Transparency in the Family Courts: Publicity and Privacy in Practice 9781526503855, 9781526503886, 9781526503879

Citation preview

Transparency in the Family Courts: Publicity and Privacy in Practice

ii

Transparency in the Family Courts: Publicity and Privacy in Practice Julie Doughty Lecturer in Law, School of Law and Politics, Cardiff University

Lucy Reed Barrister, St John’s Chambers

Paul Magrath Barrister, Incorporated Council of Law Reporting for England and Wales (ICLR)

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 41–43 Boltro Road, Haywards Heath, RH16 1BJ, UK BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © Bloomsbury Professional, 2018 Julie Doughty, Lucy Reed and Paul Magrath have asserted their rights under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 http://www.nationalarchives.gov.uk/doc/opengovernment-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN:  PB: ePDF: ePub:

978 1 52650 385 5 978 1 52650 387 9 978 1 52650 386 2

Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.bloomsburyprofessional.com. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters

Foreword Just 25 years ago, when the Children Act 1989 was coming into force, I doubt that many, if any, family lawyers would have acknowledged the relevance of the term ‘transparency’ to the work of the family courts. Events have moved swiftly and there can now be no family lawyer or judge who is unaware of the justified impetus towards greater transparency in family cases or of the importance of the need for a clear understanding of just where the line is drawn between what can or cannot be disclosed to those outside the court about what has gone on within it. Affording due transparency to family proceedings has turned out to be, as Sherlock Holmes might say, ‘a two-pipe problem’ which has, at its core, two entirely conflicting policy drivers: the need for the public to know what goes on in their name in the Family Court and, conversely, the need to protect the privacy of individuals at the centre of any particular case. Whilst it may not have delivered a solution, the title of the 2006 government consultation paper issued by Lord Falconer, who was then Lord Chancellor, was spot on target – ‘Confidence and Confidentiality’ – in highlighting the conflicting needs of public confidence and private confidentiality. Over the years, the understanding of what transparency may require has developed. Initially, many of us will have held an unduly simplistic view that the issue was to be resolved in a binary manner by either letting the press and the public into the Family Court, or keeping them out. Thanks to the ground-breaking and inspired work of The Transparency Project, and now this book, transparency is to be seen as a much more subtle, sophisticated and flexible concept. There is much that can be achieved to ‘open up’ the Family Court in terms of describing and explaining its workings and decisions which falls short of allowing unrestricted access to all and sundry. The publication of this excellent book is extremely welcome. It is a work written by those who have been on the front-foot on the issue of transparency throughout and who understand the subtleties both of the law and of the policy debate that lies behind it. There is real value in having a detailed and neutral account of the route that has been travelled thus far set out, as here, with clarity and in one place. Above all, this is a practically-based text written by practitioners for practitioners, giving a thorough account of the relevant statutory law, case law and procedure. With the publication of this work, there will be no need to look elsewhere for an account of the law relating to transparency in family proceedings and this will rapidly become the ‘go-to’ book on the subject, not just because it is the only one but because of the comprehensive, clear and insightful nature of its coverage. Inevitably, given the topic, this first edition of ‘Transparency in the Family Courts’ can only tell the story so far. As the section on ‘Looking Ahead’ records, the book goes to press at a time when thought is being given to what, if any, further steps towards greater transparency may be taken. Given the impossibility of totally v

Foreword squaring the ‘Confidence and Confidentiality’ circle, any development will involve an element of compromise and sacrifice of one or both of these competing principles. Whatever the future may hold, it will, however, be a ‘must’ for all those involved in charting and implementing its course to have read and understood the contents of this important book. The Rt. Hon. Sir Andrew McFarlane Lord Justice of Appeal Maundy Thursday 2018

vi

Acknowledgements We are grateful to the following for their assistance. All our colleagues in The Transparency Project for their advice and support and use of Transparency Project Guidance material. We thank The Legal Education Foundation for supporting and funding Guidance Notes and Family Court Reporting Watch. David Burrows; Conor James McKinney of Free Movement; The family practice group and Simon Morgan at St John’s Chambers; Jon Baines; Lucy Series; Kiran Goss at Bloomsbury Publishing. Thank you to our colleagues at Cardiff University; ICLR; St John’s Chambers for their support at all times, and ‘Annie’ for her courage and inspiration. Any errors or omissions are the responsibility of the authors.

vii

viii

Contents Forewordv Acknowledgementsvii Table of Statutes xv Table of Statutory Instruments xvii Table of Cases xxi

CHAPTER 1  INTRODUCTION

1

KEY ISSUES 1 KEY RESOURCES 1 WHAT THIS BOOK IS ABOUT 1 PRINCIPLES OF OPEN JUSTICE, PRIVACY, AND FREEDOM OF EXPRESSION 4 Open justice 4 Privacy5 Freedom of expression 6 Balancing rights of privacy and rights of freedom of expression 7 CHILDREN’S RIGHTS 9 THE LEGISLATIVE FRAMEWORK FOR FAMILY PROCEEDINGS 9 The Judicial Proceedings (Regulation of Reports) Act 1926 10 Administration of Justice Act 1960 10 The Children Act 1989 10 Family Procedure Rules 2010 10 A HISTORY OF TRANSPARENCY 11 Emerging concerns 11 Review of Access to and Reporting of Family Proceedings 11 Amendment to the court rules in 2005 12 Government consultations and attempted reform 13 The President’s Transparency Guidance – January 2014 14 RESEARCH ON TRANSPARENCY 15 University of Oxford briefing papers (2009) 15 The views of children and young people regarding media access to family courts (2010) 16 Family Courts Information Pilot (2011) 16 Brophy/ALC reports (2014–2016) 16 Cardiff University evaluation of the President’s guidance 17 PRACTICE POINTS 18 REFERENCES18

CHAPTER 2  THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS21 KEY ISSUES KEY RESOURCES FAMILY COURT HEARINGS IN GENERAL Section 41 Criminal Justice Act 1925 Section 9 Contempt of Court Act 1981 ix

21 21 22 23 24

Contents Who can attend family hearings held in private 24 Excluding the media from attendance 28 Status of a hearing attended by the media 30 Access to court documents by the media and others 30 PUBLISHING IN DIFFERENT TYPES OF FAMILY CASE 36 Divorce, dissolution, nullity and judicial separation 36 Financial Remedies on Divorce etc. 38 Children cases 42 Trusts of Land and Appointment of Trustees Act 1996 proceedings 58 Part IV Family Law Act 1996 proceedings 58 Appellate proceedings 62 Alternative dispute resolution 65 PRACTICE POINTS 65 REFERENCES66

CHAPTER 3  ORDERS RESTRICTING OR PERMITTING REPORTING67

KEY ISSUES 67 KEY RESOURCES 67 INTRODUCTION68 JURISDICTION69 WHAT CAN BE RESTRICTED? 70 Realistic options 72 WHEN WILL A REPORTING RESTRICTION ORDER BE JUSTIFIED? 74 THE BALANCING EXERCISE 76 Restricting the identification of experts, professionals and the local authority78 PROCESS – HOW TO APPLY FOR REPORTING RESTRICTIONS 79 The Application 79 Notice and interim relief 80 Respondent Based Abroad or publication abroad 82 Joinder of child 83 Checklist84 Supporting Material 84 Draft Orders 85 Service of Orders 85 APPLYING TO RELAX THE AUTOMATIC RESTRAINTS 85 Who may apply? 85 Lifting automatic restrictions may require others to be imposed 88 Link identification 89 PROCEDURE TO APPLY FOR RELAXATION OF THE AUTOMATIC RESTRAINTS/FOR PERMISSION TO REPORT 89 RESPONDING TO AN APPLICATION FOR REPORTING RESTRICTIONS/ RELAXATION90 DRAFTING AND CONSEQUENTIAL ENFORCEMENT ISSUES 91 FINANCIAL REMEDY PROCEEDINGS 93 Financial remedy cases – procedure for applying for restrictions or lifting of restrictions 94 x

Contents FAMILY LAW ACT 1996 PART IV PROCEEDINGS PUBLICATION OF JUDGMENTS IN RESPECT OF APPLICATIONS FOR REPORTING RESTRICTIONS PROACTIVE ENGAGEMENT WITH MEDIA INTEREST PRACTICE POINTS Representations from journalists No copy approval Serve legal bloggers Drafting REFERENCES

95 96 96 100 100 100 100 101 102

CHAPTER 4  PUBLISHING AND REPORTING ON COURT JUDGMENTS103 KEY ISSUES KEY RESOURCES INTRODUCTION WHY JUDGMENTS ARE PUBLISHED To inform the parties To inform the public To keep a public record To record a precedent WHERE AND HOW CASES ARE PUBLISHED Publication by the court Publication to BAILII and court websites Legal publishers Law reports and transcripts Citation of cases Law reports and news reports Linking to the judgment Publication by the parties Obtaining a copy of the transcript PUBLICATION ON BAILII UNDER THE 2014 TRANSPARENCY GUIDANCE The President’s practice guidance Summary of effect of the Guidance Status of the Guidance in law The guidance and human rights Compliance by judges Anonymisation process Anonymisation errors Judgments adapted or designed for transparency AMENDING A JUDGMENT AFTER PUBLICATION The authorised judgment The Slip Rule Post-judgment redaction Postponement of publication or of full publication Withdrawing a judgment from BAILII Withdrawal of judgment altogether WORKING WITH JOURNALISTS AND THE MEDIA Media attendance and reporting of hearings xi

103 103 104 105 105 105 106 106 107 107 109 111 111 112 114 115 116 116 117 117 118 121 121 124 124 126 128 132 132 133 133 135 135 136 137 137

Contents Media access to documents 139 Correcting or complaining about a media report 140 WORKING WITH RESEARCHERS 145 PRACTICE POINTS 145 REFERENCES146

CHAPTER 5  THE INTERNET AND SOCIAL MEDIA

149

CHAPTER 6  ENFORCEMENT

171

KEY ISSUES 149 KEY RESOURCES 149 THE INTERNET IN DAILY LIFE 150 THE ROLE OF LEGAL ADVISERS 151 RESTRAINING PUBLICATION OF MATERIAL ON SOCIAL MEDIA 153 PARENTS ASKING FOR ADVICE, HELP OR SUPPORT 154 WHAT SORT OF INFORMATION DO PARENTS PUBLISH ONLINE? 155 PLATFORMS156 Facebook156 Twitter158 Comments on websites, blogs or public discussion forums 158 YouTube159 CAMPAIGNS160 Petitions161 IS THE PUBLICATION PERMITTED? 162 HOW INFORMATION GOES ‘VIRAL’ 163 MONITORING SOCIAL MEDIA 164 GETTING MATERIAL REMOVED FROM SOCIAL MEDIA PLATFORMS 165 ARCHIVED MATERIAL AND THE RIGHT TO BE FORGOTTEN 166 (FOREIGN) INTERNET PROVIDERS 167 PRACTICE POINTS 168 Evidential matters 168 Proactive responses to media attention 168 REFERENCES169 KEY ISSUES 171 KEY RESOURCES 171 TYPES OF ENFORCEMENT 171 IS COMMITTAL THE RIGHT RESPONSE? 172 CIVIL CONTEMPT 174 Knowledge174 Proving a specific breach of an order 175 Rubrics176 Is it actually a breach? 177 Application process 178 Cases on enforcement 179 Requirement of transparency in committal proceedings 179 Legal aid 182 CRIMINAL CONTEMPT 183 PRACTICE POINTS 184 REFERENCES185 xii

Contents

CHAPTER 7  OTHER COURTS

187

CHAPTER 8  LOOKING AHEAD

227

KEY ISSUES 187 KEY RESOURCES 187 INTRODUCTION: REPORTING RESTRICTIONS IN OTHER COURTS 188 COURT OF PROTECTION 188 Background and jurisdiction 188 Hearings in private and reporting restrictions 189 The 2007 Rules 190 Media coverage 191 The Transparency Guidance 2014 191 The transparency pilot scheme 193 The 2017 Rules 195 The impact of opening the CoP to the public 197 CRIMINAL COURTS 198 Children concerned in criminal proceedings 199 Reporting restrictions in the Youth Court and the Crown Court 199 Restrictions after the child turns 18 201 Criminal proceedings involving a child who is not a victim, witness or defendant 202 CIVIL COURTS 203 Arbitration appeals 207 In the Court of Appeal and Supreme Court 209 TRIBUNALS209 Immigration and Asylum Chamber 210 First Tier Tribunal: Mental Health 218 Employment Tribunals 219 Disciplinary Tribunals 220 PRACTICE POINTS 224 REFERENCES224 KEY ISSUES KEY RESOURCES THE TRANSPARENCY GUIDANCE: FURTHER DEVELOPMENT Next steps consultation Guidance on anonymisation Recommendations made in the report on the evaluation of the Guidance Amendment of the Family Procedure Rules 2010 Financial remedy transparency EXTENSION OF THE CoP TRANSPARENCY PILOT SCHEME TO THE FAMILY COURTS HMCTS REFORM Court buildings Digital filing and case management Virtual hearings Online Dispute Resolution: the Online Court Listing and results xiii

227 227 228 228 229

230 231 231 232 233 234 234 235 236 237

Contents Flexible hours pilot Looking ahead: Reform and Transparency MEDIA REGULATION GDPR AND DP BILL: IMPLICATIONS FOR PRIVACY, MEDIA REGULATION, SOCIAL MEDIA AND COURT REPORTING THE CHILDREN IN TODAY’S FAMILY COURTS REFERENCES

239 239 240

Appendix 1 Case Studies Appendix 2 Publication of Family Court Judgments – A guidance note for families and professionals Appendix 3 Key Legislation and Rules

