The Official Solicitor and Acting Director of Legal Services of CAFCASS issued jointly on 18 March 2005 the following Practice Note which is to be read in conjunction with the President of the Family's Division's Practice Direction.

PRACTICE NOTE
Official Solicitor: Director of Legal Services Cafcass Applications For Reporting Restriction Orders

1. This Note sets out recommended practice in relation to any application in the Family Division founded on Convention rights for an order which restricts freedom of expression. It is issued in conjunction with the President's Practice Direction "Applications For Reporting Restriction Orders" dated 18 March 2005 ([2005] 2 FLR 120) and is subject to decisions of the courts. It applies directly to any proceedings in which CAFCASS or the Official Solicitor represent a child or incapacitated adult, and follows discussions between the Official Solicitor, the Acting Director, CAFCASS Legal Services and Special Casework and representatives of media interests.
2. Statutory Provisions
   An application founded on Convention rights need only be made where statutory provisions cannot provide adequate protection. Relevant provisions are Administration of Justice Act 1960, s.12(1); Children and Young Persons Act 1933, s.39; Contempt of Court Act 1981, s.11; Children Act 1989, s.8 (prohibited steps order preventing disclosure of information by parental figure) and s.97(2). Whilst the President's Practice Direction is not aimed at applications under these provisions, s.12(2) of the Human Rights Act 1998 applies to any application for relief which might affect the exercise of the Convention right to freedom of expression and the procedures set out in this Note, including the arrangements for advance notification, can be used to secure compliance with this section in relation to any such application under these provisions. An order founded on Convention rights may be required, for example, because:
   • the need for protection is not linked to particular court proceedings
   • the statutory provisions do not prevent publication of all kinds of information
   • an injunction is needed to prevent approaches to family, doctors or carers.
3. Application and Evidence
   The application may be a freestanding claim brought under the Part 8 procedure in the Civil Procedure Rules 1998 or it may be made within existing proceedings to which either the CPR or Family Proceedings Rules 1991 apply. It may be appropriate to seek a direction under CPR 39.2(4), where it applies, that the identity of a party or witness should not be disclosed, and for documents to be drafted identifying individuals by initials.
   The applicant should prepare (a) the application/claim form (b) a witness statement justifying the need for an order (c) any legal submissions (d) a draft order and (e) an explanatory note.
   Model Forms of Order and an example of an explanatory note are attached to this Practice Note and can be downloaded from the websites of either the Official Solicitor (www.offsol.demon.co.uk) or CAFCASS (www.cafcass.gov.uk).
   In the rare event that it is not possible to draft such documentation in the time available before the hearing, the court is likely to require the applicant to file a statement at the earliest opportunity, setting out the information placed orally before the court.
   Subject to any contrary direction of the court, this material should be made available on request to any person who is affected by the order. See W-v-H (Family Division: Without Notice Orders) [2001] 2 WLR 253; [2001] 2 FLR 927.
4. Service of Application
   As required by the Practice Direction, advance notice should normally be given to the national media via the Press Association's CopyDirect service. Applicants should first telephone CopyDirect (tel. no: 0870 837 6429). Documentation should be sent either by fax (fax no: 0870 830 6949) or to the e-mail address provided by CopyDirect. CopyDirect will be responsible for notifying the individual media organisations. In the case of an application against the world at large this is sufficient service for the purposes of advance notice. The website http://www.medialawyer.press.net/courtapplications gives details of the organisations represented and instructions for service of the application. Unless there is a particular reason not to do so, copies of all the documents referred to above should be served. If there is a reason for not serving some or all of the documents (or parts of them), the applicant should ensure sufficient detail is given to enable the media to make an informed decision as to whether it wishes to attend or be legally represented.
   The CopyDirect service does not extend to local or regional media or magazines. If service of the application on any specific organisation or person not covered is required it should be effected directly. The Official Solicitor and CAFCASS Legal hold lists of contact details for many national and some regional news organisations, and these are posted on their websites.
