Part of the aims of the Transparency Project is to gather resources to help others to promote openness and hence greater understanding about how the family court system works. I am attempting to start the ball rolling with my suggestions as to what could usefully be included in a skeleton argument or opening position when you are trying to persuade the court to let you publish information that you would normally not be able to release into the public domain. I hope this can be useful to both parents and journalists.
What law do I need to know?
Generally: the issue of transparency in the family courts.
It is clear that for a number of years now, the ‘direction of travel’ is to greater openness about information which can be published relating to care proceedings. In 2013 the President of the Family Division identified transparency as one of the three strands of necessary reform to the family justice system, noting that he was:
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.
In the case of Re J (A Child)  EWHC 2694 the President said at paragraph 26 of his judgment:
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.
In 2014 the President published guidance relating to the publication of judgements in both family courts and the court of protection. He states at paragraph 2:
In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form).
In C (A Child)  EWCA Civ 500 MacFarlane LJ considered this move towards greater transparency and commented:
13. I do not propose to quote extensively from that Guidance but the thrust plainly is for there to be a greater degree of knowledge in the public domain of the work of the Family Court and the reasons given by judges for making decisions about private family life and/or about the intervention of the State in a family’s life than has hitherto been the case. Of importance is the clear direction of travel, as it would now be known, described by the President in that document. He makes it clear that he proposes to adopt “an incremental approach” and that the issuing of the January 2014 Guidance is an initial step.
It is accepted that applications for wider publication of what has happened in family proceedings are relatively unusual but this is not a reflection upon its lack of importance or on the general desirability of encouraging more responsible reporting of family cases. As HHJ Bellamy said in July 2015 in his guidance to his local court in Leicester:
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.
In particular: what statute/case law is relevant to your application?
It is clear that there are statutory prohibitions on the publication of information relating to children in proceedings held in private. See section 97(2) of the CA 1989 and section 12 of the Administration of Justice Act 1960.
However the court has power to both relax or increase these statutory restrictions. This is permitted by:
- section 6 of the Human Rights Act 1998, which makes it unlawful for any public authority to act in a way which is incompatible with a Convention right;
- through the exercise of the court’s inherent jurisdiction;
- Rule 12.73 (1)(b) FPR gives the court power to allow parties to discuss matters about proceedings heard in private.
As Munby J (as he then was) commented In the Matter of B (A Child)  EWHC 411:
A judge can authorise disclosure of what would otherwise be prohibited. And a judge can impose additional restrictions.
The principles upon which these jurisdictions (which for convenience I shall refer to as the “disclosure jurisdiction” and the “restraint jurisdiction”) were exercisable before the Human Rights Act 1998 came into force were well established…The exercise of the judicial discretion which arises in these cases requires consideration of a very wide range of factors. In the final analysis it involves a balancing exercise in which the judge has to identify, evaluate and weigh those factors which point in favour of the disclosure sought against those factors which point in the other direction. The interests of the child (which … typically point against disclosure) are a ‘major factor’ and ‘very important’ … But … it is clear that the child’s interests are not paramount.
See further 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.
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)  EWHC 3748.
Principles from Case Law
Proportionality: the ‘Balancing Act’ between Articles 8 and 10 ECHR
It is clear that the court must consider the interplay of the ECHR rights; Article 8 (right to respect for individual’s privacy and family life) and Article 10 (freedom of expression). In addition, section 12(4) of the Human Rights Act 1998 directs the judge to have particular regard to the importance of the Article 10 right.
The balancing act was described in this way at para 105 of the judgment in Re B  cited above.
How is the court to weigh and balance all these claims? This was the question considered by the Court of Appeal in Re S (Identification: Restrictions on Publication)  EWCA Civ 963,  2 FLR 1253: see esp per Hale LJ at paras -, Latham LJ at para  and Lord Phillips of Worth Matravers MR at para . The proper approach is for the court to identify the various rights that are engaged and then to conduct the necessary balancing exercise between the competing rights, considering the proportionality of the potential interference with each right considered independently: see Re Roddy at para . Thus, considering at para  the proper balancing of conflicting rights under Articles 8 and 10, Latham LJ described the exercise as being:
“identifying the extent to which refusing to grant the relevant terms of the injunction asked for would be a proportionate interference with the private life of the child on the one hand and their grant would be a proportionate interference with the rights of the press under Article 10 on the other hand.