245

241 242 243

285 309

Index329

xiv

Table of Statutes Administration of Justice Act 1960���������  1.30, 1.32; 2.02; 3.02 s 12�������������������  1.35, 1.41, 1.47; 2.32, 2.65, 2.77, 2.82, 2.83, 2.85, 2.86, 2.87, 2.88, 2.89, 2.91, 2.94, 2.95, 2.96, 2.97, 2.99, 2.100, 2.101, 2.102, 2.104, 2.105, 2.107, 2.108, 2.109, 2.113, 2.115, 2.120, 2.128, 2.132, 2.133, 2.137, 2.138, 2.139, 2.141, 2.144, 2.151, 2.152, 2.153, 2.171; 3.02, 3.05, 3.09, 3.20, 3.30, 3.38, 3.65, 3.67, 3.68, 3.76, 3.96, 3.97, 3.104, 3.105, 3.113; 4.100, 4.102, 4.104, 4.183, 4.221; 5.05, 5.32, 5.33, 5.39, 5.40, 5.53; 6.03, 6.13, 6.14, 6.25, 6.26, 6.28, 6.33, 6.35, 6.36, 6.37, 6.39, 6.56, 6.57, 6.60; 7.02, 7.13, 7.19, 7.20, 7.43, 7.44; App 1, App 3 s 12(1)�������������  2.84; 6.37, 6.38; App 3 s 12(1)(a)�������������������  2.97; 6.12, 6.54 s 12(1)(a)(i)���������������������������������  2.144 s 12(1)(e)�����������������������������  6.12, 6.54 s 12(2)����������������������  2.44, 2.89; App 3 s 12(4)�������������������������������  2.89; App 3 Adoption and Children Act 2002��������  1.33; 2.23, 2.65, 2.86, 2.117, 2.121, 2.124; 3.122; 4.88 s 125, 128A���������������������������������  App 3 Arbitration Act 1996�������  7.85, 7.87, 7.89 s 45���������������������������������������������    7.86 s 68��������������������������������������  7.88, 7.90

Children Act 1989 – contd s 25���������������������������������������������    4.88 Pt IV (ss 31–42)���������������������������    4.88 s 97�����������������  1.38, 1.43; 2.65, 2.116, 2.117, 2.118, 2.120, 2.121, 2.123, 2.125, 2.126, 2.127, 2.128, 2.130, 2.131, 2.135, 2.136, 2.137, 2.139, 2.140, 2.153, 2.171; 3.20, 3.68, 3.96, 3.97, 3.105; 5.05, 5.32, 5.33, 5.39, 5.40, 5.53, 5.55, 5.66; 6.03, 6.25, 6.32; 7.49; App 1, App 3 s 97(2)���������������������  1.33, 1.35; 2.117, 2.124, 2.138; 3.05; App 1, App 3 s 97(3)����������������������������������������  2.142 s 97(4)�������  2.122, 2.123; 3.105; App 1 s 97(5)����������������������������������������  2.120 s 98�������������������������  2.53, 2.106, 2.108 Sch 1��������������������������������  2.163; 4.163 Children Act 2004��������������������������  2.119 s 62��������������������������������������  1.43; 2.89 s 62(1)�����������������������������  2.118, 2.119 Children and Young Persons Act 1933���������������������������  7.56, 7.66 s 39�������������������  2.08; 7.61, 7.62, 7.64, 7.66, 7.69; App 3 s 44���������������������������������������������    7.54 s 47������������������������������������  4.172; 7.57 s 49���������������������������������������������    7.57 s 49(3)�������������������������������  2.120; 7.58 s 49(4)����������������������������������������    7.59 Children, Schools and Families Act 2010����������������������������������    8.20 Pt 2 (ss 11–21)����������������������������    1.47 Child Support Act 1991�����������  1.37; 2.39 Communications Act 2003�������������  4.217 Constitutional Reform Act 2005 s 109(4)��������������������������������������  App 3 Sch 2 Pt 1 (paras 1–3)�����������������������    4.98 Contempt of Court Act 1981����������   1.10; 2.05; 6.60; 7.62 s 4�������������������������������  1.26; 7.53, 7.54 s 4(1)������������������������������������������    7.53 s 4(2)������������������������������������������    7.91 s 7�����������������������������������������������    6.60 s 9��������������������  2.05, 2.11, 2.13; App 3

Broadcasting Act 1990��������������������  App 3 Broadcasting Act 1996��������������������  4.217 Children Act 1989������������������  1.23, 1.30, 1.32, 1.33, 1.37; 2.02, 2.15, 2.65, 2.86, 2.107, 2.121, 2.124, 2.127, 2.149, 2.152, 2.153; 3.02, 3.26, 3.122; 5.66; 7.49, 7.55 s 1(1)������������������������������������������    3.27 s 8�����  2.126, 2.129, 2.142; 3.28; App 3 s 10(1)(b)������������������������������������  2.153 s 20���������������������������������������������    7.81

xv

Table of Statutes Contempt of Court Act 1981 – contd s 11�����������������������������������  2.06, 2.163; 3.09, 3.20; App 3 County Courts Act 1984 s 38(3)���������������������������������  3.08, 3.12 Courts Act 2003 s 75��������������������������������������  1.34; 7.37 s 76���������������������������������������������    7.37 s 81���������������������������������������������    4.98 Crime and Courts Act 2013���  1.47; 2.117 s 32���������������������������������������������    2.10 s 40��������������������������������������  8.62, 8.66 s 40(6)����������������������������������������    8.64 s 75(a)�����������������������������������������  2.117 Criminal Justice Act 1925 s 41������������������  2.05, 2.09, 2.13; App 3 Criminal Justice and Courts Act 2015 Pt 3 (ss 46–83)����������������������������    8.44

Judicial Proceedings (Regulation of Reports) Act 1926��������  1.30, 1.39; 2.41, 2.58, 2.60, 2.66, 2.63, 2.67; App 3 s 1���������������������  2.60, 2.64, 2.66, 2.68, 2.169; 3.86; App 3 s 1(1)(b)����������������������  2.59, 2.66, 2.67 s 1(4)�������������������������  2.62, 2.63, 2.66, 2.67, 2.70, 2.84 Magistrates’ Courts Act 1980����������    8.44 Matrimonial and Family Proceedings Act 1984 s 31E���������������������������  3.08, 3.42, 3.92 s 31E(3)��������������������������������  3.08, 3.12 Matrimonial Causes Act 1857 s 46���������������������������������������������    1.28 Mental Capacity Act 2005������  7.08, 7.13; App 1 s 21A�������������������������������������������  App 1 s 51���������������������������������������������    7.37 Mental Health Act 1983������������������  App 1

Data Protection Act 1998���������������   2.35; 3.105; 8.67 s 35(1)����������������������������������������  3.106 Sch II�������������������������������������������  3.107 Sch III������������������������������������������  3.107 Data Protection Act 2018 (draft)����������������������  5.71; 8.67, 8.68 cl 115������������������������������������������    8.69 Sch 2 para 5��������������������������������������    8.70 Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 s 1��������������  2.159, 2.161, 2.163, 2.164

Nationality, Immigration and Asylum Act 2002 s 108�������������������������������������������  7.103 Prisons and Courts Bill 2016/17 (draft)��������������������������������������    8.41 Protection of Freedoms Act 2012����    5.62 Regulation of Investigatory Powers Act 2000����������������������������������    5.62

Family Law Act 1996�����������  2.150, 2.184 Pt IV (ss 30–63)�����������������  2.37, 2.141, 2.148, 2.156; 3.94, 3.96, 3.97 Freedom of Information Act 2000���    7.37

Schools and Families Act 2010 Pt 2 (ss 11–21)����������������������������  2.149 Senior Courts Act 1981 s 116�������������������������������������������  4.160 Sexual Offences (Amendment) Act 1992���������������������������  3.96, 3.98 s 1����������������  2.141, 2.154, 2.157; 3.05

Human Fertilisation and Embryology Act 2008 s 54���������������������������������������������    2.21 Human Rights Act 1998����������  1.23; 3.02, 3.05, 3.24; 7.43 s 6���������  2.07; 3.06, 3.117; 4.85, 4.158 s 7�����������������������������������������������    3.06 s 12������������������  3.11, 3.27, 3.43; App 3 s 12(2)����������������������  3.43, 3.49; App 3 s 12(3)�������������������������������  2.131; 3.44 s 12(4)���������������������������������  3.07, 3.11

Tribunals, Courts and Enforcement Act 2007�������������������������  7.93, 7.106 s 22������������������������������������  7.98, 7.101 Trusts of Land and Appointment of Trustees Act 1996�������  2.39, 2.145 Youth Justice and Criminal Evidence Act 1999 s 45�����������������������  7.61, 7.62, 7.66, 7.67, 7.68, 7.69 s 45A������������������������������������  7.61, 7.67 s 46���������������������������������������������    7.66

Investigatory Powers Act 2016��������    5.62

xvi

Table of Statutory Instruments Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016, SI 2016/891���������  2.166 Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, SI 2013/480 r 5(1)(g)��������������������������������������  App 1 Civil Procedure Rules 1998, SI 1998/3132���������������  2.145, 2.165; 7.37, 7.38 Pt 8 (rr 8.1–8.9)��������������������������  App 3 r 31.22����������������������������������������  2.147 r 31.22(2)�����������������������������������    3.73 r 32.12����������������������������������������  2.147 r 32.13���������������������������������  2.38; 7.82 Pt 39 (rr 39.1–39.398)����������������    7.85 r 39.2������������������������������  2.145, 2.167; 7.73, 7.81 r 39.2(4)�������������������������������������  App 3 r 39.3(3)�������������������������������������    4.26 r 39.3(3)(a), (c), (g)���������������������    7.76 PD 39A����������������������������������������  4.143 r 40.2(1)�������������������������������������  4.121 r 40.12����������������������������������������  4.147 PD 40E����������������������������������������  4.145 PD 52C���������������������������  2.169; 4.186, 4.187 r 62.10���������������������������������  7.87, 7.89 r 62.10(1)�����������������������������������    7.86 r 62.10(2)�����������������������������������    7.85 r 62.10(3)(a)�������������������������������    7.86 Court of Appeal (Recording and Broadcasting) Order 2013, SI 2013/2786���������������������������    2.14 art 4��������������������������������������������    2.14 Court of Protection (Amendment) Rules 2015, SI 2015/548����������    7.30 Court of Protection Rules 2007, SI 2007/1744�����������  7.18, 7.25, 7.38 Pt 13 (rr 90–93)��������������������������    7.30 r 9A1�������������������������������������������    7.30 r 90��������������������������������������  7.19, 7.39 r 91��������������������������������������  7.19, 7.41 r 92�����������������������������  7.19, 7.29, 7.42 r 92(1)(a)������������������������������������    7.30 r 92(2)���������������������������������  7.19, 7.30 r 188�������������������������������������������    7.40

Court of Protection Rules 2017, SI 2017/1035�������������������  7.02, 7.37, 7.38; 8.25 r 1.2��������������������������������������������    7.39 Pt 3 (rr 3.1–3.9)��������������������������    7.43 Pt 4 (rr 4.1–4.4)�������������������  7.39, 7.43 r 4.1�������������������������������������  7.39, 7.44 r 4.2�������������������������������������  7.41, 7.43 r 4.3�������������������������������������  7.42, 7.44 r 21.27����������������������������������������    7.40 Criminal Procedure Rules 2015, SI 2015/1490���������������������������    7.38 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 2013/1237���������������������������  7.130 r 50����������������������������������  7.130, 7.132 r 54, 59���������������������������������������  7.134 r 94����������������������������������  7.133, 7.134 Family Proceedings (Amendment No 4) Rules 2005, SI 2005/1976���������������������������    1.43 Family Proceedings Courts (Children Act 1989) Rules 1991, SI 1991/1395 r 16A�������������������������������������������    2.23 Family Proceedings Rules 1991, SI 1991/1247������   2.90; App 1, App 3 r 4.16(7)�������������������������������������    1.42 r 4.23��������������������������������  1.42; 2.101, 2.107, 2.108 r 8.1(5)���������������������������������������    1.42 r 10.28����������������������������������������    2.23 r 10.28(4)����������������������������  2.23, 2.26 r 10.28(4)(b)�������������������������������    2.26 Family Procedure (Adoption) Rules 2005, SI 2005/2795��������    2.23 Family Procedure (Amendment No 3) Rules 2015, SI 2015/1868��������������������  2.35, 2.80 Family Procedure Rules 2010, SI 2010/2955����������  1.34; 2.07, 2.77, 2.165; 5.05; 7.37, 7.38, 7.55; 8.03, 8.18 r 4.1(3)(o)�����������������������������������    2.25 r 4.1(6)���������������������������������������  4.155 Pt 6 (rr 6.1–6.48)������������������������    3.50

xvii

Table of Statutory Instruments Family Procedure Rules 2010, SI 2010/2955 – contd Pt 7 (rr 7.1–7.36)�������  2.02, 2.04, 2.16, 2.67, 2.81 r 7.19(4)����������������������������������   2.40 r 7.20������������������������������������������    2.40 Pt 9 (rr 9.1–9.46)��������  2.67, 2.71, 2.81 r 9.46�����������������������������������  2.41, 2.80 PD 9B��������  2.02, 2.39, 2.41, 2.80; 3.02 r 10.5������������������������������������������  2.148 Pt 12 (rr 12.1–12.75)����������  2.02, 2.23, 2.24, 2.85, 2.109; 5.53, 5.56; 6.13 r 12.1(2)�������������������������������������  2.109 r 12.72����������������������������������������    2.02 r 12.73��������������  2.02, 2.36, 2.43, 2.57, 2.90, 2.98, 2.101, 2.107, 2.109; 5.02, 5.33, 5.53; 6.35; App 3 r 12.73(1)(a)�������������������������������  2.110 r 12.73(1)(a)(ii), (iii)��������������������  2.108 r 12.73(1)(a)(viii)�������������������������  2.105 r 12.73(1)(b), (c)�������������������������  2.110 r 12.73(2)��������������������������  2.113; 5.53 r 12.74����������������������������������������  12.02 r 12.75��������������  2.02; 2.36, 2.43, 2.57, 2.98, 2.101, 2.107, 2.109, 2.110, 2.111; 5.02, 5.53; 6.15, 6.35; App 3 r 12.75(1)(a)��������������  5.32, 5.53, 5.53, 5.54; 6.28 r 12.75(1)(c), (d)������������������  2.56; 5.53 PD 12D��������������������������������  3.02, 3.40 PD 12E������������������������  3.02, 3.39, 3.46 PD 12F����������������������������������������    3.66 PD 12G�������������  2.02, 2.36, 2.43, 2.57, 2.80, 2.85, 2.98, 2.106, 2.109, 2.110; 3.02; 4.221; 5.02, 5.53; 6.13, 6.35, 6.33 PD 12I������������������������  3.02, 3.04, 3.40, 3.41, 3.42, 3.91 Pt 14 (rr 14.1–14.28)����������  2.23, 2.24, 2.25, 2.109; 6.28 r 14.14�������������������������������  2.109; 6.28 PD 14E���������������������  2.02, 2.36, 2.109; 3.02; 6.28 PD 14G���������������������������������������    6.35 r 16.4������������������������������������������    3.56 Pt 18 (rr 18.1–18.13)�����   3.40, 3.93; 6.33 r 22.19����������������������������������������    2.38 r 22.20���������������������������������  2.39, 2.81 r 22.22����������������������������������������    3.86 r 25.2(1)�������������������������������������    3.91 r 27.5������������������������������������������    4.26 Pt 27 (rr 27.1–27.11)������������������    2.02

