Surrey County Council v Al-Hilli and the Chief Constable of Surrey

On 5 September 2012, five members of the Al-Hilli family from Surrey were travelling on holiday in Annecy in France when they were attacked by a gunman. The three adults in the car, and a passing cyclist, were shot dead. The older child, Zainab, was assaulted and badly injured. The younger child, Zeena, escaped without physical harm, apparently by hiding.

The case has attracted world-wide media attention.The tragic incident made the children orphans with no person having legal parental responsibility for them. Initially it was not possible for the children to be placed in the care of members of the extended family because one line of police investigation concerned the possible involvement of family members in the murders.

As a result, Surrey County Council commenced care proceedings in September 2012 and the girls were placed in foster care.

The principal issue in the care proceedings was whether the children should be placed with members of the extended family.

On 19 April 2013, the Chief Constable of Surrey, who had been joined to the proceedings in December 2012, applied without notice for an order pursuant to FPR r.27.11(3)(a)(i),(ii) and (b) to exclude media representatives from attending hearings in the case.

The Chief Constable sought such an order on the basis that:

(a) it was necessary in the interests of the girls and for the safety and protection of the girls and their carers having regard to the girls’ right to life under Article 2 ECHR; and

(b) it was necessary because justice would otherwise be impeded or impaired in respect of the French police investigation and the “secrecy” of investigation under Article 11 of the French judicial code.

On 19 April 2013, Baker J made an order excluding media representatives from that hearing, namely a freelance journalist who writes for the Sunday Times. That order was made without prejudice to his or the media’s right to return to argue the point in greater detail. The Chief Constable indicated that she intended to seek a continuation of the order excluding the media from future hearings, and TNL, the publishers of the Sunday Times, indicated that they would oppose such an application.

Mr Justice Baker set out a number of general propositions which applied to an application to exclude the media under FPR r.27.11:

1. According to new rules introduced in 2009, accredited media representatives had a right to attend family proceedings sitting in private, and could only be excluded if the court found that one or more of the exceptions in r.27.11(3) were established. The right of media to attend family court proceedings sitting in private was properly characterized as an “assumption” and a “starting point”. [29]
2. It was for a person seeking to exclude the media to satisfy the court of the necessity of the exclusion pursuant to one of the limited statutory criteria; it was not for the media to justify their attendance – Spencer v Spencer [2009] EWHC 1529 (Fam) and Re Child X (Residence and Contact: Rights of Media Attendance) [2009] EWHC 1728 (Fam) applied. [29]
3. A party seeking to exclude the media must satisfy the court that it is “necessary” to do so. Necessary was not synonymous with ‘indispensable’, nor has it the flexibility of terms such as ‘useful’, ‘reasonable’ or desirable – R v Shayler [2003] 1 AC 247 applied. [30]
4. Although the rights of the media under the FPR do not extend to a right to report (save where permitted by the court), it must not be thought that they are less important. The courts had recognised that “open justice” had twin components – the right to attend as well as the right to report, and the fact that the right to report was restricted did not undermine the importance of the first limb. In some respects, it could be argued that the “watchdog” role of the press was heightened where it could not report, as the press scrutinised not only decisions of the court but the court’s processes also – AG v Leveller Magazine [1979] AC 440 and Hillingdon LBC v Neary [2011] EWHC 413 (Fam) cited. [31]
5. The fact that the right in question was the “right to attend” meant that the court’s powers were more flexible and could be addressed at any point in the hearing. Generally speaking, it would be harder for a party to persuade a court that the media should be excluded from the whole of a substantive hearing as opposed to a specific part. The circumstances in which the media would be excluded from the whole of a substantive hearing were “therefore likely to be rare”. [32]
6. Judges in the Family Division should be careful not to allow their naturally protective instincts of looking after the interests of vulnerable adults and children to lead them to underestimate the importance of the rights engaged by Article 10 ECHR. [33]
7. In deciding whether to exclude the media, the court should carry out a parallel analysis and balancing of the various human rights arising. This would involve “an intense focus on the comparative importance of the specific rights being claimed” – Re S (A Child)(Identification) Restrictions on Publication [2004] UKHL 47 and A Local Authority v W [2005] EWHC 1564 (Fam). [34]
8. There must be a proper factual basis for the concerns said to amount to an infringement of the rights claimed – Hillingdon LBC v Neary [2011] EWHC 413. [34]

In relation to Article 2 ECHR which the Chief Constable asserted was engaged in respect of the girls and her application to exclude the media, the approach of the court in assessing whether Article 2 ECHR was engaged in the application was whether there was a material increase in the risk to the children’s safety as a result of press attendance at the substantive hearing – Re Officer L [2007] UKHL 35 and R (on the application of M) v Parole Board [2013] EWHC 1360 (Admin) applied.

