BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
20/20 – “In Harm’s Way” – item about actions of Child, Youth and Family Services Department – breach of law and order – breach of social workers’ privacy – breach of children’s privacy – unbalanced – inaccurate – unfair

Findings
Standard 2 – item did not affect “orderly and just disposition” of court cases – hand-over coverage did not glamorise or condone criminal activity – no uphold

Standard 3 and Guideline 3a – social workers – Privacy Principle (i) disclosure not offensive – no uphold; Child A & B – Privacy Principle (vii) – best interests of children considered by broadcaster – no uphold

Standard 4 – balance of perspectives aired – no uphold

Standard 5 – inaccuracy – no mandatory reporting in New Zealand – uphold on this aspect – no other inaccuracies

Standard 6 – subsumed under Standard 4

No Order

This headnote does not form part of the decision.

Summary

[1] “In Harm’s Way”, an item on 20/20, was broadcast by TV3 at 7.30pm on 3 November 2002. The item examined the actions of the Department of Child, Youth and Family Services, focussing on four families that the Department had been involved with.

[2] The Department of Child, Youth and Family Services (CYFS) complained to TV3 Network Services Ltd, the broadcaster, that the item breached broadcasting standards in relation to law and order, privacy, balance, accuracy and fairness. In its view, the programme was biased and presented in a manner designed to undermine public confidence in the Department.

[3] In response, TV3 said that the item was a matter of public interest and CYFS had been involved “to an unprecedented level in the preparation of the programme” in order to ensure compliance with broadcasting standards. TV3 declined to uphold the complaint.

[4] Dissatisfied with TV3’s decision CYFS referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint in respect of one inaccuracy. It declines to uphold the other aspects of the complaint.

Decision

[5] The members of the Authority have viewed a video and read a transcript of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] 20/20 is a current affairs programme broadcast by TV3 at 7.30pm each Sunday. On 3 November 2002, it featured an item called “In Harm’s Way”, which was an investigation into the actions of the Department of Child, Youth and Family Services (CYFS). It focussed on four children and their families with whom CYFS had been involved. The four children were Patrick Martin (who died in May 2002 while in the custody of CYFS), Tamati, and two children referred to in this decision as Child A and Child B. At the time of broadcast the following proceedings were pending: (1) a CYFS application that Child A was in need of care and protection; (2) an application by Child B’s mother for custody of B; and (3) the prosecution of a man for the murder of Tamati.

The Complaint

[7] CYFS complained to TV3 that the item breached a number of broadcasting standards. CYFS contended that the item had inappropriately dealt with issues that were before the court, and it was therefore unable to disclose vital information in response to the allegations raised in the item. CYFS said that the absence of that information resulted in a programme that was an “unbalanced, unfair and inaccurate depiction of our work in four particular cases.”

[8] CYFS argued that TV3 had also failed to adhere to relevant broadcasting standards in relation to the children that featured in the item. It maintained that the children had been unnecessarily identified and had suffered an invasion of their privacy. The Department also contended that TV3 had breached the privacy of social workers who were identified in the item.

Standard 2 Law and Order

[9] In relation to Standard 2, Guideline 2a, CYFS argued it was a “fundamental principle of law” that the “media does not usurp the function of the Court as decision-maker about matters which are before the Court.” It submitted that as there were court proceedings pending in relation to Child A, Child B and Tamati’s case at the time of broadcast, it was inappropriate to canvass the details of these matters in the programme.

[10] CYFS said that the item’s focus on these cases was “contrary to the due administration of justice”. It advised that the item’s coverage of Child A and Child B discussed issues which were “central to the disposition of those cases.” CYFS added that the coverage was “prejudicial to the position of the Department as a party to those proceedings.”

[11] Furthermore, CYFS said, as a party to the proceedings, it was inappropriate in the circumstances for it to “engage in a media debate as to the respective merit of any party’s position” prior to determination by the courts. CYFS expressed its frustration that it had advised TV3 of its concerns prior to the broadcast of the item. The complainant wrote:

It is irresponsible, and disrespectful to the principles of law which sustain our society, for TV3 to have broadcast opinions and statements about these matters in this programme.

[12] In relation to Guideline 2b of Standard 2, CYFS submitted that it had been breached by the coverage in regard to the mother who admitted kidnapping her child. CYFS argued that the kidnapping was a serious criminal action and TV3’s “excessively sympathetic portrayal of [Child B’s mother] Ms Stirling circumstances” together with the item’s “implicit and express criticisms” of CYFS conveyed that kidnapping was “perhaps a valid option” to other parents in similar circumstances. CYFS expressed its concern for “copycat” kidnapping as a result of this item, and noted that there has already been one example of a family member who justified their actions based on this programme.

Standard 3 Privacy

[13] CYFS complained about a breach of privacy in relation to two groups of people. First, the social workers, and second, the children who were the focus
of the item.

Social Workers

[14] In relation to the social workers, CYFS submitted that the social workers filmed in relation to the “hand-over” of Child B were acting as agents for the High Court and not as statutory social workers. CYFS argued that “their exposure and identification” in the item was “highly objectionable”. It did not consider that there was any public interest that justified showing the social workers’ activities. In the complainant’s view, this aspect was “exacerbated by the fact that the hand-over was conducted in public.”

[15] The complainant stated that social workers in this area were exposed to “vilification and violence from the client group with whom they work.” It advised that the social workers involved and their families had been subjected to “abuse and humiliation” as a result of the item. It wrote:

There are strong implications in the programme that social workers were responsible for the decision to have Child B handed back to the Departmental Officers. This simply was not the case, and the inaccurate reporting in respect of both the alleged demands of where the hand-over took place and in respect of who was responsible for demanding that the hand-over did take place has aggravated the breach of our social workers’ privacy.

Children

[16] In regard to the breach of privacy of the children, CYFS was specifically concerned with the coverage in the programme relating to Child A and Child B. The Department also referred to Standard 6, Guideline 6f and Standard 9, Guideline 9i as they concerned the “special position of children”. It argued that it was not in the interest of children who were in need of “care and protection” from the Department to have their identities disclosed. It argued that children who were subject to its jurisdiction were associated with the Department involuntarily, and were, therefore, not in a position to provide informed consent for their identity to be disclosed.

[17] In reference to Child A, CYFS complained that the identification of the child was not in her best interests. Although it accepted that the baby’s guardian had consented to the use of pictures and information about the child, CYFS disputed that it was not “necessary to have the baby identified for the purposes of making comment of her circumstances.”

[18] As to Child B, CYFS submitted that the broadcast that showed Child B during the hand-over amounted to a “significant invasion” of the child’s privacy. It advised that, at the time of filming, the child’s legal guardian was the High Court, and that it was unlikely that consent had been obtained for filming her, either from the High Court, or its agent, the Chief Executive. In its view, Child B’s mother did not have the right to consent to the filming of Child B during the hand-over.

[19] In addition, CYFS argued that filming Child B during the hand-over was “misinformed and totally contrary to [Child B]’s interest.” It wrote:

She [Child B] was clearly upset by the fact that she was leaving the care of her mother, and her grief and vulnerability at that moment are only too evident in those parts of the production which focus upon her. How showing her during those moments could be considered as having taken special account of her vulnerability, or otherwise being in her best interests, is totally unsupportable.

