Tag Archives: inherent jurisdiction

Taking a child abroad for a double mastectomy

Judgment in the case of Re S (Inherent Jurisdiction: Transgender Surgery Abroad)[2023] EWHC 347 (Fam) was handed down in February 2023.

Sam aged 15 at the time of the application, wanted to travel to Country X to undergo a double mastectomy. Sam had been born a girl but wished to be live as the male sex. Sam and her family had all been born in Country X but had been living in England for some years at the time. On 20th July 2022, the local authority applied for permission to invoke the inherent jurisdiction of the High Court, to prevent Sam travelling for surgery on 24th July. Sam’s identity and any of the ‘granular’ facts of this case have been obscured by the court, Sam having found this whole process, unsurprisingly, ‘excruciating’.

The Children Act 1989 section 100 puts a number of restrictions on the ability of a local authority to invoke the inherent jurisdiction or ‘wardship’ jurisdiction. I have written more generally about the nature and extent of the court’s powers in wardship here. This is a very ancient jurisdiction and allows the High Court to make orders to protect children from significant harm, even if there is no statutory provision to do so.

The local authority cannot use the inherent/wardship jurisdiction to have a child put in its care under its supervision or otherwise accommodated; nor to give it power to determine any question arising around parental responsibility for a child. The court must give permission for such an application to be made.

The run up to the final hearing

At the hearing on 24th July, the judge ordered that Sam was not to undergo any gender reassignment surgery without the permission of the court and was not to leave, or be removed from, the jurisdiction for the purpose of undergoing any surgery until further order.

An attempt by Sam and the family to get the proceedings dismissed in October 2022 failed By that time the court had received a substantial body of medical records tracking the various consultations and other interventions that the family had sought in the preceding months and years. The local authority moved its focus from the potential for ‘serious harm to [Sam’s] physical and emotional welfare and wellbeing’ to the question of whether full and valid consent to the planned surgery had been given by Sam and/or his parents. The court wanted further investigation.

The final hearing – application to withdraw

The case was listed for final hearing before the President of the Family Division. 5 days before the hearing, the local authority was putting its case on (i) legality of the operation in Country X and (ii) the validity of consent. However, on the morning of the first day of the final hearing, after the President’s clerk had contacted the parties and asked them to consider a number of issues around the validity of the application, the local authority applied to withdraw its application on the basis that it could not discharge the burden of proving its case. Sam and her parents were very relieved and there was no opposition from the Children’s Guardian. Those representing the family members then made application for costs against the local authority.

So what went wrong?

To trigger use of the inherent/wardship jurisdiction the local authority must show that there are reasonable grounds to believe that the child will otherwise suffer significant harm. Its initial statement did not go into great detail, simply saying it was worried about Sam’s emotional and physical welfare, the NHS had not been engaged and there were no proposals for Sam’s after care. However, Sam’s father produced a letter from an expert in Country X who asserted that such surgery was not unlawful in this country and was ‘tolerated’ for those under 18 who were undergoing gender ‘transition’ or ‘confirmation’.

The court considered at an early stage if the local authority should make an application for a care order but the local authority said it did not intend to:

The risk of significant harm that we were concerned about has currently been substantially reduced by our involvement, namely through the existing court order to prevent [Sam] having the operation. Currently the parents are engaging with us and have agreed to a Child in Need process which is positive. It is considered that applying for any further orders at this current time is unnecessary and to do [so] could be oppressive. The local authority does not feel that it is in [Sam’s] best interests at this time and could cause more distress for [Sam] and his family.’

The President found this position ‘legally incoherent’ – as explained above, the inherent jurisdiction cannot be invoked by a local authority if it could achieve its aims by either a care or a supervision order. Whether it wants to or not is irrelevant and to proceed in this way was to ‘distort’ the existing legal structure which ought to be well known to all family lawyers.