5. The Hearing
   Any application invoking Convention rights will involve a balancing of rights under Article 8 (right to respect for private and family life) and Article 10 (freedom of expression). There is no automatic precedence as between these Articles, and both are subject to qualification where (among other considerations) the rights of others are engaged. Section 12(4) of the Act requires the court to have particular regard to the importance of freedom of expression. It must also have regard to the extent to which material has or is about to become available to the public, the extent of the public interest in such material being published and the terms of any relevant privacy code (such as those of the Press Complaints Commission).
   The court's approach is laid down in Re S (a child)(identification: restriction on publication) [2004] EWCA Civ 963, [2004] Fam 43(CA), [2004] UKML47 and [2004] 3 FCR 407(HL) and Campbell-v-MGN Ltd [2004] UKHL 22. Guidance on the application of s12(3) is now also provided in Cream Holdings Ltd v Bannerjee [2004] UKHL 44.
6. Scope of Order
   Persons protected
   The aim should be to protect the child or incapacitated adult, rather than to confer anonymity on other individuals or organisations. However, the order may include restrictions on identifying or approaching specified family members, carers, doctors or organisations in cases where the absence of such restriction is likely to prejudice their ability to care for the child or patient, or where identification of such persons might lead to identification of the child or patient and defeat the purpose of the order. In cases where the court receives expert evidence the identity of the experts (as opposed to treating clinicians) is not normally subject to restriction.
   Identifying persons protected
   Once an order has been made, the details of those protected by the order should normally be contained in the Schedule. In exceptional cases (for example Leeds NHS Trust-v-A & B [2003] 1 FLR 1091) where it is not appropriate for details to be given, a description by reference to the facts of the case should be contained in the Schedule to enable those reading the order to identify whether a person is likely to be the subject of the order.
   Information already in the public domain
   Orders will not usually prohibit publication of material which is already in the public domain, other than in exceptional cases such as Venables and Thompson-v-News Group Newspapers Ltd [2001] Fam 430.
   Duration of Order
   Orders should last for no longer than is necessary to achieve the purpose for which they are made. The maximum extent of an order in a child case will usually be the child's 18th birthday. In the case of an incapacitated adult the order will normally end on death. In some cases a later date may be necessary, to protect safety or welfare, or the anonymity of other children who are named in the order and who are still under age, or to maintain the anonymity of doctors or carers after the death of a patient. See for example: Re C (Adult Patient: Publicity [1996] 2 FLR 251 Venables and Thompson-v-News Group Newspapers Ltd [2001] Fam 430 X (formerly known as Mary Bell)-v-Y and others [2003] EWHC QB 1101.
7. Service of Orders
   Service of orders should be effected in the usual way, ie by fax or by post. Contact details for the national press and broadcasters can be found under the Media Organisations link.
8. Undertakings in Damages
   The court will consider whether it is appropriate to require an applicant to give such an undertaking in an individual case, particularly when an order is made without notice, and will bear in mind the applicant's capacity to fulfil any such undertaking.
9. Explanatory Notes
   It is helpful if applications and orders are accompanied by an explanatory note, from which persons served can readily understand the nature of the case. In any case where notice of an application has not been given, the explanatory note should explain why.
10. Advice and assistance
    Applicants or respondents are welcome to consult:
    Acting Director of Legal Services<
    CAFCASS Legal Services and Special Casework
    8th floor, Wyndham House,
    South Quay Plaza, London E14 9SH
    DX: 42691 Isle of Dogs
    Telephone: 020 7510 7080
    Fax: 020 7510 7104
    Email: legal@cafcass.gov.uk
    Website: www.cafcass.gov.uk
    Official Solicitor
    81 Chancery Lane
    London WC2A 1D
    Telephone: 020 7911 7127
    Fax: 020 7911 7105
    Email: enquiries@offsol.gsi.gov.uk
    Website: www.offsol.demon.co.uk
    Michael Hinchcliffe,
    Acting Director of Legal Services, CAFCASS
    Laurence Oates,
    Official Solicitor

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