Family Procedure Rules 2010, SI 2010/2955 – contd r 27.10��������������  2.02, 2.15, 2.16, 2.31, 2.65, 2.71, 2.72, 2.73, 2.148, 2.164, 2.166; 3.86 r 27.10(1)�����������������������������������  2.160 r 27.10(1)(b)�������������������������������    2.76 r 27.10(2)�����������������������������������    2.16 r 27.10(7)�����������������������������������    2.18 r 27.11��������������  2.02, 2.15, 2.25, 2.31, 2.74, 2.82, 2.170; App 1, App 3 r 27.11(1)�����������������������������������    2.21 r 27.11(1)(a)����������������������  2.23, 2.170 r 27.11(1)(b)(i), (ii)����������������������    2.23 r 27.11(2)����������������������������  2.17; 8.18 r 27.11(2)(f)����������������  2.18, 2.21, 2.32 r 27.11(2)(g)����  2.19, 2.25, 2.32, 2.170 r 27.11(3)����������  2.20, 2.26, 2.29, 2.74 r 27.11(3)(a)(ii)���������������������������    2.28 r 27.11(4)�����������������������������������    2.21 r 27.11(8)–(10)���������������������������    8.18 PD 27B��������������  2.02, 2.22, 2.23, 2.27, 2.29, 2.31, 2.35, 2.47, 2.75, 2.79 PD 27C���������������������������������������  App 1 r 29.12����������������������  2.35, 2.46; App 3 r 29.16����������������������������������������  4.147 PD 30A����������������������������������������  2.166 Pt 37 (rr 37.1–37.38)����������  2.16; 6.02, 6.03, 6.11, 6.22 r 37.6������������������������������������������    6.20 r 37.8������������������������������������������    6.20 r 37.9(1)�������������������������������������    6.19 r 37.10����������������������������������������    6.33 r 37.13����������������������������������������    6.36 r 37.13(2)�����������������������������������    6.36 r 37.14����������������������������������������    6.36 r 37.15����������������������������������������    6.36 PD 37A���������������  6.02, 6.03, 6.11, 6.22 Solicitors (Disciplinary Proceedings) Rules 2007, SI 2007/3588 r 11(5)�����������������������������  7.141, 7.143 r 12(4), (5)�����������������������  7.141, 7.142 r 12(6)����������������������������������������  7.143 Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, SI 2014/2604���������������������������    7.98 r 13�������������������������  7.99, 7.101, 7.102 r 13(2)����������������������������������������  7.103 r 27���������������������������������������������  7.103

xviii

Table of Statutory Instruments Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, SI 2014/2604 – contd r 29, 31���������������������������������������  7.104 r 32���������������������������������������������  7.102

Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698��������   7.96, 7.106 r 13���������������������������������������������  7.107 r 14�����������������������  7.107, 7.120, 7.123 r 37, 40, 42���������������������������������  7.107

xix

xx

Table of Cases A A v Independent News & Media Ltd [2010] EWCA Civ 343, [2010] 1 WLR 2262, [2010] 2 FLR 1290��������������������������������������������������������������������������������������������    7.12 A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497�����������������������������  2.96, 2.99; 3.32, 3.33, 3.35 A (a child) (appeal: jurisdiction), Re [2014] EWCA Civ 871, [2014] 1 WLR 4453, CA�������������������������������������������������������������������������  4.149, 4.150 A (children) (judgment: adequacy of reasoning) (Practice Note), Re [2011] EWCA Civ 1205, [2012] 1 WLR 595, CA����������������������������������������������������������������������    4.07 A Council v M (No 3) (reporting restriction order, adoption, artificial insemination) [2012] EWHC 2038 (Fam), [2013] 2 FLR 1270����������������������������������������������������  7.71 A (criminal proceedings: disclosure), Re [1996] 1 FLR 221, [1996] Fam Law 142�����  2.108 A (letter to a young person), Re [2017] EWFC 48�����������������������������������������������������  4.133 A & B (children), Re [2016] EWFC B115����������������������������������������������������������  4.90; 7.155 A & B (findings against a social worker), Re [2016] EWFC 68��������������������������  4.90; 7.155 AA (compulsorily detained patient: elective caesarean), Re [2012] EWHC 4378 (COP), [2012] EWCOP 4378, [2014] 2 FLR 237������������������������������������������������   App 1 AB (a child) (case management order) (Case No: ZE17C00153) (unreported, 29 August 2017)�����������������������������������������������������������������������������������������������   App 1 ABC (a child), Re [2017] EWFC B75����������������������������������������������������������������  3.32, 3.114 ABC Ltd v Y (Practice Note) [2010] EWHC 3176 (Ch), [2012] 1 WLR 532, [2011] 4 All ER 113�������������������������������������������������������������������������������������������    4.20 A-G v Guardian Newspapers (No 2) [1990] 1 AC 109, [1988] 3 WLR 776, [1988] 3 All ER 545, HL(E)��������������������������������������������������������������������������������������������    1.12 A-G v Leveller Magazine Limited [1979] AC 440, [1979] 2 WLR 247, [1979] 1 All ER 745, 68 Cr App R 342, HL�������������������������������������������������������������  1.11, 1.13 A-G v Newspaper Publishing Plc [1997] 1 WLR 926, [1997] 3 All ER 159, CA�����������    6.58 A-G v Newspaper Publishing Plc [1988] Ch 333, [1987] 3 WLR 942, [1987] 3 All ER 276������������������������������������������������������������������������������������������������������    6.59 A-G v Pelling [2005] EWHC 414 (Admin), [2006] 1 FLR 93, [2005] Fam Law 854, [2005] ACD 82���������������������������������������������������������������  6.37, 6.55, 6.56, 6.58, 6.60 Alcott (Nos 1 & 2), Re [2016] EWHC 2413 (Fam), [2016] EWHC 2414 (Fam)�����������������������������������������������������������������������������������  2.144; 3.66 Al Hilli (reporting restrictions), Re; Surrey CC v Al-Hilli [2013] EWHC 2190 (Fam), [2014] 1 FLR 403, [2013] Fam Law 1364����������������������������������������������������������    2.28 Andersons Solicitors v Solicitors Regulation Authority [2012] EWHC 3659 (Admin)���������������������������������������������������������������������������������������������������  7.146 Ansah v Ansah [1977] Fam 138, [1977] 2 WLR 760, [1977] 2 All ER 638, (1977) 121 SJ 118��������������������������������������������������������������������������������������������������������    6.04 Antonio v Rokos (unreported, 2016) �����������������������������������������������������������������������  4.163 Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, [2016] EMLR 3���������������������������������������������  2.68, 2.77, 2.156; 3.63, 3.87, 3.91, 3.92, 3.93 B B, Re; X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482���������������������������    6.26 B, Re; X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460���������  3.74; 6.26 B & P v UK [2001] 2 FLR 261, [2001] 2 FCR 221, ECtHR������������������������������������������    1.14

xxi

Table of Cases BBC, Re see R v F Baldwin (Samantha) (unreported, 10 April 2017)�����������������������������������������   2.123; App 1 Ballard v Solicitors Regulation Authority [2017] EWHC 164 (Admin)������������������������  7.147 Bar Standards Board v Howd [2017] EWHC 210 (Admin), [2017] 4 WLR 54, [2017] IRLR 423, [2017] ACD 45�����������������������������������������������������������������������  7.149 Barings plc v Coopers & Lybrand [2000] 1 WLR 2353, [2000] 3 All ER 910��������������  2.147 Bate v Mishcon De Reya [2006] EWCA Civ 597��������������������������������������������������������  4.170 Birmingham City Council v Riaz [2014] EWHC 4247 (Fam), [2015] 2 FLR 763, [2015] CN 17, [2015] Fam Law 271����������������������������������������������������������  3.22, 3.58 Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005] 1 FLR 648, [2005] 1 FCR 103, [2005] Fam Law 213, (2005) 102(5) LSG 29�����������������������������������������������������    1.42 Briggs v Briggs [2017] EWCOP 53���������������������������������������������������������������������������    7.46 Briggs (incapacitated person), Re [2016] EWCOP 48, [2017] Fam 207, [2017] 2 WLR 926, revs’d [2017] EWCA Civ 1169, [2017] WLR (D) 535�����������������������   App 1 Briggs (incapacitated person) (No 2), Re [2016] EWCOP 53, [2017] 4 WLR 37��������   App 1 Bristol City Council v C [2012] EWHC 3748 (Fam)��������������������������������������������  3.43, 3.49 British Broadcasting Council, Re see R v F�����������������������������������������������������������������    7.63 British Broadcasting Corporation v CAFCASS Legal [2007] EWHC 616 (Fam), [2007] 2 FLR 765������������������������������������������������������������������������������  3.30, 3.65, 3.68 British Broadcasting Corporation v Coventry Council; BBC (care proceedings: costs: identifi cation of Local Authority), Re [2011] 1 FLR 977, [2010] Fam Law 1280 �������������������������������������������������������������������������������������������������    6.26 British Broadcasting Corporation v Rochdale [2005] EWHC 2862 (Fam), [2007] 1 FLR 101�������������������������������������������������������������������������������������  2.104; 3.30 Buckinghamshire County Council v Andrew [2017] EWFC B19�������������   3.65; 5.45; App 1 C C v M [2005] EWCA Civ 1536���������������������������������������������������������������  2.136; 6.14, 6.32 C (a child) (care proceedings: disclosure of documents), Re [2015] EWFC 79, [2017] 1 FLR 82, [2016] 3 FCR 581�������������������������������������������������������������������    3.38 C (a child) (committal for breach of court order) see C v M�������������������������������������    6.14 C (a child) (private judgment: publicity), Re [2016] EWCA Civ 798, [2016] 1 WLR 5204, [2017] 2 FLR 105�������������������������������������������������������������  4.101, 4.104, 4.106; App 1 C (a minor) (care proceedings: disclosure), Re; sub nom Re EC (disclosure of material) [1997] Fam 76, [1997] 2 WLR 322, [1996] 2 FLR 725������������������������    2.54 C (adult patient: restriction of publicity after death), Re [1996] 2 FLR 251, [1996] 1 FCR 605, [1996] Fam Law 610�����������������������������������������������������������������������   App 3 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, [2004] 2 WLR 1232, [2004] 2 All ER 995���������������������������������������������������������������������������  1.21, 1.23, 1.25 Clayton v Clayton [2006] EWCA Civ 878 [2006] (Fam) 83, [2006] 3 WLR 599, [2007] 1 All ER 1197, [2007] 1 FLR 11��������������������������������������������������  2.115, 2.125, 2.126, 2.130, 2.139; 3.21, 3.26, 3.58 Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 2 WLR 1511, [2002] 1 All ER 865, [2002] 1 FLR 565����������������������������������  1.36, 1.38; 2.77, 2.148, 2.150, 2.152; 3.09, 3.96 Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), [2015] 1 FLR 19�������������������  2.67, 2.79 Crown Prosecution Service v P [2007] EWHC 1144 (Admin); [2008]1 WLR 1024�����    2.43 Cumbria County Council v M [2014] EWHC 4485 (Fam)����������������������   3.10; 7.50; App 1 Cumbria County Council v M [2015] EWHC 918 (Fam)�������������������������������������������   App 1 Cumbria County Council v M & F (Application for Rehearing) [2015] EWFC 35�������   App 1 Cumbria County Council v M & F [2014] EWHC 2596 (Fam) ���������������   2.49; 3.21; App 1 Cumbria County Council v M & Ors [2014] EWHC 4486 (Fam) (11 July 2014)�������   App 1

xxii

Table of Cases D D (children) (CAFCASS: safeguarding checks) (Practice Note) [2014] EWHC 2376 (Fam), [2015] 1 WLR 818, [2015] 1 FLR 991, [2014] Fam Law 1516�����������������    4.27 DE v AB (No 2) [2014] EWCA Civ 1064, [2015] 1 FLR 1119�����  2.06, 2.07, 2.55, 2.162; 3.20 DL v SL see L v L (Ancillary Relief Proceedings: Anonymity)�������������� 2.68; 3.54, 3.89, 3.121 Danchevsky v Danchevsky [1975] Fam 17, [1974] 3 WLR 709, [1974] 3 All ER 934, (1974) 118 SJ 701���������������������������������������������������������������������������������������������    6.04 Department of Economics, Policy & Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314, [2005] QB 207, [2004] 3 WLR 533, [2004] 2 All ER (Comm) 193, [2004] 2 Lloyd’s Rep 179, [2004] 4 All ER 746, [2004] 1 CLC 1099, [2004] BLR 229�����������������������������������������������������������������    7.87 Devon County Council v Kirk; Re M [2016] EWCA Civ 1221, [2017] 4 WLR 36�������������������������������������������������������������������������������������   7.23; App 1 Director of Public Prosecutions v P (No 2) [2007] EWHC 1144 (Admin), [2008] 1 WLR 1024, [2007] 4 All ER 648��������������������������������������������������  2.43; 4.145 Dobson v Hastings [1992] Ch 394, [1992] 2 WLR 414, [1992] 2 All ER 94�����������������  6.17 Doncaster Metropolitan Borough Council v Haigh [2010] EWCC 62 (Fam)������  2.91; 3.13, 3.15, 3.112; 5.49; 6.08; App 1 Doncaster Metropolitan Borough Council v Haigh [2011] EWHC B16 (Fam)�����������   App 1 Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2376 (Fam), [2012] 1 FLR 613, [2011] 3 FCR 439, [2011] Fam Law 1195, (2011) 161 NLJ 1337���������������������������������������������������������������������   5.16, 5.49; App 1 Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2498 (Fam), [2012] 1 FLR 619, [2011] 3 FCR 445, [2011] Fam Law 1329����������������������������   App 1 Doncaster Metropolitan Borough Council v Watson [2011] EWHC B15 (Fam)���������   App 1 E E (a child) (care proceedings: European dimension), Re [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, [2014] 2 FCR 264, [2014] Fam Law 425�������������������������������������������������������������������������  2.92; 3.51, 3.54 E (a minor) (child abuse: evidence), Re [1991] 1 FLR 420�����������������������������������������  2.115 EF v AB (2015) UKEAT/0525/13/DM, [2015] UKEAT 0525/13/2503�������������������������  7.131 Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184, [2008] Bus LR 1361, [2008] 2 All ER (Comm) 193, [2008] 1 Lloyd’s Rep 616���������������    7.84 English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605, [2002] 1 WLR 2409, [2002] 3 All ER 385, CA����������������������������������������������������    4.07 F F v Cumbria County Council (No 6) (Publicity) [2015] EWHC 3228 (Fam)���������������   App 1 F v Cumbria County Council & M (Fact-Finding No 2) [2016] EWHC 14 (Fam), [2016] Fam Law 277�����������������������������������������   2.50; App 1 F v G [2012] ICR 246�����������������������������������������������������������������������������������������������  7.131 F (a minor) (publication of information), Re; sub nom A (a minor), Re [1977] Fam 58, [1976] 3 WLR 813, [1977] 1 All ER 114�������������  2.84, 2.85, 2.115 F & C Alternative Investments (Holdings) Ltd v Barthelemy (No 1) [2011] EWHC 1851 (Ch), [2012] Bus LR 884����������������������������������������������������������������  4.169 F (a child) (return order: power to revoke), Re [2014] EWHC 1780 (Fam), [2014] 1 WLR 4375������������������������������������������������������������������������������������������  4.155 Fallows v News Group Newspapers Ltd [2016] ICR 801�������������������������������������������  7.132 Fields v Fields [2015] EWHC 1670 (Fam), [2016] 1 FLR 1186��������������������������  2.73, 2.170 G G (a child) (contempt: committal order), Re [2003] EWCA Civ 489, [2003] 1 WLR 2051, [2003] 2 FLR 58, [2003] 2 FCR 231, [2003] Fam Law 470���������������  5.41, 5.54; 6.04, 6.39

