Newsroom has won the right to re-publish a video investigation into Oranga Tamariki uplifting children, after it had to be removed from the site by order of the the High Court.
In an important decision for media, the Court of Appeal has overturned the High Court judge’s order, found Newsroom did not identify vulnerable children in breach of the Family Court Act and ruled the content of the investigation was of significant public interest.
The judgment said: “The story was unquestionably one of significant public interest as evidenced by the impact it had on the Minister [for Children, Kelvin Davis] and the suspension of the practice of reverse uplifts.”
The Court of Appeal also quashed a $13,500 costs order against Newsroom from the High Court and instead awarded costs against the Crown for this latest action.
A pending criminal prosecution of Newsroom in the Christchurch District Court, spurred by a Crown Law referral of the video to police, has awaited the result of this appeal.
Newsroom’s investigations editor Melanie Reid, who led the inquiry, said the appeal judges’ decision underlined the importance of the story and the value of holding social workers and the children’s ministry accountable in this case.
“We knew that we had not identified the children and we were not going to be bullied by Oranga Tamariki and Crown Law.
“I am very grateful to our legal counsel for doggedly pursuing this on our behalf.
“We went all the way to the Court of Appeal because we felt we owed it to those little children and their foster parents…and we felt that Crown Law’s heavy-handed action had huge consequences for media freedom and against what we felt was clearly in the public interest.
“I felt strongly that Crown Law wanted to shut us down because it was trying to protect the actions of another government department, Oranga Tamariki, whose awful practice of these reverse uplifts was being exposed by our Newsroom investigation,” Reid says.
“To his credit, the minister at the time, Kelvin Davis, on seeing our programme stopped the reverse uplift practice immediately.”
The video investigation – and two stories associated with it that also had to be removed from newsroom.co.nz – will be available to view and read on the site when final legal issues are resolved in coming days.
The injunction, sought by the Solicitor-General Una Jagose after the investigation was published in November 2020, had been granted on an interim basis by Justice Francis Cooke. The video and associated stories have been unavailable to the public since then, despite Davis responding to it by ordering OT to stop such ‘reverse uplifts’.
Jagose had liaised with Newsroom over some changes she deemed necessary to the video under the law, but despite assertions of continued discussions, unilaterally broke that process off before seeking an injunction stopping publication.
Justice Cooke had also ordered Newsroom to pay $13,500 towards the Crown’s costs.
Separately, Crown Law referred the video to the police, who subsequently chose to lay a criminal charge against Newsroom in Christchurch for breaching the Family Court Act.
Oranga Tamariki and the Crown argued elements of the video breached the Family Court law by including identifying factors of four children involved in a removal of them by the children’s agency from a ‘home for life’ with foster parents and back to recently located whānau.
The law says media cannot reveal identifying particulars of vulnerable children in Family Court cases in any report of the “proceedings” of the court.
The case centred on whether the story actually reported any “proceedings” of the court and whether anyone who did not already know could have recognised or known the children from the reporting.
Newsroom said its investigation did not identify the children, who were not named or shown. The children and their foster parents’ faces were at all times pixellated and identities hidden. Newsroom had argued it was not a report of “proceedings” of the Family Court as the story reported developments beyond the court’s jurisdiction and outside its hearings. The investigation was clearly in the public interest as it led to political and systematic change in the way Oranga Tamariki removed children from foster placements.
At a one-day hearing in Wellington in October, a three judge panel of the Court of Appeal heard arguments from Newsroom counsel Tim Castle and Ben Keith and from Crown lawyer Kim Laurenson, for the Solicitor General.
Newsroom was supported by the Media Freedom Committee which represented other major NZ newsrooms, with its lawyer Robert Stewart arguing the injunction remaining would have a chilling effect on journalism.
In their judgment, the judges found the video investigation did in fact fall within the legal definition of “proceedings” of the Family Court. But crucially accepted, as Newsroom had argued, that there was no breach of the necessary second leg of the prohibition as it did not identify the children to anyone who had been unaware of their situation.
While Justice Cooke in the High Court had believed viewers or readers could put minor identifying matters together like a jigsaw to lead to the children’s identification, the Court of Appeal rejected that theory.
At the appeal hearing, Newsroom lawyer Ben Keith had quoted a UK decision that the jigsaw identification could be too loosely asserted and the risks overstated. The “working it out” approach in this case had been taken too far.
The Court of Appeal judgment, written by Justice Christine French on behalf of the President Mark Cooper and Justice Forrest Miller, said there had to be “an appreciable risk” of identification.
“If the information capable of identifying the children is already known to the audience, then it must follow that publication of that information will not breach [the section of the Family Court Act] because the reader or viewer has not learnt the information from the publication.”
It said the size of the rural community where the children had been living, and the four children’s very visibility there in their daily lives meant many of the features of the case had happened “in plain view” for local people. “They were self-evident.”
“In our view the community would have been aware of the critical features of the publications.
“To put it another way, we consider it unlikely the local community would have learnt anything more from the publications than what they already knew.”
The High Court judge’s fear that the town in the North Island to which the children were sent might not have seen many family groups like that arrive was not, in the appeal judges’ view, “necessarily well founded.”
“We conclude that although the publications amounted to a report of proceedings for the purposes of s 11B [of the Family Court Act], they did not contain any identifying information of the protected (or connected) persons as defined in s11C and therefore did not breach s11B(3).”
The Court of Appeal found the foster parents had rights in this case also. “Clearly too, the foster parents’ concerns about the way they were treated by Oranga Tamariki were valid and worthy of ventilation.
“The right of freedom of expression must encompass not only the rights of the media but also the rights of the foster parents to tell their story and the right of the public to hear it,” the decision said.
The foster parents themselves told Newsroom on Wednesday evening:
“We’re stunned. Apart from the Ombudsman’s decision, this is the first thing that’s gone right in this case.
“The practice by those social workers, it was disgraceful, it was disgusting. You don’t want to believe they think they’re above the law and treat people this way, but they do.
“We believed we were never allowed to speak up, that we would be penalised by Oranga Tamariki if we did. This judgment validates that we did the right thing by speaking up.
“Emotionally, financially, we’ve never recovered.”
Newsroom’s counsel Tim Castle said: “I was admiring of the courage of Newsroom to resist the attempts by the Solicitor General to close the story down and to contend on appeal that the High Court’s injunction must be quashed.”
The appeal court has now directed Newsroom to make the changes to the video and stories that we had offered to make at the time of the December 2020 High Court hearing, plus three further, minor amendments, before republishing.
