Analysis of DPP v Shannon Marsden & Ors: the extent of reporting by the news mediain public law proceedings
In this article, Ms Grosvenor examines the recent case of Derbyshire County Council v Shannon Marsden & Ors [2023] EWHC 1892 (Fam) (21 July2023). The High Court judgement determined the extent of appropriate reporting by the news media in public law proceedings further to three applications of the media in relation to a case involving the murder of a young child by his parents.
The Facts
The applications of the media arose out of care proceedings several years prior. The care proceedings related to Finley Boden, a young boy who was tragically murdered by his parents on 24 December 2020.
The local authority, Derbyshire County Council (the “LA”) initiated care proceedings in relation to Finley and his sibling (“Child A”) and on 13March 2020 they were both made subjects of an Interim Care Order. Both children were placed with their maternal grandparents.
On1 October 2020, a hearing took place (remotely due to the Covid Pandemic)before the Lay Justices and all parties agreed that the children should be transitioned back into the care of their parents. It was determined that the children should be transitioned back to the full-time care of the parents within 8 weeks and a final hearing would be heard in January 2021 to determine if the transition has been successful or otherwise.
On24 December 2020, Finley was murdered by his parents. They were convicted of the same on 14 April 2023.
The care proceedings continued in relation to Child A, reallocated from the Lay Justices to High Court level, in light of Finley’s murder.
On20 May 2022, Morgan J made a Reporting Restriction Order (“RRO”). Lieven J made RROs on 4 October 2022 and 3 April 2023.
On various dates in April 2023, the BBC, the Telegraph, and the Press Association all made applications to have disclosed to them and allow reporting of documents/information relating to the hearing on 1 October 2020. In other words, they sought to know and report upon what the parties’ positions were in relation to the children being returned to their parents, and how and why the court reached the decision that it did.
The Law
Lieven J’s judgement identifies the law and analysis of the same at paragraphs 13-21.Lieven J analyses the need for a judge to conduct a balancing exercise when deciding whether or not to order disclosure, and how this involves examining the needs of the parties against other competing factors. Lieven J balanced the competing matters under Article 8 (right to privacy and a private life) against Article 10 (right to freedom of the press) of the Human Rights Act for this case at paragraphs 23-27.
Lieven J also considered a further interesting point; whether the names of the Magistrates and the Legal Adviser should be allowed to be published. She noted that the need for restrictions on information is for the children and their families, not for professionals. Lieven J noted:
The role of the judge is one that beyond any doubt requires public accountability and openness... [29]
The position of the Legal Adviser is potentially somewhat different because they are
an HMCTS employee rather than a member of the judiciary… [32]
However, during the course of the hearing it was made clear that a panel of Lay
Justices cannot make a decision without the presence and involvement of a Legal
Adviser.[33]
…aLay Bench cannot make a decision unless a Legal Adviser exercises their functions. [37]
Assuch, the Legal Adviser is an integral, and legally required, part of the decision
making process. As such it appears to me to be right that their names can in principle
be placed in the public domain… [38]
Lieven J allowed for material disclosure and determined that both the Lay Magistrates and the Legal Advisor could be named by the press. Leiven J also ensured that the injunctions, that protect the anonymity of the child and the child’s carers, remained in place even when the material was disclosed.
Commentary
The judiciary and legal professionals involved in these cases reach fundamental decisions concerning children, and situations can arise where the decisions appear to be unfair. When there are very restrictive reporting restrictions it can be impossible for the public to identify why specific decisions were made and either understand them or criticise them. This prevents accountability and promotes the spread of misinformation.
Asis noted in Lieven J’s judgement, in recent years there has been a shift in the family court towards recognising the greater importance of transparency andopenness in the family justice system. This judgement is a testament to that,whilst also protecting those involved in traumatising situations going through the family court. It illustrates the careful consideration by the family courtof increasing public confidence in family proceedings whilst also safeguarding the privacy of those who seek the court’s protection and ability to resolve their issues.
For further information the judgement of Derbyshire County Council v Shannon Marsden & Ors can be found here. Sir Andrew McFarlane’s Transparency Review can be found here and recent message regarding the Reporting Pilot here.