xxiii

Table of Cases G (an adult) (costs), Re [2015] EWCA Civ 446���������������������������������������������������������   App 1 Gard v United Kingdom (Apn 39793/17) [2017] ECHR 605�������������������������������������   App 1 Gard v United Kingdom [2017] ECHR 559���������������������������������������������������������������   App 1 Gard, Re see Yates v Great Ormond Street Hospital��������������������������������������   4.141; App 1 Gard (a child), Re [2017] EWHC 1909 (Fam), [2017] 4 WLR 131�����������������   4.141; App 1 Gillick v West Norfolk & Wisbech Area Health Authority (mentioned in passing) [1985] UKHL 7, [1986] AC 112, [1985] 3 WLR 830, [1985] 3 All ER 402, [1986] 1 FLR 224����������������������������������������������������������������������������������������������  2.103 Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD) (Case C-131/12) [2014] QB 1022, [2014] 3 WLR 659, [2014] 2 All ER (Comm) 301, [2014] 3 CMLR 50, [2014] All ER (EC) 717, [2014] ECDR 16, [2014] EMLR 27, 36 BHRC 589, (2014) 164 (7607) NLJ 20������������������������������������������    5.71 Great Ormond Street Hospital v Yates [2017] EWHC 972 (Fam), [2018] 1 All ER 569���������������������������������������������������������������������������������   3.66; App 1 Guardian News & Media Ltd, Re [2010] UKSC 1, [2010] 2 AC 697, [2010] 2 WLR 325, [2010] 2 All ER 799������������������������������������������������������������������������  7.145 H H v A (No 2) [2015] EWHC 2630 (Fam), [2016] 2 FLR 723, [2016] 1 FCR 338, [2015] Fam Law 1476�������������������������������������������������������������������  2.142; 4.105; 7.49 H (a child), (interim care order: fact finding), Re [2017] EWHC 518 (Fam)���������������   App 1 HBV v LA (wardship costs funding order) [2017] EWHC (Fam) 524, [2017] 1 WLR 4289�����������������������������������������������������������������������������������������������������������������    3.10 HK (A Child) (Serious Medical Treatment) see NHS Hospital Trust v GM�������������������    2.30 HRS Prince of Luxembourg v HRH Princess of Luxembourg [2017] EWHC 3095 (Fam), [2017] 4 WLR 223���������������������������������������������������������  2.69, 2.74, 2.76; 3.58 Haringey LBC v Musa [2014] EWHC 1200 (Fam), [2014] Fam Law 951���������   5.49; App 1 Haringey LBC v Musa [2014] EWHC 1341 (Fam), [2014] Fam Law 952�������������������   App 1 Haringey LBC v Musa [2014] EWHC 2883 (Fam)�����������������������������������������������������   App 1 Haringey LBC v Musa [2014] EWHC 962 (Fam), [2015] FCR 433, [2014] Fam Law 949������������������������������������������������������������������������������������������   3.75; App 1 Harris v Harris [2001] 2 FLR 895, [2001] 3 FCR 193, [2001] Fam Law 651���������������    1.39 Hashimi v Hashimi [2016] EWHC 3112 (Fam), [2017] 4 WLR 21������������������������������    6.44 Home Office v Harman [1983] 1 AC 280, [1982] 2 WLR 338, [1982] 1 All ER 532�����    1.11 J J (a child), Re [2013] EWHC 2694 (Fam), [2014] 1 FLR 523��������������������  3.13, 3.15, 3.50; 5.43, 5.47, 5.73 J (a minor), Re [2016] EWHC 2595 (Fam)����������������������������������������������  1.60; 3.81; 4.107 J (a minor) (application for permission to appeal), Re [2016] EWHC 2766 (Fam)��������������������������������������������������������������������������  3.56, 3.83; 4.162 J (reporting restriction: internet: video), Re [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, [2014] EMLR 7, [2014] 2 FCR 284��������������������������������  2.93; 3.50; 6.61; App 2 JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645, [2011] 2 All ER 324�������������������������������������������������������������������������������������������    6.47 JM v CZ [2014] EWHC 1125 (Fam)��������������������������������������������������������������������������  2.155 JO v Secretary of State for the Home Department (Appeal number AA002912016) [2017] UKAITUR AA002912016������������������������������������������������������������������������  7.121 K K (a child) (wardship: publicity), Re [2013] EWHC 2684 (Fam), [2013] EWHC 3748 (Fam), [2014] 2 FLR 310, [2014] Fam Law 164������������������������������������������  3.65; 5.46 Katsonga v Secretary of State for the Home Department [2016] UKUT 228 (IAC)��������  7.104

xxiv

Table of Cases K-L (children), Re [2015] EWCA Civ 992, [2016] 4 WLR 123, [2016] 2 FLR 863, [2015] Fam Law 1450����������������������������������������������������������������������������  4.157, 4.171 Kelly (a minor) v BBC [2001] Fam 59, [2001] 2 WLR 253, [2001] 1 All ER 323, [2001] 1 FLR 197, [2000] 3 FCR 509, [2000] Fam Law 886���������������������  2.95, 2.100; 3.65; 6.55 Kent County Council v B [2004] EWHC 411 (Fam), [2004] 2 FLR 142, [2004] 3 FCR 1������������������������������������������������������  1.40, 1.41; 2.56, 2.87, 2.91, 2.94, 2.118, 2.138, 2.139; 3.05; 5.33 King (a child), Re [2014] EWHC 2964 (Fam)������������������������������������������������������������  4.141 King’s College Hospital NHS Foundation Trust v C [2015] EWCOP 80����������������������   App 1 L L v L (Ancillary Relief Proceedings: Anonymity) [2015] EWHC 2621 (Fam), [2016] 1 WLR 1259, [2016] 2 FLR 552�����������������������������������  2.68; 3.54, 3.89, 3.121 L & B (children) (preliminary finding: power to reverse), Re [2013] UKSC 8, [2013] 1 WLR 634����������������������������������������������������������������������  4.152, 4.154, 4.155, 4.157, 4.171 LB Redbridge v SA [2015] EWHC 2140 (Fam), [2015] Fam 335, [2015] 3 WLR 1617, [2016] 1 FLR 994������������������������������������������������������������������������������������    3.11 LB Sutton v Gray [2012] EWHC 2604 (Fam), [2013] 1 FLR 833,�������������������������������   App 1 LB Sutton v Gray (No 2) [2012] EWHC 2763 (Fam) [2013] 1 FLR 914����������������������   App 1 LB Sutton v Gray [Redacted] [2014] EWHC 15 (Fam)�����������������������������������������������   App 1 Lancashire County Council v M [2016] EWFC 9 ������������������������������������������������������  4.132 Leeds NHS Trust v A & B [2003] EWHC 259 (QB), [2003] 1 FLR 1091, [2003] 1 FCR 599, [2003] Lloyd’s Rep Med 151, (2003) 71 BMLR 168, [2003] Fam Law 396, (2003) 100 (17) LSG 28, (2003) 153 NLJ 351����������������������������   App 3 London Borough of Hillingdon v Neary [2011] EWHC 413 (COP), [2011] EWHC 1377 (COP), [2011] EWCOP 1377, [2011] 4 All ER 584, [2012] 1 FLR 72, [2011] 3 FCR 448, 122 BMLR 1, [2011] Med LR 446, [2011] MHLR 404���������������������������������������������������������������������������������������������   App 1 Luckwell v Limata [2014] EWHC 502 (Fam), [2014] 2 FLR 168���������������������������������    2.73 M M, Re; Devon County Council v Kirk, [2016] EWCOP 42������������������������������������������   App 1 M, Re; Devon County Council v Kirk, [2016] EWCOP 45������������������������������������������   App 1 MM (a patient), Kirk v Devon County Council, Re [2017] EWCA Civ 34���������   6.51; App 1 McKerry v Teesdale & Wear Valley Justices 164 JP 355, [2001] EMLR 5, [2000] Crim LR 594, [2000] COD 199��������������������������������������������������������������    7.60 Magyar Helsinki Bizottság v Hungary (Application 18030/11), ECtHR����������������������    2.57 Marckx v Belgium (1979–80) 2 EHRR 330����������������������������������������������������������������    1.19 Middlesbrough Borough Council v M & Ors [2016] EWFC 71��������������������������  6.05, 6.49 Monroe v Hopkins [2017] EWHC 433 (QB), [2017] 4 WLR 68����������������������������������    5.36 Moser v Austria [2007] 1 FLR 702, [2006] 3 FCR 107, ECtHR�����������������������������������    1.14 Moynihan v Moynihan [1997] 1 FLR 59, [1997] Fam Law 88�����������������������������������    2.60 N NAB v Serco [2014] EWHC 1225 (QB)���������������������������������������������������  2.47, 2.147; 3.73 NHS Hospital Trust v GM [2017] EWHC 1710 (Fam)��������������������������������������   2.30; App 1 NHS Trust 1 v G (Practice Note) [2014] EWCOP 30, [2015] 1 WLR 1984, [2014] COPLR 598, (2014) 1 CCL Rep 365, [2014] Med LR 470, (2015) 142 BMLR 209����    4.27 NHS Trust v MB (A Child Represented by CAFCASS as Guardian ad Litem) [2006] EWHC 507 (Fam), [2006] 2 FLR 319, [2006] Fam Law 445��������������������  4.140 NNN v D1 [2014] EWHC B14 (QB)��������������������������������������������������������������������������    7.76 NNN v Ryan [2013] EWHC 637 (QB)�����������������������������������������������������������������������    7.76

xxv

Table of Cases N-S, Re (children) (care & placement orders: judge’s reasons) [2017] EWCA Civ 1121, [2017] 4 WLR 133������������������������������������������������������������������    4.07 Newman (an application by Gloucestershire County Council for the committal to prison of), Re [2014] EWHC 3136 (Fam)������������������������������������������������  3.85; 6.22 Newman, Re (No 2) [2014] EWHC 3399 (Fam)�������������������������������������������������������    3.85 Norfolk County Council v Webster [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, [2008] 1 FCR 440, [2007] EMLR 199, [2007] HRLR 3, [2007] Fam Law 399�������������������������������������������������������������  1.40; 2.32, 2.48, 2.122; 3.58, 3.64; App 1 Norfolk County Council v Webster [2006] EWHC 2898 (Fam), [2007] 2 FLR 415������������������������������������������������������������������������������������   2.48; App 1 Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523��������������  2.70, 2.72, 2.156, 2.168; 3.31, 3.63, 3.88 O O’Connell v Rollings (Administrators of Musion Systems Ltd) [2014] EWCA Civ 806�����������������������������������������������������������������������������������������  2.43; 4.145 O’Connell (children); Re O (children) (hearing in private: assistance), Re [2005] EWCA Civ 759, [2005] 3 WLR 1191, [2005] 2 FLR 967, CA�������������������������������    1.42 Official Solicitor v News Group Newspapers Ltd [1994] 2 FLR 174, [1994] 2 FCR 552, [1994] Fam Law 499�������������������������������������������������������  6.14, 6.25, 6.37 Oldham Metropolitan Borough Council v Makin [2017] EWHC 2543 (Ch)�����  4.159, 4.161 P P (a child), Re [2014] EWHC 1146 (Fam), [2014] 2 FLR 426�������������������������������������   App 1 P (a child) (care & placement: child’s welfare), Re [2013] EWCC B14 Fam, [2014] 1 FCR 636, [2014] Fam Law 283�����������������������������������������������������������   App 1 P (a child) (enforced caesarean: adoption), Re sub nom Re Enforced Caesarean: Reporting Restrictions [2013] EWHC 4048 (Fam), [2014] 2 FLR 410, [2014] 2 FCR 337, [2014] Fam Law 414���������������������������������  1.50; 3.48, 3.53, 3.64, 3.122; 7.22; App 1 P & Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26�����������������  3.13, 3.15; 5.14, 5.43, 5.57; App 1 P, ex p (The Times, 31 March 1998)������������������������������������������������������������������������    7.74 Piglowska v Piglowski [1999] UKHL 27, [1999] 1 WLR 1360, [1999] 3 All ER 632, [1999] 2 FLR 763, [1999] 2 FCR 481�����������������������������������������������������������������    4.23 Pink Floyd Music Ltd v EMI Records Ltd (Practice Note) [2010] EWCA Civ 1429, [2011] 1 WLR 770������������������������������������������������������������������������������������  2.168; 3.02 Pittalis v Sherefettin [1986] QB 868, [1986] 2 WLR 1003, [1986] 2 All ER 227���������  4.166 Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, [2001] 2 All ER 510, [2001] 1 Lloyd’s Rep 725��������������������������������������������������������������������������    4.20 Practice Direction (Citation of Authorities) [2012] 1 WLR 780, [2012] 2 All ER 255��������   4.49 Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195, [2015] 2 All ER 541���������������������������������������������������������������������������  6.02, 6.40, 6.42 Practice Direction (Criminal Proceedings) [2013] EWCA Crim 1631, [2013] 1 WLR 3164������������������������������������������������������������������������������������������������������    4.49 Practice Direction (Judgments: Neutral Citations) [2002] 1 WLR 346, [2002] 1 All ER 351, [2002] 1 Lloyd’s Rep 424��������������������������������������������������������������    4.57 Practice Guidance (Court of Protection: Transparency) [2014] EWHC B2 (COP), [2014] 1 WLR 235, [2014] EMLR 21, [2014] EWCOP B2, [2014] COPLR 78����������������  7.02; 7.24 Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam), [2014] 1 WLR 230, [2014] 1 FLR 733, [2014] 2 FCR 226, [2014] EMLR 22�����������������������������������������������������  2.02; 3.02; 4.02, 4.80; 6.02; 8.02

