Secretary, Department of Family and Community Services v Smith

[2017] NSWSC 6

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6
Hearing dates:	15 November 2016
Date of orders:	23 January 2017
Decision date:	23 January 2017
Jurisdiction:	Equity
Before:	Brereton J
Decision:	Application for injunction restraining defendant from disclosing child’s in-care status dismissed. Interlocutory injunction to be discharged after 14 days.
Catchwords:	FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – application for injunction to restrain disclosure that child is in care – nature of parental jurisdiction – custodial aspect – protective aspect – where proposed disclosure would refer directly to child - whether disclosure would contravene (NSW) Children and Young Persons (Care and Protection) Act 1998, s 105, and thereby infringe justiciable public or private right under parental responsibility of Minister – whether disclosure would be injurious to child’s welfare – stigmatization of children in care – evaluation and balancing of jeopardy to child’s welfare in context of child already in public spotlight and defendant’s and public interest in freedom of expression and scrutiny of care system - held, on balance potential jeopardy to child’s welfare insufficient to trump right of free expression.
Legislation Cited:	(CTH) Family Law Act 1975 s 67ZC, s 121 (NSW) Adoption Act 2000, s 119, s 180 (NSW) Children (Care and Protection) Act 1986, s 67, s 68 (NSW) Children (Criminal Proceedings) Act 1987, s 15A (NSW) Children and Young Persons (Care and Protection) Act 1998, s 104C, s 105 (NSW) Commonwealth Powers (Family Law—Children) Act 1986, s 3(2)(a) and (c) (NSW) Crimes Act 1900, s 578A (UK) Children Act 1989, s 1(1) (UN) Convention on the Rights of the Child, Article 16
Cases Cited:	C, In re [1990] Fam 39 Carseldine v Director of Department of Children’s Services (1974) 133 CLR 345 Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 Director General Department of Community Services v Australian Broadcasting Corporation [1996] NSWSC 174 Director-General, Department of Community Services v Y [1999] NSWSC 644 Gee v Pritchard (1818) 2 Swan 402; 36 ER 670 K v Minister for Youth and Community Services [1982] 1 NSWLR 311 Kelly v British Broadcasting Corpn [2001] Fam 59 M and N (Minors), In re (Wardship: Publication of Information) [1990] Fam 211 N (Infants), Re [1967] Ch 512 P v P (1985) 2 NSWLR 401 R v Central Independent Television plc [1994] Fam 192 Reynolds v Times Newspapers Limited [2001] 2 AC 127 Rinehart v Welker [2011] NSWCA 403 S (A Child), In re (Identification: Restrictions on Publication) [2004] Fam 43 S (FC) (a child), In re [2004] UKHL 47 S v McC (orse S) and M (DS intervener); W v W [1972] AC 24 Scott v Scott [1913] AC 417 Secretary Department of Family and Community Services v Smith [2016] NSWSC 1384 W (A Minor), In re (Wardship: Restrictions on Publication) [1992] 1 WLR 100 Waters v Pacific Publications Pty Ltd [1999] NSWSC 366 Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236 Wellesley v Wellesley (1828) 2 Bli NS 124; 4 ER 1078 X, Re [1975] Fam 47; 1 All ER 697 X, Re [1984] 1 WLR 1422 Z (A Minor), In re (Identification: Restrictions on Publication) [1997] Fam 1
Texts Cited:	Denzel D & MacDonald ML (2014), ‘Stigma and Foster Care: An Empirical Investigation’, University of Massachusetts Amherst. Farmer E, Selwyn J & Meakings S (2013), ‘Other children say you're not normal because you don't live with your parents’, Child and Family Social Work, 18, pp 25-34. Morgan R (2011) ‘Children’s care monitor 2011’. Penninck AJ (2013), ‘An exploration of the effects of stigma on the experiences of foster care alumni’, Theses, Dissertations and Projects, Paper 940, SmithScholarWorks, Smith College. Peters J (2005) ‘True ambivalence: Child welfare workers’ thoughts, feelings, and beliefs about kinship foster care’, Children and Youth Services Review, 27(6), pp 595-614. Rest ER & Watson KW (1984), ‘Growing up in foster care’, Child Welfare, 63(4), pp 291-306. Ridge T & Miller J (2000) ‘Excluding children: Autonomy, friendship and the experience of the care system’, Social Policy & Administration, 34(2), pp 160-75. Rogers J (2016) ‘’Different’ and ‘Devalued’: Managing the Stigma of Foster-Care with the Benefit of Peer Support’, British Journal of Social Work, 0, 1-16. Schofield G, Been M, Sargent K & Thoburn J (2004) Part of the family: Pathways through foster care. London, British Association for Adoption and Fostering.
Category:	Principal judgment
Parties:	Secretary, Department of Family and Community Services (plaintiff) Allanna Pearl Smith (defendant)
Representation:	Counsel: J Harris (solicitor) (plaintiff) Ms A Smith (in person) (defendant)   Solicitors: Crown Solicitor’s Office (plaintiff)
File Number(s):	2016/266559
Publication restriction:	Yes

Judgment

1. HIS HONOUR: The child the subject of these proceedings – whom I shall call Julian – was one of four siblings. Julian was removed from the care of his mother at 7 months’ age because of concerns that he was at risk of harm (associated with domestic violence and drug abuse), and placed with foster carers. Julian’s sister, who is a year older than Julian and whom I shall call Sarah, had been removed from her mother’s care before Julian was born, and the Children’s Court had allocated parental responsibility for her to the Minister; she was later placed with the same carers as Julian, a week after he was. Subsequently, having found that there was no realistic possibility of restoration to their parents, the Children’s Court made final orders allocating parental responsibility for Julian and Sarah to the Minister until they attain 18; their care plans contemplate that they will remain in their placement with their current carers until 18. The other two siblings, who are younger than Julian, remain in their mother’s care, and there are apparently no current child protection concerns in respect of them.

2. Julian disappeared some years ago; it is not presently known whether he is alive or dead. A police investigation continues. There has been considerable media interest in his disappearance, and Julian’s name and image have been the subject of widespread publicity. However, the fact that Julian was, at the time of the disappearance, in the Minister’s parental responsibility and placed with foster carers has not been the subject of publicity and is not widely known, and the publicity has generally referred to the carers as Julian’s parents.

3. The carers have recently applied to the Children’s Court for sole parental responsibility for Sarah. In response, the mother has stated that she seeks restoration of Sarah to her care. The father, who is now separated from the mother, is not actively engaged. The proceedings were to be heard from 6 December 2016 over four days; whether that hearing proceeded and if so its outcome is not known to me. However, in those proceedings Sarah has, at the suggestion of her independent legal representative, been referred to by a pseudonym, in order to protect her from being identified as Julian’s sister.

4. The first defendant Allanna Pearl Smith is an advocate for children's rights and interests. In connection with promoting a coronial inquest into Julian's disappearance, she and her associates wish to publish a petition and online statements, which would include information to the effect that Julian was in foster care, and/or was a “state ward” at the time of his disappearance. [1]

   1. Although the summons names Walking Warriors 4 Missing Children as second defendant, there is no indication that it is a legal entity.

5. The plaintiff Secretary of the Department of Family & Community Services (FACS) applies for injunctions (1) permanently restraining Ms Smith from further publishing, whether in writing or by internet or any other electronic means, information conveying that Julian has been placed in foster care and/or is under the parental responsibility of the Minister for Family & Community Services and/or is a ward of the state or to similar effect; and (2) commanding her to remove from the Walking Warriors 4 Missing Children Facebook page any posts which convey those matters. Orders to that effect were made ex parte on 2 September 2016 until 7 September 2016, when the summons was first returnable, and on that day they were continued, on an interlocutory basis, until the hearing on 15 November. [2] The Court also ordered that there be no publication which would identify Julian as connected with these proceedings, save to the extent necessary to implement the orders. In the course of the hearing on 15 November, following which judgment was reserved, order (1) was continued until further order.

The parens patriae jurisdiction

2. Secretary Department of Family and Community Services v Smith [2016] NSWSC 1384.

6. Aside from where statute confers jurisdiction to make orders restraining publication in the media of information concerning a child, the court’s power to do so is an aspect of its inherent parental - or parens patriae - jurisdiction. In New South Wales, this aspect of that jurisdiction was first referred to in P v P,[3] where Powell J (as he then was) held that the court, in exercise of its wardship jurisdiction, has power to protect a ward from injury by publicity by making an order restraining anyone, whether a party to the proceedings or not, from publishing information relating to, or likely to injure, the ward; but that such an order should not be made of course, but only after due regard to other rights which the court has a duty to protect; [4] and further that those principles were not limited to wardship cases but extended to any case in which the court was exercising its parental jurisdiction. [5] However, his Honour declined to grant an injunction restraining the proposed televising of a segment on a television program relating to children who were wards of the court, their maternal grandparents and their mother, the matter being in the public interest and there being no real risk of substantial harm to the children:[6]

Although my concern as to the second matter has been less easy to resolve, I have, after anxious consideration, concluded that it would be contrary to principle for me to intervene in order to have the scenes in question deleted from the segment when televised.