The President further noted that the local authority position focused on whether or not the surgery was permitted in Country X and whether proper consent had been given. There was very little reference to any ‘harm’ that would be suffered by Sam, but in an application of this nature the court would expect discussion of possible harm to be of prime importance. Nor was there much reference to Sam’s welfare and the need for the court to make this its paramount concern.

With regard to permission to withdraw proceedings, the court noted that the local authority required permission under Family Procedure Rules 2010, r 29.4(2)21 and the most recent authority is GC v A County Council and Others [2020] EWCA Civ 848, [2020] 2 FLR 1151 in which the court described the approach to be taken. The local authority maintained that it had been right to bring the application and that much detailed evidence had emerged only very recently that allowed it to reconsider its position on legality and consent.

The other parties did not accept this, saying that the evidence had been well known to the local authority for some time. The President noted:

The making of this application and its prosecution over a period of in excess of 6 months has caused harm to Sam and to each of his parents. The impact on him has been ‘excruciating’ and has, in particular, detrimentally affected his schooling. The father’s description of the effect that the local authority’s intervention has had on Sam is one of devastation. The parents have described the court process as very frightening. The mother has been particularly focussed on the possibility that she might be sent to prison if court orders are disobeyed. Both parents are now on medication to help them cope with the consequences of the litigation. The impact of these proceedings on this small family is likely to last into the long-term.

The key issue was whether the local authority had acted unreasonably. The court considered the judgment of Lady Black in Re T [2021] UKSC 35 which focusses on CA 1989, s 100 at paragraphs 118 and 119. The President made costs orders, concluding that the local authority had acted unreasonably in focusing on the legality of the operation and issues around consent where ‘there is no evidence to establish a likelihood of significant harm or that to undertake the operation as planned is contrary to Sam’s welfare…’

Comment – no evidence of significant harm?

As the application before the court was for permission for the local authority to withdraw its application, that was the only substantive issue before the court (apart from also the issue of costs). Therefore the court made some comment on matters of general importance but accepted they were no more than ‘observations’. These points may need to be taken up and fully argued in future contested litigation.

What is of particular interest are the President’s comments about the issue of ‘significant harm’ to Sam and how there was ‘no evidence’ to support a finding that she was at risk of suffering this.

The decision taken by Sam and his parents in favour of surgery was a complex one involving consideration of a range of sophisticated factors. In the circumstances of this case I would have needed a good deal of persuasion before holding that the plan for Sam to go abroad for chest surgery was likely to cause him significant harm, or that to do so was not in his best interests. Further, as is now accepted by the local authority, in a case of two parents who are conspicuously well intentioned, law abiding, loving and child focussed, and in a case where Sam is plainly an intelligent and thoughtful individual who is so well settled in his life as a young man, the prospect of the court concluding that there was some defect in their approach to consent was remote.

Of course, I have not been able to read any of the evidence presented in this case. I do not know the precise nature of the ‘range’ of ‘sophisticated factors’ that were considered. But what is inescapable is that this case involved a child – aged 15 at the date of the proposed surgery – who had to travel abroad for a procedure which it is unlawful to carry out in the UK.

One might suppose that the issue of ‘significant harm’ is encapsulated in the unlawfulness of carrying out such irreversible surgery on a minor in the UK. But the President of the Family Division did not agree.

And in all the genuine and reasonable concern about ‘access’ to ‘gender affirming care’ we now see a very stark two tier system opening up. If your parents are wealthy enough, then they can fly you to a country that does consider it lawful to remove the healthy breasts of a child in order to ‘affirm’ that child’s gender. But a double mastectomy does not make a female a male. There is simply insufficient evidence for the President – or indeed anyone – to conclude that a child will remain ‘well settled’ in their life as the opposite sex, when there is no medical or surgical route that can establish a change of sex.

I suspect a case will be coming and soon where these fundamental issues will need to be grappled with. If children can routinely be transported out of the UK for surgery that is unlawful here, how soon will it be before pressure is applied on the NHS to carry such surgeries?