xxvi

Table of Cases Practice Statement (First-tier & Upper Tribunals: Neutral Citations) [2009] 1 WLR 871, [2009] PTSR 545����������������������������������������������������������������������������  7.112 Prudential Assurance v McBains Cooper [2000] 1 WLR 2000, [2001] 3 All ER 1014������������������������������������������������������������������������������  4.168, 4.169 R R v Butler (Ben) (Sentencing Remarks) (unreported, 21 June 2016)����������������   7.50; App 1 R v Central Independent Television PLC [1994] Fam 192, [1994] 3 WLR 20, [1994] 3 All ER 641�������������������������������������������������������������������������������������������    3.10 R v Cornick (William) [2014] EWHC 3623 (QB), [2015] EMLR 9�������������������������������    7.62 R v F (sub nom R (British Broadcasting Corporation) v F & D) [2016] EWCA Crim 12, [2016] 2 Cr App R 13, [2016] Crim LR 775������������������������������    7.63 R v H (V) [2012] EWCA Crim 1738��������������������������������������������������������������������������   App 1 R v Henderson [2010] EWCA Crim 1269, [2011] 1 FLR 547, [2010] 2 Cr App R 24, 115 BMLR 139�������������������������������������������������������������������������   App 1 R v Legal Aid Board, Ex parte Kaim Todner [1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541������������������������������������������������������������������������������������  7.74, 7.89 R v Markham (Stan Lucas), R v Edwards (Kim Rose) [2017] EWCA Crim 739, [2017] 2 Cr App R (S) 30, [2017] EMLR 23���������������������������������������������������������  7.62 R v R (Family Court: Procedural Fairness) [2014] EWFC 48, [2015] 1 WLR 2743�������  2.155 R v Thompson (Benjamin) [2010] EWCA Crim 1623, [2011] 1 WLR 200, [2011] 2 All ER 83, [2010] 2 Cr App R 27������������������������������������������������������������  4.28 R (on the application of C) v The Secretary State for Justice (Media Lawyers Association intervening) [2016] UKSC 2, [2016] 1 WLR 444, [2017] 1 All ER 513������������������������������������������������������������������������������������������   App 2 R (on the application of Dacre) v City of Westminster Magistrates Court [2008] EWHC 1667 (Admin), [2009] 1 WLR 2241, [2009] 1 All ER 639, [2009] 1 Cr App R 77����������������������������������������������������������������������������������������  2.135 R (on the application of Ewing) v Crown Court at Cardiff [2016] EWHC 183 (Admin), [2016] 4 WLR 21, [2016] 1 Cr App R 32, 180 JP 153, [2016] EMLR 18, [2016] ACD 44, [2016] WLR (D) 62, [2016] Inquest LR 32����������������  4.180 R (on the application of Guardian News & Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343, [2012] 3 All ER 551������������������������������������  2.47 R (on the application of Immigration Law Practitioners’ Association) v Tribunal Procedure Committee [2016] EWHC 218 (Admin), [2016] 1 WLR 3519������������  7.101 R (on the application JC) v Central Criminal Court [2014] EWHC 1041 (Admin), [2014] 1 WLR 3697, [2014] 4 All ER 319, [2014] 2 Cr App R 181���������������  7.66, 7.67 R (on the application of News Media Association) v Press Recognition Panel [2017] EWHC 2527 (Admin)�������������������������������������������������������������������������������  8.64 R (on the application of Willford) v Financial Services Authority (No 2) [2013] EWCA Civ 674, [2013] CP Rep 43�����������������������������������������������������������������������  7.75 R (on the application of Y) v Aylesbury Crown Court [2012] EWHC 1140 (Admin), [2012] EMLR 26, [2012] Crim LR 893�����������������������������������������������������������������  7.61 RB (adult) (No 4), Re [2011] EWHC 3017 (Fam), [2012] 1 FLR 466����������������  2.131; 3.71; 6.24, 6.26 RGS, Re [2012] EWHC 4162 (COP)�������������������������������������������������������������������������   App 1 Ramet (application for the committal to prison), Re [2014] EWHC 56 (Fam)��������������  6.53 Rapisarda v Colladon (Re 180 Irregular Divorces) [2014] EWFC 1406, [2015] 1 FLR 584������������������������������������������������������������������������������  2.58, 2.63, 2.66 Redbridge London Borough Council v G [2014] EWHC 485 (COP), [2014] EWHC 959 (COP), [2014] EWCOP 1361, [2014] EWCOP 17,�����������������������������   3.10; App 1 Reynolds v Sunday Times [2001] 2 AC 127, [1999] 3 WLR 1010�����������������������  1.21, 1.25

xxvii

Table of Cases Roddy (a child) (identification: restriction on publication), Re; Torbay BC v News Group Newspapers Ltd [2003] EWHC 2927 (Fam), [2004] EMLR 8, [2004] 2 FLR 949, [2004] 1 FCR 481����������������������������  2.103; 3.22, 3.24, 3.30, 3.44, 3.64, 3.70, 3.118 S S v SP & CAFCASS [2016] EWHC 3673 (Fam)����������������������������������������������������������  2.105 S (a child acting by the Official Solicitor) v Rochdale Metropolitan Borough Council & the Independent Reviewing Officer [2008] EWHC 3283 (Fam), [2009] 1 FLR 1090��������������������������������������������������������������������������������������������    3.32 S (a child) (identification: restrictions on publication), Re [2003] EWCA Civ 963, [2004] Fam 43, [2003] 3 WLR 1425, CA����������������������������������������������������  3.06, 3.24 S (a child) (identification: restrictions on publication), Re [2004] UKHL 47, [2005] 1 AC 593, [2004] 3 WLR 1129, [2004] 4 All ER 683, [2005] 1 FLR 591��������������������������������������������������  1.02, 1.09, 1.21, 1.23, 1.25; 2.78, 2.161; 3.25, 3.26, 3.27, 3.87; 4.63, 4.100, 4.107; 7.69, 7.70; App 2 S-B (children)(care proceedings: standard of proof), Re [2009] UKSC 17, [2010] 1 AC 678, [2010] 2 WLR 238, [2010] PTSR 456, [2010] 1 All ER 705, [2010] 1 FLR 1161��������������������������������������������������������������������������������������������  4.154 Salford Foundation NHS Trust v P [2017] EWCOP 23�����������������������������������������������  4.134 Scott v Scott [1913] AC 417 [1913] UKHL 2, 29 TLR 520���������������������������������  1.08, 1.09, 1.16, 1.28; 2.86; 7.11, 7.72, 7.74, 7.89, 7.91 Solicitors Regulation Authority v Spector [2016] EWHC 37 (Admin), [2016] 4 WLR 16����������������������������������������������������������������������������������������������������������  7.145 Southend Borough Council v CO & BW [2017] EWHC 1949 (Fam), [2017] 4 WLR 185������������������������������������������������������  2.139, 2.140; 3.13, 3.22, 3.34, 3.85; 5.09, 5.33, 5.51, 5.52 Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416���������������������������  2.170 Stedman, Re [2009] EWHC 935 (Fam)��������������������������������������������  3.07, 3.17, 3.27, 3.65 Stillwell (Effie) see Buckinghamshire County Council v Andrew����������������������   5.45; App 1 Surrey CC v ME [2014] EWHC 489 (Fam), [2014] 2 FLR 1267����������������������������������    7.64 Swansea, City of v XZ & YZ v The Children, The Press, Media [2014] EWHC 212 (Fam), [2014] 2 FLR 1091�������������������������������������������������������������������  3.22; 7.71 Symbion Power LLC v Venco Imtiaz Construction Co [2017] EWHC 348 (TCC)��������    7.91 T Tickle v Council of the Borough of North Tyneside & Ors [2015] EWHC 2991 (Fam)������������������������������������������������������������������������������������������������  3.64, 3.69, 3.83 Times Newspapers, Re; R v Abdulaziz [2016] EWCA Crim 887, [2016] 1 WLR 4366�����    3.20 U Unwired Planet International Ltd v Huawei Technologies Co Ltd [2017] EWHC 705 (Pat), [2017] EWHC 711 (Pat) ��������������������������������������������������������������������������    7.80 Unwired Planet International Ltd v Huawei Technologies Co Ltd (No 2) [2017] EWHC 3083 (Pat), [2017] WLR (D) 802������������������������������������������������������������    7.78 V V v Associated Newspapers [2016] EWCOP 21����������������������������������������������   7.23; App 1 V v Associated Newspapers & the Press Association [2015] EWCOP 83��������������������   App 1 Venables v News Group Newspapers Ltd, Thompson v News Group Newspapers Ltd [2001] Fam 430, [2001] 2 WLR 1038, [2001] 1 All ER 908, [2001] 1 FLR 791�����������������������������������������������������������������������������������������������   7.61; App 3

xxviii

Table of Cases W W v H (family division: without notice orders) [2001] 2 WLR 254, [2001] 2 FLR 927����������������������������������������������������������������������������������������������   App 3 W (a child), Re [2016] EWCA Civ 1140, [2017] 1 WLR 2415, [2017] 1 FCR 349, [2017] 1 FLR 1629,�������������������������������������������������������������������������������������������    3.37 W (a child) (adoption order: leave to oppose) (Practice Note) [2013] EWCA Civ 1177, [2014] 1 WLR 1993, [2014] 1 FLR 1266, [2014] 1 FCR 191, [2014] Fam Law 12�������������������������������������������������������������������������������������������    4.27 W (children), Re [2009] EWCA Civ 59, [2009] 2 All ER 1156, [2009] 1 FLR 1378, [2009] 1 FCR 673, [2009] Fam Law 381, (2009) 159 NLJ 280, (2009) 153(7) SJLB 31��������������������������������������������������������������������������������������������������   App 1 W (children) (care proceedings: publicity), Re [2016] EWCA Civ 113, [2016] 4 WLR 39, [2016] 3 FCR 63������������������������������������������������������������  2.51; 3.26; 4.101, 4.102, 4.103, 4.104; App 1; App 2 W (children) (identification: restrictions on publication), Re [2005] EWHC 1564 (Fam), [2006] 1 FLR 1������������������������������������������������������������  3.22; 7.71 W (minors) (social worker: disclosure), Re [1999] 1 WLR 205, [1998] 2 All ER 801, [1998] 2 FLR 135, [1998] 2 FCR 405�����������������������������������������������������������������  2.107 Ward (a child), Re [2007] EWHC 616 (Fam), [2007] 2 FLR 765, [2008] 1 FCR 417, [2007] Fam Law 704���������������������������������������������������������������������������������  3.30, 3.65, 3.68, 3.69 Webster (a child), Re [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, [2008] 1 FCR 483, [2007] Fam Law 907�����������������������������������������������������������������������   App 1 Westminster City Council v H [2017] EWHC 1221 (Fam)�����������������������������   4.212; App 1 Westminster City Council v Sykes [2014] EWCOP B9, (2014) 17 CCW Rep 139�������   App 1 Wigan BC v Fisher & Thomas [2015] EWFC 34��������������������������������������������������������  4.108 Williams v Hackney London Borough Council [2015] EWHC 2629 (QB), [2017] EWCA Civ 26, [2017] 3 WLR 59, CA���������������������������������������������  2.146; 7.81 Williams v Minnock (Case no VS13P00027) (unreported) 12 June 2015, Bristol Crown Court���������������������������������������������������������������������  2.123; 3.66; 4.138; 5.58; App 1 Worthington (Poppi) see Cumbria CC v M X X v X (anonymisation) [2016] EWHC 3512 (Fam)����������������������������������������������������    2.33 X & Y (children: disclosure of judgment to police) [2014] EWHC 278 (Fam), [2015] 1 FLR 1218��������������������������������������������������������������������������������������������    2.53 X (a child) (No 2) (application for reporting restrictions: media notification), Re [2016] EWHC 1668 (Fam), [2016] 4 WLR 116 ���������������  2.97, 2.133; 4.93, 4.115, 4.124, 4.142, 4.164; 8.09; App 2 X (a child) (residence & contact: rights of media attendance), Re [2009] EWHC 1728 (Fam), [2009] EMLR 26, [2009] 2 FLR 1467, [2009] 3 FCR 370�����������������������������������������������������������������������������  2.26, 2.28, 2.74 X (children), Re [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, [2008] Fam Law 23�������������������������������������������������������������������������������������������    2.54 X (children) (Morgan & others intervening) [2011] EWHC 1157 (Fam), [2012] 1 WLR 182, [2011] EMLR 26; sub nom X, V & Z (expert witness), Re�����������������  2.139 X (formerly known as Mary Bell) v Y [2003] EWHC 1101 (QB), [2003] EMLR 37, [2003] 2 FCR 686, [2003] ACD 61��������������������������������������������������������������������   App 3 X, Y & Z (disclosure to the Security Service) [2016] EWHC 2400 (Fam), [2016] 4 WLR 153, [2017] 2 FLR 583������������������������������������������������������������������  2.54, 2.110

xxix

Table of Cases Y Y v Z [2014] EWHC 650 (Fam), [2014] 2 FLR 1311�����������������������������������������  2.55, 2.162 Yates v Great Ormond Street Hospital For Children NHS Foundation Trust [2017] EWCA Civ 410, [2017] 2 FLR 739, (2017) 157 BMLR 1, [2017] Med LR 417�����   App 1 Z Z v News Group Newspapers Ltd [2013] EWHC 1150 (Fam), [2013] Fam Law 1130���������������������������������������������������������������������������������������    6.38 Z v News Group Newspapers Ltd (No 2) [2013] EWHC 1371 (Fam)������������������������    7.70 ZH (Tanzania v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, [2011] 2 WLR 148, [2011] 2 All ER 783, [2011] 1 FLR 2170��������������������������������������������������������������������������������������������    1.27

xxx

Chapter 1

INTRODUCTION

KEY ISSUES 1.01 ●● How this book will provide a useful resource for family law practitioners 1.03–1.07 ●● The principles underlying the law about what may be published about family court proceedings and why this differs from other courts 1.08–1.27 ●● The way the legislative framework restricts and permits aspects of privacy and publicity about family courts 1.28–1.35 ●● Why and how the law has developed over time 1.36–1.51 ●● What research tells us about the impact of the law and policy on proceedings 1.52–1.62

KEY RESOURCES 1.02 ●● Articles 6, 8 and 10 of the European Convention on Human Rights. ●● Re S (A Child) [2004] UKHL 47; [2005] 1 AC 593. ●● Tim Jarrett, Confidentiality and openness in the family courts: current rules and history of their reform House of Commons Briefing Paper CBP-7306 (2015).