Given the present state of society, it is, in my view, only proper that the public be made aware of the bitterness, distrust, and, at times, irresponsible actions which are a commonplace of disputes such as these, and of the often intractable problems which judges commonly encounter when called upon to resolve such disputes. So too, I think it only proper that the public be made aware that, despite the fact that the parties to such disputes almost always claim to be motivated by a desire to advance the best interests of the child or children in question, the tragic fact is that it is usually the child, or children, in question who is, or are, most likely to be hurt by the bitterness and tensions to which it is, or they are, exposed, and the irresponsible actions to which it is, or they are, subjected. Even if the proposed segment does nothing more, it, at the least, makes those matters brutally clear.

This being so, it seems to me that, unless I can perceive a real risk of substantial harm to the two young children whose interests I am concerned to protect, it would be wrong for me to intervene. Since the children are so young, and since, as chance would have it, the plaintiffs, with whom they live do not own a television set, it is unlikely, in the extreme, that the televising of the proposed segment would have any immediate effect upon either of them. While, if the facts had been different, one might have been concerned as to the effect of the viewing of the segment by members of the community in which the children live, I have come to the sad conclusion that, in the light of what I already know as to the parties' past history, it is more probable than not that this unhappy dispute has, long since, become part of the folklore of the little community in which the children have lived for the greater part of their lives.

3. (1985) 2 NSWLR 401.

4. Citing Re X [1975] Fam 47 (“Re X 1975”) and Re X [1984] 1 WLR 1422 (“Re X 1984”).

5. Citing Re “N” (Infants) [1967] Ch 512; Carseldine v Director of Department of Children’s Services (1974) 133 CLR 345; and K v Minister for Youth and Community Services [1982] 1 NSWLR 311.

6. (1985) 2 NSWLR 401 at 404-5.

7. Then, in Director General Department of Community Services v Australian Broadcasting Corporation (“Director General v ABC”),[7] McLelland CJ in Eq restrained the publication of an interview by journalists with two children who were in the care responsibility of the Minister and who made serious allegations concerning their treatment in care, on the basis that it was in their interest, and in the public interest, that there be a proper investigation of the allegation, free of the risk of interference or contamination by the broadcast of the interview. Citing Re X 1975, Re X 1984 and P v P, his Honour said that the powers of the Court extended to the making of orders designed to protect a child from publicity which is likely to be harmful to his or her welfare:

The repetition on television of the contents of the interview would be likely to have a highly detrimental effect on the reliability of any information or evidence later given in the course of any investigation or proceedings. If the allegations or some of them are substantially true, it would be contrary to the interests of the children for the information or evidence subsequently elicited from them (and others who may watch the broadcast) to be rendered less acceptable. If the allegations or some of them are substantially untrue, there is evidence which I accept to the effect that their public ventilation on television may have long term adverse psychological effects on the children themselves.

My ultimate conclusion is that the public broadcasting by the defendants, or indeed by anyone else, of any substantial part of the interview of 26 May 1996 or any material then obtained, would, at least until the relevant allegations have been properly investigated and any forensic consequences completed, pose a real risk of substantial harm to the children, which the Court should act to prevent. The evidence indicates that such an investigation is in process.

7. [1996] NSWSC 174.

8. Both those decisions were ex tempore judgments on interlocutory applications. Both relied on two English decisions – Re X 1975 and Re X 1984 – which have subsequently been the subject of consideration in many later English decisions, culminating in a compendious review of the law by Hale LJ, as she then was, in In re S (A Child) (Identification: Restrictions on Publication) [8] (“Re S”) (which concerned whether media should be restrained from publishing the identity of a defendant in a murder trial, to protect the privacy of her son who was not involved in the criminal proceedings). Although her Ladyship dissented in the outcome, her analysis of the law was the subject of agreement by Lord Phillips MR and Latham LJ. In the House of Lords,[9] the view was taken that resort to the earlier case law about the existence and scope of the inherent jurisdiction was no longer necessary, as the foundation of the jurisdiction to restrain publicity in such cases was now derived from convention rights under the European Convention of Human Rights – although the earlier case law was not wholly irrelevant, as it may remain of some interest in regard to the balancing exercise to be carried out under the ECHR provisions; moreover, the approach which had historically been adopted under the inherent jurisdiction was remarkably similar to that to be adopted under the ECHR. [10] But in New South Wales, where there is of course no ECHR, the case law on the inherent jurisdiction remains decisive, and in the absence of further local consideration of the question, the judgment of Hale LJ, on which the following discussion draws extensively, is of great importance and assistance.

   8. [2004] Fam 43.

   9. In re S (FC) (a child) [2004] UKHL 47.

   10. [2004] UKHL 47 at [23] (Lord Steyn).

9. The inherent parental jurisdiction, under which the Court has responsibility for “the care of those who are not able to take care of themselves”,[11] is very broad. It has been said that “(i)t is ... impossible to say what are the limits of that jurisdiction",[12] that it extends "as far as is necessary for protection and education",[13] and that “the jurisdiction is of a very broad nature, and … can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations”. [14] The Court’s power is more extensive than the legal powers of parents:[15]

No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power (The breadth of the wardship jurisdiction of the English courts was emphasised in In re R (A Minor) ([1991] 3 WLR 592; [1992] Fam 11).

11. Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243.

12. Wellesley v Wellesley (1828) 2 Bli NS 124 at 142; 4 ER 1078 at 1085 (Lord Manners).

13. Wellesley v Wellesley (1828) 2 Bli NS 124 at 136; 4 ER 1078 at 1083 (Lord Redesdale).

14. E (Mrs) v Eve [1986] 2 SCR 388 at [74]Re X [1975] Fam 47 at 50-1 (Latey J)

15. Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 (“Marion’s Case”) at 258-9 (Mason CJ, Dawson, Toohey and Gaudron JJ).

10. The inherent parental jurisdiction comprises both a protective and a custodial jurisdiction in respect of children, under which orders restraining publicity can be made. [16] In the exercise of the custodial jurisdiction, which is concerned with questions of the upbringing of a child and related to the exercise of parental responsibility for the child, the child's welfare is paramount. However, in the exercise of the protective jurisdiction, the child's welfare whilst relevant is not paramount, and the rights and interests of the child must be balanced against the competing rights of others. This distinction between the “custodial" and "protective" jurisdictions was recognised by the House of Lords in S v McC (orse S) and M (DS intervener); W v W, [17] in which the House rejected an argument that the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings was a matter of upbringing in which the child's interests (which might well be prejudiced by a finding that he was illegitimate) were paramount. Lord MacDermott said:[18]

The duty of the High Court as respects the affairs and welfare of infants falls into two broad categories. There is, first of all, the duty to protect the infant, particularly when engaged or involved in litigation. This duty is of a general nature and derives from the Court of Chancery and to some extent also, I believe, from the common law courts which were merged along with the Court of Chancery in the High Court of Justice by the Judicature Act 1873. It recognises that the infant, as one not sui juris, may stand in need of aid. He must not be allowed to suffer because of his incapacity. But the aim is to ensure that he gets his rights rather than to place him above the law and make his rights superior to those of others … The Official Solicitor, however, relied on something more than the protective jurisdiction. He relied on what was commonly referred to as the 'custodial jurisdiction'—the second of the broad categories which I have mentioned already. This is an aspect of the prerogative and paternal jurisdiction of the former Court of Chancery … It is derived mainly from the administrative functions of the Court of Chancery in which that court had to make a choice between conflicting claims as to the custody and upbringing of the infant or the management of his affairs, or to determine the course to be taken in such matters even when not in actual dispute.

16. Re S [2004] Fam 43 at 58-9 [20].

17. [1972] AC 24.

18. [1972] AC 24 at 47-48.

11. Similarly, Lord Hodson said:[19]

In custody cases the child's welfare is the governing consideration when all relevant facts, claims and the wishes of parents are taken into account. I am not persuaded that the position is the same where a paternity issue has to be tried. True that, as in all cases where infants are concerned, the court will see that the infant is protected … The court in ordering a blood test in the case of an infant has, of course, a discretion and may make or refuse an order for a test in the exercise of its discretion, but the interests of other persons than the infant are involved in ordinary litigation. The infant needs protection but that is no justification for making his rights superior to those of others.

19. [1972] AC 24 at 58.