Vaccination of children; how does the Family Court handle disputes?

This is a post by Sarah Phillimore

This post considers how the court should deal with disputes between those who have parental responsibility, about whether or not a child should be vaccinated. Vaccines are routinely administered in England; see Public Health England’s guidance in ‘The Green Book: Information for public health professionals on immunisations’. Despite the routine nature of vaccination, there remains a significant minority of those who object, some fearing that vaccines cause harm. The Court of Appeal however has given a very clear ruling that there is no medical evidence to support an argument that these routine childhood vaccines are harmful, and that local authorities do not need to seek the approval of the High Court before agreeing to vaccinate children in their care.

In February 2020 there was a decision in care proceedings about parents who objected to their child being vaccinated, which can be found at  [2020] EWHC 220 (Fam). The Judge commented that the father was “driven by the fundamental belief that neither the court nor the State, through the arm of the Local Authority has any jurisdiction to take decisions in relation to his children”.

The Judge heard medical evidence about the benefits of immunisation in general and in particular with regard to the child before him. He found that vaccination should not be characterised as ‘medical treatment’ but rather ‘a facet of public preventative health care intending to protect both individual children and society more generally’.

The Judge was satisfied that the local authority could authorise the vaccination of the child under section 33(3) of the Children Act 1989. This is significant, as previous cases (see Re SL (Permission to Vaccinate) [2017] EWHC 125 ) had set out that this issue had to be decided using the ‘inherent jurisdiction’ of the court – a jurisdiction which can only be exercised by the High Court or by Circuit Judges with special authorisation. This has the potential to take more time and cost more money to get a decision.

Therefore the Judge felt it appropriate to allow his decision to be appealed pursuant to the Family Procedure Rules 30.3(7) – ‘contradictory decisions on the substantive issue’

By the time the matter got to the Court of Appeal, no one was arguing that the child should NOT be vaccinated but everyone wanted clarity about what route people needed to use in any future cases like this.

Judgment was handed down on 22nd May 2020 in H (A Child Parental Responsibility : Vaccination) [2020] EWCA Civ 664

Is vaccination a ‘grave and serious’ matter?

The Court of Appeal decided that in order to make the right decision about the route to take, it was necessary to consider some broader questions, and in particular whether or not vaccination is to be considered ‘a grave or serious matter’ or should be regarded as ‘medical treatment’.

These questions also had to be considered in two different contexts: ‘public law’ proceedings (where the local authority shares parental responsibility with the parents) and ‘private law’ proceedings (where only individuals such as the mother and father share PR).

As a general principle, the State should be slow to interfere with how parents exercise their rights and duties with regard to their children and respect their right to do so, provided that they don’t put the child at risk of significant harm.

Giving consent to having a child vaccinated is clearly an exercise of parental responsibility. Most consider the decision to vaccinate ‘reasonable and responsible’. However it is not a legal requirement. Therefore a refusal to vaccinate your child and nothing else would be very unlikely to be considered ‘significant harm’ to the extent that the State could interfere and apply for a care order under section 31(3) of the Children Act.

The child in the care of the local authority

The starting point for a child in local authority care is section 33 of the Children Act 1989. This gives the LA parental responsibility alongside the parents and the power to ‘override’ the parents provided that what it proposes is necessary to safeguard the welfare of the child. The LA cannot however change a child’s religion or name, or take the child out of the country using this section.

This applies to ‘interim’ and ‘final’ care orders. However, when decisions ‘with profound or enduring consequences’ needed to be made – such as serious medical treatment – the general view is that it was not right for the LA to use section 33 to override a parent’s wishes without further scrutiny – the matter needed to come before the High Court to be resolved.

So – is consenting to vaccination something that a LA can do without the High Court’s permission? Or is this ‘serious medical treatment’?

Medical evidence about the benefit of vaccines is clear

The Court of Appeal first examined the current established medical view – routine vaccination of children is not only in the best interests of the children but also the general public.

