Transparency

Transparency as a way to correct a false narrative

Mohammed bin Rashid al-Maktoum v Princess Haya [2022] EWFC 16

This is an interesting case. Although it is clearly ‘highly unusual’ for the family courts to find themselves dealing with foreign princes this case represents further exploration of how an individual’s wish to correct a false narrative can be used to argue against the default position that publicity is the exception in family cases. It also demonstrates that although the legal context for determining ‘family publication’ cases is now settled and uncontroversial, the specific facts of each case are going to continue to require detailed examination.

On 9^th March the President of the Family Division handed down judgment in this case. The question for the court was whether the final welfare judgment of December 2021 should be published. This concerned the conclusion of long running wardships proceedings involving the parties two children aged 14 and 10. A total of 15 substantive judgments had already been published, with great media attention given that this case was ‘highly unusual’, involving the children of internationally known parents, one of whom is the Head of Government of a ‘prominent and powerful State’.

The President decided that the full judgment should be published, with some redaction. The key issue here was the publication of a welfare judgment concerning two clearly identified and publicly known children. Therefore the principles and themes developed in the recent Transparency Review did not have any direct resonance to the present unusual circumstances. The court had to find a ’bespoke’ solution by considering the particular facts and the individual needs of the two children balanced against the now firmly – and rightly – entrenched position in favour of anonymity for children in family proceedings.

Initially, the mother argued that the welfare judgment, in common with each preceeding judgment, should be published in full. The father and Children’s Guardian preferred publication to be restricted to a summary of the key elements of the decision. All agreed that in light of the degree of publicity already given to these proceedings, at least some form of summary of the welfare decision should be published.

Following submissions in February 2022 the Children’s Guardian changed her position in light of a further statement from the mother and meeting with the children. The father did not actively oppose the Guardian’s revised position to publish a full judgment with redactions but did urge the court to consider that both the children’s and the public interest was better served by the publication of a ‘coherent and accessible summary’.

The President found this a difficult decision. He had not written the welfare judgment with a view to future publication but rather to reflect the need to express his concluded views frankly and in detail so that the parents and in due course the children, could understand the court’s reasoning. He noted that it was ‘highly unusual’ for the court to publish a welfare judgment when the identity of the children was fully and widely known and that none of the legal teams had been able to identify any such previous publication in such circumstances. This issue took on even greater significance knowing that the family are public figures in their own right in Dubai and elsewhere.

The parties sought to rely upon the recent transparency review ‘Confidence and Confidentiality: Transparency in the Family Courts’ 29^th October 2021 but the President was clear that this Report was ‘wholly irrelevant’ to the issue that currently fell for determination. The Report was clear that greater openness in Family Court Proceedings is not to be at the expense of the children and family concerned. In the unusual circumstances of the present case, the President was required to provide a ‘bespoke’ solution, informed by the specific facts of the case and the needs of the children.

The overall legal context to determine publication of judgments in family cases was held to now be well settled and not controversial, relying on the need to strike a balance between competing ECHR rights and the statutory limits on identifying children. This case did not fit the ‘paradigm’ of a publicity application which usually focuses on Article 10 rights to free expression. Here the arguments in support of publication were geared towards the rights of the children and their mother to have their ‘story’ accurately available for public scrutiny to avoid the father being able to promote a false narrative. In particular, as the father was not being afforded direct contact with the children and his exercise of parental responsibility had been limited, it was important that third parties knew not to share information with him about the children that might put them at risk. The mother noted that the father had already been attempting to push a false narrative via social media that he had been reunited with his son.

The President noted that the Court of Appeal had recently in Griffiths v Tickle [2021] EWCA Civ 1882 upheld a decision to publish findings of fact against Mr Griffiths, in part upon the established right of an individual to ‘tell their story’. The Children’s Guardian in this case had also concluded that publication was in the welfare interests of the child.

In the present case the Children’s Guardian found the decision was ‘finely balanced’ but had decided in favour of publication on the basis of the wishes and feelings of the children and the mother’s own views. The court gave considerable weight to the mother’s statement, which was not challenged. This had to be balanced against the firmly entrenched default position in favour of confidentiality. Little weight was placed on the fact that previous judgments had been published; the welfare judgment was in a separate category and requires a bespoke evaluation.

Transparency – where now?

This is a post by Sarah Phillimore. TL:DR – there is clearly a need for a shift in culture and an attempt to better balance the need for children’s privacy against the need for public trust and confidence in the system. This shift will only occur however if is properly resourced – simple exhortations to do better will achieve nothing. We will also need to keep an eye out for the operation of the Law of Unintended Consequences, and the likely satellite litigation that will follow attempts to withhold certain documents from journalists.

On 28th October 2021 the President of the Family Division released the review of progress of increased transparency in the family justice system; Confidence and Confidentiality: Transparency in the Family Courts in the Family Courts, noting that the pace of change to date had been ‘glacial’, owing in part to the tensions between two fundamental principles

…the need to enhance public confidence in the Family Court and, on the other, the need to maintain confidentiality by safeguarding the privacy of those who turn to the court for protection or for the resolution of intimate disputes.