12. Although in theory the jurisdiction is without limitation and extends to authorise any order necessary for the welfare or protection of the child, it is to be exercised in accordance with principle, as was explained in Marion’s Case by Mason CJ, Dawson, Toohey and Gaudron JJ: [20]

The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction (See In re X (A Minor) (1975) 2 WLR 335, at pp 339-340, 342, 345, 345-346; (1975) 1 All ER 697, at pp 699-700, 703, 705, 706). That is not to deny that the jurisdiction must be exercised in accordance with principle.

20. Marion’s Case at 258 (Mason CJ, Dawson, Toohey and Gaudron JJ ).

13. Similarly, Brennan J (who dissented in the result, but whose description of the jurisdiction is frequently cited) while acknowledging that the jurisdiction was “extremely broad”, emphasised that it was exercised cautiously. [21]

    21. Marion’s Case at 280 (Brennan J).

14. Consistently with this, courts have established classes of case in which, although the jurisdiction is theoretically available, it is not exercised. [22] In Re S, Latham LJ said:[23]

I prefer the view that the jurisdiction is, as Ward LJ said in In re Z [1997] Fam 1 and Millett LJ said in In re R [1994] Fam 254, 271, theoretically unlimited, but that as Waite LJ said in R v Central Television plc [1994] Fam 192, 207: "the courts have nevertheless found it necessary to set self-imposed limits upon its exercise …"

22. Re S [2004] Fam 43 at [35] (Hale LJ), citing Ward LJ in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 at 17 at 23.

23. Re S [2004] Fam 43 at [75].

15. Ward LJ had expressed the same notion in In re Z (A Minor) (Identification: Restrictions on Publication) [24] (“Re Z”) (which concerned whether the daughter of Cecil Parkinson and Sara Keays should be permitted to take part in a television program about the specialist help she was receiving for her special educational needs), in the following terms:[25]

(1)     The wardship or inherent jurisdiction of the court to cast its cloak of protection over minors whose interests are at risk of harm is unlimited in theory though in practice the judges who exercise the jurisdiction have created classes of cases in which the court will not exercise its powers. An obvious class is where Parliament has entrusted the exercise of competing discretion to another, for example (a) the local authority, as in A v Liverpool City Council [1982] AC 363; (b) the immigration authorities as in In re Mohamed Arif (An Infant) [1968] Ch 643 and In re A (A Minor) (Wardship: Immigration) [1992] 1 FLR 427; (c) another court of competent jurisdiction as in In re R (Wardship: Restrictions on Publication) [1994] Fam 254.

24. Re Z [1997] Fam 1 at 23, cited in Re S at [35].

25. Re Z [1997] Fam 1 at 23, cited in Re S at [35].

16. In the context of orders restraining publication in the media of information concerning a child, the principles according to which the jurisdiction will be exercised vary according to into which of three established classes of case (in which the court might theoretically exercise parental jurisdiction to restrain publication),[26] the particular case falls. Those classes have been described as follows:[27]

.. in relation to the media the exercise of the court's inherent parens patriae or wardship jurisdiction is divided into three parts: the first part, in which the jurisdiction is not exercisable at all and the child is left to whatever remedies against the media the law would give an adult in comparable circumstances; a second part in which the jurisdiction is exercisable, but in circumstances where, because the court is exercising only its 'protective' jurisdiction, the child's interests are not paramount and where a so-called balancing exercise has to be performed; and the third part, in which, because the court is exercising its 'custodial' jurisdiction, the child's interests are paramount.

26. Re S [2004] Fam 43 at 57 [18].

27. Kelly v British Broadcasting Corpn [2001] Fam 59 at 74 (Munby J).

17. It is convenient first to mention the third class, where the court is exercising its jurisdiction in relation to a question concerning the upbringing of a child (as, for example, in Re Z, where deciding whether the child should take part in a television program involved an exercise of parental responsibility, in respect of which the court had both a statutory and an inherent jurisdiction). The New South Wales case of Director General v ABC is also an instance of this class. This involves an exercise of the “custodial” aspect of the jurisdiction, and in such a case, the child's welfare is paramount. In the UK, this is inter alia because (UK) Children Act 1989, s 1(1) provides that "When a court determines any question with respect to—(a) the upbringing of a child … the child's welfare shall be the court's paramount consideration." However, the judgment of the House of Lords in S v McC, referred to above, indicates that such an approach prevailed even before the Children Act. Moreover, in Scott v Scott,[28] in holding that the High Court had no power to hear a matrimonial suit in camera in the interest of public decency, nonetheless mentioned that special considerations apply when the court is exercising its parental jurisdiction in relation to wards of court. Viscount Haldane LC said:[29]

In the [case] of wards of court …the court is really sitting primarily to guard the interests of the ward. . . . Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward …

28. [1913] AC 417; referred to in Rinehart v Welker [2011] NSWCA 403 at [34] (Bathurst CJ and McColl JA).

29. [1913] AC 417 at 437.

18. Thus although no statutory provision similar to (UK) Children Act s 1(1) expressly governs this court’s exercise of its inherent parental jurisdiction,[30] at general law the court would, in the exercise of the “custodial” aspect of the jurisdiction, regard the child’s interests as paramount.

    30. To the extent that it might be said that the cross-vesting of the jurisdiction of the Family Court under (CTH) Family Law Act 1975 s 67ZC(1) to make orders with respect to the welfare of children, coupled with the paramountcy principle in Family Law Act 1975 s 67ZC(2), has that effect, the referral of powers with respect to children to the Commonwealth excluded the jurisdiction of the Supreme Court to make orders in respect of children who are in custody under a provision of the Care and Protection Act: (NSW) Commonwealth Powers (Family Law - Children) Act 1986, s 3(2)(a) and (c)); and see Director-General, Department of Community Services v Y [1999] NSWSC 644 at [90]-[97].

19. However, as Hale LJ explained in Re S, a decision whether to restrict publication of information to be revealed during the mother's criminal trial which might tend to identify the child did not involve the “custodial” jurisdiction, because it did not determine any matter concerning the upbringing of the child and the court would not be exercising parental responsibility:[31]

… Generally speaking, a question of upbringing will relate to the exercise of parental responsibility for the child: participation in a television programme is an obvious example (and, with respect to Munby J in Kelly v British Broadcasting Corpn [2001] Fam 59, deciding whether a child should give an interview would normally fall within the scope of parental responsibility unless the child had reached an age where not only was he competent to determine the matter for himself but the parent had no power to override him).

22 That is not so here. In deciding whether or not to make this order, the court is not exercising its jurisdiction over how CS is to be brought up. That is being done in the care proceedings. Nor is it deciding how any aspect of parental responsibility should be met. Parents cannot prohibit press reporting of criminal proceedings in order to protect their children from harm, however much they might like to be able to do so. This is not, therefore, a case in which the child's welfare is the paramount consideration.

31. Re S [2004] Fam 43 at [21]-[22].

20. That analysis applies equally to the present case. In deciding whether or not Ms Smith should be prohibited from disclosing Julian’s legal status, the court is not deciding any question as to how Julian is cared for and raised, nor exercising any aspect of parental responsibility. The ‘custodial’ aspect of the jurisdiction is not engaged. This case invokes the ‘protective’ aspect of the jurisdiction, and the question is whether it is in the first or second class.

21. In the first class, of which Re X 1975 is an example, the child’s involvement is wholly incidental to the proceedings, the child comes to court solely to prevent publication, and the jurisdiction, though it technically exists, is not exercised at all. [32] In Re Z, Ward LJ described the category as follows:[33]

There is now an established category of case, of which In re X [1990] Fam 47 and R v Central Television plc [1994] Fam 192 are the examples, where the freedom to publish information has been set beyond the limit of the exercise of the jurisdiction. I would define that category as the case where (a) the child is not already under the court's protective wing in that the court is not exercising some supervisory role over some aspect of the child's care and upbringing but where, on the contrary, the originating summons is issued for the express purpose of seeking the injunctive relief; (b) crucially, the material to be published is not material directly about the child or material directed at the manner of the child's upbringing. In this category the material is only indirectly or incidentally or inferentially referable to the child.

32. Re S [2004] Fam 43 at [18] (Hale LJ).

33. [1997] Fam 1 at 23 (cited in Re S [2004] Fam 43 at [35]).

22. As Hale LJ explained in Re S, “It is clear from what follows that (a) and (b) were cumulative, not alternative, criteria” of the discretion to decline to exercise the jurisdiction. [34] Ward LJ continued:[35]

(3)     It follows that the wardship or inherent jurisdiction will be exercised where the material to be published is directed at the child or is directed to an aspect of the child's upbringing by his parents or others who care for him in circumstances where that publicity is inimicable to his welfare … (4) A separate aspect of the court's inherent jurisdiction is the power to protect the integrity of its own proceedings. For example, by preserving the anonymity of those who come forward to assist the court, so encouraging full and free disclosure of all material facts impinging on the child's wellbeing, the court serves the administration of justice, the ultimate end of which is to do what is best for the child.

