Through a Glass Darkly – Transparency in the Family Courts

This is a post by Sarah Phillimore

EDIT 26th March 2021 The appeal failed. The Court of Appeal commenting at para 89 that the Judge had conducted the ultimate balancing test with meticulous care and demonstrated no error of law. Newman deserves credit for her tenacity and is no doubt very disappointed with this result – but the necessary debate about more openness in the family court system cannot proceed in isolation from the very real need to examine how many journalists operate and the harm they do. Privacy rights cannot simply be subsumed by Article 10 rights – they must be balanced and the Court of Appeal has affirmed this was properly done here.

This is a post about the case of Newman v Southampton City Council & Ors [2020] EWHC 2103 (Fam) (05 August 2020. The judgment is very long which is an indication that something important was happening.

Melanie Newman, a journalist wanted to see documents in care proceedings which had ended in October 2018.

The child, born in 2012, had been removed from her mother’s care in 2015 and in 2016 a court ordered that the child be adopted. The mother appealed and succeeded. This is a very rare thing for a parent to do. It cost her about £20,000 and the local authority was not ordered to pay any costs as their decision to apply for a placement order was ‘in line with all professional advice’

If the mother hadn’t appealed, it was likely the relationship with her child would have been severed, certainly throughout her childhood. The Court of Appeal said the matter should be reheard. More assessments were carried out; the local authority changed its plan to rehabilitation and the child went back to her mother.

Melanie Newman wanted to know what was driving an apparent trend for this area to have a unusually high percentage of cases which resulted in orders for adoption. She knew that her application to see the documents was not an application to publish anything about them – that would need a further application. She was interested to investigate how it could happen that a Judge could make an order that a little girl should be adopted, only to have that judgment overturned because of its ‘significant’ gaps and the slimness of the evidence.

The court described ‘the essence’ of Ms Newman’s application in this way at para 118 of the judgment:

The essence of the application is a request by Ms Newman for the court’s permission to immerse herself in the private detail of this family’s domestic affairs (for these purposes with M at its centre) in a search to uncover material which may assist in exposing to public debate at least one of the questions she has formulated through her counsel: did this local authority act lawfully in commencing care proceedings in respect of this child ? 

But she did not succeed in gaining access to anything other than a small selection of limited and redacted documents; permission to appeal was refused.

I discuss below why this happened and why I think it was the right decision.

The Law

Hopefully we are now all more familiar with the law in this area than we were a few years ago. The judge examines the framework from para 20 to para 72 of existing statutory restrictions on publication, the developing history of guidance about reporting and transparency, and how the court itself can ease or tighten restrictions using the inherent jurisdiction.

For a more general discussion of transparency and the applicable law, see this post.

The court relied on the case of Webster [2006] as a useful summary of the present law:

• The starting point is that justice is administered in public
• There is a risk of miscarriages of justice in family cases and the public need to be confident in the system
• Freedom of speech, protected by Article 10 is a very important human right
• The press play a vital role in ensuring the proper functioning of democracy
• But if the court is dealing with children, that is an exception to the rule of open justice, because it involves private family matters that usually people want to keep private – however that could be different when the State is trying to remove children from their families
• The court retains the right to relax OR increase existing statutory restrictions on disclosing or publishing information about family cases. This will require a ‘balancing exercise’ between all the different rights in play.

The court noted at para 49 that the move towards greater transparency was taken up by the current President of the Family Division in October 2019, when he published further guidance, flowing directly from the journey of this case when journalists launched a challenge to the decision of the Judge in 2018 to restrict what the journalists could comment on – even the previous Court of Appeal judgment that was already in the public domain!

Applications made to the court to see documents can clearly vary hugely in nature and extent. Here, the court considered the child who wished to know more about his own family history and the different sensitivities that might apply to medical evidence. But even that child was not entitled to ‘conduct an archaeological excavation through the entirety of the trial bundles’ as much of the material he wished to ‘mine’ relates to very personal and private aspects of the lives of other family members.

Factors towards maintaining confidentiality were set out in Re X (Disclosure of Information) [2001] 2 FLR 440.