I do not believe that any images of this child should have been used bearing in mind her age, the circumstances which were depicted in the production and the fact that Child B is a child who is more vulnerable than most having regard to the tumultuous events she has suffered in her short life thus far. It is self evident that any hand-over of a child from its parents to unfamiliar people, whether they be social workers or caregivers, is going to be traumatic for a child. I fail to see how the public interest can justify the depiction of Child B’s grief at this most private and difficult of moments when her reaction to the circumstances are atypical of children her age in those circumstances.

Standard 4 Balance

[20] CYFS maintained that the item was unbalanced because information it had provided was not used in the item. It acknowledged that, given its powers, it was open to scrutiny, and that it was neither in its interests, nor in the public interest, for the Department’s “activities to be unduly secret, or for it to be immune from media enquiry”. However, it said it was unable to respond to the allegations made in relation to the specific cases dealt with in the item, because of various constraints.

[21] CYFS advised that it would have been able to discuss specific issues of case management if the relevant family and child had not been identified. In its view, TV3 could have focussed on the issues raised by the specific cases without disclosing the identities of the children concerned. CYFS argued that it owed its clients the “obligation to keep their identities, and intimate details about their lives confidential.” It advised that it would be “improper” for it to release information about its clients “simply because there is a media interest in these matters.” CYFS wrote:

TV3 chose to identify all four of the families involved in this production. Your approach made it very difficult for the Department to disclose facts which would have been important to provide balance to the production’s skewed point of view.

[22] CYFS contended that given the Department’s constraints, the item was presented in a manner that was extremely prejudicial to the Department. Further, it had expressed its concerns to the broadcaster about dealing with issues that were the subject of pending court proceedings which, it said, were ignored.

[23] CYFS detailed a number of examples that it contended resulted in an unbalanced programme:

• The failure to detail all the reasons why Patrick Martin was taken into care.
• An invitation to interview the relevant manager (Ms Sligo) in Patrick Martin’s case was not taken up by the producer.
• The failure to include all the reasons why Child B was taken into and remained in care.
• Correspondence between the Department and the programme’s producer was misleading as it indicated that the producer did not seek comment from the Department about the individual cases, and that the story was about “broader issues”. CYFS maintained that it was not advised that “case-related allegations” were going to be made against it in the item, and if it had known it would have provided its views on all the cases “to the extent that the law allowed”.
• The Department was not provided with any opportunity to respond to either Mr Meyrick or Ms Goldson’s “extremely prejudicial allegations”. CYFS argued that the “harm” it had suffered was aggravated as both were presented as “experts in the field of child protection”.

Standard 5 Accuracy

[24] CYFS detailed a number of aspects that it considered were inaccurate in the programme. They were as follows:

• The allegation that the Department had advised Mr and Mrs Martin that it would not remove their baby from them, was untrue.
• The item incorrectly stated that health professionals were legally required to report their concerns about Patrick to the Department. CYFS advised that there is “no mandatory reporting in New Zealand”.
• It was inaccurate to state that “the complaint against [Child A’s mother] proved to be false and malicious”, and “there had been no assault”, as these were issues yet to be determined by the court.
• The allegation that the Department was “compelled” to return Child A was inaccurate. CYFS stated that as it had custody of the child, it was CYFS’ decision to place the child with its mother.
• The item incorrectly stated that the Department was warned about placing Child B with her grandmother. It advised that the grandmother had been recommended as a caregiver to the Department by Child B’s father, and that her parents had participated in a Family Group Conference which had unanimously supported the placement.
• That CYFS had required that Child B be handed over in a public place was inaccurate, as it had been the demand of Ms Stirling’s lawyer. It expressed its suspicion that this demand had been made to allow the hand-over to be filmed. The complainant stated that it was the Department’s preference to collect the child from a private place. CYFS also complained about the inaccurate depiction of the role of social workers, as they were not exercising a statutory social worker role in Child B’s hand-over but were undertaking agency duties on behalf of the Court.
• The prejudicial nature of the item was reflected by broadcasting Child A’s mother’s comment about her joyous reaction on her baby’s return from CYFS’ care.

Standard 6 Fairness

[25] CYFS maintained that it had been dealt with unfairly in the item because it was unable to discuss the issues raised by the specific cases examined in the item. A central aspect of its complaint was that there were court proceedings pending in regard to some of these cases and, therefore, it was unable to provide all relevant material. Consequently, it claimed that the “entire production was extremely prejudicial to the Department”.

[26] In addition, it considered it was inappropriate to discuss any details regarding these cases, as the issues raised in the item were integral to the proceedings and matters for determination by the court. Consequently, the lack of “balancing material” resulted in the Department “being held up to public vilification” in regard to its management of cases, before it had the opportunity of being heard in the court.

Remedies

[27] CYFS concluded that the programme was “biased” against the Department, and was presented in a manner which “appeared to have the purpose of undermining public confidence in the Department.” It sought various remedies from TV3 including a public apology to the Department. In respect of the breaches of privacy in relation to the children, it sought an undertaking that the images of the children would not be used again by TV3, or transferred to any other broadcasting entity. It reserved its right to seek other remedies, if the matter was referred to the Authority.

The Standards

[28] TV3 assessed the complaint under the standards nominated by the complainant. The Standards (and relevant Guidelines) in the Free-to-Air Television Code of Broadcasting Practice provide:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Guidelines

2a  Broadcasters must respect the principles of law which sustain our society.

2b  Factual programmes should not glamorise criminal activity or condone the actions of criminals.

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Guideline

3a  Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority (Appendix 2).

The relevant Privacy Principles read:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guideline

6f  Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Guideline

9i  Broadcasters should recognise the rights of children and young people not to be exploited, humiliated or unnecessarily identified. (See United Nations Convention on the Rights of the Child – Appendix 3)

The Broadcaster’s Response to the Complainant

[29] TV3 declined to uphold the complaint. In its response to the complainant, it identified three groups affected by the broadcast – CYFS, the children, and social workers. TV3 considered the nominated broadcasting standards in respect of each of these groups.

CYFS

[30] The relevant broadcasting standards nominated were Standard 2, Guidelines 2a and 2b, Standards 4, 5 and 6 of the Television Code.

[31] In reference to Standard 2, Guideline 2a, TV3 examined each of the three cases that CYFS contended were subject to court proceedings. First, in order to assess whether there had been a breach, TV3 cited a previous Authority decision (No: 1998-124/127, dated 15 October 1998) as the precedent for establishing the relevant test:

the general principle must be to guard against content or material which may impede or interfere with the orderly and just disposition of any case before the court…it is not sufficient for the broadcaster merely to raise matters which are before the court, even if in a provocative way…

[32] TV3 applied this test to each case in its assessment of the material provided by CYFS to determine if the Department had sufficiently proved that the court process would be threatened by the broadcast. In relation to Child A, TV3 considered that the court process had not been threatened by the item, as it was “highly unlikely that the programme would wrongly influence a judge dealing with this case”. Second, TV3 advised that CYFS’ application in regard to the child had been withdrawn, so that it was no longer a matter before the court. TV3 held irrespective of whether the case was still before the court, or not, this aspect did not contravene Guideline 2a of Standard 2.