34. Re S [2004] Fam 43 at [35].

35. [1997] Fam 1 at 23 (cited in Re S [2004] Fam 43 at [35]); cf per Bingham MR at [1997] Fam 1 at 33 (cited in Re S [2004] Fam 43 at [35]).

23. The corollary is that those same criteria define the second class of case, in which the jurisdiction may be exercised, and of which In re M and N (Minors) (Wardship: Publication of Information) [36] and In re W (A Minor) (Wardship: Restrictions on Publication) [37] – and ultimately, Re S itself - provide examples. As hitherto described, this class is constituted by cases in which in which the court is not exercising an aspect of parental responsibility in making a decision in relation to a question concerning the upbringing of the child, but (1) the welfare of the child requires protection from the adverse impact of a publication which refers directly to the child (or to the child’s carers), or (2) the administration of justice in the wardship proceedings requires protection. As Hale LJ explained,[38] in Re Z:

    36. [1990] Fam 211.

    37. [1992] 1 WLR 100.

    38. Re S [2004] Fam 43 at [35].

1. Ward LJ “pointed out … that there were two strands relied upon to justify the use of the wardship jurisdiction to prohibit publication, which might need to be kept separate”:[39]

"namely, that aspect of the wardship jurisdiction which seeks to protect the welfare of the child and that aspect which can also be said to be quite another facet of the court's inherent jurisdiction, namely its power to protect its own proceedings as may be necessary in the interests of the administration of justice."

2. Sir Thomas Bingham MR expressed a similar view, to the effect that there may be two independent reasons for restraining publication, namely protection of the administration of justice, and protection of a child from the adverse impact of reports directed at the child or the child’s carers:[40]

In the absence of a statutory warrant for restraining publicity … and where there is no threat to the integrity of the court's proceedings, the court should not restrain reports or comment which are not directed at a child or the child's carers, whether professional or not, and which relate only peripherally to the child itself. That is what the cases decide, and I regard that state of the law as healthy.

39. Re Z [1997] Fam 1 at 19.

40. Re Z [1997] Fam 1 at 33.

24. In respect of that aspect of the jurisdiction which seeks to protect the welfare of the child, as Hale LJ said, authority establishes a power to protect children from the otherwise lawful activities of third parties which goes beyond anything which parents could achieve. [41] However, it might be added that, a fortiori, the protective aspect of the jurisdiction extends to, and may be exercised in, a case where the activities of the third party are not lawful, but infringe the public or private legal rights of the child. The scope for the court to grant relief in such a case is recognised in the following passage in the judgment of Lord Donaldson of Lymington MR in In re C:[42]

Unless the public interest or a private right enforceable by the courts requires an injunction, the courts cannot intervene. On the facts of this case such intervention can only be justified upon one or other or a combination of two bases. These are (1) that the injunction is necessary for the welfare of C. or for safeguarding her rights and (2) that the injunction is necessary in the interests of the administration of justice.

41. Re S [2004] Fam 43 at [24].

42. [1990] Fam 39 at 47.

25. This includes cases where the activity in question would be a criminal offence. In Gee v Pritchard, [43] Lord Eldon LC, while denying a general jurisdiction to restrain the commission of crimes, excepted cases of injunctions for the protection of children in the parens patriae jurisdiction:[44]

The publication of a libel is a crime and I have no jurisdiction to prevent the commission of crimes, excepting, of course, such cases as belong to the protection of infants, where dealing with an infant may amount to a crime—an exception arising from that peculiar jurisdiction of this Court.

43. (1818) 2 Swans 402; 36 ER 670.

44. (1818) 2 Swans 402 at 413; 36 ER 670 at 674.

26. Thus in such a case the intervention of the Court by injunction in the case of a child is not in aid of the criminal law, but an exercise of the parental jurisdiction.

27. Accordingly, I would hold that the second category of case – in which the protective aspect of the court’s inherent parental or parens patriae jurisdiction is engaged and available to support orders restraining publication of information concerning a child – includes cases in which the proposed publication would:

1. infringe a justiciable public or private right of the child; or

2. impinge adversely on the child’s welfare, and refers directly to the child (or his or her carers); and/or

3. hinder the administration of justice in the wardship proceedings.

28. Hale LJ explained why Re S was such a case:[45]

37 The information in this case lies somewhere in between that in In re X [1975] Fam 47 and R v Central Television plc [1994] Fam 192 and that in In re M and N [1990] Fam 211 or In re W [1992] 1 WLR 100. The proposed publication will not relate directly to how CS is currently being brought up. We do not know whether it will be necessary to refer to him at all in the criminal trial, but we understand that these respondents have agreed not to publish anything which would refer to him directly. On the other hand, this is not the sort of remote and unconnected information about a deceased or long-absent parent with which In re X [1975] Fam 47 and R v Central Independent Television plc [1994] Fam 192 were concerned. The publication will relate to events within his recent family life in which he has been directly involved. These have already had and will continue to have a serious impact upon the way in which he is brought up. They are the reason why he has lost the older brother he loved, why he had to go into foster care for more than a year, and why he is no longer living with the mother he loves. The impact upon him of all those events will be heightened as the trial proceeds and is reported in the press. The reactions of others around him to those reports are likely to have an important bearing on his relationship with and understanding of his mother. Thus the reports can be expected to have a real bearing on how he is brought up in future. The more harm that is done by the trial process, the more difficult will be the family court's task in trying to safeguard his future welfare. Decisions which have still to be made about contact with the mother are likely to be affected, as might also be future decisions about where he and his father are to live, and the continuation or discharge of the care order. In so far as the information to be published relates to the reasons for changing a child's placement, and may be expected to have an impact upon future decisions about him, it is closely analogous to that in In re M and N [1990] Fam 211. In my judgment, therefore, it is covered by each of the two bases identified by Lord Donaldson of Lymington MR in In re C [1990] Fam 39, 47: para 29 above.

45. [2004] Fam 43 at 67-8 [37].

29. The present case is even more clearly within the second class than was Re S. Here, although the originating summons was issued for the express purpose of seeking the injunctive relief, the material to be published is not merely indirectly or incidentally or inferentially referable to Julian, but is directly about him: it directly refers to his status as a foster child or a child in care.

30. As has been explained, in second category cases, the child's welfare is relevant but not paramount, and must be balanced against competing rights and interests. In Re S, it was said that although the court's protective jurisdiction to restrain publication was engaged and could be exercised, in deciding whether it should be exercised, the court had to balance the public interest, in the freedom of the press and in knowing the names of those who had committed grave criminal offences, against the rights of the child and the need to protect him from further harm. Thus in deciding whether to exercise the jurisdiction, it is appropriate to consider:

1. whether the proposed publication is otherwise lawful, or whether it would infringe justiciable rights of the child;

2. the interests of the child, and to what extent the child’s welfare would be jeopardized by the proposed publication; and

3. other relevant interests, including the competing interest in freedom of expression and discussion.

31. Accordingly, in this case it is open to exercise the jurisdiction to restrain publication, but Julian’s interests, though relevant, are not paramount: they must be balanced with other relevant interests, most relevantly freedom of expression, and, in the context of this case, the public interest in the operation of and in scrutiny of the out-of-home-care system.

Justiciable public or private right: Care & Protection Act 1998, s 105?

32. Although it has not featured in the authorities, which concern publications which would otherwise be lawful, it must be a significant if not decisive factor if the publication were unlawful and infringed the child’s justiciable public or private rights. [46] In such a case the balance would at least usually clearly favour the child, as restraining the unlawful activity of another party would not interfere with its legitimate interests.

    46. It may not be decisive, for example, as it might as a matter of discretion be considered appropriate to leave the matter to the criminal remedy and not superimpose a penalty for contempt on it.

33. In this case, a question arises as to whether the proposed publication would be a contravention of (NSW) Children and Young Persons (Care and Protection) Act 1998 (“the Care and Protection Act”), s 105, which relevantly provides as follows:

(1) The name of a child or young person:

(a) who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or

(a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or

(b) with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or

(c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or

(d) who is the subject of a report under ss 24, 25, 27, 120, 121 or 122,

must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.

34. The prohibition extends to any information, picture or other material that identifies, or is likely to lead to the identification of, the child or young person, and applies until the child or young person attains the age of 25 years or dies, whichever occurs first. The penalty for a contravention of s 105 is a fine of $22,000 and/or imprisonment for two years.

