The forward movement of the family justice system towards embracing greater transparency continues. As of 27th January 2025 new open reporting provisions apply in all family courts in England and Wales, allowing accredited journalists and legal bloggers to report on what they see and hear whilst attending any family court if a transparency order is granted see PD12R Family Procedure Rules 2010. This initiative was described by the President of the Family Division as a ‘watershed moment for family justice
However, it remains usual to protect the anonymity of children involved in family proceedings, by keeping identifying details out of the published judgments. Children have no choice whether or not they get involved in acrimonious parental disputes and have a right to be shielded from the potentially harmful consequences of wider public knowledge of their family’s dysfunction or trauma.
Thus there are statutory restrictions on the publication of information from family proceedings. When permission is sought to relax existing statutory restrictions (see section 12 of the Administration of Justice Act 1969 and section 97 Children Act 1989) the court must have an ‘intense focus’ on the competing rights at play – articles 10 and 8 of the ECHR which protect freedom of speech and privacy rights – see Re S (A Child) [2005] 1 AC 593
I represented a father in a recent contested application by a journalist to name him in private law children proceedings. I resisted that application, which in my view represented a flawed understanding of both the nature and extent of the journalists’ article 10 rights.
This case had been long running and very acrimonious. An initial finding of fact was successfully appealed as unsafe, following by a second finding of fact, a costs judgment and a welfare decision. The father had not objected to the anonymised publication of any of these judgments so there was already a wealth of information in the public domain to inform discussion about how the family justice system had dealt with issues of abuse and coercive control in these proceedings.
The court had made significant findings that he had caused serious physical, sexual and emotional harm to the mother. Consequently, his parental responsibility was extinguished and he was to have no direct contact with the child, due to the harmful impact this was likely to have on the child’s mother. The court did not however make a finding that the father posed a risk of direct harm to the child and carried out no wider risk assessment.
At the conclusion of the welfare hearing, a journalist made an application to name the father in her reporting of proceedings. This application was supported by the mother and unusually, the child’s Guardian. The father resisted.
The judgment sets out a helpful examination of the various authorities where naming parents or others involved in proceedings was permitted. Often information was already in the public domain and thus the risk to the children of being identified was already apparent. The Judge noted Griffiths v Tickle and Others [2021] EWCA Civ 188 where it was clearly in the public interest to name Mr Griffiths. He had occupied a position of power as a Minister of State and had been publicly dishonest about his previous behaviour.
The main thrust of the journalists’ argument in the present case was that she was under a duty to make the public aware of the risk the father posed and she considered that ‘every perpetrator’ against whom findings were made in the family court should be named if there was no professional body to take the findings into account. She accepted that this would represent a ‘leap’ from other cases, but it was needed for the protection of the public – ‘rape was rape’ and the father would not be on the Sex Offenders Register as these were not criminal proceedings.
The journalist elaborated by arguing that the father was a ‘public figure’ and held various ‘positions of power’ with links to educational settings. Any risk to the child of association with his father’s name could be handled by the mother and that risk was low in any event given the child’s very young age. If the court did not publish the father’s name, it would be ‘silencing a rape victim’.
The father responded that he was not by any definition a public figure and did not hold any positions of power. He was worried that he had put information online linking his son directly to him so there was a risk of jigsaw identification. Naming him would be devastating; if he lost his job that would impact his ability to continue to provide financially for the child. This risk of identification and his own article 8 rights, outweighed the claimed article 10 right of the journalist to name him. There was an obvious and important distinction between criminal and family courts, given their different roles and different standards of proof. The role of the family court was not to punish parents but to determine the welfare of children.
The court did not accept the journalists’ submissions and found that the ‘grave public protection’ argument had not been established, and appeared to rest on perceptions of the journalist and the mother, rather than the findings of the court.
The father was not a ‘public figure’, he was not a figure of ‘moral leadership or standing’ there was no information about this case already in the public domain, the mother was not being ‘silenced’ if the father was not named, there is no public interest in ‘holding the father to account’ although the court felt it understandable the mother wished to do so. Griffiths v Tickle was easily distinguished. Although the findings against the father were serious, they should not be exaggerated to support an application to name him.
The judge noted at para 63 that naming the father was effectively to ‘expose the father to public shame’. It was not the court’s task to carry out a risk assessment of the father towards third parties, there had been no psychological assessment of the father and thus no basis to justify naming his as a measure of public protection (para 65).
Conclusions
As the Judge stated at para 30
As the Master of the Rolls stated recently in Tickle & Another v The BBC & Ors [2025] EWCA Civ 42, the principle of open justice, “is applicable as much in family proceedings as in any other proceedings”. The statutory limitations contained in section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989 do not displace the open justice principle or create any separate “shielded justice” environment. They provide a degree of privacy for certain proceedings relating to children according to their terms [45]. Open justice is of vital importance to a democratic society and a properly functioning judicial system.
The Judge also noted the President of the Family Division’s report: In Confidence and Confidentiality: Transparency in the Family Courts, October 2021. The issue of fathers who have committed sexual violence having contact with their children is an important issue and will benefit from the different perspective brought by independent media.
I do not quarrel with the obvious public interest in continuing public scrutiny of the family justice system. I would happily welcome journalists to all and any of my cases, but note with sadness that the vast majority of my work does not attract a scrap of media interest, despite often dealing with matters of obvious public interest – the harmful consequences of the lack of available foster carers or residential placements, the lack available support for parents with disabilities and children in mental health crisis, the dangerously high numbers of cases social workers are expected to juggle. All issues equally worthy of journalistic scrutiny and yet which do not appear to attract much journalistic interest.
It was unfortunate in this case that the journalist and the mother chose to base their application on assertions which were not supported by the court’s findings. Also, that the Guardian (para 90) did not assist the court, by failing to carry out a proper balancing exercise of the factors for and against publication. It did appear that the application was driven by a desire to ‘hold the father to account’ – but that is the role of the criminal courts and the mother had chosen not to involve the police at any time.
What such applications require is always an ‘intense focus’ on competing rights. Part of that focus must be recognition that what the public are interested in does not always necessarily align with what is in the public interest. Having a named father as the villain of a piece makes for more titillating reporting but does not necessarily advance the public interest in understanding more about the family justice system, and it puts children at risk of identification. As more journalists continue to blur the line between impartial reporting and active campaigning, the court must continue to scrutinise their submissions with care.
Family proceedings are generally private, not to allow professionals to escape public scrutiny, but for the welfare of the children who have very little control over the many ways their parents fail them and usually very little appetite for public discussion of these failings.
NB The judgment should have been published but I can’t find it so far – I will keep looking!