A quick google of the title brings the first result, depressingly, a very similar named Government paper from 2006 which supports the President’s disappointment with the pace of change. We seem to have all been agreeing for decades that our current methods of wrangling the tension between these two principles are failing, and that this risks a serious impact on public trust and confidence in the system. So what now? Is anything actually going to change this time?

The President is clear that things must change and he will take responsibility for making this change. He sets out at para 5 why this is an important issue – the caseload of the FJS is immense – 224,902 cases in 2020 alone. So a lot of people have a direct interest in knowing how judges exercise their discretion in these cases. ‘Open Justice’ is also ‘a fundamental constitutional imperative’. Without public scrutiny, how are judges held to account for the decisions they make?

But of course the arguments against increased publicity are also strong and well known; primarily the impact on children who may not want the intimate and distressing details of their family life to be public knowledge.

A current stumbling block is section 12 the Administration of Justice Act 1960, which I have written about here. This is poorly understood legislation which has undoubtedly had a chilling impact on what may or may not be discussed about cases in the family courts. So even though the rules were changed to allow accredited media representatives and legal bloggers to attend private Family Court hearing as of right (r 27.11), they are still covered by AJA 1960, s 12 which prevents publication of information relating to proceedings if they concern children – thus removing much of the point of being there at all.

The reporting that IS done is often based on ‘anonymous accounts of negative experiences’ to which the system cannot respond, leading to (para 27):

thoroughly unsatisfactory state of affairs, with the drip-drip of concerning stories, that are neither answered nor explained by publication of a judgment, inevitably eroding public confidence in the Family justice system.

The President states that the way of reconciling two potentially competing needs of open justice and protecting children, is not to fall into the trap of thinking this is a simple binary – open the courts, yes/no. The President comments that the work of National Family Justice Observatory, The Transparency Project and the success of the CoP Open Justice Project, run by Professor Celia Kitzinger, has shown that it is possible to produce commentary and information about the system, without compromising privacy. So how do we move this work forward to a larger stage?

A major shift is required in culture and process to increase transparency

The President notes that previous efforts to effect this shift have not worked. Journalists don’t attend court hearings – and why would they! They are worried about being found in contempt of court. Judges are not publishing enough judgments – unsurprisingly when they do not have the time to prepare anonymised judgments.

The suggestions to achieve the shift are as follows. This will start with a trial run or ‘pilot’ in two local authority areas (one urban and one rural) to ensure that the changes work in an effective way and to deal with any unforeseen issues and problems that may arise before it is rolled out nationally. Some are simple, practical and effective and hopefully can be ‘rolled out’ without too much trouble – others however are going to present more significant challenges, and in particular will need money to make them work.

accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear.
Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives.
to establish a Transparency Implementation Group [‘TIG’] to support implementation of changes
urgent consideration of Parliament to consider section 12 of the AJA – and while waiting, amend the Family Procedure Rules as far as possible to mitigate its impact
to monitor journalists, both locally and nationally, and, where clear misreporting occurs, for it to be taken up with the relevant editors.
establish links at a national level between the PFD and the Society of Editors, and at a local level between DFJ’s and their local media.
establish a Media Liaison Committee comprised of journalists, media lawyers and judiciary (together with others who may include individuals who are wholly from outside the spheres of Family Justice or the media).establish a forum for discussion between the local and national family judiciary
Further consideration of what documents should be disclosed, giving the judge an over arching discretion to withhold documentation if necessary.
Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR, r 12.75(1), PD12G and PD14E.
In order to ensure that a larger number of judgments are published, all judges to publish anonymised versions of at least 10% of their judgments each year – this may sound low but will be a significant improvement on what is happening now.
press for the establishment of an Anonymisation Unit within HMCTS which, through a combination of human input and/or software, will undertake the task of anonymisation.
DFJ’s to invite local MP’s to the court so that a fuller understanding of the work and approach of the Family Court can, over time, develop.
a scheme of compulsory data collection at the end of each case.
court lists should be made available in advance to journalists/bloggers which identify the general nature of the proceedings, the category of hearing and the time estimate.
a modern online hub to access which will explain the work of the Family Court, how cases are dealt with, what other options exist for dispute resolution and how to make an application. The website could signpost visitors to other potential sources of support or information. It should be the go-to first point of reference for anyone who has a need to engage with the Family Court.
the public to have access to an annual report, which would include data setting out case numbers, categories of proceedings and outcomes. The report would also include an annual audit on the progress of the various initiatives that are now to be launched under the overall umbrella of ‘transparency’.

My comments

I agree that something has to change. I echo all that is said about the dangers of allowing anonymous reports made to partisan journalists being the only public source of information that many have. But I do wonder how simple declarations of intent such as “openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality” are really are going to play out in practice.