[33] Turning to Child B, TV3 contended that as this case would be considered by a judge sitting alone, the programme was “highly unlikely” to threaten the court process. TV3 said, given the “expert nature of the forum”, TV3 said, the court would determine the matter based on the material before it, and not based on a television programme. Therefore, it concluded that this aspect had not transgressed Standard 2.

[34] As to the prosecution proceedings in relation to the death of Tamati, TV3 also declined to uphold this aspect. In its view there was “no suggestion of a threat to the process”, as the item took “extreme care in its handling of information about this child’s death.” TV3 stated that “extensive legal advice was sought and followed”, the child’s surname was not revealed, no details of his last placement were disclosed, nor was there any mention of his “murder”, only that he had died. TV3 also advised that there was a “considerable time delay before the matter is before the Court”. Accordingly, it concluded that there was no threat to the court process by the broadcast of this aspect.

[35] In reference to Guideline 2b of Standard 2, TV3 assessed the relevant parts of the programme regarding the uplifting of Child B from the Department’s care. TV3 concluded that the programme had neither glamorised criminal activity nor condoned criminal actions in breach of the standard.

[36] TV3 expressed its reservation that Ms Stirling’s actions could be classified as “criminal”. It noted that Ms Stirling had not been charged in relation to her actions. TV3 submitted that even if it took the “most critical view of her actions”, the item did not breach the Guideline. Noting that both mother and child were shown as being “anxious and upset”, TV3 wrote:

The consequence of what she did led to distress both for her and her child – the circumstances of [Child B]’s forced return to CYFS care could scarcely be described as glamorous.

[37] In relation to Standard 4, TV3 explained that “balance” was not a “set formula of ‘equal’ time for interested parties”, and that balance could be achieved “during the period of current interest”. TV3 referred to a subsequent 20/20 item “Somebody’s Child” shown on 1 December 2002, which examined issues raised by foster care. The broadcaster argued that this item was relevant when considering issues of balance as it included interviews with women who provided foster care. The item also included comments from Shannon Pakura (the Chief Social Worker for CYFS) “about the difficulties experienced both by CYFS and foster parents.”

[38] In relation to the preparation of the programme, TV3 contended that the Department was advised as to the nature of the programme, and afforded a reasonable opportunity for input. In its view, the producer of the item had gone to “extraordinary lengths” to inform CYFS about the material that the programme would contain. It advised that there was correspondence between CYFS and the producer of the item that “demonstrate a high level of input and cooperation between the producer and CYFS.” TV3 said that a “factual narrative” was agreed between the parties, which involved the establishment and presentation of “certain key facts about the cases” discussed in the item.

[39] In addition, TV3 stated that CYFS and the Minister were invited to provide a final comment once the item had been substantially completed. The broadcaster noted that “CYFS declined to provide a spokesperson and that the Minister has expressed no concern about the programme.”

[40] In regard to the information provided by CYFS, TV3 advised that the amount of material exceeded what “could ever be expressly used in the programme.” The information, it said, was “considered and where it was relevant to the programme, it was summarised and incorporated.” TV3 explained that the producer had advised CYFS that it was not possible to use all of its material in the item, and that “the programme contained criticisms of CYFS.” TV3 said it was not prepared to question the editorial judgement regarding the use of material provided. It expressed its satisfaction that “appropriate use was made of the material provided.”

[41] TV3 responded to the specific examples alleged by CYFS to have been unbalanced, as follows:

• It maintained that it was apparent during the item that CYFS had sufficient grounds to obtain a warrant for uplifting Patrick. TV3 stated that a “reasonable and representative range of reasons” was used in the item, which were checked against CYFS’ material to ensure “there was no conflict”. It found no lack of balance in regard to this aspect.
• There was a misunderstanding regarding the interview with Ms Sligo, the case manager, said TV3. However, TV3 concluded that the failure to interview the manager did not result in a lack of balance, given CYFS input to the programme.
• The item was clear that there were issues regarding Child B’s care while in her parents’ care. However, TV3 argued that the focus was not on why Child B was taken into care, but the supervision of her care following CYFS’ involvement, and its actions after the child’s recovery. In TV3’s view this focus was an “appropriate editorial decision”, and the issue had been dealt with in a balanced manner by explaining “CYFS reasons for the actions taken and allowed for CYFS input and comment”.
• TV3 again referred to the correspondence between the producer and CYFS. It stated that the Department was invited to view, and comment on, the “substantially complete programme”, and this invitation was taken up by the Minister. It therefore found no lack of balance, accuracy or fairness regarding the correspondence with CYFS about the programme.
• Mr Meyrick, a lawyer, was characterised as a “professional” and not as an expert, and his views were “clearly distinguished as his comment or opinion”, based on his relevant experience in this area. TV3 said he was a reliable source for comment, and that CYFS had been advised that the item included the “concerns of parents and professionals and those concerns [were] largely negative”. TV3 concluded that this aspect did not breach the standards.
• Ms Goldson, senior lecturer in social practice, was correctly characterised as an expert in this area and, in its view, a relevant and reliable source for comment regarding the issues dealt with in the programme. TV3 found that there was no breach of the standards as Ms Goldson’s statements were clearly her own. CYFS was generally advised of the nature of her comments and afforded the opportunity to respond.

[42] Turning to Standard 5, TV3 responded to each of the alleged inaccuracies as follows:

• Mr Martin’s statement was not inaccurate, as it was his comment and not a “point of fact”. In any event, TV3 advised that its enquires suggested that Mr Martin’s belief was reasonable in the circumstances.
• It accepted that there was no legal requirement for mandatory reporting. However, TV3 considered the statement was not inaccurate because “Waitemata Health confirmed in writing that it felt legally obliged to inform CYFS”, therefore, it had reasonably relied on a source for confirmation of this issue.
• The statement that the complaint against Ms Codlin was “malicious and false”, was independently verified and was not inaccurate. TV3 also noted that the matter was not before a court.
• The statement that “CYFS was compelled to return the baby” was accurate, regardless of whether the Department was ordered by the court, or by the mother’s actions to return the child.
• The issues discussed regarding the placement of Child B with her grandmother were factually accurate. TV3 advised that the information was consistent with the information provided by the CYFS.
• The statement referring to the public hand-over was accurate and could be corroborated by Ms Stirling’s lawyer. TV3 stated that it had no role in selecting a location for the hand-over.
• TV3 considered that Ms Codlin’s statement was “understandable” and, as it constituted her viewpoint, it did not breach the requirement for accuracy.

[43] In regard to Standard 6, TV3 declined to uphold the complaint that CYFS had been dealt with unfairly in the item. The broadcaster stated that it had already dealt with CYFS’ opportunity for input to the item, and it did not accept that the content of the programme “made it difficult for CYFS to provide ‘balancing’ detail.”

[44] TV3 noted that CYFS had provided information about the cases dealt with in the item. Therefore, it did not accept CYFS’ argument that the standards were breached because there was further information that it could not provide. TV3 argued that CYFS was advised of the detail of the programme and invited to respond. As to why other material was not provided, TV3 said that it was not its responsibility as it was not able to “select what the Department made available.”