On the facts of this case, although there had manifestly been a real and immediate risk to the lives of the girls in the immediate aftermath of the shooting, the French and British authorities and the court had taken a series of measures to protect them which were sufficient to diminish the risk so that there was not presently a “real and immediate risk” to their lives and therefore Article 2 ECHR was not engaged. The court had the power to regulate its procedure, and could, with a degree of flexibility, exclude the press for a short part of the hearing, if it was necessary to protect particular sensitive information. The judge could also exclude foreign press representatives pursuant to FPR r.27.11(2)(g) who were not UKPCA accredited, and pursuant to FPR r.27.11(3) it might be necessary to excluded even accredited representatives of foreign media interests if they could escape the court’s contempt jurisdiction and the sanctions imposed by s.12 of the Administration of Justice Act 1960 and the contra mundum injunctions.

Although the court accepted that there could be an increased risk of leakage in cases where there was an intense media focus, it was a “cardinal principle” of the FPR’s permission for accredited press representatives to attend that they could be trusted not to abuse their right to attend by publishing information unlawfully. The court was entitled to take into account that Parliament had thought it appropriate to trust accredited representatives of the media to attend private family proceedings notwithstanding that they could not report what went on.

There was a particular public interest in the media performing its “watchdog” role in this case given the high public interest in the case, the interaction between the legal and investigatory systems of England and France and the impact of that interaction on the girls and their welfare.

Accordingly there was “no likelihood” of a material increase in risk caused by press attendance at the hearing and having conducted the balancing exercise, the court came down firmly on the side of allowing the media to attend the substantive hearing. The Chief Constable’s application was therefore dismissed.

The application by the Chief Constable was dismissed. The girls’ rights under Article 2 ECHR were not presently engaged and the Chief Constable had failed to show how the mere fact of media attendance at the care proceedings would materially increase any risk to the girls, having regard to the statutory prohibitions on reporting those proceedings which were in place and the contra mundum injunctions which also protected them.

There was a particular public interest in this case, and since Article 2 ECHR was not engaged, the court’s balancing exercise between the respective rights came down firmly on the side of allowing the media to attend the substantive hearing.

This decision is an important and rare judgment on the principles of “open justice” and press attendance in the Family Division which is likely to be welcomed by the media, with the judge emphasising that the total exclusion of the press from hearings in the Family Division is likely to be “rare”. The judge however stressed that the courts retained a large degree of flexibility in relation to press attendance, and that the ruling did not prohibit the temporary exclusion of the press where it could properly be shown to be necessary.

The judgment is also significant for its brief discussion of the procedural requirements necessary where an applicant seeks to exclude the press under FPR r.27.11(3). Mr Justice Baker stated that although an applicant was not under an obligation to provide “evidence” to the media with their application, the application should include an outline of the reasons for the application and should normally be made by way of the Press Association’s CopyDirect process as set out in paragraph 4 of the CAFCASS Practice Note of 18 March 2005. However, the judge made clear that he was not happy with the current Practice Direction on applications to exclude the media, and suggested that it was reconsidered in the course of the President of the Family Division’s ongoing review of “transparency” issues.

The judgment also chimes in many respects with the views of the current President of the Family Division, Lord Justice Munby, who has over the course of many years indicated his belief in the importance of greater transparency in the Family Division, set out most recently in his “View from the President’s Chamber” of July 2013. A fortnight before the judgment was given in this case, the President also handed down draft Practice Guidance which would create a default presumption in favour of public judgments (subject to anonymity) in many cases in the Family Division as part of the efforts to promote greater transparency and public insight into the workings of the Family Division.