WHAT THIS BOOK IS ABOUT 1.03 The law on publicity and privacy in family court proceedings has been subject to considerable change over the past 15 years but, rather than being 1

INTRODUCTION clarified, has probably become more complex. Transparency, used as an umbrella term to describe openness, accessibility and public understanding of the family justice system, is not a new or ephemeral issue, although it has received particular attention in recent years. Nor is transparency something to be grappled with by only those with an interest in increasing it. It is a mainstream issue of which all professionals working in the family justice system need to have at least a basic appreciation and be prepared to deal with, should it arise. 1.04 As the higher courts have repeatedly emphasised, in authorities going back over many years now, the privacy of family proceedings is not merely a convenient convention, but a derogation from the open justice principle that is and must, in individual cases, be justified. Whilst a cloak of privacy is often justifiable and essential for the proper protection of children and the achievement of justice, generalisations or assumptions will not suffice. Time and time again, judgments record parties and their representatives failing to engage with or grapple with the need to give intense scrutiny to whether or not privacy is, in this particular case, necessary and proportionate. Professionals should not treat the appearance of journalists in their court with suspicion, nor be affronted by requests to lift privacy restrictions (whether that be by a party or a member of the press). Those who work in the family justice system must acknowledge that the paternalistic cocooning of unwise or misguided adults is no part of our function, any more than seeking to protect ourselves or other professionals from embarrassment or discomfort through publicity. The current functions of family courts did, of course, originate in a protective jurisdiction and it is right that this is still reflected in special provisions for children and vulnerable people. The barriers (such as age) that many individuals who are the subject of proceedings face in participating in decisions about publicity should be recognised as a challenge rather than excuse. 1.05 There is often considerable confusion and misunderstanding about privacy in the family courts. This is not surprising given that one has, on the one extreme, claims by some newspaper columnists that England and Wales has a system of ‘secret courts’ about which nothing can ever be reported, and on the other, those occasional cases in which the media provide saturation coverage that often distorts or misrepresents the facts. This can even be dangerous, as in the case of the terminally ill baby Charlie Gard in summer 2017, in which popular misconceptions fuelled by some agenda-led commentators led to viral abuse and even death threats being made against medical professionals and those representing the hospital trust involved in the case. While the lack of clear up-todate guidance can be frustrating for professionals, it can be worse for vulnerable parties and family members, who may be open to influence and exploitation by aggrieved court users and disaffected conspiracy theorists. 1.06 The purpose of this book is to provide practitioners in family courts, representing all parties, with an explanation of the relevant law in different types of cases and circumstances, so that they are well-equipped to advise their clients on their remedies, rights, and obligations with regard to what is now popularly referred to as ‘transparency’. The book will set out the law and practice about how much publicity is lawful and proportionate in cases which are held in private or relate to private information. Though the process of moving towards greater 2

INTRODUCTION transparency (or restoring the transparency that should have been there all along) may have been prompted in part by campaigners with axes to grind or by those in the media with economic interests to serve, rather than from any genuine desire to promote pubic legal education, it has now been recognised and accepted as the right thing to do. The judiciary have increasingly embraced and supported it. We have moved from a position of justice behind closed doors to one more in line with the principles of open justice and public accountability. The implications for parties, their representatives and the public are far-reaching. This book explains how we got where we are today, what to expect and how to deal with it. 1.07

The book is structured as follows:

This chapter introduces the principles and a brief history of the subject, and a review of relevant research. Chapter 2 sets out and explains the relevant law relating to privacy and publicity in family court cases. It sets out the automatic restraints on publicity applicable in family proceedings. Chapter 3 explains how the restrictions covered in Chapter 2 may be lifted and/ or supplemented on application by a party or the media. Chapter 4 covers the publishing and reporting of court judgments, through the official reports, British and Irish Legal Information Institute (BAILII) and mainstream non-legal media, including working with journalists. Chapter 5 explores the specific issues and practical problems posed when parties or campaigners share (or are likely to share) information about cases, mainly via the internet and social media, and how realistic advice may be given. Chapter 6 deals with enforcement of the restrictions set out in preceding chapters. Chapter 7 looks at courts other than the family jurisdiction. It outlines the law relating to other types of courts where similar or linked issues may arise: associated criminal proceedings (including restrictions to ensure a fair trial); children and young people caught up in the criminal jurisdiction; the Court of Protection; and tribunals. In Chapter 8 we consider the future – potential reform; the digitisation of the court system; and the increasing influence of unregulated media activity. Appendix 1 gathers case studies that are referred to in various places throughout the text. Appendix 2 reproduces guidance on publication of judgments written by The Transparency Project. Appendix 3 contains key extracts from legislation and instruments. 3

INTRODUCTION

PRINCIPLES OF OPEN JUSTICE, PRIVACY, AND FREEDOM OF EXPRESSION Open justice 1.08 The principle of open justice is now encapsulated in the European Convention on Human Rights, Article 6 (discussed below), but has long been recognised as fundamental in English law. As famously quoted from Bentham by Lord Shaw in Scott v Scott [1913] AC 417: ‘Publicity is the very soul of justice, it is the keenest spur to exertion and the sure of all guards against improbity. It keeps the judge himself, while trying, under trial’ [p 477]. Lord Atkinson conceded in Scott that distress might be suffered by witnesses and parties in such a case (which was an application for annulment of a marriage on grounds of non-consummation) but the public trial is the ‘best security for the pure impartial and efficient administration of justice, the best means for winning for it public confidence and respect’ [p 463]. Following a complaint that details of a private hearing had been publicised, the House of Lords held on appeal that although the High Court had granted Mrs Scott her decree in camera, it had no power to do so (at that time). 1.09 Another famous quotation, from the same era as Scott, is ‘sunlight is the best disinfectant’ from Louis J Brandeis, who became a famous US Supreme Court judge but, in fact, was not commenting on judicial matters or corruption in public places, but about financial disclosure by banks, when he wrote in 1913: ‘Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.’ His remark is, however, along with Bentham’s, often quoted to symbolise the merits of an open justice system. 1.10 The importance of the public being kept aware of what is happening in our courts is underlined by the Contempt of Court Act 1981 including specific provision for the fair, accurate and contemporaneous reporting of court proceedings, as we discuss in Chapter 6. 1.11 Lord Diplock repeated the view that open courts impose a discipline on the judiciary to ‘keep the judges themselves up to the mark’ and that ‘the evidence and argument should be publicly known so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.’ (Home Office v Harman [1983] 1 AC 280 at 316; 2 WLR 338). Earlier, in Attorney General v Leveller Magazine Limited [1979] AC 440 he had explained: ‘If the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy 4

INTRODUCTION and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself, it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly.’ [p 450 A–C] 1.12 The media have been referred to as ‘trustees’ and ‘the eyes and ears of the public’ (Sir John Donaldson MR, Attorney-General v Guardian Newspapers (no 2) [1990] 1 AC 109, 3 WLR 776). Where the operations of government and agencies can be observed by the press and condensed into an accessible form, it is justifiable to give the press favourable treatment over members of the general public in attending certain types of court, for example, traditionally young offenders and (since 2009) the family courts. In one of the many consultation papers leading to that development in family courts, the media were described as the ‘proxy for the public’ (Department for Constitutional Affairs, (2006) p 45). 1.13 Lord Diplock’s second point in AG v Leveller (above) about the special importance of open justice in criminal trials is deep-rooted, although the idea of a trial as a public spectacle in which press exposure plays a large part in the punishment of the accused has been challenged. Jaconelli (2002) found little empirical evidence that an open court leads to a higher quality of justice, or indeed what effect the degree of openness of proceedings has on individual behaviour. The senior judiciary have, however, continued to emphasise the rights of the press to report on criminal justice under Article 10 of the European Court of Human Rights (ECHR) (discussed below). 1.14 The ECHR has determined that the law in England and Wales is compliant with Article 6, because a hearing in public would inhibit the presentation of full evidence and would not be in the interests of children (B and P v the UK [2001] 2 FLR 261; [2001] 2 FCR 221 but parents must be enabled to participate in an oral hearing and have access to all the evidence relied upon by the court (Moser v Austria [2007] 1 FLR 702; [2006] 3 FCR 107). 1.15 ‘Openness’ and ‘transparency’ have become interchangeable terms in the policy documents issued by the government on this topic (eg, Ministry of Justice, 2008, pp 4; 6; 7; and 8). However, a court or institution being ‘open’ does not necessarily mean that its processes are ‘transparent’ unless these become comprehensible and accessible to the general public. Conversely, functional transparency can be achieved without literally throwing the doors open to the public.

Privacy 1.16 Although Scott established that matrimonial proceedings were not, in 1913, an exception to the principle of open justice, one of the few exceptions identified by the House of Lords was cases that concerned ‘wards and lunatics’, reflecting the protective function of the courts’ parens patriae jurisdiction. 5

INTRODUCTION Viscount Haldane justified the exclusion of the public from cases involving wards of court on the basis that the wardship jurisdiction was parental and administrative, rather than disposing of a question of law [437]. Indeed, there is still a feeling amongst some judges and lawyers that only a judgment that contains novel or important legal issues can be of any wider relevance than to the parties themselves. 1.17 We can see the threads of this guiding principle of protection in the accretion of legislation designed to guard the privacy of children, and adults who lack mental capacity, which is covered in this book. We might, however, ask what privacy really offers, especially in today’s society. Its value has been described in terms of four functions: to engender personal autonomy required in a democratic society to resist manipulation; an opportunity for emotional release from being always ‘on’ in the gaze of others; to engage in self-evaluation; and to offer an environment in which we can share intimacy and engage in limited, protected communication (Westin, 1967). 1.18 As technology advanced through the twentieth century to the extent that most people feel that they live in a ‘surveillance society’, a sense of needing privacy became a stronger element of selfhood and individual autonomy. By the beginning of the twenty-first century, privacy could be described as: ‘a sweeping concept, encompassing (among other things) freedom of thought, control over one’s body, solitude in one’s home, control over information about oneself, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations.’ (Solove, 2002) It is the ‘control of information about oneself’ aspect of privacy that is the most relevant to its value in the family court context. 1.19 The principles are reflected in Article 8 of the ECHR, the right to respect for private and family life. Article 8 is not just a negative right to stop invasion of privacy; it is also a positive right that the State should take steps to enable the enjoyment of this respect for private and family life (Marckx v Belgium (1979–80) 2 EHRR 330). Article 8 is, however, a qualified right, and can be interfered with when necessary, including where such interference is balanced against rights under Article 10 to freedom of expression.

Freedom of expression 1.20 Everyone has a right to freedom of expression under Article 10 of the ECHR; freedom of expression here has a wide meaning of giving and receiving information. The terms ‘freedom of expression’ and ‘the free press’ tend to be used interchangeably by defenders of the UK newspapers, whereby publishers are not subject to regulation in the way that radio and television are licensed and monitored by Ofcom. However, some commentators have argued that to earn public trust, media reporting must be transparent in differentiating between fact 6

INTRODUCTION and comment and accurately attributing primary sources. Onora O’Neill’s Reith Lectures in 20021, are a fascinating exploration of contemporary concerns about whether current practice in the mainstream media ‘speak truth to power’ or is itself dominated by powerful newspaper proprietors. 1.21 Nevertheless, in judgments where the courts are considering submissions by the press under Article 10, they are explicit in their respect for editorial control and the commercial viability of newspapers as essential in a democratic society (see Re S, below, and Reynolds v Sunday Times [2001] 2 AC 127; [1999] 3 WLR 1010 and Campbell v MGN [2004] UKHL 22; [2004] 2 AC 457). Article 10 includes the right to receive information, as well as communicate it to others, and is therefore seen as the bedrock for informed debate. 1.22 Many cases covered in this book turn on the issue of balancing an Article 8 claim for privacy by or on behalf of a child or family member with an Article 10 claim by the media. The foundation for that balancing exercise is set out in the next section.

Balancing rights of privacy and rights of freedom of expression 1.23 The jurisprudence on children’s privacy had become quite complex in the 1990s, with different categories of privacy interests being debated, but was settled by the House of Lords after the implementation of the Human Rights Act 1998 in Re S [2004] UKHL 47; [2005] 1 AC 593. The case concerned an eight-yearold child who happened to be subject to care proceedings, but the issue before the House of Lords related to publicity about ongoing criminal proceedings, the trial of his mother for his brother’s murder. As neither the criminal trial nor the application for a reporting restriction order (RRO) were Children Act 1989 matters, the child’s welfare was not paramount. His father and the Cafcass guardian in the care proceedings sought an injunction against the media identifying the mother and the deceased child in any news reports of the trial, because ‘S’ could then be easily identified locally and, they argued, this would have an adverse effect on him. There was expert psychological evidence before the court that the child was vulnerable, given the tragic circumstances, although he had been reunited with his father. The family and guardian argued for protection though blanket anonymity under Article 8 and the media argued that restrictions on naming and picturing the defendant would interfere with their Article 10 rights. Lord Steyn delivered the judgment, in which he applied the following test [para 17], based on the judgment in Campbell v MGN (above):

1

‘1.

Neither article has as such precedence over the other.

2.

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.

Still on the BBC website at www.bbc.co.uk/radio4/reith2002/.

7

INTRODUCTION 3.

The justifications for interfering with or restricting each right must be taken into account.

4.

The proportionality test must be applied to each. For convenience, he called this the ultimate balancing test.’