I have commented about my own ‘journey’ with regard to transparency – from my initial and in hindsight embarrassingly naive world view that all we needed was to embrace open discussion and all would be well – to what I think is a much bleaker, but more realistic view of human nature, our love of stories and our resistance to accepting facts which challenge our narratives. I am afraid I no longer have confidence in journalists to reliably report facts, rather than cherry pick those facts to suit a narrative. The depressing reality is that most journalists only appear to care about the ‘sexy’ stories – the vast and mundane bulk of family cases will not attract their attention. It is not simply fear of contempt of court that has seen them stay away from court rooms. It is rather than 99% of family cases are of absolutely no interest to other than the people directly involved.

I am particularly concerned about the proposals regarding what documentation is to be released. At para 43 the President says:

My preliminary view is that those attending should be allowed to read position statements and witness statements but not medical reports or primary documents such as police disclosure. However, in all cases the judge will have a discretion to withhold documentation if that is necessary on the facts of the case.

This is going to need very careful thought. My own experience of journalists attempting to see documents which provide the ‘meat’ of a case – namely highly sensitive and personally distressing details about mental health conditions etc – has been entirely negative, leading to a raft of ‘satellite litigation’ over what could or couldn’t be disclosed, wasting the time of the courts and causing considerable distress to the lay parties. I am afraid that it is medical and police reports that journalists will want to see, as they are likely to contain the kind of intimate detail to make reporting ‘worthwhile’. I think it is this issue where the simple declaration ‘we can do this!’ is likely to founder and likely to bog down the family courts in further litigation that it simply does not have the capacity to deal with.

Further, it is good to see that the President is clearly alive to the difficulties of asking judges to produce ‘publication ready judgments’ – anonymisation is not simply a matter of stripping out names and replacing with initials. Care must be taken to avoid details that lead to ‘jigsaw identification’. Great detail about the nature and type of abuse suffered by a child is also not appropriate for wider publication. The suggestion is that a dedicated unit is set up to help judges – this would be ideal, but I suggest highly unlikely to ever be achieved, when our daily mantra is ‘there are no resources’ .

Almost as an aside at para 32, the President comments about the importance of data collection, which I think is key. There is a ‘data black hole’ over much of the FJS, and most obviously regarding outcomes; we rarely have feedback about whether or not a ‘final order’ actually brought any longstanding peace to a family. There is work being done by HMCTS across the justice system on collecting and using data, following the report and recommendations of Dr Natalie Byrom “HMCTS: Making the most of HMCTS data October 2020” and I would be very interested to know more about this. Better understanding of who is coming to court, why and what are the outcomes would, in my view, go a long way to improving public confidence in the system without requiring knowledge of intimate details about individual families.

I would also like to see more creative thinking. Judge Wildblood QC the Designated Family Judge for Bristol, has been experimenting for some time with efforts to bring the family justice system to the public with a variety of seminars and plays – his most recent ‘The Shake’ was held on line and about 630 people joined the remote link. There is clearly an enormous appetite for discussion and information and we need to think of other ways we can provide this, rather than simply holding up individual families for scrutiny in the actual court process. For example, I have recently volunteered to be a mentor to school students holding mock Trials, through the ‘Young Citizens’ project – we can think more about how education can be provided via schools to help people grow up to understand their country’s legal systems better.

In essence, what is necessary to achieve confidence in any legal system is quick and affordable access to robust decision making. I have significant doubts that this fundamental aim is going to be helped by encouraging more legal blogging or arguing over whether or not a journalist gets to see a psychiatric report. But, as ever, we will see. I can only hope that this Transparency Review does not join its 2006 iteration in the digital graveyard of lost causes.

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.

Transparency Made Simple!

This is a post by Sarah Phillimore

I was asked if I could re-state the law about confidentiality in family proceedings for the benefit of parents who want to talk about their proceedings publicly. What follows is an attempt to simplify the main post on this site about transparency. The usual warning applies – this cannot be used as particular legal advice for a particular case. If you are worried about the consequences of anything you do, you need to get advice from someone in real life who knows what is going on in your particular case. But I hope it can be a useful condensed guide to the general principles.

Contempt of court is a really serious thing and can lead to you going to prison. But what the courts really don’t like are people who deliberately break the law in an attempt to show how much they dislike the court system. If you can show that you tried your best to stay on the right side of the law I think its unlikely any court would want to give you serious punishment.

Golden rules

Don’t identify any children – by name or by providing information that would make it easy for others to work out who the child is for example, names of older siblings or school the child goes to. This is called ‘jigsaw identification’
Don’t publish any evidence or talk about in detail what happened in court unless you have the permission of the Judge
Generally to ‘publish’ means ‘making information known to the general public’ so would include putting information on the Internet, such as a Facebook profile.

Why is it so complicated?

Because the law in this area has developed over a long time and in a variety of different ways. If you find it hard to understand – don’t worry. So do the Judges and the lawyers.

Why can’t I just talk about my case?

Because children do not get a choice about whether or not they are part of care proceedings and it is very unfair to publicise information they might find very embarrassing or shameful.