[45] TV3 concluded:

Opportunities for input and comment is not just a method of achieving balance and accuracy it is also a means by which the programme satisfied the requirement to be fair. There was, of course, a high public interest component to this programme and that factor together with the extraordinary lengths that the producer went to in his efforts to involve the Department in the preparation of the programme have led the [standards] committee to find no breach of Standards 4, 5 & 6.

Social Workers

[46] CYFS complained that the social workers, identified in relation to Child B’s hand-over, had their privacy breached. TV3 considered this aspect in relation to Privacy Principle (i). TV3 noted that the first issue was identification of the social workers shown. It argued that it was “questionable” in this case, because their names were not disclosed, or their location specified. However, on balance, TV3 considered the social workers had been identified, because “their faces were shown and their work apparent from the context.”

[47] The second issue was whether there was “public disclosure of private facts”. TV3 contended that it was relevant that the filming was in a public place, and that the social workers were performing work duties. It submitted that there was “nothing private or inherently objectionable” in being a social worker. Accordingly, TV3 declined to find a breach of privacy in relation to the social workers.

Child A and Child B

[48] CYFS complained that the interests of the children portrayed in the item had been breached in relation to Standards 3, 6 and 9. TV3 noted that the relevant provisions cited by CYFS generally required the “broadcaster to take care when dealing with children.” It defined “care” as a “consideration of their interests or welfare.” In relation to Privacy Principle (vii), TV3 noted that the principle put the onus on the broadcaster to satisfy itself that the broadcast was in the “best interest of the child”. TV3 defined its responsibility as an “assessment of how that child will be helped by the broadcast and whether the child will suffer harm as a result of the broadcast.”

[49] TV3 accepted that the children were identified in the item and that private facts were disclosed about them. Therefore, in relation to each child, it addressed issues relating to consent and the “additional requirement for care”. TV3 advised that the parents of the children shown, had given their consent to the producer of the item. Further, it advised that the producers “sought and followed legal advice” in relation to filming the children in the programme.

[50] In relation to Child A, TV3 submitted that although the child was named, neither her last name nor her mother’s was disclosed. It contended that the child was a baby who would not be identifiable from the programme in later years. TV3 said that Child A’s interests were served by the “circumstances under which she was removed from her mother and then returned to her care being shown openly.”

[51] TV3 concluded that it “detects no harm will come to [Child A]” as a result of being identified in the programme. It found that there was no breach of standards in relation to Child A.

[52] In regard to Child B, TV3 said that the child’s life had already been subject to media interest, and she was, therefore, unlikely to be affected adversely by this further broadcast. TV3 noted that Child B’s name, image and identity of her grandmother and parents had already been publicly disclosed. In response to the issue of consent raised by CYFS, that Child B was a ward of the High Court, TV3 explained that the producer was legally advised on two points. First, the privacy principle refers to the consent of a parent, irrespective of their guardianship status. Second, the issue of the child’s best interest was a paramount consideration to the issue of parental consent.

[53] Turning to the issue of the child’s best interest, TV3 said it accepted the “producer’s statement of purpose in relation to the programme” that:

…the programme served the best interests, not just of the children referred to in the programme but also of all children affected by CYFS’ actions. The producers believe that it must always be in a child’s best interest to ensure that child’s safety and well being. To this end a process that is open, even-handed and fair when allegations are made that the child is at risk serves the child’s best interest. Impartial public scrutiny serves that purpose.

[54] TV3 agreed that the programme was in Child B’s best interest, and that as a result of the programme “it detects that no further harm will come to [Child B]”. TV3 concluded that there had been no breach of broadcasting standards in relation to Child B.

Conclusion

[55] TV3 concluded that there was no breach of the relevant standards in relation to any of the groups that participated or were referred to in the programme. It weighed the complaint against the “right to freedom of expression” and considered that to uphold the complaint would “unreasonably and unjustifiably restrict the public’s right to receive information and opinions”.

The Referral to the Broadcasting Standards Authority

[56] In its referral to the Authority, CYFS expressed its dissatisfaction that TV3 had failed to uphold any aspect of its complaint. CYFS’ referral reiterated much of the detail contained in its formal complaint to TV3. However, it made the following additional points:

• In relation to Guideline 2a of Standard 2, it maintained that TV3 had failed to deal with the substance of its complaint regarding this aspect and had narrowly focussed on whether the programme “was likely to threaten the court process.” It submitted that the “thrust” of its submission was that, as a “respectful litigant”, it was unable to respond to the issues raised in the programme because it would “usurp the function of the Court”. Consequently, it resulted in an unbalanced item which “has been prejudicial to the Department.” It also disagreed with TV3’s finding in relation to Guideline 2b.
• In regard to the social workers’ privacy, CYFS disagreed that TV3’s argument applied “in light of the special circumstances of this particular production”.
• As to the breach of the children’s privacy, CYFS cited two previous Authority decisions which it contended were analogous to the present facts. In its view, the decisions “support a finding of a breach of the children’s privacy in this TV3 production.” It added, in relation to Child A, that it did not accept that the child’s interests were served by identifying her, in order to disclose the circumstances of her case. In reference to Child B, CYFS maintained that “the depiction of this child in a vulnerable moment of her life” should not have been shown, and that TV3 had failed to consider the interest of the child.
• Turning to issues of balance and fairness, CYFS disagreed with TV3’s findings. It did accept that there was a “lengthy period of e-mails” between CYFS staff and the programme’s producer. It rebutted TV3’s contention that it declined to provide a spokesperson, as it considered that balance would have resulted from the Minister’s comments on the “broader issues” and from the information it had provided to the producer. It argued that the “problem was that insufficient use was made of that material.” CYFS disputed that it had been advised of the detail of the programme, or that it had been given sufficient opportunity to comment on the allegations raised in the item. It maintained that its views had been sought about the “broader issues” and, therefore, the Minister was considered the appropriate spokesperson in the circumstances.
• CYFS maintained that all the information it had provided to the producer was relevant and necessary for balance. It repeated the specific issues that it had identified earlier which, it contended, were unbalanced because of the lack of “balancing material”. For example, it referred to the lack of information used about Patrick’s case. In its view, viewers would not have understood the significance of obtaining a warrant. It argued that the item should have stated the reasons why CYFS had concerns for the child’s safety, in order to balance this aspect.
• CYFS disputed that the subsequent 20/20 item, referred to by TV3, was relevant to the issue of balance. In its view “Somebody’s Child” was not relevant, and did not provide the requisite balance, to the allegations raised in the item at issue. CYFS noted that there was also a “significant time delay in the screening of the second programme”.
• CYFS maintained that the item contained factual inaccuracies. It reiterated its specific allegations, and disputed TV3’s reasoning. In particular, regarding the statement about Ms Codlin, it did not accept that the producer was able to determine whether a “false and malicious” complaint had been made. CYFS stated that the allegation was retracted, but given that it was a matter before the court, the statement was inappropriate.

[57] CYFS attached copies of various correspondence between the Department and the producer of the item to its submission.

The Broadcaster’s Response to the Authority

[58] In its response to the Authority, TV3 used the same format as its response to the formal complaint. It examined the issues in relation to three groups it identified as having taken part, or which were referred to in the programme.