• The interests of the particular child
• The interests of litigants generally who didn’t want their private business made public
• public interest in encouraging frankness in children’s cases and securing co-operation from professionals who might be deterred from giving evidence if there was publicity
• encouraging people who had hurt children to be honest about it

It’s clear these applications are not easy. The court noted the comments of Bodey J in Louise Tickle v The Council of the Borough of North Tyneside & Others [2015] EWHC 2991 (Fam).

However, what I will say is that this application demonstrates how time consuming and troublesome applications like this can be; not only for the media, but also for the court and for all parties. These are not easy applications. They require time, effort, research and expense on what is essentially a satellite issue. For these reasons it is important that if and when Local Authorities and the media (and/or the other parties) do come to realise there is an issue between them about how much should be reportable and on what terms, there should be sensible and responsible dialogue as soon as possible, with a view to finding an early modus vivendi. With the application of give-and-take, a measure of common- sense, and the engagement of the Children’s Guardian, it should be possible in most cases to come up with a formula based on decided authority which steers a path between (a) the need for greater transparency in the public interest, and (b) the need to respect the privacy and sensitivities of those whose lives are involved.”

What the parties wanted

Ms Newman wanted to see the court files to undertake an ‘independent journalistic assessment’ as to whether or not the public interest demanded a closer look at this case where a child was initially placed for adoption ‘on the slimmest of evidence’.

The local authority identified some documents it was willing to provide, but resisted wider disclosure. While recognising that Ms Newman was a respected journalist with a legitimate interest in this case, her request was ‘unprecedented’ and represented a significant intrusion into private rights. If granted, this request would set a dangerous precedent, and encourage other journalists to make similar requests. There was also a significant amount of material in the public domain; the Court of Appeal had already exposed the injustice done to the mother and child and fulfilled its proper function as a check and balance on a miscarriage of justice.

Further, the principle of open justice and freedom of speech had never been absolute – both were subject to ‘material and legitimate’ inroads.

Lord Mance put it this way in Kennedy v Charity Commission (Secretary of State for Justice and others intervening) [2014] UKSC 20, [2015] AC 455. 

Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend on it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming….

Those representing the child argued that disclosure was not in her best interests. They made the valid point (see para 102) that it is artificial to see Ms Newman’s request as simply to access the documents. She wanted to see the documents because she wanted to write about them and publish what she writes. The application for disclosure cannot be seen in isolation from the obvious wish driving the request for disclosure.

The court therefore considered that although Ms Newman is a serious journalist with a serious purpose, that does not provide a starting point of access to documents, but it does engage the necessary ‘balancing exercise’ to determine which rights will prevail.

The court permitted Ms Newman to see limited aspects of the court file, commenting at para 162

This is a targeted and fact-specific exercise which has involved a careful balancing exercise of all the competing rights involved as between the individual parties to this particular case. I have rejected Ms Newman’s application for wholesale disclosure of the court file but I have agreed that she should be entitled to see limited aspects of the material it contains. To the extent that I have interfered with either the mother’s or M’s Article 8 rights and/or Ms Newman’s Article 10 rights, I have done so in what I judge to be an entirely proportionate manner. An important factor in my decision has been the mother’s consent to disclosure but this does not mean that in every case where an aggrieved parent supports media access to material generated in children’s proceedings, journalists should be encouraged to make applications.

The court found that different considerations applied in respect of different broad categories of evidence – medical and health records, foster care and contact records, police disclosure, previous records, minutes of child protection conferences and experts reports.