Important laws you need to know

Section 97 of the Children Act 1989

Section 97(2) says no person shall publish anything which is intended or likely to identify any child as being involved in any proceedings under the Children Act 1989 or the Adoption Act 2002, including the child’s address or school.

If you do this it can be a criminal offence but you have a defence if you didn’t know or suspect that the published material was intended or likely to identify the child.

Section 12 Administration of Justice Act 1960.

It is a contempt of court under this section to publish information about ‘private proceedings’ UNLESS you are telling a professional something they need to know to protect a child.

You can publish information about ‘the nature of the dispute’ but you can’t refer to the actual evidence, not even in summary. This is quite a tricky distinction. There is no time limit to this section so you are caught by it even when the care proceedings are over.

This doesn’t cover the identify of witnesses in care proceedings so they can be named unless the Judge makes a different order.

In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para [82](v)-(vii); Munby J tried to shed some light on what section 12 covers:

section 12 protects is the privacy and confidentiality:
- (i) of the documents on the court file; and
- (ii) of what has gone on in front of the judge in his courtroom. …
section 12 does not prevent publication
- of the fact that proceedings are happening, or
- identification of the parties
- or the comings and goings of the parties and witnesses,
- or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

I want to talk about my case at a conference or to a journalist

So how does section 12 stop you talking about the details of the case? This is a difficult area and causes problems for the lawyers to understand.

Sir James Munby looked at one example;

“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”

The Judge dealing with the case found that WAS a breach of section 12 as it went ‘far beyond a description of the nature of the dispute and reached deeply into the substance of the matters’

However, it is clear that every case turns on its own facts, which makes it difficult to provide clear advice about what would or would not be acceptable to talk about. If you are worried, then ideally you need to ask the Judge who heard your case for permission to raise certain issues.

As a general point you are probably ok if you

talk about the fact that there were care proceedings
talk about what happened after the care proceedings and how it made you feel

How does the court approach applications for publicity?

The High Court has the power, due to section 6 of the Human Rights Act 1998 and its own ‘inherent jurisdiction’ to make orders outside of the statutory provisions about people coming into court or being able to talk about what happens in court.

If the High Court wants to make such an order, the court must examine any competing rights under Articles 8 and 10 of the European Convention and undertake the ‘balancing exercise’ as set out in Re S (A Child) (Indentification: Restrictions on publication) [2004] UKHL 47

The case of Re Webster: Norfolk County Council v Webster and Ors [2007] 1 FLR 1146 identified 4 important factors for the court when it considered whether or not to allow information about a case to be publicised:

The case was alleged to involve a miscarriage of justice
The parents wanted publicity
The case had already been extensively publicized
There was a need for the full facts to emerge in a way which would improve public confidence in the judicial system.

In Re J [2013] where the Local Authority wanted an order ‘contra mundum’ (against everyone in the world), preventing the identification of a child in care proceedings, to last until the child was 18. The court didn’t agree.

This case involved J, one of the parents’ four children (all of whom went on to be adopted). J’s father posted on the internet various pictures and film of J being removed from the parents’ care, describing what he had published in these kind of terms:

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.

Here is an interesting article about this case, in particular the ironic consequence that in attempting to restrain the father from posting his videos on the internet, the LA ensured that he received a great deal of publicity and probably more people saw the videos than would have done if they had not applied for the order.

Sir James Munby said this about Re J

26. The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

27. One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling […]

28. I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

29. This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable. […] We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

Rule 12.73 of the Family Procedure Rules 2010

You won’t be in contempt of court if you discuss information about care proceedings so long as you are talking to a person named on this list.

a party to the proceedings;
the legal representative of a party;
a professional legal adviser;
Cafcass
the Legal Services Commission;
an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;
a professional acting in furtherance of the protection of children;
an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;

Transparency

What can I talk about? Who can I talk to?

‘I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.’

Sir James Munby, (former) President of the Family Division

The issues of transparency and openness in the family courts have provoked much debate. It is sad to note that the zeal for reform from about 2013 shown in particular by the former President of the Family Division, has not resulted in any particular change to general practice. More court judgments are being published and The Transparency Project has increased discussion and awareness of the two central tensions; between the need to keep intimate family information (particularly about children) out of the public domain and the need to have public understanding of, and confidence in, the workings of the family justice system.

However, and sadly, the distinction between ‘privacy’ and ‘secrecy’ continues for many to be a distinction without a difference, or one that is wrongly relied upon to justify poor practice and lack of scrutiny. The trend is slowly towards greater openness to reflect the public’s legitimate interest in the workings of the family court but there are still quite significant limitations on what you can and cannot say about care proceedings and who can come into court.

This post will cover

A summary of the current position
The attempts to offer guidance/reform
The developing history of principles about transparency
Statute law and rules relating to transparency
Case law and guidance
Other issues
- journalists in court
- recording court proceedings
- participating in research.

Summary of the current position

For a useful summary and discussion of where we are now see this article by Dr Julie Doughty of Cardiff University. She quotes the position as set out by suesspcious minds:

‘…a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable.’