CYFS

[59] TV3’s response to the issues raised under Standards 2, 4, 5 and 6, comprised of confirming its position and providing additional material in support of its findings. TV3 had sought additional material from the producer, which it included in response to the allegations made by CYFS. TV3 noted that it was required to “make a number of findings of fact” where conflicts arose between the Department’s views and the producer’s. TV3 advised that it would provide evidence in support of its findings if required by the Authority.

[60] In relation to Standard 2, TV3 noted that aspects of CYFS argument under this standard related more to issues of balance and fairness. TV3 reiterated the issues for consideration when examining an alleged breach of the standard. It noted that the complainant had argued that Standard 2 had been breached because, first, the item “ran close to the line of being in contempt of court”. Second, the programme condoned or glamorised criminal activity. TV3 stated that the standard had not been breached because “there was no possible threat of contempt of Court”, and legal advice had been obtained and followed in the preparation and presentation of this item.

[61] TV3 maintained that CYFS, despite its argument that it was constrained by pending litigation from commenting on the cases, had provided material that was included in the item. TV3 submitted that the “constraints imposed on a ‘respectful litigant’ have emerged only for the purpose of formulating a complaint about the programme”.

[62] With respect to Standards 4, 5 and 6, TV3’s main contention was that CYFS was advised about the content of the programme, and had “generous opportunity for input at all stages of the production”, including an advanced screening of the substantially complete programme. In reference to the later 20/20 item, TV3 said that it had not intended to suggest that this item “was the sole reason this programme was balanced”. It had referred to “Somebody’s Child” because, in its view, the item was relevant to the overall issue of balance during the “period of current interest.”

[63] TV3 noted CYFS’ contention that the detailed information it had provided should have been included in the item. TV3 said that CYFS was not advised that all of its material would be used in the programme, and TV3 considered it was unlikely that CYFS expected this at the time it provided the material. TV3 submitted that a “sufficient amount of the material” was used to “provide the factual basis for the programme and to complete the agreed narrative.” TV3 expanded in detail the reasons why various information was selected in relation to each of the allegations made by CYFS.

Social Workers

[64] TV3 noted that CYFS had argued that “special circumstances” were applicable to the alleged breach of privacy of the social workers. TV3 reiterated that there was no breach, and that the “filming took place in public and was not concealed.” TV3 said that there was “no suggestion in the programme that the social workers shown were responsible for the decision to take [Child B]”.

Child A and Child B

[65] In relation to the breach of privacy allegations relating to Child A and Child B, TV3 expanded on the reasons advanced, why it was satisfied that the programme was in the child’s best interests and unlikely to cause further harm. Noting that CYFS objected to the visual identification of Child A, TV3 argued that if the issue was “long term prejudice”, the age of the baby was a relevant factor for consideration.

[66] As to Child B, TV3 said that the issue of parental consent was “marginalized by the relevant privacy principle”, and reiterated that a broadcaster’s responsibility regarding the interests of the child, was paramount to the issue of consent. TV3 reiterated that “identification was scarcely an issue for [Child B] given previous media coverage.”

[67] TV3 referred to the two previous Authority’s decisions cited by CYFS. TV3 contended that neither case was relevant to this matter, submitting that the “public interest element is far more stark in this case”. In addition, it argued the producer clearly “had at the forefront of his mind the best interest of these children in particular and children throughout New Zealand in the care of the Department.”

Conclusion

[68] TV3 recommended that CYFS’ complaint should not be upheld. It expressed its strong disapproval regarding the basis for the complaint, and it criticised the manner in which the complaint was formulated. It said that the complaint was “unduly prolix”, “confusing and disorganised”. TV3 maintained that the complaint was unjustified, and motivated by CYFS’ desire to “stifle criticism of its work”. TV3 contended that the complaint was vexatious, and requested that the Authority consider an order for costs against CYFS.

The Complainant’s Final Comment

[69] CYFS made further submissions regarding Guideline 2a of Standard 2. It referred to the “Fletcher” decision (No: 1998-124/127) cited by TV3, and argued that the meaning of “orderly and just disposition” of proceedings depended on the “nature of proceedings”. CYFS contended that proceedings involving children differed from other court proceedings, and required a “significantly more considered approach by broadcasters”. It referred to provisions in various statutes which required that “proceedings can be published only with leave of the Court and in no circumstances can the child or young person be named or identified.”

[70] CYFS maintained that the programme, which had identified children who were subject to court proceedings, and discussed issues central to those proceedings without the permission of the court, had breached Standard 2. It argued that TV3 had failed to take into account the statutory scheme for proceedings about children.

[71] CYFS addressed various issues made by TV3 in response to the privacy aspect of the complaint. It accepted TV3’s assertion that “there is no question that the public has a right to know how CYFS treats the children in its care.” However, it maintained that the broadcaster had a responsibility to protect the children’s interests, and that it should not have identified the children. It reiterated that the filming of Child B had breached the child’s privacy, and that TV3 had failed to obtain the Court’s consent for Child B’s participation in the programme.

[72] CYFS argued that it provided no information about Child A or Tamati, because of pending proceedings, and that the information it gave about Child B was “either already in the public domain or was of a most general character.” CYFS provided a detailed account relating to the hand-over of Child B, which it considered clarified its position and rebutted the inaccurate events portrayed in the item. CYFS stated that it did not consider that the “venue or the manner in which the hand-over took place was in the best interests of [Child B].”

[73] It denied TV3’s allegation that its intention was to “stifle criticism of its work”, or that its complaint was vexatious. CYFS accepted that it was “open to inquiry from the media”. However, it argued the public interest in such an enquiry had to be balanced against the “statutory scheme” which was “designed to protect children”.

[74] In regard to its complaint about balance, accuracy and fairness CYFS argued that the central aspect of its complaint was that a broadcast which dealt with matters in respect of which a “respectful litigant would decline to comment” would invariably breach the relevant broadcasting standards. In relation to Patrick Martin’s case, it enclosed supporting material that substantiated that the Department’s management of this case, was “of a very high standard”. It maintained that TV3 had failed to use information provided to it, which prevented viewers from making an informed judgement on this case. It rejected the allegations made by the item’s producer, and offered evidence in support of the Department’s position. As to the comments made by Mr Meyrick and Ms Goldson on the programme, CYFS maintained that it was denied the opportunity to respond to the allegations made in the item, which portrayed the Department “in a bad light”.

The Broadcaster’s Response to the Final Comment

[75] TV3 responded to CYFS’ final comment “in light of new matters” that it said had been raised.

[76] In relation to Standard 2, TV3 noted that the Department had referred to specific provisions in various legislation which restrict the reporting of Family Court proceedings. TV3 confirmed that no court proceedings had been issued against it, alleging a breach of any legislation in respect of the broadcast. Therefore, TV3 concluded that it was inappropriate for CYFS to refer to statutory provisions in order to support its submission that the broadcaster had breached Standard 2. TV3 argued that, in fact, the absence of any court proceeding against it supported its contention that it had “acted within the law as it relates to the publication of information about a court proceeding.”

[77] TV3 submitted that “contempt of court” or a breach of statutory provisions, were not issues appropriate for determination by the Authority. It maintained that any such finding would be contrary to the Bill of Rights Act.