With regard to medical evidence, the court said this at para 136:

In considering where the balance lies, it seems to me that the overarching factor which I have to weigh in the balance is whether it is in M’s overall best interests to release to a journalist the most intimate details of her own and her mother’s medical records even if the dissemination goes no further than that. Such a step would represent a clear court-directed intrusion of this child’s most basic and fundamental rights to a private family life. If those rights are to be the subject of court-sanctioned interference, there has to be a proper justification. I appreciate that Ms Newman cannot justify that interference on any specific basis because she has not yet seen the medical and other records. She wants to read them in order to see what they contain. Having reflected carefully, and because of the intimately personal and sensitive nature of this material, I do not consider the mother’s consent to its release on her own or M’s behalf to be sufficient to displace the overwhelming need to ensure that such information remains confidential from public scrutiny and I would include Ms Newman within this embargo. In the context of this application, I am satisfied that she has sufficient material about the medical history of both M and her mother. It is either already in the public domain and recorded in the judgments to which I have referred or it is likely on the balance of probabilities to be irrelevant to any decisions which were made in those proceedings. To the extent that those judgments have not recorded the full detail of the medical evidence available in the bundles, I am satisfied that such confidence will have been preserved for a very good reason.

However, a different approach was justified in terms of reports and assessments that relate to the mother herself where the balance fell in favour of allowing Ms Newman to see them, redacted where necessary to preserve the rights of third parties.

Happily, all agreed that Ms Newman should not have to pay towards the considerable costs of the substantive application. But the local authority sought £1,200 to pay for the costs of redaction and copying. Ms Newman agreed to pay for the costs of copying. The court noted that Ms Newman’s legal team had acted pro bono and that Ms Newman did not have the backing of a large media organisation. Therefore the court ordered Ms Newman only to pay limited costs towards copying documents.

Her permission to appeal was refused.

Conclusion

The key point I think was this: it is not for journalists to establish the lawfulness of court decisions. Their important role is to hold up to public scrutiny the reasons for the rules that bind us together in a democratic society. In this case the Court of Appeal had already set out and scrutinised the failings in this case and put right the injustice done. There was no criticism of the local authority for bringing care proceedings and its subsequent actions were not seen as sufficiently unreasonable to attract sanction in costs.

I can on many levels understand the frustration of the journalists. It is difficult to read – at para 103 – the child’s barrister placing reliance on ‘research’ about what children think about publicity, that is based on such tiny numbers of self selecting interviewees. – see ‘Safeguarding Privacy and Respect for Children and Young People” [2014].

It was also interesting to see discussion of a key point that is often overlooked. Who is going to pay for the practicalities of disclosure? In this case the court decided that it was proportionate to ask the local authority to redact the documents. That may not always be the case.

I think that there is certainly a case for more and better research about the impact on children of publicity of such cases.

However, the judgment here is very careful and detailed and in my view provides compelling reasons for why the right of any journalist to access court documents must be carefully and cautiously analysed.

The court commented at para 163:

The principle of transparency and openness is of crucial importance in a democratic society. There have been significant developments towards greater transparency in the Family Courts but any wholesale departure from the principled and well-recognised protection afforded to the interests of children is one which will need to be informed by a careful evidence-based review. Just such a process is ongoing at the present time. As advertised in his 2019 View from the President’s Chambers to which I have referred in paragraph 72, Sir Andrew McFarlane, as President of the Family Division, has assembled a panel who will assist him in the important task of considering whether the line which is currently drawn between, one the one hand, the need for confidentiality for the parties and children whose personal information is the subject of proceedings, and, on the other, the need for the public to have confidence in the work done in these courts on behalf of the State and society is the right one. The consultation process is ongoing as I conclude this judgment.

It is certainly true that journalists play a vital role in shining a light on the failures and excesses of the State. I agree that a system that works in ‘secrecy’ risks bad practice becoming the norm and unchallenged. But I also note that for every Carl Bernstein we have an Andrew Norfolk. There is a risk for all of us who feel passionately about the subjects that interest us; we risk our objectivity and we risk causing harm to others in pursuit of a single minded goal and focus.

My views about the need for more openness and transparency in the family courts have undergone significant evolution over the past six years and I find myself more firmly over the line of ‘less’ rather than ‘more’ – sadly because I have lost faith in journalists to report with impartiality and integrity.

But it is necessary that we never stop thinking about this. I applaud Ms Newman’s tenacity and bravery in making this application; it must have been stressful and difficult. But I think the court made the right call here.

I will be interested to see where further consultation and guidance takes us.