The general rule is that you need to be very careful about publishing information about care proceedings, particularly if this could lead to a child in proceedings being identified. ‘Publication’ includes posting information on social media sites.

This is contrary to the general principle of ‘open justice’ – that the public is entitled to know what is being done in their name – but many argue it is justified when dealing with proceedings involving sensitive family issues, and worries about children being identified and details about their family circumstances becoming widely known. Children do not get a choice about whether or not they are part of care proceedings so it is felt to be very unfair to publicise circumstances that they might find very embarrassing or shameful.

This has been the position for a long time. See Scott v Scott [1913] AC 417 and the comments of Lord Shaw of Dunfermline at p 483:

The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.

Generally only people who are parties (directly involved) in the proceedings can come into court. Often courts will be sympathetic to requests that a friend or family member can sit in court to provide moral support, but not always. Journalists may be able to come into court but there are serious restrictions as to what they are allowed to report.

Attempts at Guidance and Reform

On 16^th January 2014, the (then) President of the Family Division Sir James Munby, published Practice Guidance relating to transparency in the Family Courts. The purpose is to improve public understanding of the court process and confidence in the court system by increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form).

Research led by Dr Julie Doughty found in March 2017 that there were a number of difficulties arising in practice, including ‘patchy understanding of and adherence to the 2014 guidance over the country’ and the burdens of preparing judgments for publication’ with all the associated concerns about identification of children, families and practitioners, is falling inequitably amongst judges and practitioners’.

On the 7th December 2018 the (now) President of the Family Division published further guidance. This endorsed the two ‘checklists’ set out In July 2016 by Dr Julia Broph’s draft guidance on the anonymisation of judgments. This aims to minimise the risk of identification of children and made recommendations on how descriptions of sexual abuse could be presented in judgments with a view to protecting children from the dissemination of distressing material on the internet or social media.

The Transparency Project have commented on this guidance and in particular note that while warnings against use of sexually explicit detail in judgments are well made, there is unease about what may be a move to routinely keep the identity of professionals from publication and demands that there be ‘no’ risk of ‘jigsaw identification’ :

Although it doesn’t ban the naming of professionals and local authorities, this new guidance might be seen as tending to reverse the starting point that professionals and local authorities should ordinarily be named and to that extent would be a drawing back from the previous move towards greater transparency. The guidance says (in places) that the aim is to ‘avoid any risk of jigsaw identification of children’ (our emphasis).

The guidance now issued seems to replicate word for word a draft proposed in 2016 by Dr Julia Brophy. That draft guidance was deprecated by Mr Justice Hayden at the time in a case called Re J (A Minor) [2016] EWHC 2595 (Fam)

It is important to note that ‘guidance’ is not ‘law’ but there is concern that this new guidance may act to encourage undue prominence being given to Article 8 rights to privacy when balanced against the Article 10 rights to freedom of expression. We will have to wait and see how the guidance operates and is interpreted.

A useful test case, particularly with a view to challenging the suggestion that ‘no’ risk of jigsaw identification is permissible (rather than say a ‘low’ risk) and exploring how exactly is that risk analysed and assessed, may be Louise Tickle’s forthcoming appeal against the imposition of a Reporting Restrictions Order which purported to restrain journalists from reporting on information that was already in the public domain. She has succeeded in getting permission for appeal and as of 12th December 2018 we await the hearing.

Watch this space!

EDIT – FEBRUARY 2019 – Louise Tickle won her appeal and the President has announced a further consultation about transparency in general. See this post for discussion of the judgment and links to various articles about the case.

Historical development of the current complicated position

The first thing to note is that this is a complicated area of law. Sir James Munby wrote in 2010 ‘Lost opportunities: law reform and transparency in the family courts’ [2010] CFLQ 273.

We are here in an area regulated in part by statute law, in part by the common law and in part by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The statute law is a mosaic of ill-fitting pieces without any discernible overall objective. And the judge-made law is complex. There is a rich and subtle jurisprudence expounding the meaning and effect of section 12 of the 1960 Act, another rich and subtle jurisprudence explaining the circumstances in which the court can or should either relax or increase the automatic restrictions, and another rich and subtle jurisprudence identifying the various Convention interests which, typically, are engaged in such cases and explaining how they are to be balanced. Now the jurisprudence may be rich and subtle, but it is not easy either to access or to understand unless one happens to be steeped in it – which even most family lawyers are not – or one has the time and the inclination to undertake what may be quite time- consuming research.

The consequences are hardly acceptable. There are few such well-tilled areas of the law which have been so bedevilled by myths, misunderstandings and, indeed, plain errors on the part of lawyers.

We will here attempt to unpick the various strands of statute and case law which govern this important issue.

What does Parliament say?

The High Court has the power to reduce or increase any statutory restrictions on publication, by using the inherent jurisdiction. This will be discussed in more detail below. See further Practice Direction 12D.

Section 97 of the Children Act 1989

Section 97(2) says no person shall publish any material which is intended or likely to identify any child as being involved in any proceedings under the Children Act 1989 or the Adoption Act 2002, including the child’s address or school.