Article 8 – a right to tell your own story
Further, it is clear that Article 8 extends beyond a wish to keep matters private, but encompasses the right of an individual to publicise areas of her life. As was stated in Re B  at paragraph 96:
In the first place I have referred to the mother’s rights under Article 8. Why is this? It is because, as I pointed out in Re Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers  EWHC 2927 (Fam),  1 FCR xxx, at para  Article 8 … embraces both the right to maintain one’s privacy and, if this is what one prefers, not merely the right to waive that privacy but also the right to share what would otherwise be private with others or, indeed, with the world at large. So the right to communicate one’s story to one’s fellow beings is protected not merely by Article 10 but also by Article 8.
The four propositions and the ultimate balancing test
The case of Re K (A Child: Wardship: Publicity)  EWCH 2684
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  EWCA Civ 878,  Fam 83,  3 WLR 599,  1 FLR 11 where the position was summarised in this way:
 … 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)  EWHC 1764.
Factors identified as relevant in Webster
The case of Re Webster: Norfolk County Council v Webster and Ors  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.
The importance of children’s right to privacy
It is accepted that it is important to prevent children from identified in order to protect their right to privacy. These are matters involving details of their lives which may cause them distress if their identities became known. However, there are ways to reduce the risk of identification; for example, by not publishing the real names of either the parents or the children, nor identifying precisely their geographical location. The order can extend generally to prohibit the disclosure of any information likely or calculated to reveal the children’s identities.
See further the 2010 report ‘The views of children and young people regarding media access to family courts’.
Dealing with photographs and interviews
This was dealt with in the case of re B, C and D  1 FLR 1708:
 …if there is any publication of the birth parents’ story it must not include their names or any recognisable or identifiable picture of them. Provided, however, that a picture (whether in print or on television) is conscientiously and responsibly pixellated and/or ‘rear view’ or otherwise obscured or disguised, such that the depicted person cannot be recognised or identified, then a picture or image may be depicted. Similarly, since there is no evidence that any of the children would or could recognise a birth parent’s voice, I do not require that their voice or speech is disguised or distorted…  It would be unthinkable that any sound or television or similar broadcast would be broadcast live, with the high risk of a birth parent blurting out a name or identifying feature, whether deliberately or accidentally, and any pre-recorded broadcast must be similarly rigorously edited, if necessary by brief sound distortion (as in an expletive deleted), to prevent disclosure…’
Being able to use real names
Re Guardian News and Media Ltd and Others  2 AC 6897, considered when the naming of individuals can be an essential feature of news articles – otherwise, editors give the report a lower priority, which will reduce informed debate about the issues. This was a powerful argument in favour of discharging the reporting restrictions orders in this particular case which was concerned with identifying those suspected as being terrorists. However, it is likely to carry less weight in family cases when balanced against the clear need to preserve the anonymity of children in family cases.
Orders seeking to RESTRICT publication
You will need to be aware of the need to alert the media, who will be covered by a ‘contra mundum’ (against the world) order forbidding disclosure. See Practice Direction 12I – applications for reporting restrictions orders.
It is not a ground to make a reporting restrictions orders that the press may report the matter sensationally or inappropriately. It is not the role of the judge to exercise editorial control over the manner in which the media reports information that it is entitled to publish. See Re J (A Child)  EWHC 2694 (Fam).
See Bristol City Council v C & Ors  EWHC 3748 (Fam) (21 December 2012).
Baker J was faced with a request for a very wide restriction by the local authority and commented:
15. …It is axiomatic that, save in exceptional circumstances, any application for a reporting restriction order should be made on notice to the media. S. 12 (2) of the 1998 Act provides: ‘if the person against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be identified.’ This statutory provision is reinforced by the President’s Direction and CAFCASS Practice Note of 18th March 2005 which provides for a system of service of applications for a reporting restriction order on the national media via the Press Association’s CopyDirect service. The President’s Direction further states: ‘the court will bear in mind that legal advisors to the media…are used to participating in hearings at very short notice where necessary….service of applications via the CopyDirect service should hence forth be the norm. The court retains the power to make without notice orders, but such cases will be exceptional, and an order will always give persons affected the liberty to apply at short notice.