Mr Justice Keehan has this week published an extraordinary judgment of a mere 17 staccato paragraphs. It is called Re Orphans From Syria [2019] EWHC 3202 (Fam). It begins :
This matter concerns British citizens who were in Syria who are orphans.
I made a reporting restriction order when the matter first came before me on 21st October 2019. I have today in broadly the same terms continued that reporting restrictions order because I am satisfied that the article 8 rights of the children who have been returned to this country significantly outweigh the article 10 rights of the press and the broadcast media.
It will be plain that, being orphans and being in a warzone, they will have suffered emotionally and psychologically, the extent of which needs to be assessed and determined.
Until I am aware of how vulnerable they are I adopt a cautious approach to their welfare and best interests. And it is for that reason that I am satisfied that the balance falls decisively in favour of their article 8 rights.
The judgement gives limited information about what the parents were doing in Syria or the children’s experiences there. The number, age and sex of the children is not set out. The court has very clearly been anxious to ensure that these already traumatised children are able to settle into the care of their surviving extended family members without being identified as the children in the news. It might seem obvious that this would be advisable given how newsworthy the story was likely to be. Indeed, earlier this week the foreign secretary had issued a short statement earlier in the week, saying merely that
These innocent, orphaned, children should never have been subjected to the horrors of war. We have facilitated their return home, because it was the right thing to do.
Now they must be allowed the privacy and given the support to return to a normal life.
However, the judgment continues :
On 21st October on the Application of one of the children’s relatives I made the children wards of court, made an order for their return to the jurisdiction and respectfully requested the assistance of the Foreign and Commonwealth Office to secure their return. I gave permission to disclose the order to the local authority in whose area the children were to reside and ordered the matter to be restored on the children’s return to the country. I also then made a reporting restrictions order.
The following day I was notified that a journalist using the details set out in the schedule to the reporting restrictions order had attended the homes of several family members.
It appears that the importance of these children being left in peace and quiet to get on with rebuilding their lives was not so obvious to the journalist who decided to doorstep the family. The only saving grace here is that the children themselves had not yet arrived in the UK and were not in these properties when the journalist attended.
For clarity, the ‘schedule’ to the reporting restrictions order is the confidential part of an order which is provided to the media so that they are clear whose identity is that is being protected, and can avoid accidentally breaching the reporting restriction order. In containing it in an order, there is always a risk that the media will make use of this information to inform its enquiries into a case, and it may be that this is not the first case where a journalist has opportunistically attended an address set out in a confidential schedule – but the sort of doorstepping the judge describes is arguably a breach of the press regulator IPSO’s Editor’s Code, for example :
4. Intrusion into grief or shock
In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.
since the bereaved family were about to receive the children of their dead relatives into their care (and possibly meet them for the first time?) – no doubt a time of mixed emotions all round. In addition, had the children been living at the property at the time of any such doorstepping, such attendance would also potentially have breached the parts of the code concerning children and privacy.
We don’t know whether the journalist in question is employed by a newspaper which is regulated by IPSO, and we don’t know if any complaint has been made – and nor are we confident that IPSO would uphold any such complaint, based on our own experience of that regulator.
The judge’s response was this :
Accordingly on 24th October I made a revised reporting restrictions order setting out that using of schedules in the reporting restrictions order was a contempt of court.
That is an unusual order, and from a lawyer’s point of view one which is intriguing – its not clear how the revised order will have defined ‘use’ so as to capture behaviour like doorstepping but not capture the proper use of the information to ensure any reports are properly constrained. And we’re not quite sure how it could realistically be enforced. But hopefully the existence of this additional safeguard will be enough to deter any other journalist from a repeat performance.
The judgment concludes :
On 29th October I ordered that the children on their return should be placed in the care and control of their family….
They had breakfast together with their relatives and they appeared to be in good spirits. They were then driven to the family home where they are to live. They slept peacefully in the car on the journey from the airport. They immediately recognised the family members and family home on their arrival. They have settled into the home and appear to be as happy as they possibly could be in the difficult circumstances of their return.
That is all I propose to say by way of a public judgment.
We hope we don’t see further reports outlining more intrusive journalism. We may in due course see a final judgment from Mr Justice Keehan, or it may be that this is the last glimpse of these nameless Orphans from Syria that we get. Which may be exactly as it should be.
There is some press coverage of this case and the broader issue of the return of orphans who are stranded in Syria, but some of it suggests the number of of orphans in this family group, so we aren’t going to link to it in case that is one of the prohibited matters in the schedule to the order. We note the BBC do not include this information, and their reporting is based primarily on the contents of the judgment and the statement from Dominic Raab, plus some quotes from various people concerning the wider issue. Read the BBC article here : Syria conflict: British orphans returned to UK.
As far as we can tell there hasn’t been any news report containing details likely to have been gathered as a result of the journalist attending at the family’s addresses.
We have a small favour to ask!
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Feature pic courtesy of Jeremy Segrott on Flickr (Creative commons licence) – thanks!