A breach of section 97(2) could mean you have committed a criminal offence, but you will have a defence under section 97(3) if you didn’t know or suspect that the published material was intended or likely to identify the child.

The court can dispense with the requirements of section 97(2) if they think the child’s welfare requires it. For example, if a child goes missing and publicity could help find him. For an interesting example of when this was done see discussion around the Minnock case in June 2015.

‘Publish’ is defined in section 97(5) and includes in a programme as defined by the Broadcasting Act 1990. ‘Material’ covers any picture or representation. Section 97 stops applying once the proceedings have ended.

Section 12 Administration of Justice Act 1960.

This refers to proceedings in private, such as family proceedings, and makes it a contempt of court to publish information relating to such proceedings.

Something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. Generally to ‘publish’ means ‘making information known to the general public’ so would include putting information on the Internet, such as a Facebook profile.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

Under section 12 you can’t publish accounts of what went on in front of the judge sitting in private, documents filed in the proceedings, including extracts, quotations or summaries of such documents. There is no time limit so it operates even after the proceedings finish.

The identity of witnesses in care proceeedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness.

In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para [82](v)-(vii); Munby J (as he then was) discussed the ambit of section 12 and said:

It is wrong to suggest that ‘mere publication of information about a ward of court’ was contempt of court.
But there is clearly widespread misunderstanding about the ambit of section 12 and in particular the words “information relating to proceedings before [the] court sitting in private”.
In essence, section 12 protects is the privacy and confidentiality:
- (i) of the documents on the court file; and
- (ii) of what has gone on in front of the judge in his courtroom. …
section 12 does not prevent publication
- of the fact that proceedings are happening, or
- identification of the parties or even of the ward himself.
- or the comings and goings of the parties and witnesses,
- or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

Nor does section 12 prevent public identification and at least some discussion of the issues in the wardship proceedings. At para 77 in Re B, Munby J poses his final question ‘the extent to which section 12 prohibits discussion of the details of a case’.

He found he was assisted by Wilson J’s analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words:
“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”
Wilson J commented:

I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded.

Munby J agreed with this observation and concluded:

Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J’s discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

For an example of how consideration of section 12 can cause problems for even the lawyers, see this discussion from the Transparency Project.

Section 45 of the Youth Justice and Criminal Evidence Act 1999

This replaced section 39 of the Children and Young Persons Act 1933 in all criminal courts except youth courts. It gives the court the power to prevent any newspaper revealing details that might identify a child or publishing a picture of the child in court proceedings.

Section 62 of the Children Act 2004

It is no longer a criminal offence for a party to family proceedings involving children to disclose orders to other individuals or bodies, so long as disclosure is not made to the general public or any section of the general public, or to the media.

Nor is it a contempt of court to disclose information where there are rules allowing people to communicate some information in certain circumstances.

See Rule 12.73 of the Family Procedure Rules 2010

You won’t be in contempt of court if you discuss information about care proceedings so long as you are talking to a person named on this list.

a party to the proceedings;
the legal representative of a party;
a professional legal adviser;
Cafcass
the Legal Services Commission;
an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;
a professional acting in furtherance of the protection of children;
an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;

The court can also give permission for you to disclose to someone not on this list. See Rule 12.73 (1)(b). However, Any relaxation of the prohibition on publication must ‘be clear and specific. It cannot amount to a blank cheque’ (see para 42 K (A child: Wardship: Publicity) (no 2) [2013] EWHC 3748.

See also Practice Direction 12 G which at paragraph 2.1 provides a table of people who can share information for a particular purpose, for example a party to care proceedings may disclose whole or part of a judgment for the purposes of a criminal investigation.

See further Rule 12.75. If it is ‘necessary’ to share information about the proceedings to enable a party to get advice, support or assistance in the conduct of proceedings or to attend mediation or to make a complaint then you can do that – but if you are talking to for example a family member to get support, that family member must not pass on the information to anyone else. The test of ‘necessary’ is a high one.

What do the courts say?

The general trend is towards less restriction in what can be publicized. This is a recognition of the inevitable – the ease of access to the Internet means that information can be published by anyone across the world by the click of a button.

See Practice Direction 12D.

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

Guidance and case law

The President of the Family Division produced guidance in 2014 as to when judgments in family cases should be published. This guidance was considered in the case of C (A Child) in 2015.

But what about wider information about the case, including the identities of the people involved? Usually any judgment delivered by the court will contain a ‘rubric’; which is an introductory paragraph before the main judgment, which explains what you are allowed to do with the information within it.

A standard rubric will say something like – the Judge allows this judgment to be reported, provided that you don’t identify the parents or children. This rubric has the effect of ‘cancelling out’ section 12 of the AJA and means anyone who publishes the judgment can’t be convicted of contempt of court if they obey the judge’s instructions.

The legal effect of this rubric is uncertain. This was considered by Munby J in Re B, X Council v B and Others [2008] 1 FLR 482. At para [12] he said:

Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.

