth respondent chief constable (the police) to confirm whether they would be making any application to exclude accredited press representatives from a substantive hearing. The police responded, setting out the basis of their application, indicating that they would rely on articles 2 and 8 of the European Convention on Human Rights, and the need to maintain judicial secrecy in France, pursuant to provisions of the French penal code, which involved article 6 of the convention. The instant proceedings concerned the police’s application to exclude the media. It fell to be determined: (i) whether there was a real and immediate risk to the children’s lives; and (ii) whether permitting the press to attend the hearing would give rise to a materially increased risk to life. The application would be dismissed.

(1) It was settled law that it was incumbent on a court to conduct an intense focus on the comparative importance of the specific rights being claimed. That involved an intense focus on the circumstances that were said to create a risk to life so as to engage article 2 of the convention. In conducting that focus, the court had to guard against giving excessive weight to its naturally protective instincts. The risk to life had to be assessed objectively and dispassionately (see [59] of the judgment).

In the dreadful moments of the attack in France, and in the period immediately afterwards, there had manifestly been a real and immediate risk to the lives of the children. Since then, the French authorities, the British police, the local authority and the court had taken a series of measures, separately and together designed to reduce the risk. There was no real and immediate risk to the children’s lives. Accordingly, the question was whether permitting the press to attend the hearing would give rise to a materially increased risk to life and, if so, whether that increase raised the risk to the threshold required of a real and immediate risk to life (see [60], [62] of the judgment). W (children) (identification: restriction on publication), Re [2005] All ER (D) 206 (Jul) applied; Officer L, Re [2007] 4 All ER 965 applied; R (on the application of M) v Parole Board [2013] All ER (D) 309 (May) applied.

(2) There was no likelihood that the attendance of accredited representatives of the media at the substantive hearing would materially increase the risk to the children’s lives. The court and the parties retained the right and the duty to keep the issue of their attendance under review at all points. The police had not demonstrated that there was a general risk of leakage and any specific risk could be addressed as it arose.

Accordingly, the court was not under a positive obligation under article 2 of the convention to take steps to reduce the risk by excluding the media from the outset of the hearing. The attendance of the media would not substantially interfere with the rights under article 8 of the convention of the children, their carers, or members of their extended family. Nor would it interfere with any rights under article 6 of the convention in the substantive proceedings or elsewhere.

Having conducted the parallel analysis of the rights involved, the balance in the instant case came down firmly on the side of allowing the media to attend the substantive hearing. Excluding the press from the outset of the substantive hearing was neither necessary in the interests of the children, or for the safety of any party, witness or person connected with a party or witness and justice would not be otherwise impeded or prejudiced by their attendance (see [63], [67], [68] of the judgment).

Sarah Morgan QC and Sharon Segal for the local authority; Melanie Carew for the children; James Turner QC and Jane DeZonie for the third and fourth respondents; Fiona Barton QC and Robert Cohen for the police; Jonathan Scherbel-Ball for the newspaper.