The Court of Appeal acknowledged that most – but not all – of the concerns about the safety of vaccinations relate to the MMR vaccination. This was introduced in 1988. Concerns arose that there was a link between the MMR vaccine and autism following the publication of a paper in The Lancet by Dr Andrew Wakefield. This attracted widespread publicity and caused a drastic reduction in MMR vaccination rates and corresponding increase in cases of measles. It then transpired that Dr Wakefield had not declared a number of conflicting interests and by 2004, 10 of the 12 co-authors of the 1998 paper had withdrawn their support for the claimed link with autism.

Dr Wakefield was then investigated by the General Medical Council for misconduct and in May 2010 he was struck off the medical register and The Lancet formally retracted his paper. No mainstream medical opinion now accepts a link between vaccination and autism.

The Court of Appeal accepted that the medical evidence:

overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.

The Court of Appeal were very clear that this short recitation of such historical events was necessary to ‘bring an end’ to the parade of expert witnesses in cases involving vaccination, to demonstrate its medical benefits, unless a child has ‘an unusual medical history’ – see for example in Re C and F (Children) [2003] EWHC 1376 (Fam).

There could be other issues than purely medical over vaccinations which impact on a child’s welfare – for example the parent’s religious belief – but the Court of Appeal have decisively put to bed any lingering doubts about the medical benefits of vaccination.

Regardless of benefit – are vaccines ‘serious medical treatment’?

Regardless of its medical benefit, were the parents right to say that only the High Court could resolve a dispute between parents and a local authority? There have sadly been very many cases where care proceedings and complex medical treatment intertwine and the High Court has been asked to intervene.

The most difficult and controversial cases have been where care proceedings were used to bring parents before the court over disputes about medical treatment where the parents are otherwise ‘unimpeachable’. The Court of Appeal did not approve of this. The more usual route in cases of dispute over serious medical treatment, is via the NHS Trust responsible for treating a child applying to invoke the court’s inherent jurisdiction. in such applications, there is no need to discuss threshold criteria or ‘blame’ the parents and the sole criterion is the welfare of the child.

The Court of Appeal acknowledged that some previous cases could be interpreted as denying that the LA had the power to authorise ANY medical treatment. But, if that was the correct interpretation – then those cases got it wrong.

The Court of Appeal then turned to examine how vaccination cases in particular had been dealt with by the courts. It was noted that in a previous case the hearing had lasted two weeks with extensive medical evidence and a judgment of 370 pages which concluded that it was in the best interests of the healthy children to be vaccinated. That decision was appealed and the appeal dismissed. See In Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148[2003] 2 FLR 1095) However, further cases continued to hear extensive expert evidence.

The Court of Appeal stated that by the 2010 at the very latest, there has been no evidential basis for suggesting a link between MMR and autism and other vaccines which are routinely given to children have not been subject to the same high profile concerns about their safety.

The Court of Appeal did not think it mattered to call vaccinations ‘medical treatment’ or ‘preventative health care’ – what mattered is whether vaccinations were ‘grave’ and ‘serious’ in the context of the exercise of PR by a local authority. This was soundly rejected:

I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved. 

Cases involving disputes between parents

The route for parents who cannot agree about vaccination is to apply for a Specific Issue Order under section 8 of the Children Act 1989 – see Thorpe LJ in Re C (Immunisations) at paragraph [17] where in 2003 he expressed the view that immunisations were part of a ‘small group of important decisions’ where if those with PR could not agree, it should come before the court. The Court of Appeal wondered if now in 2020 this could still hold good given that all evidence unequivocally supports the recommendation of Public Health England that vaccinations benefit children and the wider society. However, the Court of Appeal declined to offer a definite view about this.

However, the reality is that if parents can’t agree in discussion or more formal mediation, neither has primacy over the other and they have no option but to come to court for resolution.