1.24 Lord Steyn’s conclusion that the balance lay with the Article 10 argument can be summarised as follows: 1. The child’s Article 8 argument could equally be deployed by an adult indirectly affected by criminal proceedings. Adult non-parties to a criminal trial would therefore be added to the prospective pool of applicants who could apply for such injunctions and would confront newspapers with an ever wider spectrum of potentially costly proceedings and would seriously inhibit the freedom of the press to report criminal trials. 2. Although the RRO sought in this case was the name and picture of the mother and the son she had killed only (not publishing the name and picture of the surviving brother having been agreed), future cases might involve other circumstances and pile exception upon exception to the principle of open justice. 3. Reporting a case without identifying a defendant is a ‘disembodied trial’. Readers will be less interested, editors will therefore not feature the case and public debate will suffer accordingly. 4. Although a news provider may always contest an injunction, this may be very costly and create delays that mean it is not worth it. 5. Special attention was paid by Lord Steyn to the precarious economic state of local newspapers. 1.25 The child murdered by the mother in Re S had died at Great Ormond Street Children’s Hospital despite the vigilance of the staff there, so there were no doubt matters of public interest in the circumstances and issues of fabricated illness, but, in retrospect, it is difficult to see why the younger brother should not have been better protected. The judgment might, today, seem unduly deferential toward the press. Lord Steyn was a vocal supporter of democratic values, having left his native South Africa in 1973 because of his opposition to apartheid and his defence of the free press in Re S is characteristically robust – but the House of Lords was unanimous in its decision. These observations of Article 10 are consistent with Reynolds and Campbell, as noted above. Although neither Campbell nor Re S were family proceedings, this balancing exercise has been applied in several cases we refer to throughout this book and continues as the authority for the test that should be applied to resolve tensions between claims for privacy and publicity. 1.26 The criminal trial of S’s mother was held in open court, where the starting position is that the hearing can be fully reported, provided reports are contemporaneous, fair and accurate, in accordance with the Contempt of Court Act 1981, s 4. Family proceedings are usually held in private, so the position is more complex. The legislative framework in family courts is outlined in the following section, and explored in depth in Chapters 2 and 3. 8

INTRODUCTION

CHILDREN’S RIGHTS 1.27 The United Nations Convention on the Rights of the Child, while not incorporated into UK domestic law, is becoming increasingly influential (ZH (Tanzania v Secretary of State for the Home Department) [2011] UKSC 4; [2011] 2 AC 166 and see the Rights of Children and Young Persons (Wales) Measure 2011) The most relevant articles here are Article 3, that decisions should be made in the best interests of the child; Article 12, that children should be enabled to participate in decisions made about them; Article 13, a child’s right to freedom of information includes freedom to seek, receive and impart information; and Article 16, that no child shall be subject to arbitrary of unlawful interference with his or her privacy, family, home or correspondence. Arguably, a focus on adult interests in the debate about media access is out of place, and the exclusion or marginalisation of children from the decisions that are being made about publication (or not) and disclosure day-to-day in our courts must be called into question.

THE LEGISLATIVE FRAMEWORK FOR FAMILY PROCEEDINGS 1.28 In the 1913 case of Scott, the House of Lords had recognised only three exceptions to the general rule that courts should sit in public. These were proceedings relating to: wards of court; persons of unsound mind, and matters of trade secrets. There was no power to sit in private merely if the nature of the evidence (in this case, regarding the husband’s alleged impotence) was unsavoury or indelicate. Lord Haldane cited the Matrimonial Causes Act 1857, s 46 as having ended the practice in the ecclesiastical courts of obtaining evidence in marital causes through examination in private. Section 46 required all witnesses to be sworn and cross-examined in open court. However, this uncompromising approach was diluted in subsequent years, with legislation leading to most family cases being heard in private. By 1966, the Law Commission (p 6–7) was able to identify four ways in which a court might have power to sit in private: 1. One of the Scott exceptions. 2. In interlocutory (interim) and administrative matters. 3. Where powers were delegated to a single judge sitting in chambers. 4. If there was express statutory provision. 1.29 Before 1991, there were separate restrictions on access to proceedings in magistrates’ courts (domestic courts dealt with maintenance and domestic violence; juvenile courts dealt with care proceedings and youth justice) and county courts which heard matrimonial proceedings. These were preserved to some extent by the two separate sets of court rules for the family proceedings courts and county courts in 1991. These rules were unified in 2010 and then revised in 2014 to fit the new Family Court. We explain the current rules in Chapters 2 and 3. In short, most family proceedings are still held in private. 9

INTRODUCTION 1.30 Hearings that are held in private inevitably reduce the likelihood of anything being reported about the case. There are also a number of legislative provisions that specify automatic restrictions on what can be published about family court cases, as we explain in Chapter 2. These are: the Judicial Proceedings (Regulation of Reports) Act 1926; the Administration of Justice Act 1960; and the Children Act 1989 (supplemented by rules and practice directions).

The Judicial Proceedings (Regulation of Reports) Act 1926 1.31 This very short piece of legislation has the effect of restricting publicity about matrimonial proceedings (divorce, dissolution, nullity or judicial separation) to minimal information. Undefended petitions are decided ‘on the papers’ under delegated powers, rather than in open court, but the decree is still announced in open court, leading to the myth of the ‘quickie divorce’, because this public aspect of the process takes only minutes, in contrast with any ancillary children or financial disputes – which will normally be held in private.

Administration of Justice Act 1960 1.32 This is the most important and far reaching statutory element in the law about publication from family courts, because s 12 of the Act effectively prohibits the sharing of information from Children Act 1989 proceedings (and some other types of case held in private that protect vulnerable adults).

The Children Act 1989 1.33 Section 97(2) of this Act makes it an offence to identify a child who is subject to an application under the 1989 Act or the Adoption and Children (ACA) Act 2002. Its purpose is to grant children anonymity during ongoing proceedings.

Family Procedure Rules 2010 1.34 Secondary legislation consisting of detailed rules and practice directions govern practice and procedure in the Family Court and High Court Family Division. The Rules are made by a Family Procedure Rule Committee established under the Courts Act 2003, s 75. 1.35 Taken together, the Administration of Justice (AJA) Act 1960, s 12 and the Children Act (CA) 1989, s 97(2), supported by the court rules, impose strict limitations on what can be said or written about cases in the family courts. This framework is covered in detail in Chapters 2 and 3.

10

INTRODUCTION

A HISTORY OF TRANSPARENCY Emerging concerns 1.36 Concerns and complaints about ‘secret’ family courts began to emerge in the early 1990s. The Calcutt Review of Press Self-Regulation (1993) called for more consistency in the non-identification of children and urgent guidance on the problem of ‘jigsaw’ identification which can occur when the reporting of different details in different publications undermines anonymity. The Lord Chancellor issued a consultation paper, Review of Access to and Reporting of Family Proceedings, the same year but the review’s recommendations had not been carried forward, suggesting that its work, and the responses received, seemed to have slipped into oblivion (Clibbery v Allan [2002] EWCA Civ 45; [2002] Fam 261 Thorpe LJ at para 97). 1.37 There seem to have been two main factors that drove drew media and public attention to the closed nature of family proceedings. First, the Children Act 1989 saw the transfer of public law proceedings from the previous range of local authority parental rights resolutions, magistrates’ juvenile courts and wardship to the family proceedings and county courts, where parents could be legally represented and the role of the guardian ad litem was strengthened. From a position of having almost no voice, parents could now question and challenge local authority and court decisions, but not publicly. The second factor was the growth of the fathers’ rights movement, galvanised by the unpopular Child Support Act 1991 introduced by the Thatcher government. Although lawyers try to maintain the principle that payment of child support and levels of contact are separate, they remain linked in public opinion. Allegations of gender bias in favour of mothers in contact disputes were fanned by claims that fathers could not speak out about their grievances.

Review of Access to and Reporting of Family Proceedings 1.38 This consultation paper was issued by the Lord Chancellor’s Department in August 1993. Although Thorpe LJ mentions in Clibbery v Allan (above) that there were substantives responses, all records seem to have vanished. (The authors have a copy of the paper itself but not of any responses.) The 135-page review is thorough, finding that the law had developed in a piecemeal fashion and became inconsistent. The options put forward for change were: ●● Access to courts: the working group did not recommend either ‘no access’ or ‘unrestricted access’, but something in between. They did not come down on the side of public proceedings with power to restrict access or, alternatively, private proceedings with power to allow access, instead setting out a series of detailed questions for the consultation. ●● Reporting courts: the working group believed there was a powerful case for rationalisation of reporting restrictions. However, they wanted to retain the function of the Children Act 1989, s 97, an automatic ban on identifying children. 11

INTRODUCTION ●● Sanctions: A single statutory offence in respect of the media was suggested, removing any need to retain the law of contempt when it came to sharing information from family proceedings. A duty of confidentiality could be imposed on the parties, enforceable as a civil action by other parties. The latter suggestion seems, in hindsight, highly impractical. There is no explanation of how such actions would be funded or who would take such an action on behalf of a child. 1.39 There were no substantial changes in the law for the next ten years, despite an increase in media demands to ‘open up’ courts and some evidence of judicial frustration. For example, in 2000, Munby J, unusually, sat in open court to deliver judgment in a High Court case because he said the father had ‘manipulated the press by feeding it tendentious accounts of these proceedings, enabled to do so because he has been able hypocritically to shelter behind the very privacy of the proceedings which hitherto has prevented anyone correcting his misrepresentations’ Harris v Harris [2001] 2 FLR 895; [2001] 3 FCR 193; [2001] Fam Law 651, para 386.

Amendment to the court rules in 2005 1.40 Matters came to a head with the cases of Kent CC v B in [2004] EWHC 411; [2004] 2 FLR 142 and Norfolk CC v Webster [2006] EWHC 2733 (Fam); [2007] Fam Law 399 (the latter is featured in Appendix 1, Case Study 3). Both cases followed professional and public concerns about the safety of aspects of medical evidence as a basis for a judicial decision that a child been deliberately harmed by a parent. Kent involved suspected fabricated illness and Webster the cause of limb fractures. These cases are discussed in more detail in Chapters 2 and 3. 1.41 The judgment given by Munby J (as he then was) in Kent exposed the implications of the draconian nature of AJA, s 12 because it was now becoming clear that it was unlawful for parties in any case to consult a McKenzie Friend, their MP, or a professional regulator about any matters that had come up in court – unless an application was successfully made to the court for leave to do so. This realisation had the appearance of potentially serious interference with Article 6 and Article 10 rights. 1.42 The court rules, at that time, stated that unless the court otherwise directed, a hearing of, or directions appointment in, public law proceedings should be held in chambers (Family Proceedings Rules 1991, r 4.16(7)). It was also noted by Ryder J in Blunkett v Quinn [2004] EWHC 2816; [2005] Fam Law 213 that an appeal from a district judge should be heard in private under r 8.1(5) but he delivered a public judgment to correct the large amount of misinformation in the media. (The case had been brought by the Home Secretary and was subject to a huge amount of political and salacious comment.) Secondly, r 4.23 prohibited the disclosure (without leave) of any document held by the court relating to proceedings (other than a court order) beyond the parties, their lawyers; the guardian or court welfare officer; the Legal Aid Board; or a court-appointed expert. 12

INTRODUCTION So, a party would have been in breach of the rules if, for example, in seeking comfort or support from a close family member, they showed them a copy of a court report or statement. Disclosure of documents to a McKenzie Friend was not permitted, without leave (In the matter of the children of Mr O’Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759). This rule also made research on family justice extremely difficult. 1.43 A public consultation was undertaken by the Department for Constitutional Affairs to remedy the draconian restrictions on sharing information for personal and research purposes. The result was the Children Act (CA) 2004, s 62 which amended the CA 1989, s 97 to specify that the communication prohibited by the section was made to the public or the public at large, only. Section 62 also enabled court rules to be made to allow some specific sharing of information to be authorised. The ensuing rule changes made by Family Proceedings (Amendment no. 4) Rules 2005 addressed the extreme restrictions that had been identified in Kent but did not allow any greater detail in media reporting.

Government consultations and attempted reform 1.44 A series of consultations and responses took place between 2006 and 2008 (Department for Constitutional Affairs, Confidence and confidentiality: Improving transparency and privacy in family courts CP 11/06); Ministry of Justice, Confidence and confidentiality: openness in family courts – a new approach (CP 10/07); Ministry of Justice, Family Justice in View CPR 10/07). The topic was also examined by the Constitutional Affairs Select Committee in 2005 and its successor, the HC Justice Committee in 2010 (Operation of the Family Courts (HC 518-1). The 2008 paper, Family Justice in View, was largely informed by a campaign in The Times during July of that year by Camilla Cavendish, who complained that children were being removed from their parents largely on the whim of psychiatrists. 1.45

The proposals made by Government in Family Justice in View were:

1. to allow the media to attend family court hearings; 2. to improve and increase the amount of public information accessible to the public about how the courts work and decisions are made; 3. a pilot of anonymised ‘typical’ cases being published online; 4. giving parties a copy of the judgment at the end of proceedings; 5. making reporting restrictions law consistent; 6. extending anonymity beyond the end of proceedings. 1.46 Of these, only the first and third appear to have been put into effect. In respect of the fourth, although the parties are usually given a copy of the judgment where it is delivered in writing, there can be difficulties with funding the costs of a transcript where parties are in person or publicly funded (as the Legal Aid Agency may object to paying), and delay in obtaining and finalising them. 13

INTRODUCTION 1.47 However, although there was a change in court rules to allow media attendance from April 2009, initially heralded as a ‘heroic decision’ by Cavendish, nothing had been done to change the statutory restrictions and, as observed by McFarlane J (as he then was) in a speech to the Resolution National Conference in March 2009, ‘the current law on reporting restrictions will remain in place and un-amended to accommodate the insertion of the media into the courtroom’. It quickly became apparent that little had changed, as media interest in going to court fell away (Rozenberg, 2009). Pressure for reform continued, which resulted in Pt 2 of the Children, Schools and Families Act 2010. This was intended to introduce reform in two stages: extending the right of media attendance to adoption and providing some exceptions to AJA 1960, s 12, to be followed by extending media access to ‘sensitive personal information’. Despite disagreement at Cabinet level, this legislation was pushed through without debate as part of the ‘wash-up’ (tidying up outstanding legislation before a hastily called general election) in spring 2010. Remarkably, the provisions were criticised as unworkable by both the media and family lawyers, and were never implemented (Munby 2010; Reed 2010). Following a recommendation by the HC Justice Committee in 2011, Pt 2 was repealed by the Crime and Courts Act 2013. 1.48 By this point, political zeal seems to have ebbed away, but the senior judiciary were only too aware of the lack of public confidence in family justice. The President of the Family Division, Sir Nicholas Wall, and the Society of Editors supported and published a very useful paper on the law as it stood in July 2011 by Adam Wolanski and Kate Wilson, which is still available online but, unfortunately, not updated. Nor did the Family Justice Review, headed by David Norgrove, and reporting in November 2011, do more than recommend the matter be addressed by government. 1.49 Throughout these developments, the difference in opinion over what the media really wanted from better access to family courts became more entrenched, as related by Mark Hanna (2011) as ‘irreconcilable differences’. The personal view of Sir Nicholas Wall that family courts needed to be opened up was enthusiastically taken up by his successor, Sir James Munby who, despite these years of stalemate, saw the restructuring of the courts following the Norgrove review as an opportunity for a change of approach.