So what happens if you want to identify yourself? Or discuss the case more widely?

You will need to get a court order. Otherwise, if you do something contrary to any rubric to the order or any statutory provision, you could be in contempt of court.

The case was alleged to involve a miscarriage of justice
The parents wanted publicity
The case had already been extensively publicized
There was a need for the full facts to emerge in a way which would improve public confidence in the judicial system.

A more recent case is that of Re J [2013] where the Local Authority wanted an order ‘contra mundum’ (against everyone in the world), preventing the identification of a child in care proceedings, to last until the child was 18.

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.

The four propositions and the ‘ultimate balancing act’.

In Re K (A Child: Wardship: Publicity) [2013], the adopted parents of a girl known as ‘Katie’ (not her real name) sought a declaration that it would not be a contempt of court if they published information in the media about certain information relating to their parenting of Katie, who suffered from Reactive Attachment Disorder, of working with the Coventry City Council and the family justice system in general. One of the most important aspects of this case was Katie’s urgent need for therapy and the Judge had been critical of the local authority for not providing it.

HHJ Bellamy set out at paragraphs 54 -63 the approach the court should take when deciding to relax the statutory provisions which prohibit publication.

He identified four propositions

neither Article 8 nor Article 10 has precedence over the other
where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.
the justification for interfering with or restricting each right must be taken into account.
Finally, the proportionality test must be applied to each. This is ‘the ultimate balancing test’.

He considered the decision of the Court of Appeal in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2006] 3 WLR 599, [2007] 1 FLR 11 where the position was summarised in this way:

[58] … each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in the terms of proportionality is carried out.

Although neither right takes automatic precedent over the other, it is worth remembering that they are different in quality. Article 8 rights are by their nature of ‘crucial importance to a few,’ while Article 10 rights are typically ‘of general importance to many’. Thus the court must be on guard not to undervalue and erode the rights of the many when faced with objections from a few. See further A (A Minor) [2011] EWHC 1764.

The disinfectant power of forensic sunlight

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. Louis D Brandeis, US Supreme Court Justice

The President of the Family Division said this in re J [2013] :

26. The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

27. One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling […]

28. I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

29. This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable. […] We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

The Judge went on to quote approvingly the phrase ‘the disinfectant power of forensic sunlight’ concluding that the answer to the growing distrust of the family law system in certain quarters, could only be met by increased openness and transparency.

The workings of the family justice system could be subject to legitimate public debate and even if some of the things said in that debate were offensive or mistaken, it was not for the law to intervene unless what was said was defamatory or contrary to criminal law. The only justification for restraining the parents from publishing material was if it would identify the child.

The Judge concluded

82. Assessing these three factors together, there is, it seems to me, a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.

Guidance from Local Courts

HHJ Bellamy’s guidance to the Leicester and Leicestershire Family Justice Board in July 2015 looks at the current state of the law and sets out general guidance for how the courts should deal with the issue of transparency and publication of judgments:

The decision to give permission for a judgment to be published is a judicial decision. It is a decision that can be appealed. See Re C (Publication of Judgment) [2015] EWCA Civ 500
Whether or not the judgment is one which the Guidance indicates should normally be published, if the judge considers it appropriate to give permission to publish then the parties should be informed at the time the judgment is handed down.
If the judgment has been prepared in anonymised format, the parties are under a duty to draw the court’s attention to any perceived inadequacy in the anonymisation. This is a process which requires careful attention to detail. The court should set a time limit within which any points about the anonymisation of the judgment should be made.
If the judge indicates that she proposes to give permission for the judgment to be published it is open to a party to seek to persuade the court that upon a proper application of the ‘ultimate balancing test’ permission should not be granted.
If advocates need time to martial their arguments with respect to the question of publication they should ask the judge for a short adjournment to enable submissions to be prepared.
Submissions must be focussed on the competing Article 8 and Article 10 rights that are engaged and on the ‘ultimate balancing test’ which the court is required to undertake. It is not sufficient, for example, simply to state that a party does not agree to the judgment being published.
If, having considered the submissions, the judge remains of the opinion that permission to publish that judgment should be granted and the party opposing publication wishes to appeal against that decision then a request should be made to the judge for permission to appeal and for a stay pending the hearing of the appeal.

Other issues

Journalists attending court.

See the Family Proceedings Rules 2010, rule 27.11, Practice Direction 27B and C and the President’s Guidance in Relation to Applications Consequent Upon the Attendance of the Media in Family Proceedings.

An ‘accredited media representative’ may attend private hearings in family proceedings but the court may ask them to leave for all or part if any party requests it. The media representatives must be allowed to argue why they should be allowed to stay. But given the limits on what can then be published, this right to attend court does not take the journalist much further forward.

As HHJ Bellamy commented in his guidance to his local court from July 2015:

Writing in The Times on 28^th April 2009, Camilla Cavendish, a leading campaigner for greater transparency in the family courts, made the point that “The door is open, but we desperately need more journalists to pick up a torch and walk through it”. That has not happened. In my experience media attendance in the family courts is rare. In the last six years there has only been one occasion when a duly accredited media representative has been present in my court. I believe that that is the experience of most family judges.