35. In Waters v Pacific Publications Pty Ltd, Studdert J considered the predecessor section - namely (NSW) Children (Care and Protection) Act 1987, s 68, which was in similar though not identical terms. His Honour held (1) that the offence created by s 68 was not one of strict liability, and (2) that the provision was not to be given such a broad construction as to create an offence in the case of a publication where there was no specific reference to the care proceedings concerned. In that case, the prosecution submitted that the elements of the offence were (i) that the person identified was a child; (ii) that there was identification by name or in some other manner; (iii) that there were care proceedings under the relevant part of the Act (Part 5) relating to the child; and (iv) that the child was named or identified sufficiently in connection with the subject matter of such proceedings. As to element (iv), the prosecution had submitted that that element was proved by reference to assertions in the relevant article: (a) that the child R was placed in foster care; (b) a statement attributed to the mother, "When R was taken away it broke my heart. I want her back desperately;" (c) that "the foster family caring for R has also received threats…"; and (d) the footnote to the article: "The New South Wales Department of Community Services says it is unable to comment to protect the identity of some of the individuals involved."

36. His Honour held that there was no error in the magistrate's conclusion that while the article identified the child, it did not identify the child in connection with care proceedings under Part 5, and that the question as to whether or not a child the subject of care proceedings under Pt 5 had been named in connection with such proceedings was to be determined by reference to the article itself. [47] His Honour continued:

40 Obviously, it cannot have been the intention of the legislature to make it an offence simply to publish the name of a child who has been involved in proceedings under Pt 5. Taken out of context and taken literally, sub-s (1) would permit of such a construction. However, s 68 has to be considered in its context and in particular in conjunction with s 67 …

47. [1999] NSWSC 366 at [39].

37. Thus, his Honour accepted that s 68 must be regarded as being directed to the publishing or broadcasting of a report of the proceedings - including the evidence placed before the Children's Court, the submissions made to that court and what the magistrate determined - and that the prohibition on publishing or broadcasting the name of the child to whom proceedings related presupposed that the proceedings themselves were being published or broadcast by some such report:[48]

Section 67(1)(b) focuses upon “any person who is engaged in preparing a report on the proceedings for dissemination through a public news medium”. It is implicit that the legislature had such a person in mind in imposing the restriction against publishing or broadcasting in s 68(1), although s 68(2) does not limit the restriction to members of the media. However, it seems to me that, construed in context, s 68 is plainly directed at a report in relation to proceedings under Pt 5. In respect of any such report the child is not to be identified unless s 68(3) applies.

48. [1999] NSWSC 366 at [40]-[43].

38. Former s 67(1)(b) is substantially replicated in s 104C of the 1998 Care and Protection Act, which provides:

At any time while the Children’s Court is hearing proceedings with respect to a child or young person, any person who is engaged in preparing a report of the proceedings for dissemination through a public news medium is, unless the Children’s Court otherwise directs, entitled to enter and remain in the place where the proceedings are being heard.

39. In the 1998 Care and Protection Act, Parliament expressly addressed the first aspect of Waters, by specifically providing that the offence was one of strict liability. But while extending in some respects the scope of the prohibition (for example, to the identification of children who are reasonably likely to be involved in proceedings or non-court proceedings, and to publications before proceedings are commenced), it did not remove the requirement for some nexus between the identification of the child and pending, contemplated or completed proceedings (or non-court proceedings, or a relevant report). As Studdert J observed, it obviously cannot have been the intention of the legislature to make it an offence simply to publish the name of a child who has been involved in relevant proceedings, although taken out of context and literally, the provision would admit of such a construction. [49] That observation is supported by the extraordinary consequences of such a construction, which would include that it would be an offence to publish or broadcast in any form the name of a child in any context whatsoever (for example, as having achieved some academic or sporting distinction), just because at some point he or she had been involved in some way in proceedings in the Children's Court, and that to do so would be an offence of strict liability. The incorporation of strict liability points strongly to the provision being directed to those engaged in reporting proceedings, who may be presumed to know of the risks.

    49. [1999] NSWSC 366 at [40].

40. Accordingly, there is no contravention of s 105 where the publication in question does not refer to any proceedings, non-court proceedings or report of the kind mentioned in the various subparagraphs of s 105(1). As in Waters a mere reference to the fact that the child was in foster care did not import such a reference, so in the present case a statement to the effect that Julian was under the parental responsibility of the Minister and/or in foster care, without reference to any proceedings of the relevant kind, would not do so.

41. It follows, in my judgment, that no contravention of s 105 would be involved in merely disclosing that at the time of his disappearance Julian was under the parental responsibility of the Minister and/or in foster care. The proposed disclosure would thus not be unlawful, and would not infringe any justiciable legal right of Julian.

The interests of Julian

42. The interest of Julian which is sought to be safeguarded by the injunction sought is essentially one to maintain privacy in respect of Julian’s legal status as a child who is in the parental responsibility of the Minister and placed in foster care. It is the plaintiff’s contention that if Julian's in-care status becomes widely known, that will be both an invasion of Julian's privacy, and there is at least a significant risk of it stigmatizing Julian, depriving Julian of control of who is told of that status, and in that way being detrimental to Julian’s welfare.

43. Apart from statute, our law does not confer on a child – any more than it does on an adult – any legally enforceable right to privacy, and a ward is in no superior position in that respect. As Waite LJ put it in R v Central Independent Television plc: [50]

No child, simply by virtue of being a child, is entitled to a right of privacy or confidentiality. That is as true of a ward of court, or child in respect of whom the inherent jurisdiction is otherwise invoked, as of any other child. Any element of confidentiality concerning a child in respect of whom the court's jurisdiction is invoked belongs not to the child but to the court. It is imposed to protect the proper functioning of the court's own jurisdiction, and will not be imposed to any further extent than is necessary to afford that protection: Scott v. Scott [1913] AC 417 and In re F. (orse. A.) (A Minor) (Publication of Information) [1977] Fam. 58.

50. [1994] Fam 192 at 207 (Waite LJ); see also at 204-5 (Hoffman LJ).

44. However, recognition of a child’s interest in privacy is manifested by a number of legal norms. The (UN) Convention on the Rights of the Child provides, by Article 16:

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

45. Concern for the privacy of children in circumstances in which disclosure might be associated with stigma is apparent in statutory provisions which prohibit publication of information that will identify them in connection with criminal proceedings – in any capacity – in respect of offences committed (by them or by others) while they are or were children. [51] So are provisions – not limited but extending to children – which prevent the publication of information that will identify them as victims of prescribed sexual offences, even though the result may be to confer anonymity on the offender. [52] Similarly, laws relating to adoption, which require that adoption proceedings be conducted in closed court[53] and prohibit publication of material that identifies, or is reasonably likely to identify, a person as a person affected by an adoption application,[54] reflect the interests of children in keeping private information concerning their status. And the Care and Protection Act, s 105, referred to above, is another illustration of legal recognition of the view that a child is entitled to have details of a child's involvement in or association with care proceedings kept private. The prohibition on publication of any account of proceedings under the (CTH) Family Law Act 1975 that identifies a party to the proceedings, or a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate,[55] has the effect that the identification of a child the subject of family law proceedings is prohibited.

    51. See (NSW) Children (Criminal Proceedings) Act 1987, s 15A.

    52. See (NSW) Crimes Act 1900, s 578A.

    53. (NSW) Adoption Act 2000, s 119.

    54. (NSW) Adoption Act 2000, s 180.

    55. (CTH) Family Law Act 1975, s 121.

46. However, beyond the scope of such statutory provisions, their implications are ambivalent, as Lord Phillips MR pointed out in Re S:[56]

In this context, so far as the relevant statutes and the Civil Procedure Rules 1998 provide for orders prohibiting identification, these are restricted to those involved as parties or witnesses in the legal proceedings. On the one hand it can be argued that the courts should not go beyond the limits that Parliament has deliberately set. On the other it can be argued that the statutes establish the principle that children should not be harmed by reports of legal proceedings where this can be avoided by restrictions on reporting facts which will enable their connection with the proceedings to be identified. It seems to me that these arguments are nicely balanced and I do not consider that these statutes cut either way on the facts of this case.

56. [2004] Fam 43 at [107].

47. Similarly, in his conclusion in first instance judgment in Re S, [57] Hedley J gave as one of the three decisive considerations:

Secondly, I recognise that Parliament has in a number of statutes qualified that right to report and, in the context of this case, most notably in section 39 of the 1933 Act; where a set of circumstances arise not covered by those provisions the court should in my judgement be slow to extend the incursion into the right of free speech by the use of the inherent jurisdiction.

57. Quoted in the judgment of Lord Phillips MR at [2004] Fam 43 at [111].

48. Accordingly, mere protection of privacy provides slight if any foundation for the relief sought; at the least it is necessary to point to some jeopardy to the welfare of the child.