This is very different to the situation where a care order exists, as in that situation Parliament has given the LA the power to override a parent unless its a decision of such magnitude that it must come before the High Court.

Warning to local authorities

However, the Court of Appeal sounded a note of caution, warning the local authority that it must involve parents in decision making and section 33 CA 1989 was not an invitation to ‘ride rough shod’ over parents. If the parents do not agree with the the LA decision to consent to vaccination, they can make an application to invoke the inherent jurisdiction and apply for an injunction under the Human Rights Act 1998 to prevent vaccination before the matter comes before the court.

The Court of Appeal decision does not in any way diminish the importance of parental views where there is a real issue about what decision will promote a child’s welfare. However, the weight to be given any objection is not decided by how insistently it is made, but according to what substance it has.

The pressure on the family justice system is already serious enough without devoting weeks of High Court time to reinventing the vaccination wheel.

Use of the Inherent Jurisdiction to protect a child in care

A local authority applying for an injunction to prevent abuduction of a child

This post looks at what a local authority can do to protect a child in care if they have good reason to believe that child might be at risk of abduction by his parents. This appears to be an increasingly likely scenario as the amount and kind of information easily accessible on line continues to grow, alongside the number of support groups on social media who encourage parents to take direct action against the ‘evil’ system. One option is to apply to the High Court for an injunction against the parents, by asking the court to apply the ‘inherent jurisdiction’.


The inherent jurisdiction of the High Court has historically been described as ‘inexhaustible’ or ‘limitless’ . In essence it can be used to ‘fill in the gaps’ of existing statute and case law. However, use of the inherent jurisdiction over the years has become more restricted. Its application now must be considered in the light of existing statute, case law, and the Family Procedure Rules.

‘Wardship’ is part of the inherent jurisdiction which is most often applied to children but this is now subject to very serious statutory restrictions. Wardship cannot be used, for example, as a way to take children into state care because this would mean by-passing the necessary checks and balances set out in the Children Act 1989.

Section 100 of the Children Act 1989 sets out the restrictions to the use of the inherent jurisdiction. Under section 100(3), a local authority who wants the court to exercise it must first get permission and that will only be given if :

  • the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
  • there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

As the local authority is a corporate body, not an individual person, it cannot apply for orders under the Family Law Act 1996. Therefore, a non molestation order could not be granted to a local authority and seeking an injunction pursuant to the inherent jurisdiction is their only likely  option. However, the court CAN make a non molestation order to protect children in the context of ‘other family proceedings’ – see the discussion below.

The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:
1.1 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 statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2 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.

Practical matters – what court?

The inherent jurisdiction can only be exercised by the High Court so you will either need to be in the actual High Court or before a Judge who is allowed to sit temporarily as a ‘High Court’ Judge for the purposes of making such orders. This is permitted under section 9 of the Senior Courts Act 1981; such Judges are described as ‘having a section 9 ticket’.

You can get an injunction without the other side turning up to court if the matter is really urgent but in most cases the court will be keen to know what efforts you have made to let the other side know about your application. The court will need to be satisfied that the local authority have made reasonable efforts to get in touch; for example by visiting known addresses, telephoning, sending texts and/or emails.

If the parents don’t attend court, the Judge can make an injunction for a short period of time – for e.g. a week – then list another hearing to give the parents more time to attend and respond to the application.

Depending on how long ago the care proceedings were, it may also be sensible to at least inform the guardian about the application. However, it may not be necessary for the guardian to play any role in the injunction proceedings.

What should the injunction say?

Injunctive orders must be:

  • capable of enforcement and
  • must be necessary and proportionate to the risk of harm identified.

So be careful of vague orders or ones that go beyond what is needed to keep the child safe. Much will depend on the facts of the particular case before you and the risk of harm faced by the child. For example, in Birmingham City Council v Sarfraz Riaz and Others [2014] EWHC 4247 (Fam). Keehan J considered the case of Re J (A Child) [2013] EWHC 2694 (Fam) where the President observed that court had a duty to consider whether the terms of the proposed orders were fair, necessary and proportionate to the facts of the case and capable of being enforced.