There are a number of reasons for this. These include, in particular, lack of advance notice of the cases coming before the court, lack of the resources needed to be able to send reporters into the family courts on a regular basis, lack of access to court documents, and the fact that the media can report only that limited information the publication of which does not breach the provisions of s.97(2) Children Act 1989 and s.12 Administration of Justice Act 1960.

The fact that the media rarely attends hearings in the family courts does not mean that the media has ceased to be interested in family justice. What it has meant is that there continues to be a tendency for journalists to publish reports about cases based only on the invariably tendentious accounts given to them by aggrieved parents. There are still references in the media to the ‘secret’ Family Court.

In 2011 a joint paper was published called ‘Family Courts: The Media Access and Reporting’ involving input from both lawyers and journalists.
See what children have to say about opening up the family courts.
For consideration of what a journalist was allowed to discuss in an article about a parent who had been in involved in care proceedings, see Tickle v Council of the Borough of North Tyneside [2015] EWCH 2991
The Transparency Project has successfully campaigned for a change to the FPR which will allow legal bloggers to attend court. The pilot scheme will run until June 2019.

I have been asked to participate in research and they want to see my court documents?

This is possible if the research has been ‘approved’. This can be done by the Secretary of State after consultation with the President of the Family Division, approved in writing by the President or conducted under s83 of the Children Act 1989 or s13 of the Criminal Justice and Courts Services Act 2000.

As a general rule, don’t show your court documents to anyone who claims to be conducting research unless they can show you written proof that this has been approved. It doesn’t matter if these researchers are based abroad.

Thanks to suesspicious minds for this paragraph.

I want to record court proceedings

If you record court proceedings without the court’s permission, this will clearly be a contempt of court and could be very serious, depending on what you go on to do with the recording.

If you want to record interactions with social workers or other professionals outside the hearing then you don’t need their permission and it is not unlawful in and of itself. Section 36 of the Data Protection Act 1998 states: “Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III.”

Bu you need to be aware of the negative impact this could have on the relationship between yourself and the professional, particularly if you do it without warning them..

See further this post on recording interactions between parents and social workers.

Reform proposals

On 15th August 2014, the President of the Family Division issued a consultation paper called The Next Steps. The President is inviting comments about how well the current transparency Practice Guidance from January 2014 is working, and whether steps can be taken to provide more information about cases when they are listed in court, without naming the parties. Views are particularly welcome on:

The impact on children and families, both immediate, short term and long term. I have in mind, for example, the risk of a child in later life coming across an anonymised judgment about his background and learning details of it for the first time.
The impact on local authorities and other professionals.
Any change in the level and quality of news and reporting about the family justice system.

This follows from the President’s ‘12th View’ in June 2014, where he set out that his intention to begin discussion and consultation about hearing some family cases in public. But there is evidence that this will not be a popular move for the children concerned.

EDIT August 2018. Sadly, the reform proposals appear to have stalled. The Transparency Project commented on Sir James Munby’s retirement speech in July 2018:

When asked if he thought that sitting in open court would ever become the default position in the family courts, as it now is in the Court of Protection, Sir James indicated that judges, lawyers and others were rather stuck in the past and uncomfortable with change, rather than making reasoned objections to more openness. He said that people had preached ‘Hell and Damnation’ about his transparency guidance issued in 2014, but ‘the Family Court did not collapse’.

EDIT – reform attempts are up and running again! See recent guidance on publication of family court judgments from the President on 19th June 2024

Mohammed bin Rashid al-Maktoum v Princess Haya [2022] EWFC 16

A major shift is required in culture and process to increase transparency

My comments

The Law

What the parties wanted

Conclusion

Golden rules

Why is it so complicated?

Why can’t I just talk about my case?

Important laws you need to know

Section 97 of the Children Act 1989

Section 12 Administration of Justice Act 1960.

I want to talk about my case at a conference or to a journalist

How does the court approach applications for publicity?

Rule 12.73 of the Family Procedure Rules 2010

Further reading

What can I talk about? Who can I talk to?

This post will cover

Summary of the current position

‘…a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable.’

Attempts at Guidance and Reform

Historical development of the current complicated position

What does Parliament say?

Section 97 of the Children Act 1989

Section 12 Administration of Justice Act 1960.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

Section 45 of the Youth Justice and Criminal Evidence Act 1999

Section 62 of the Children Act 2004

See Rule 12.73 of the Family Procedure Rules 2010

What do the courts say?

See Practice Direction 12D.

Guidance and case law

So what happens if you want to identify yourself? Or discuss the case more widely?

The four propositions and the ‘ultimate balancing act’.

The disinfectant power of forensic sunlight

The Judge concluded

Guidance from Local Courts

Other issues

Journalists attending court.

I have been asked to participate in research and they want to see my court documents?

I want to record court proceedings

Reform proposals

Further reading