[78] TV3 noted that in relation to the facts regarding Patrick Martin’s case and Child B, there was a conflict between the Department’s position and the statements made in the item. It submitted that the Authority should call for evidence from the parties, if it intended to determine these issues.

[79] In relation to the comments made by Mr Meyrick and Ms Goldson, TV3 stated that CYFS was offered an opportunity to respond to the issues raised. It reiterated that “a viewing of the programme was offered and taken by the Minister.”

[80] In relation to privacy, TV3 stated that CYFS had failed to specify what harm was suffered by the children. TV3 maintained that this programme “was demonstrably in the best interests of [Child A] and [Child B].”

[81] TV3 stated that CYFS’ final comment “confirms the vexatious nature of this complaint”, by raising new material not previously the subject of its earlier correspondence.

The Complainant’s Further Submission

[82] In response to TV3’s submission, CYFS addressed the issue of providing further evidentiary material. It noted that there was a clear factual conflict between the parties regarding various aspects of the programme. However, in its view, calling for further evidence would not address the central aspect of its complaint in relation to two matters. In relation to Patrick Martin’s case, CYFS stated that further evidence would not resolve the issue of a lack of balance because TV3 had failed to use information it had provided.

[83] CYFS similarly referred to the factual dispute in relation to the public hand-over of Child B. It argued that further evidence would not assist with the determination of the fundamental issues regarding consent and the child’s breach of privacy.

The Authority’s Determination

[84] CYFS complained that the 20/20 item broadcast by TV3 which examined the Department’s involvement with four families breached standards relating to the maintenance of law and order, and the privacy of social workers and the children identified in the item. CYFS also complained that the item was unbalanced, inaccurate and that the Department had been dealt with unfairly in the programme.

Maintenance of Law and Order

[85] Standard 2 requires broadcasters to maintain standards consistent with the maintenance of law and order. In the Authority’s view, TV3’s approach was consistent with this standard. CYFS maintained that the item had discussed issues that were subject to pending court proceedings. It argued that it was a fundamental legal principle that the “media does not usurp the function of the court as decision-maker about matters which are before the court”.

[86] The Authority notes that the relevant “principle of law” which CYFS suggested was not maintained by TV3 was the sub judice rule or that TV3 was in contempt of court. The Authority notes that contempt of court issues are not a matter of broadcasting standards, but an issue for the courts. Similarly, the Authority notes that it is a function of a court, not the Authority, to determine whether the broadcast breached relevant family law legislation.

[87] The Authority agrees with TV3 that the appropriate test in assessing a breach of Guideline 2a of Standard 2 was outlined in a previous Authority decision. The test in Fletcher Homes v TVNZ 1998-124/127 states:

…the general principle must be to guard against content or material which may impede or interfere with the orderly and just disposition of any case before the court…it is not sufficient for the broadcaster merely to raise matters which are before the court, even if in a provocative way…

[88] The Authority considered the above test, in relation to Child A, Child B and Tamati’s case, to assess whether the court process would be threatened by the broadcast. The Authority notes that there was no direct reference in the item to the existence of court proceedings regarding the above cases. The Authority considers that as there was no discussion of the pending court cases, the mere fact of the existence of court proceedings did not prevent the exploration of the issues raised by these cases in the programme.

[89] In the Authority’s view the broadcast did not include any “content or material which may impede or interfere with the orderly and just disposition” of any of these matters. The Authority considers it unlikely that a Judge presiding over these cases would be influenced by the material in the programme. In Tamati’s case, the Authority finds that sufficient care was taken in the presentation of the material to prevent a breach of the standards. The Authority considers that TV3’s actions in this instance did not amount to a breach of Guideline 2a of Standard 2.

[90] In relation to Guideline 2b of Standard 2, CYFS argued that the coverage of the mother who had kidnapped her child from CYFS’ care “glamorised or condoned criminal activity”. The Authority disagrees. It considers that glamorising criminal activity would require a degree of promotion which the Authority does not consider was evident on this occasion. In its view the mother was shown complying with the law – albeit reluctantly. The Authority acknowledges that the mother was portrayed in a sympathetic light but that the law was shown to have taken its course.

[91] Referring to the coverage of the hand-over, the Authority observes that it far from “glamorised” the mother’s actions. The coverage showed the mother’s extreme anguish and the extent to which the hand-over upset the child. In the Authority’s view, the programme neither “glamorised” nor condoned the mother’s actions. The item portrayed the trauma suffered when a child is taken away from its mother. Accordingly, the Authority also declines to uphold this aspect of the complaint.

Privacy of Social Workers

[92] CYFS argued that the privacy of the social workers involved with Child B’s hand-over had been breached. The Authority has developed a number of Privacy Principles which it applies when determining a complaint that a specific broadcast fails to maintain standards consistent with the privacy of an individual. Principle (i) is relevant to the complaint about the social workers. It reads:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

[93] The Authority first deals with the issue of identification. This is an essential element to any claim of a breach of privacy. It finds that the social workers were quite clearly identified as there were several shots of them during the hand-over of Child B. The Authority is in no doubt that the social workers were identified by the visuals.

[94] Turning to Principle (i), the Authority finds that there was no disclosure of private facts about the social workers. In the Authority’s view, it was clear from the item that a court order required the child to be uplifted, and that the social workers were simply effecting the Court’s decision. The Authority considers that the social workers’ role in the broadcast was evident, and the item did not suggest that they were personally responsible for the hand-over decision. The Authority concludes that a reasonable person of ordinary sensibilities would not consider that the broadcast of the social workers’ role was offensive. Accordingly, the Authority declines to uphold this aspect of the complaint.

Privacy of the Children

[95] CYFS complained that TV3 had failed to consider the interests of the children shown in the broadcast. It referred to Standards 3, 6 and 9 of the Television Code. In the Authority’s view the issues regarding Child A and Child B are most appropriately dealt with under Standard 3. The relevant Privacy Principle states:

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

[96] The issue for the Authority is whether TV3 breached Child A or Child B’s privacy by showing them in the item. The Authority notes that both children were readily identifiable throughout the broadcast. It also notes TV3’s advice that parental consent was obtained for filming the children. CYFS argued that Child B was a ward of the High Court, and TV3 had not obtained consent from the Court for the purposes of this item. Notwithstanding the issue of consent in relation to Child B, the issue for the Authority was whether TV3 had adequately satisfied itself that the broadcast was in the best interests of Child A and Child B.

[97] In relation to Child A, the Authority notes that the child, a young baby, was named and identified. The Authority accepts that on this occasion TV3 adequately satisfied itself that the broadcast was in the interests of the child. In the Authority’s view, Child A was unlikely to suffer any harm or humiliation as a result of being identified in the programme. The Authority notes that neither the child’s nor her mother’s surname were disclosed, and that because of her young age Child A would not be identifiable from the broadcast in later years. In the Authority’s opinion the child was not exposed to any harm as a result of the broadcast. The Authority finds that Child A’s privacy was not breached by TV3. Accordingly, the Authority declines to uphold this aspect of the complaint.