Keehan J concluded in the case before him that it was appropriate in all the circumstances to make very wide injunctive orders to prevent child sexual exploitation.

The inherent jurisdiction is clearly wide and versatile enough to compass prohibiting respondents from accessing a wide geographical area. For example, consider the decision of the then President of the Family Division the late Sir Nicholas Wall, in CW & Ors v. TW & Ors [2011] EWHC 76 (Fam), who made an order banning the respondent from the country of Wiltshire ‘save for specified purposes’ .

Every injunction should have the following paragraphs included

You should read the terms of this order very carefully. You are advised to consult a solicitor as soon as possible.
An application was made on [this date] by the local authority to the Judge. The Judge heard the application in the absence of the Respondent (if applicable) and read the evidence in Schedule 1 to this order (set out what evidence the Judge considered here)

Variation and discharge
The Respondent or anyone notified of this order may apply to the court at any time to vary or discharge the order (or so much of it that effects that person) but anyone wishing to do so must first inform the applicant local authority

Communication with the Court
All communications about this order should be sent to [the court that made the order]

To [the Respondent] You must obey the instructions contained in this order. If you do not, you will be guilty of contempt of court and you may be sent to prison, fined or your assets may be seized.
This penal notice is attached to the following paragraphs of this order [set out appropriate paragraphs]
Any other person who knows of this order and does anything which helps or permits the Respondent to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized.

Power of arrest attaching to an injunction under the inherent jurisdiction and non molestation orders

You cannot apply a power of arrest to such an injunction.  If it is breached, the local authority must apply to enforce it in the usual way, by asking the court to issue a warrant for the parent’s arrest for contempt of court. The parent will then be bought to court and asked to explain why they breached the order. This is provided for in the paragraph relating to a penal notice, set out above.

In Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam) Keehan J considered the relevant authorities relating to attaching a power of arrest to such an injunction and concluded that this was not permissible. He refered to the judgement of the Court of Appeal in Re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 538 which had not been drawn to the attention of courts in previous cases and thus had been over looked.

However, you can ask the court to make a non-molestation order against the parents to which a power of arrest is applied.

McFarlane LJ considered this in the case of T (A Child) [2017] EWCA Civ 1889

There is no room for doubt that the court had jurisdiction to consider granting a non-molestation order for the protection of the child in this case under FLA 1996, s.42(2)(b). The court was seized of validly constituted ‘family proceedings’ (s.63(1)), namely the local authority application under the inherent jurisdiction).

The inherent jurisdiction injunction was fixed by the judge to run for the child’s minority and there is no reason why it would have been, or should have been, discharged or superseded if a non-molestation order had also been imposed.

[40] The purpose of s.42(2)(b) would seem to be clear; it is the means by which the court may make orders for the protection of children whose circumstances have come to the notice of the court in other family proceedings.

[41] Once it was accepted that any order under the inherent jurisdiction could not be supported by a power of arrest, it was a perfectly legitimate step for the local authority to ask the court to consider granting a non-molestation order under the 1996 Act by utilising the jurisdiction provided by s.42(2)(b) which is designed precisely for the purpose of supplementing the court’s jurisdiction in other ‘family proceedings’ in this way.

(ii) Non-molestation:
[53] There is no requirement in either the 1996 Act or the case law for there to be some direct interaction between the respondent and the applicant or child in order to establish the basis for granting a non-molestation order. The judge’s finding that M and JM’s conduct was ‘positively harmful’ to the child and, if continued, would be likely to cause significant harm, was more than sufficient to justify exercising the powers under s. 42. The impact on the child’s life of M and JM’s conduct, as described by the foster carers and as found by the judge, plainly amounts to harassment and, as the judge held, applying the s. 42(5) criteria, makes the granting of an order clearly necessary.