49. In this respect, a significant body of social science indicates (1) that there is a stigma attached to in-care status, and (2) that for that reason, children in care manage closely those who are informed of their status. The evidence includes literature containing the following research findings:

1. from a survey of a small sample of adults who had grown up in long term foster care in Chicago, that while the experience of “impermanence” did not impair their abilities to lead independent, outwardly satisfactory lives, they were left at risk of an impaired self-image from the deeply felt stigma of foster care; [58]

   58. Rest ER & Watson KW (1984), ‘Growing up in foster care’, Child Welfare, 63(4), pp 291-306.

2. from interviews with six Massachusetts men aged between 19 and 37 about their experiences in foster care, that children who spend a period of time in foster care identify that stigma was part of their experience; [59]

   59. Penninck AJ (2013), ‘An exploration of the effects of stigma on the experiences of foster care alumni’, Theses, Dissertations and Projects, Paper 940, SmithScholarWorks, Smith College.

3. from another study in Massachusetts, that the mere assignment of foster care status to a brief, neutral description of a child produced a host of significant differences in how that child was perceived in the present, as well as how that child was expected to develop through adolescence and into adulthood: [60]

   60. Denzel D & MacDonald ML (2014), ‘Stigma and Foster Care: An Empirical Investigation’, University of Massachusetts Amherst.

The robustness of the findings lends convergent validity to the many published accounts of felt stigma reported by both children in foster care and those providing services to them. Together these findings call for immediate work directed toward ameliorating both the stigma attached to foster care and the negative side effects that may surely be expected to result from it.

4. from a study that explored the experiences of young people in foster-care in the United Kingdom – following up earlier research which highlighted that children and young people in foster care experience stigma [61] – that participants managed the challenges of stigma by carefully managing the disclosure of their ‘in-care’ status; [62]

5. from a study of 80 children aged 8 to 18 years in kinship placements in the United Kingdom, that while most were well-attached to their kin carers, one-third had been taunted or bullied because they did not live with their parents, and many children tightly controlled who knew about that potentially stigmatizing information: [63]

However, we did find, contrary to previous suggestions in the literature, that children experienced living with kin (or not living with their parents) as stigmatizing. As a result, many tightly controlled the numbers who knew about their situation, whilst some had the experience of spiteful remarks or bullying about it. It was not surprising that children who were open about their living situation often had a parent who had died, whilst those who did not share such information often had parents with drugs misuse problems or sometimes a parent who had been in prison.

61. Ridge T & Miller J (2000) ‘Excluding children: Autonomy, friendship and the experience of the care system’, Social Policy & Administration, 34(2), pp 160-75; Schofield G, Been M, Sargent K & Thoburn J (2004) Part of the family: Pathways through foster care. London, British Association for Adoption and Fostering; Morgan R (2011) ‘Children’s care monitor 2011’, available online at Peters J (2005) ‘True ambivalence: Child welfare workers’ thoughts, feelings, and beliefs about kinship foster care’, Children and Youth Services Review, 27(6), pp 595-614.

62. Rogers J (2016) ‘’Different’ and ‘Devalued’: Managing the Stigma of Foster-Care with the Benefit of Peer Support’, British Journal of Social Work, 0, 1-16.

63. Farmer E, Selwyn J & Meakings S (2013), ‘Other children say you're not normal because you don't live with your parents’, Child and Family Social Work, 18, pp 25-34. It is to be noted that this article concerned children who were in kinship care, and it might reasonably be postulated that the situation would be accentuated when children were in out-of-home placements other than with kin.

50. One of the perceived advantages of adoption, as this Court often hears, is that it diminishes the stigma which being a "state ward" might otherwise involve.

51. This material establishes that it is likely to be stigmatizing for a child to be known to be in the parental responsibility of the Minister and/or in foster care; and that controlling who knows of a child’s in-care status is an important element in a child’s strategy for dealing with it. Disclosure to the public of Julian’s in-care status will deprive Julian of that control, and potentially render him more vulnerable to the disadvantages and discrimination associated with stigmatization. This is a negative impact on Julian’s welfare, which weighs in favour of the relief sought.

52. However, this factor has to be placed in context, in order to appreciate its significance. Julian has been missing – presumably abducted – for some years. Foremost of Julian's interests in the present circumstances is being found. If publication of information about Julian’s in-care status were likely to be of any assistance in the investigation, that would be practically decisive of the application: Julian’s interest in being found would outweigh any potential for later stigma arising from disclosure of Julian’s status, if it were likely somehow to enhance the prospects of his being found.

50. The Detective Chief Inspector in charge of the investigation deposes that the investigation is being conducted as a homicide investigation, although police remain open to the possibility that Julian may yet be found alive. He has briefed the Coroner, who has been made aware of Julian’s in-care status. The Detective Chief Inspector says that in his view publication would be damaging to the investigation. The reasons he proffers for this opinion are that police reveal information to the media in a managed way, to achieve particular strategic objectives; that prior to his becoming involved, a decision was made not to reveal Julian’s in-care status, which has since been consistently maintained; that if it were decided to reveal Julian’s status, the information could be released in a controlled environment, for strategic objectives; and that if such information were published in an unmanaged way, it would be damaging to the investigation because it would provoke significant interest and lead to intense speculation and rumour, potentially divert the focus of the public from matters which investigators consider important and delay efforts to obtain important information, and also divert police resources from the investigation to respond to information based on speculation and rumour. Further, it would deprive police of the opportunity to use the release of the information for strategic objectives.

51. Although Ms Smith did not cross-examine the Detective Chief Inspector, I must say that I find his opinion and reasoning unconvincing. While there is nothing to suggest that disclosure of Julian’s legal status would in any way add value to or enhance the investigation, or otherwise assist in finding Julian – indeed Ms Smith, when asked, was unable to suggest any way in which it would do so – I am quite unpersuaded that it would hinder it. In particular, it does not explain why it was decided at the outset not to reveal Julian’s status, beyond that the strategy took into account the views of FACS; nor why it was decided to allow the carers to be represented as Julian’s parents; in the absence of any such explanation I can only infer that it was not for some strategic purpose associated with the investigation. While there are vague general suggestions that release of the information could be used to achieve strategic objectives, the evidence does not illuminate how it might do so, and I have not been able to imagine a way in which it would. The notion that the efforts of trained and experienced police investigators might be distracted – presumably by an influx of pseudo-information in the nature of rumour and speculation – is quite unconvincing. The idea that it has the potential to shift the focus of “the public” is too vague, non-specific and amorphous to be of any weight. In my view, despite the evidence of the Detective Chief Inspector, the impact of disclosure of Julian’s status on the investigation and the prospects of Julian being found is likely to be neutral, but not negative.

52. Whether Julian is alive is unknown, but sadly the probability of Julian being found alive continues to decrease with the passage of time. Tragically, but conformably with the evidence that the investigation is being conducted as a homicide investigation, the probabilities are that Julian is no longer alive. If found alive, Julian will face many issues and challenges, most of them probably larger and more challenging than the stigma associated with being a child in care. I am conscious that, for a child who will probably already be traumatised, coping with the status of being in care will be yet an additional challenge for an already heavily burdened child. However, Julian will have to cope with that status in any event; disclosure will mean only that he will not have control over who may know of it. If found, there is likely to be extensive media coverage of Julian’s disappearance and discovery, which will define Julian’s profile – and for which Julian will be far more widely known – than will knowledge of his in-care status. In other words, because of these events, if found, Julian will not easily be able to escape exposure to attention and comment. Being known to be a child in-care will add little. This reduces its significance, as Hale LJ indicated in Re S:[64]

These considerations may be helpful in thinking carefully about the extent of the interference or limitation proposed and the necessity for each. A comparatively small additional harm to a child who has already suffered so much may not be a sufficient reason to limit reporting of such an important trial. …

64. [2004] Fam 43 at [59].

56. Another aspect of the context – which also bears on the utility of making an order – is the extent to which the relevant information is already in the public domain. The plaintiff has from time to time agreed to the publication and broadcasting of Julian’s name and image, taking the view that it might lead to information of use to the police investigation, but has done so on terms that Julian’s in-care status must not be mentioned. Indeed, the plaintiff has consistently maintained that Julian should not be identified as a child who was in care. The Secretary has issued a standard “Holding Statement” to media regarding Julian, which refers to s 105 of the Care and Protection Act. It is a curious and confusing document: after disclosing Julian’s full name, age and date of birth, and an appeal for information about Julian’s disappearance, it then contains a “Note for journalists” to the effect that s 105 states that the name, picture or any identifying information of a child who is in care must not be published or broadcast in any form before during or after proceedings, and a further statement that the Department was not permitted to comment about whether an individual child or their family was known to FACS. Just what the journalist is to make of that is entirely obscure. In another “media statement”, the Department has reminded media “that for legal and confidentiality reasons the family of the missing child Julian cannot be identified by name or image”, nor can reference be made to “’legal’ barriers to the family coming forward”, citing s 105(2) and referring to the penalties for contravention.