[98] As to Child B, aged 4, the Authority was more concerned by the footage of the child being uplifted from the care of her mother. The Authority acknowledges that this footage was traumatic and emotional. The child, aware of the filming during the hand-over, was visibly distressed by the events. The close up footage broadcast of the child being taken away from her mother and handed over to the social workers in these circumstances, was intrusive and portrayed as a heartless transaction. The critical issues for the Authority was whether the inclusion of this footage was necessary for the story to be broadcast, and whether TV3 had adequately satisfied itself that the broadcast was in Child B’s best interest.

[99] On balance, the Authority accepts the footage of the child was justifiable as being in the best interest of the child. Nothing more clearly illustrated the plight of the child than being shown being taken away from her mother. The Authority accepts TV3’s contention that Child B’s interests were served by exposing her case to public scrutiny. TV3 wrote:

There was no way to adequately convey the extent of the pain [Child B] was experiencing without showing it.

[100] In the Authority’s view, Child B was not exposed to any harm or potentially humiliating footage as a result of the broadcast. In the Authority’s view, the broadcaster did not on the occasion of this broadcast infringe Child B’s privacy. Accordingly, the Authority declines to uphold this aspect of the complaint.

[101]The Authority notes that CYFS referred to two previous Authority decisions, in support of a breach of children’s privacy. In those cases, the Authority decided that the identified child was humiliated and exploited, and thus the broadcast breached the child’s privacy. In the Authority’s view these decisions were distinguishable from the present facts and were not relevant to its determination of this matter.

Balance and Fairness

[102] As a central aspect of its complaint CYFS argued that its views were not represented because it was unable to respond to the allegations raised about specific cases discussed on the programme as the matters raised were subject to court proceedings. Consequently, it argued that the item was unbalanced and unfair. TV3 responded that the programme had achieved balance and fairness by involving CYFS to an “unprecedented level in the preparation of the programme”.

[103] Standard 6 requires the broadcaster to deal justly and fairly with CYFS as an organisation referred to in the item. The Authority considers that the Standard 4 requirements encompass on this occasion the relevant issues raised by the complainant under Standard 6. Accordingly, the Authority subsumes its consideration of this aspect regarding the treatment of CYFS in the item under the balance standard.

[104] Standard 4 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[105] In the Authority’s view, the item dealt with a controversial issue of public importance to which the standard applies. The Authority finds that the exploration and reporting of concerns about the exercise of CYFS’ jurisdiction, and the manner in which CYFS treats children in its care in relation to four specific cases, was a matter of public interest.

[106] There is a dispute between the parties as to the Department’s contribution to the item and the extent to which it was involved in the preparation of the programme. TV3 contended that there was a “high level of input and cooperation” with the Department. TV3 said that CYFS was advised as to the content and nature of the programme, and afforded an opportunity for input to the item prior to broadcast. CYFS maintains that as the matters raised in the programme were subject to court proceedings, it was unable to comment on the allegations made. In addition, it argued that to the extent that it was able to provide information to TV3 about the cases, the broadcaster had failed to include that information to effect balance.

[107] The issue for the Authority is whether reasonable opportunities were given, or reasonable efforts were made, to present significant points of view in the programme by CYFS or others.

[108] The Authority considers reasonable efforts were made to present significant alternative points of view during the programme. While many of the interviewees were the parents of the children affected by CYFS’ actions, and therefore critical of the Department’s actions, the Authority notes that alternative points of view were aired during the programme. The item included comments from Jill Goldson, a senior lecturer in social practice, Mike Meyrick, a lawyer who expressed sympathy for a Department under pressure, as well as the Minister responsible for CYFS, Steve Maharey. The Authority notes that although the Minister did not deal with the specific cases discussed in the item, he provided balance overall to the issues raised. The Minister stated that the Department had a very difficult role and acknowledged that it had made mistakes. The Minister referred also to public accountability and intimated that CYFS as a government agency was at times struggling with its responsibilities. In the Authority’s view, reasonable efforts were made to canvass a range of views during the programme.

[109] CYFS contended that the item was unbalanced and it was not dealt with fairly because its views were not represented. It advanced a number of reasons including:

(i)  court proceedings constrained it from discussing the specific cases;

(ii)  misleading correspondence from the programme’s producer about the nature and content of the item;

(iii)  insufficient use was made of its material in the item; and

(iv)  it was unaware that the item would discuss specific cases.

[110] The Authority considers it is not reasonable to advance that the Department’s inability to comment on the specific cases discussed in the item resulted in it being dealt with unfairly or contributed to a lack of balance. The Authority does not accept CYFS’ contention that the correspondence between the Department and the programme’s producer was misleading because it indicated that the item was about “broader issues” and that the producer did not seek the Department’s views about the individual cases. CYFS maintained that it was not advised that “case-related allegations” were going to be made against it in the item. The Authority notes the complainant’s letter dated 29 October 2002 refers to the four specific cases discussed in the item and provides information about each of those cases. The email from the programme’s producer to CYFS referred to the “story line of the upcoming 20/20 programme” and detailed the facts that were to be used in relation to each case. In the Authority’s view, the correspondence was not misleading. It was clear from the email that specific cases were going to be discussed in the item, and that CYFS was invited to correct any factual errors about these cases.

[111] CYFS also argued that it thought the proposed interview was about “broad issues” and that the Minister was the appropriate person to address those issues on behalf of the Department. As noted above, although the Minister viewed the item, he did not address the detail of the specific cases, but discussed the “broader issues” raised by the programme. In the Authority’s view the Minister’s contribution put the Department’s actions in the context of a Department with a difficult role that had on occasion made mistakes. The Authority has also considered this aspect as relevant to the issue of fairness.

[112] The Authority notes that CYFS argued that it was constrained by court proceedings from commenting on the specific cases, but it also argued that it had provided information toTV3, and that insufficient use was made of its material in the programme. In the Authority’s view the information provided by CYFS was reflected in the item, and its position was given an adequate airing on the programme. The Authority notes that CYFS’ position was represented on the programme to the extent that it was prepared to contribute and cooperate with TV3 in the preparation of the programme.

[113] The Authority considers that, based on the evidence presented, reasonable efforts were made and adequate opportunities were given to CYFS to present its views on the issues raised. It arrives at this conclusion for the following reasons:

(i)  the material which TV3 sought and CYFS provided in its letter dated 29 October 2002 in relation to each of the cases involved;

(ii)  CYFS’ acknowledgement of the “lengthy period of emails” between the programme producer and a representative of the department;

(iii)  The email from the programme’s producer dated 21 October 2002 which outlined the facts in relation to each child and asked CYFS to correct any factual errors;

(iv)  TV3’s offer to CYFS to provide a spokesperson; and

(v)  TV3’s invitation to CYFS to preview the programme before it aired.

Accordingly, the Authority considers firstly, that CYFS was aware of the nature and content of the programme and, secondly, that it was afforded adequate opportunities to contribute to the item.