The wardship jurisdiction

The concept of ‘wardship’ is very ancient. It is part of the court’s ‘inherent jurisdiction’ i.e. the power of the court to make orders about matters which are not included in any statute. This is because the court is treated as a trustee of the Crown’s duty to protect all its subjects.  Wardship is just one facet of this wider inherent jurisdiction.  suesspicoussminds comments:

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

The earliest origins of wardship can be found in feudal times, giving the Crown the right to exercise powers and duties over orphaned children whose fathers had owned land.  These children ‘belonged’ to the King as ‘pater patriae’ (the ‘father of the country’).

In 1540 a Court of Wards was set up to enforce the right of the Crown and the execution of its duties in connection with wardship. This court was abolished in 1660 but the wardship jurisdiction carried on and the Court of Chancery claimed jurisdiction over children. It began to expand from being merely concerned with property rights, to the general welfare and protection of children.

Lord Cottenham LC in Re Spence (1847) 2 Ph 247, 251 described wardship in these terms:

 I have no doubt about the jurisdiction. The cases in which the court interferes on behalf of infants are not confined to those in which there is property . . . This court interferes for the protection of infants qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal.

The Guardianship of Infants Act 1886 provided a statutory basis for consideration of children’s welfare – but ‘wardship’ continued to exist beyond statute law as part of the court’s ‘inherent jurisdiction’.

In R v Gyngall [1893] 2 QB 232,248, Kay LJ commented that wardship:

. . . is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child. Again the term ‘welfare’ in this connection must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration and the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. It is impossible to give a closer definition of the duty of the court in the exercise of this jurisdiction.

Modern Day Wardship and its limitation by the Children Act 1989

Practice Direction 12D explains what is meant by wardship and the inherent jurisdiction in the modern age.

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.
The court’s wardship jurisdiction is part of and not separate from the court’s inherent jurisdiction. The distinguishing characteristics of wardship are that –
(a) custody of a child who is a ward is vested in the court; and
(b) although day to day care and control of the ward is given to an individual or to a local authority, no important step can be taken in the child’s life without the court’s consent.

The Children Act 1989 introduced some significant limits to the jurisdiction. Section 100 provides  that wardship may NOT be used to put a child into care as this would by pass the Children Act 1989 and could mean that the necessary statutory tests weren’t met, such as the need to prove significant harm.

The Children Act itself was intended to incorporate many of the beneficial aspects of wardship, such as a flexible range of orders and the intention was that the Children Act would substantially reduce the need for people to apply to the High Court for wardship.

However, the Court of Appeal have confirmed that it is possible to make a child a ward of court when they are voluntarily accommodated by the LA under section 20 – see this post by suesspiciousminds for further discussion. 

If a wardship order is made, it is for the Court to make decisions about the child and the court can’t use wardship to make this decision if it could be made using any other provision of the Children Act 1989.

This is why wardship was used in the case of Ashya King in 2014 whose parents removed him from hospital in the UK and took him to be treated abroad. The LA were not applying to have him taken into care and there was no other provision in the Children Act that was available. Ashya was made a ward of court on the application of the LA and the parents were ordered to take him for medical treatment. Fortunately this case had a happy ending and the court were able to discharge the wardship order and Ashya remained with his parents.

Use of the inherent jurisdiction to accommodate children

For discussion as to when the inherent jurisdiction can be used to authorise placing a child in LA accommodation outside the statutory/regulatory regime see the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam). The court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020. 

See also the discussion of the use of the inherent jurisdiction by the Supreme Court in the case of Re T[2021] UKSC 35, which determined that use of the inherent jurisdiction IS permissible and doesn’t ‘cut across’ the statutory scheme of LA accommodation – but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child’s consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a ‘scandalous lack’ of provision. The full judgment is here


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 16th 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 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. See also rule 12.73 FPR discussed above.

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.

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.

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.

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 policemanLouis 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:

  1. 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
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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 28th 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.

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’.

Further reading