57. Despite this, there have been occasional references in mainstream media to the fact that Julian was in care. When that has happened, the plaintiff has contacted the relevant publisher or broadcaster, drawn attention to s 105 and the associated penalties, and demanded an undertaking to cease, accompanied by a threat to seek instructions to commence proceedings in relation to any offending conduct. It follows, from what has been said above about s 105, that the plaintiff’s reliance on it has been misconceived. Moreover, even if (contrary to my opinion) it applied to prohibit disclosure of Julian’s “in care” status (presumably on the basis that there was an inferential reference to the “proceedings” which had resulted in that status), it is difficult to see how it would prohibit identification of Julian’s family, or their names, or images. However, so far as the evidence reveals, that approach has so far been successful in deterring publication of such information in the mainstream media, and securing its removal on those occasions when it has appeared.

58. Nonetheless there has been extensive social media interest in Julian’s disappearance, and there are many references to Julian on the internet, including to the fact that Julian was in care. The carers and the mother have been harassed by social media, and personal details of the carers and the birth family have been published on the internet, occasioning distress to both families.

59. Ms Smith tendered a list of publically-accessible websites which contain information to the effect that Julian is in care. The plaintiff tendered printouts of those websites, from which it appears that they comprise comments made by members of the public on news websites beneath news articles, or on social media sites. The Secretary has, on becoming aware of such publications, contacted the relevant website, referred to s 105 as prohibiting publication of material which identifies Julian as a child in State care or previously the subject of child protection action, asserting a contravention of it, and requesting its removal. This has apparently met with mixed success. The result is that while information as to Julian’s in-care status has received limited distribution, and while major media outlets have responded to requests not to publish it, it is available on the internet, in the public domain, and can be ascertained by anyone with an interest in the case.

Sarah’s interests

60. Although the proceedings were brought in respect of Julian, the plaintiff also pointed to the potential impacts on Julian’s sister Sarah of disclosure of Julian’s in-care status. There is a concern that if Julian’s status is disclosed, then that may lead to discovery that Sarah is Julian’s sister, and that she too is in-care, with the same foster parents – with the potential impacts on her welfare to which reference has already been made.

61. One of the carers has given evidence that she and her husband – references to whom, including names, addresses and photographs, have been posted on social media – have been guided by and followed police advice about when and how they participate in publicity concerning Julian’s disappearance, and that in mainstream media they have been referred to as Julian’s parents. They are concerned that disclosure of Julian’s in-care status would generate intense interest, with the result that people will want to identify the foster carers and will search the internet, where that information is available; that some will assume or suspect that they were involved in Julian’s disappearance, and harass them, which will impose additional stress on them; that this will also lead to identification of Sarah as Julian’s sister, with associated unwanted attention, and as a foster child, with associated stigma; and that it may place them all at risk. She says that they would likely move from their home, change jobs and potentially change their identities, and that this would be potentially traumatising for Sarah, who is already in the care of a psychologist to address the trauma and grief associated with Julian’s disappearance.

62. Sarah’s interests and welfare are relevant because she is a child, in the Minister’s parental responsibility, to whose protection the court’s jurisdiction extends. Her welfare can support an injunction just as can Julian’s welfare. However, Sarah’s position is, in the present context, a step removed from that of Julian. The material proposed to be published does not directly refer to her or her status. It is not directed at the manner of her upbringing. At the highest it is only indirectly or incidentally or inferentially referable to her, and any consequences for her are indirect. However, the plaintiff argues that it has the potential to affect the manner of her upbringing (and thus is analogous to Re S).

63. Although, as will be apparent, the carers desire that Julian's status not be disclosed, it is not open to exercise the jurisdiction for their protection, because they are not in the protection of the court. But although their welfare does not provide any basis for the court’s intervention, their interests are not irrelevant, because an impact on them may have consequences, direct or indirect, for the welfare of Sarah, whose interests are relevant.

64. However, it seems to me that their stated concerns, though no doubt genuinely held, overstate the significance of disclosure of Julian’s in-care status. As I understand the carer’s evidence, their prime concern is that disclosure of Julian’s status will trigger renewed media and other interest in identifying them (as Julian’s “parents”), and in due course that will lead to identification of Sarah (as Julian’s sister) and her in-care status. However, media and other attention to the carers – and the consequent impingements on their privacy and concerns for their safety of the kind to which they refer – arises not from Julian’s in-care status, but from Julian’s disappearance while they were fulfilling a parental role in respect of Julian, and this would attract such attention regardless of whether they were birth parents, foster parents, or persons with parental responsibility. The same issues would likely confront them regardless of whether they were carers or parents. Similarly, potential media and other attention to Sarah is engendered by the circumstance that she is the sister of Julian who has disappeared, rather than by the in-care status of either of them, and would arise because they are siblings, regardless of their legal care status.

65. To date, the carers and Sarah have apparently been able to escape identification in the mainstream media, because of the mistaken reliance on s 105 of the Care and Protection Act. It may be that, to protect Sarah from the exposure and risk which identification as Julian’s sister might attract, an order could be made, for Sarah’s protection, prohibiting publication of information that might lead to the identification of Sarah as the sister of Julian. [65] However, no application for such an order is before the court, and such an order, while it would afford protection to Sarah, would not prevent disclosure of Julian’s in-care status.

    65. Cf the order originally made in Re S: [2004] Fam 43 at [9]. Whereas in that case it was said that great caution would be required in exercising the jurisdiction to prohibit identification of a child where the effect would be to prevent identification of a defendant in a murder trial [[2004] Fam 43 at [40] (Hale LJ), [74] (Latham LJ)], that constraint would not, at least in the present circumstances, arise in the context of a prohibition on identification of Sarah.

66. The plaintiff submitted that disclosure of Julian’s status would likely complicate any further proceedings under the Care and Protection Act, and in particular the pending proceedings concerning Sarah. However, this submission was not elaborated, and how it would complicate such proceedings – in respect of which s 105 unquestionably applies – is not at all evident.

67. In my view, therefore, while Sarah has interests which may support some form of protection for her, they do not include preventing disclosure of Julian’s in-care status.

The private and public interest in freedom of expression

68. The obvious and important competing interests are (1) the private interest of Ms Smith in being able to do what she is otherwise entitled to do in a free society, namely to speak of, discuss and disclose truthful non-defamatory matters known to her, in respect of which she is bound by no obligation of confidentiality, and (2) the public interest in freedom of expression and discussion, in particular in connection with the out-of-home-care system. Ms Smith’s interest in this respect is also echoed, at least to some extent, by Julian’s mother: although at the interlocutory hearing the court was given by the plaintiff to understand that Julian's mother agreed that Julian's in-care status should not be disclosed, the mother’s evidence at the final hearing (such as it was – it was adduced as hearsay of a conversation between a FACS officer and her) was to the effect that it has always been her view that it should be known that Julian was in care. Although she had concerns for the safety of herself, Julian, Sarah, their two siblings in her care, and the foster carers, if that information became public, she said that she believed that the information “needs to come out”.

69. In R v Central Independent Television plc, [66] Hoffman LJ spoke of the propensity of judges, having made impressive and emphatic statements about the importance of the freedom of speech and the press, to refer to other interests which have to be balanced against press freedom, to distinguish between what is thought to deserve publication in the public interest and things in which the public are merely interested, and to compare the commercial motives of the publisher with the damage which would be caused by publication, so as to find an exception in the individual case, and proceeded to articulate the proposition that if freedom of expression were restricted to what judges thought responsible or in the public interest, it was no freedom at all:[67]

The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which "right-thinking people" regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.

66. [1994] Fam 192 at 202; referred to in Re S [2004] Fam 43 at [33].

67. [1994] Fam 192 at 202-3.

70. Later, his Lordship explained that "the misery of a five-year-old girl" must yield to more important principle of free speech:[68]

In any area of human rights like freedom of speech, I respectfully doubt the wisdom of creating judge-made exceptions, particularly when they require a judicial balancing of interests. The danger about such exceptions is that judges are tempted to use them. The facts of the individual case often seem to demand exceptional treatment because the newspaper's interest in publication seems trivial and the hurt likely to be inflicted very great. The interests of the individual litigant and the public interest in the freedom of the press are not easily commensurable. It is not surprising that in this case the misery of a five-year-old girl weighed more heavily with Kirkwood J. than the television company's freedom to publish material which would heighten the dramatic effect of its documentary. This is what one would expect of a sensitive and humane judge exercising the wardship jurisdiction. But no freedom is without cost and in my view the judiciary should not whittle away freedom of speech with ad hoc exceptions. The principle that the press is free from both government and judicial control is more important than the particular case.