[114] Turning to the complainant’s submission that a number of aspects in the item led to a lack of balance, the Authority disagrees. In relation to the Patrick Martin case, the Authority considers that TV3 was not required to detail all the reasons provided by CYFS why Patrick Martin was taken into care. In the Authority’s view the item presented a range of reasons which adequately reflected the information provided by CYFS in its letter of 29 October 2002 to TV3 and that these reasons allowed for sufficient viewer understanding. The aspect concerning the failure to interview Ms Sligo, the relevant case manager, the Authority considers is not relevant to the issue of balance. As to the alleged failure to include all the reasons why Child B was taken into and remains in care, the Authority finds that the item did provide a range of reasons – drugs, alcohol and domestic violence were cited. In the Authority’s view the item adequately represented the information provided by CYFS to the broadcaster.

[115] Turning to the contributions of Ms Goldson and Mr Meyrick, the Authority disagrees with CYFS that it was denied the opportunity to respond to their “extremely prejudicial allegations”. In the Authority’s opinion the participants were credible commentators whose contributions could have been countered by CYFS when TV3 offered the Department the right to preview the item and provide input, which it declined.

[116] On the basis that the item did adequately present a range of significant points of view, the Authority considers that the requirements of Standard 4 were satisfied.

[117] The Authority notes that the programme’s focus was to examine a government agency charged with ensuring the safety of children. In relation to four children, the Department’s actions were questionable and had raised issues of concern. As has been noted, the programme was not entirely critical of the Department. One participant expressed sympathy towards the Department and another contributor acknowledged the difficult role of CYFS.

[118] The Authority notes that CYFS complained that the programme had “prejudiced and unfairly undermined the public confidence in the Department without reasonable justification”. However, the Authority notes that aspect was not related to the failure to include information provided by the Department or its inability to discuss issues relevant to pending court proceedings, but rather to the circumstances of the four children and the impact of CYFS’ actions on their families. Government agencies are subject to public scrutiny. That is especially appropriate with a department with the power to intervene directly in the lives of children and their families. The Authority accepts the broadcaster’s view that “there is no question that the public has a right to know how CYFS treats the children in its care.” The parents affected, particularly those whose children had died in CYFS’ care, had wanted their stories told.

[119] In the Authority’s view it was not surprising, given the individual circumstances in which the children and their families’ stories were presented, that they reflected unfavourably upon the Department. The broadcast related to news and current affairs reporting and detailed matters of public interest. The item concerned the actions of a Department charged with the care and protection of children. The Authority finds that the questions raised in relation to the four children, and the examination into and reporting of those cases, was clearly in the public interest. Accordingly, the Authority declines to uphold the aspects of the complaint that the broadcast breached standards relating to balance or was unfair to the Department.

Accuracy

[120] Standard 5 requires broadcasters, in the preparation and presentation of news and current affairs programmes, to be truthful and accurate on points of fact. The complainant alleges a number of factual inaccuracies in breach of Standard 5.

[121] The first is whether CYFS had required that Child B be handed over in a public place. The relevant portion of the programme’s transcript reads:

Presenter (v/o): CYFS refused to pick [Child B] up in the privacy of the lawyer’s office,
                        insisting that she be handed over in a public place.

[122] The complainant stated that it was the Department’s preference to hand over the child in a private place, and that the public place was demanded by Ms Stirling’s lawyer. However, it is clear from the complainant’s own account that the hand-over was a matter of negotiation. CYFS advised that it did not agree to the hand-over at the lawyer’s office because of the presence of media representatives. It suggested that the hand-over take place in McDonalds on the North Shore, which Ms Stirling refused, and Victoria Park was finally agreed upon. As McDonalds is a public place, the Authority concludes that the item was not inaccurate. Accordingly, the Authority determines that this aspect of the complaint did not contravene Standard 5.

[123] The second factual inaccuracy raised by the complainant concerns the depiction of the role of social workers filmed during the hand-over of Child B. CYFS maintained that the social workers were inaccurately depicted as they were not exercising a statutory social worker role, but they were, in fact, undertaking agency duties on behalf of the Court. The Authority does not agree that this was the conclusion that a viewer would have drawn from the programme. Irrespective of the social workers’ status, they were performing their job. Consequently, the Authority finds that this aspect did not breach Standard 5.

[124] The next factual issue was whether health professionals were legally required to report their concerns about Patrick Martin to the Department. The programme’s transcript reads:

Presenter (v/o): With help the crisis eased, but, as required by law, CYFS, the Child Youth
                        and Family Service, was advised.

[125] CYFS stated that the presenter’s statement was inaccurate because there is no legal requirement for mandatory reporting in New Zealand. TV3 accepted that there is no such requirement under the relevant legislation, but argued that it had relied on information from Waitemata Health who stated that it had felt legally obliged to report the matter to CYFS.

[126] The Authority believes that the presenter’s statement was inaccurate as it implied to viewers that health authorities were legally required to report suspected abuse to CYFS. The Authority notes that the requirement in Standard 5 for such statements to be accurate, impartial and objective is an absolute one. Accordingly, it concludes that the presenter’s comment breached Standard 5 of the Television Code.

[127] The fourth aspect alleged by CYFS concerned Ms Codlin’s comments about her reaction on her baby’s return. In the Authority view, Ms Codlin’s comments were her opinion, rather than authoritative statements of fact to which Standard 5 applies. Accordingly, the Authority declines to uphold this aspect of the broadcast as a breach of the accuracy standard.

[128] The Authority notes that CYFS alleged a number of other inaccuracies in the programme. These aspects concerned whether CYFS had advised the Martins that it would not remove their baby; the details of an incident involving Ms Codlin; whether the Department had been compelled to return Child A; and issues about Child B’s placement. The Authority declines to determine these four aspects which involve conflicting information from the parties. In the absence of satisfactory evidence, the Authority considers it is not in a position to determine whether these aspects were or were not accurate.

[129] There were a number of other aspects of the programme raised by the complainant. In its determination, the Authority has focussed on those aspects which raise core broadcasting standards issues. In the Authority’s opinion the other matters raised by CYFS did not breach the standards or were not matters covered by broadcasting standards.

[130] The Authority refers to TV3’s request for costs, referred to in paragraph [68], and determines that there shall be no order for costs. In its view the complaint by CYFS was serious and raised legitimate broadcasting issues of concern. The Authority finds that there was nothing “frivolous, vexatious, or trivial” about CYFS’ complaint which would warrant such an order.

Bill of Rights

[131] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of this complaint, including the nature of the complaint.

For the reasons given above, the Authority upholds the complaint that one aspect of the broadcast by TV3 Network Services Ltd of a 20/20 item on 3 November 2002 breached Standard 5 of the Free-to-Air Code of Broadcasting Practice.

The Authority declines to uphold any other aspects of the complaint.

[132] Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint and taking into account the minor nature of the breach, the Authority concludes an order is not appropriate.

Signed for and on behalf of the Authority



Peter Cartwright
Chair
18 September 2003

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Department of Child, Youth and Family Services’ Complaint to TV3 Network Services Ltd
    – 29 November 2002

2. TV3’s Response to CYFS – 20 December 2002

3. CYFS’ Referral to the Broadcasting Standards Authority – 12 February 2003
   (plus attachments)

4. TV3’s Response to the Authority – 16 May 2003

5. CYFS’ Final Comment – 30 May 2003 (plus attachments)

6. TV3’s Response to the Final Comment – 23 June 2003

7. CYFS’ Further Submission in Response to TV3’s Letter – 15 July 2003

8. TV3’s Submission in Response – 30 July 2003