68. [1994] Fam 192 at 204; referred to in Re S [2004] Fam 43 at [33].

71. As Lord Birkenhead said, in Reynolds v Times Newspapers Limited:[69]

It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment.

69. [2001] 2 AC 127 at 200G-H; see also In re S (FC) (a child) [2004] UKHL 47 at [28] (Lord Steyn).

72. And in Re S, Hale LJ explained:[70]

In considering the proportionality of the proposed interference with freedom of expression, a court must not only consider the importance of press freedom in principle: as Lord Woolf CJ also said in A v B plc, at p 205, para 11(iv), "The existence of a free press is in itself desirable and so any interference with it has to be justified." It must also consider those features which enhance its importance in the particular case. In this case, these include (a) the particular importance to be attached to the reporting of criminal trials; these have to be subject to the scrutiny, not only of those in the courtroom but also of the wider public, not only to protect individuals against arbitrariness but also to preserve public confidence in the administration of justice; (b) in this context, therefore, the importance of the press's freedom of expression is enhanced by the corresponding freedom of the public to receive the information in question; and (c) this particular trial will raise more than usually important issues, about an unusual and controversial form of child abuse and about the conduct of the world famous children's hospital in which it was allegedly allowed to take place. The factors mentioned in section 12(4) of the 1998 Act are also relevant at this point.

70. [2004] Fam 43 at [55].

73. No media organisation is a party to, or represented in, the present contest before me; it may well be that they are unaware of it. However, the circumstance that the case presents as a contest between the Secretary on the one hand, and a self-represented individual who understandably does not appreciate the legal issues involved on the other, must not be allowed to undermine the court’s vigilance in respect of the interest in freedom of expression. That freedom is not the exclusive preserve of the mass media. While reference is often made to “freedom of the press”, the freedom of the mass media serves its purpose only to the extent that the media can source information. Freedom of the press, without freedom of individuals to disclose to the press, is meaningless.

74. In considering the importance of the freedom in the particular case, the plaintiff submitted that Ms Smith had adduced no evidence in support of a contention that publication would be in the public interest, and thus that there was no evidence on which the court could base such a conclusion. However, evidence is not required to sustain the public interest in freedom of expression, and Ms Smith bears no onus in this respect. I accept, as the plaintiff submits, that disclosure is not necessary to enable Ms Smith and her associates to promote a coronial inquest. But that is not the end of the matter.

75. There is considerable public interest in the welfare of children in out-of-home care, and, as the defendant rightly argued, in the accountability of the Minister and FACS in respect of children in their care. As the plaintiff acknowledges, public officers and agencies such as FACS should be subject to scrutiny, and a critical aspect of such scrutiny is free public comment. As the plaintiff also acknowledges, the welfare of children in care is a matter of considerable public interest. Public scrutiny of the out-of-home-care system is plainly a matter of public interest: indeed, it is a matter of general notoriety that there is currently extensive public discussion and debate about the operation of the State’s out-of-home-care arrangements for children. I hasten to add that much of the criticism is ill-informed, and pays scant regard to the enormous challenges and dilemmas faced by FACS, its officers and employees, in balancing the expectation that they will ensure the safety of children on the one hand, with respect for the position and rights of parents and carers on the other; and by acknowledging the currency of the debate, I do not intend to lend credence to the criticisms. Nonetheless it cannot be denied that there is very considerable public interest in the matter, and rightly so; few topics are of greater importance than how a society cares for its children, in particular those who, for one reason or another, cannot be cared for by their parents.

76. There is absolutely nothing before me to indicate that there is the slightest suggestion, let alone a reasonable hypothesis, that the carers, the birth parents or FACS bear any responsibility for Julian’s disappearance. But the circumstance that Julian disappeared while he was in the parental responsibility of the Minister and in the care of departmentally approved carers, is a matter of legitimate public interest. Moreover, the truth has to date been obscured: the public has admittedly been given to think that Julian’s carers are his parents.

Conclusion

77. My conclusions may be summarised as follows:

78. The parental jurisdiction, under which orders restraining publication or disclosure of information concerning a child can be made, has both a custodial and a protective aspect. In the custodial aspect, which is related to the exercise of parental responsibility for the child, the child's welfare is paramount. This case does not engage the custodial aspect, because it is not related to parental responsibility. In the protective aspect, the child's welfare is relevant but not paramount, and must be balanced against the competing rights and interests of others, including the public. The protective aspect, though theoretically available, will not be exercised where the court is not exercising a supervisory role over some aspect of the child's care and upbringing and the proceedings are brought for the express purpose of seeking the injunctive relief; and the material to be published is not directly referable to the child or the manner of the child's upbringing. However, the protective aspect will be engaged and may be exercised to restrain publication of information concerning a child where the proposed publication would: (1) infringe a justiciable public or private right of the child; or (2) impinge adversely on the child’s welfare, and refers directly to the child (or his or her carers); and/or (3) hinder the administration of justice in the wardship proceedings.

79. The proposed disclosure by Ms Smith would not infringe a justiciable public or private right of Julian, as s 105 of the Care and Protection Act does not prohibit disclosure of the mere fact that a child is in care.

80. The proposed disclosure refers directly to Julian. In-care status bears a stigma which children manage by closely controlling those whom they inform of their status. The proposed disclosure would impinge adversely on Julian’s welfare, chiefly by depriving Julian of control over who is informed of Julian’s in-care status. Accordingly the protective aspect of the jurisdiction is engaged, but it is necessary to balance the jeopardy to Julian’s welfare against competing rights and interests.

81. Disclosure of Julian’s status is likely to have a neutral impact on the investigation and the prospects of Julian being found. The significance of the potential jeopardy to Julian’s welfare is diminished by (1) the tragic probability that Julian is no longer alive; (2) the circumstance that if found alive, Julian will likely have a significant public profile and many other and greater issues and stigmas associated with his disappearance, to which being known to be a child in-care will add relatively little; and (3) the circumstance that Julian’s status is already in the public domain to the extent that it is discoverable on the internet.

82. The interests of the carers are relevant only to the extent that they may have implications for Julian or his sister Sarah. While the welfare of Sarah is relevant – and while it is possible that an order might be made for her protection, prohibiting publication of information that might lead to her identification as Julian’s sister – no such order is sought, and the indirect connection between the proposed disclosure of Julian’s status and her is insufficient to support the injunction that is sought.

83. That Julian disappeared while he was in the parental responsibility of the Minister, and in the care of departmentally approved carers, is a matter of legitimate public interest. Moreover, the truth has to date been obscured: the public has admittedly been given to think that Julian’s carers are his parents. There is a substantial public interest in accountability and scrutiny of the out-of-home care system, and in accuracy of reportage of the circumstances of Julian’s disappearance.

84. Ultimately, and tragically, the potential jeopardy to Julian’s welfare, though real, is somewhat remote given the duration of the disappearance, and somewhat marginal given the other issues which Julian will have if found alive. And the information sought to be suppressed is already discoverable in the public domain, albeit that it is not widespread. As such, it is insufficient to trump the right of free expression, in connection with the accountability, in a democratic free society, of public officials and agencies in respect of the welfare of children in out-of-home-care, which is a matter of considerable legitimate public interest.

85. For those reasons, the application for an injunction should be dismissed, and the interlocutory injunction should be discharged. However, it is appropriate to defer the discharge of the interlocutory injunction, to allow the plaintiff an opportunity to consider these reasons and, if so desired, to apply for the continuation of the interlocutory injunction pending any appeal; and otherwise to allow the Minister, the carers and the police an opportunity to be briefed and to put in place strategies in preparation for the impending disclosure.

86. The Court therefore orders that:

1. The interlocutory injunction granted on 2 September 2016 and continued on 7 September 2016 and on 15 November 2016, that the defendants be restrained from, by themselves their servants or agents, further publishing, whether in writing or by internet or any other electronic means, information conveying that the child (a) has been placed in foster care; and/or (b) is under the parental responsibility of the Minister for Family and Community Services; and/or (c) is a “ward of the State”; or to similar effect, be discharged with effect from 6 February 2017.

2. The proceedings be otherwise dismissed.

3. The plaintiff have liberty to apply, by arrangement with my associate, on three days’ notice, given prior to 1 February 2017, for a continuation of the interlocutory injunction pending appeal.

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Endnotes

Amendments

28 August 2017 - Para 70 typographical error

Decision last updated: 28 August 2017