The President’s Transparency Guidance – January 2014 1.50 In a speech delivered to the Society of Editors in November 2013, Sir James Munby spelt out his determination to end the label of ‘secret’ family courts. Just a few weeks later, the story of the ‘forced caesarean’ was published in the Sunday Telegraph – an improbable tale of social workers stealing a newborn baby from a sedated woman (Re P (A Child) (Enforced Caesarean: Adoption) (sub nom Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam); [2014] 2 FLR 410, See Case Study 11, Appendix 1). The President (and also the circuit judge who had dealt with the subsequent care and adoption proceedings) felt that the lack of public knowledge about the relevant court decisions had allowed sensational mis-reporting to run out of control. 14

INTRODUCTION 1.51 It was therefore not surprising that the President, building on the exhortations that he and his predecessor had been giving to High Court judges to publish more of their family judgments, issued practice guidance to that effect in January 2014, but widened it to include circuit judges, and the Court of Protection (see Chapter 4). Although he issued some questions for consultation later that year, as ‘the next steps’, there have been no changes to the original guidance and, at the date of writing, it is still in force. The number of judgments that appear on BAILII from circuit judges has fallen dramatically since 2015, from more than 200, to just over 90 in 2017. We discuss the latest developments in Chapter 8.

RESEARCH ON TRANSPARENCY 1.52 A series of research studies and reports were generated in response to government proposals put forward in the policy papers referred to above, and especially when the prospect of legislative reform became imminent at the end of 2009. Some of these were commissioned by organisations that represent the interests of children; there do not appear to have been any empirical studies undertaken on behalf of the media, although Hanna’s article (above) does make some arguments on their behalf. As a co-editor of the standard law textbook for journalists, Mc Nae’s Essential Law for Journalists (OUP), Hanna goes into more depth than a standard Article 10 argument and (citing Jaconelli) identifies the following rationales for openness: investigatory; scrutiny; confidence; and public education. He also identifies three rationales for ‘closed’ justice: to ensure litigants are not deterred; privacy (especially for children); and the frankness rationale (ensuring full evidence). We have little empirical research for either side, but summarise this below.

University of Oxford briefing papers (2009) 1.53 Brophy and Roberts (2009) compared the jurisdictions in Canada, New Zealand and Australia. They concluded that media reporting had not improved public legal education but that other countries had invested in providing detailed accessible information for court users. Other jurisdictions had very strict restrictions on identifying children and families. Adoption hearings were always closed. At that time, they could find no good examples of young people being consulted about media access. Access to judgments appeared to be a better source of information than media reporting. 1.54 George and Roberts (2009) examined the 2010 Bill in detail and raised many questions about its complexity and poor drafting. They were unable to find explanations of why the draft Bill differed in its apparent aims from the outcomes of the Ministry consultations; how anonymity would work; whether the bill infringed doctor-patient confidentiality; any estimate of resource implications; why ad hoc guidance was being made by judges separately to the Bill; and whether the Bill complied with Article 8 ECHR.

15

INTRODUCTION

The views of children and young people regarding media access to family courts (2010) 1.55 This study was commissioned by the Children’s Commissioner for England and undertaken by Julia Brophy. 51 children who had been subject to family proceedings were interviewed about their views on media attending and reporting family cases. Most did not think journalists should be allowed into courts and almost all felt that knowing this might happen would discourage children from confiding in a clinician or a social worker about what had happened to them. Generally, the children interviewed were very wary about the prospect of media exposure, although some did feel there might be some value in reporting circumstances that showed that a child was not to blame for what had happened in their family. About half thought that parents should not be allowed to talk to the media, but this proportion rose to 92% of children who had been involved in private law proceedings regarding the period while the case was still ongoing. There was a strong belief amongst the interviewees that children should be properly advised and consulted before media representatives were able to attend.

Family Courts Information Pilot (2011) 1.56 The pilot (referred to above) was reviewed by the Ministry of Justice and Mavis Maclean of University of Oxford. They found that there had been no press interest in the pilot cases, nor any apparent take-up by families involved nor the general public. The judgments were, however, being read mainly by practitioners and professionals for training and research purposes. On the basis of costing the publication of 148 cases, it was estimated that national roll-out would cost in the region of £500,000 for that year. The evaluation concluded that BAILII, at that time, was very difficult to navigate and offered little guidance to a lay reader on what to look for.

Brophy/ALC reports (2014–2016) 1.57 Three reports have been published by the Association of Lawyers for Children, written by Julia Brophy, the first two in partnership with the National Youth Advocacy Service (NYAS). Safeguarding; privacy and respect for children and young people (July 2014) responded to the President’s January 2014 practice guidance. This work was undertaken with a group of young people who, despite some scepticism about media coverage of courts and doubts about the operation of the guidance, put forward a number of positive suggestions to improve public legal education, involve young people in policy and development, and focus on children’s rights in individual cases. 1.58 In A review of anonymised judgments on Bailii: Children, privacy and ‘jigsaw identification’ (November 2015) a group of young people had undertaken exercises in reading a sample of judgments on BAILII and were able to identify certain types of information such as location of children and families, children’s ages and dates of birth, details of abuse or health problems of parents, which, when pieced 16

INTRODUCTION together, may have made children vulnerable to identification. This risk of ‘jigsaw identification' was especially acute alongside news websites and social media. The report called for urgent reconsideration of the risks of jigsaw identification in the cases appearing on BAILII. This research is sometimes mis-quoted as the young team actually identifying a worryingly high number of children after reading BAILII judgments. This was not what was reported; but that there was a significant risk that a child might be identified from what was available. 1.59 Brophy followed the 2015 report with a project aimed at reducing these risks, reported as Anonymisation and Avoidance of the Identification of Children (July 2016). This report included ‘draft guidance’ for judges in better anonymisation. It made clear that this guidance awaited consideration by the President, but (as at the date of writing) his view is still awaited. 1.60 In Re J (A Minor) [2016] EWHC 2595 (Fam) (21 October 2016) Hayden J, when asked to approve the publication only of a ‘denuded’ summary of the case in light of the guidance, said: ‘There is no doubt that Dr Brophy’s research is, as one would expect, very child focused. I am concerned however that in expressing her aim to be striking “a better balance between the policy that more judgments should be published” and the concerns of “young people” about “deeply distressing” information “in the public arena”, Dr Brophy has lost sight of the legal framework that requires to be applied in any decision concerning publication. We are not concerned merely with a “policy”, to publish more judgments, rather we are applying the obligations imposed by Article 10 and Article 8 ECHR … whilst Dr Brophy’s detailed suggestions are helpful when addressing the proportionality of intervention in a particular case, they must not be regarded as constructing a paternalistic presumption of privacy for every child in every case. I am sure she did not intend that her work be construed in this way. In a mature family justice system the weight afforded to the right to freedom of expression must be recognised and engaged with.’ (paras 37–38)

Cardiff University evaluation of the President’s guidance 1.61 Doughty, Twaite and Magrath (funded by the Nuffield Foundation) undertook an evaluation of the President’s guidance (2017). They found wide variations in judicial responses to the practice guidance, making the likelihood of a judgment by a circuit judge being sent to BAILII something of a postcode lottery. Although this research did not find any instances of a child being identified or being distressed by publication, the potential risk was the prevailing concern amongst judges and professionals. However, the comparatively low rate of publication meant that children tended not to be consulted about the possibility that a judgment about them could (or indeed in some instances, should) appear on BAILII in due course, where it would be skimmed for newsworthiness by journalists. The researchers did, however, find and report some instances of serious failures to redact or anonymise, which led to the President’s protocol for notifying such errors, as we discuss in Chapter 4. 17

INTRODUCTION 1.62 Implications of these research studies and what may be on the policy horizon are picked up in Chapter 8.

PRACTICE POINTS 1.63 This chapter has highlighted the unsatisfactory nature of the current law regarding access to and reporting of family court proceedings because of complexity and uncertainty that results from an incoherent body of law, polarised views and failed attempts at reform. 1.64 Practitioners and journalists are still working within the legislative provisions of the 1960 and 1989 legislation, subject to rules and guidance that encourage more openness. 1.65 Application of the balancing exercise between rights of privacy and freedom of expression will be fact-specific but the increased availability of judgements published on BAILII offer a guide to the principles. 1.66 The unresolved problem of potential ‘jigsaw identification’ defeating attempts at anonymisation of children and families continues to be one of the main barriers to achieving consistent practice in transparency.

REFERENCES 1.67 J Brophy The views of children and young people regarding media access to family courts. (The Children’s Commissioner for England, 2010). J Brophy and C Roberts ‘Openness and transparency’ in family courts: what the experiences of other countries tells us about reform in England and Wales (University of Oxford, May 2009). J Brophy, K Perry, A Prescott and C Renouf, Safeguarding; privacy and respect for children and young people (ALC/NYAS, July 2014). J Brophy, K Perry and E Harrison, A review of anonymised judgments on Bailii: Children, privacy and ‘jigsaw identification’ (ALC/NYAS, November 2015). J Brophy, Anonymisation and Avoidance of the Identification of Children (ALC, July 2016). D Calcutt, Review of Press Self-Regulation (Department of National Heritage, Cm 2135. 1993).

18

INTRODUCTION Department for Constitutional Affairs Confidence and confidentiality: Improving transparency and privacy in family courts (Cm 6886. 2006). J Doughty, A Twaite and P Magrath, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people (Cardiff University, March 2017). R George and C Roberts, The Media and Family courts – key information and questions about the Children, Schools and Families Bill (University of Oxford, December 2009). M Hanna, ‘Irreconcilable Differences: The Attempts to Increase Media Coverage of Family Courts in England and Wales’ (2011) 4(2) Journal of Media Law 274–301. J Jaconelli, Open Justice (OUP, 2002). Law Commission, Report on the Powers of Appeal Courts to sit in private and the restrictions upon publicity in domestic proceedings (1966) Law Com 8 pp 6–7. A McFarlane, Keynote Address to the Resolution Conference, 20 March 2009. Ministry of Justice, Family Justice in View (Cm 7502. December 2008). Ministry of Justice, Family Courts Information Pilot November 2009–December 2010 (August 2011). J Munby, ‘Lost Opportunities: Law Reform and Transparency in the Family Courts’ The Hershman-Levy Memorial Lecture 1 July 2010 (available on the Association of Lawyers for Children website). L Reed, ‘Publication of Information: Children, Schools and Families Act 2010’ (2010) Family Law 708. J Rozenberg, ‘Why newspapers lack interest in court reporting’ Law Society Gazette 26 November 2009. DJ Solove, ‘Conceptualising Privacy’ California Law Review 90(4) (2002) 1087. A Westin, Privacy and Freedom (Atheneum, 1967). A Wolanski and K Wilson, The Family Courts: Media Access and Reporting (Judicial College/Society of Editors, 2011).

19

20

Chapter 2

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS

KEY ISSUES 2.01 ●● Who can attend a family court hearing 2.15–2.34 ●● Who can access documents 2.35–2.57 ●● How restrictions apply to publishing in different types of cases: –– Divorce and matrimonial proceedings 2.58–2.64 –– Financial remedies 2.65–2.81 –– Special protection of children’s privacy 2.82–2.144 –– ToLATA 2.145–2.147 –– Family Law Act 1996 Part IV proceedings 2.148–2.158 –– Appeals 2.159–2.169 ●● Alternative dispute resolution 2.170

KEY RESOURCES 2.02 ●● Administration of Justice Act 1960. ●● Children Act 1989. ●● Family Procedure Rules (FPR) 2010, Pt 7; Pt 12: 12.72–12.75; Pt 27: 27.10–27.11

21

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS ●● Practice Directions 9B, 12G, 14E, 27B. ●● The Transparency Project Publication of Family Court Judgments: a guidance note for families and professionals (2017) (Appendix 2). ●● Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam), [2014] 1 WLR 230 (The 2014 Guidance).

2.03 In this chapter, we explain who can attend hearings and we set out the standard restrictions on using and publishing information from family court proceedings. In Chapter 3, we deal with ways in which these restrictions can be varied, lifted or strengthened at the discretion of the court.

FAMILY COURT HEARINGS IN GENERAL 2.04 Unlike most courts where proceedings are usually held in open court, that is, in public, the opposite is true in family courts. The majority of hearings in family courts and the Family Division are held in private. The few categories of hearing that are generally held in open court (unless directed otherwise) are: 1. Declarations of divorce, nullity and judicial separation and any contested hearings in relation to these (FPR, Pt 7). 2. Committal applications (see Chapter 6). 3. Matters concerning the exercise of the inherent jurisdiction in respect of serious medical treatment of children are usually dealt with in open court, subject often (but not always) to reporting restrictions to maintain anonymity. 2.05 Hearings held in open court can be attended by the general public, and can be reported on, subject to the restrictions to ensure the fair administration of justice that are imposed on all court proceedings by the Contempt of Court Act (CCA) 1981. All court proceedings are also subject to a bar on audio recording (CCA 1991, s 9) and photography or drawing (Criminal Justice Act (CJA) 1925, s 41) as explained below. Even where the family court sits in open court there are also some specific restrictions on what can be reported, as we explain from 2.64 below. 2.06 It is possible for the court to sit in open court but to withhold a name or particular matter from the public. Where the court does so, CCA 1981, s 11 provides that it may impose reporting restrictions: ‘In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.’ 22

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS See DE v AB [2014] EWCA Civ 1064; [2015] 1 FLR 1119 for an example of this power being used. 2.07 Although the FPR do not give the Family Court a specific power to withhold a name from the public (because most proceedings are expected to be in private) it is clear that the court has such a power in order to properly discharge its duties in respect of Article 8 and Article 6 under the Human Rights Act (HRA) 1998, s 6. We would therefore argue that s 11 is available but, in any event, the inherent jurisdiction is exercisable to achieve the same effect. Such an order would need to be contra mundum to be effective. In DE v AB [2014] EWCA Civ 1064 (24 July 2014) Ryder LJ said at para 17: ‘… since the Spycatcher principle is based on the imperative of preserving the status quo until the conclusion of a trial, it follows that it no longer applies once the trial is over and judgment has been given: see Jockey Club v Buffham [2002] EWHC 1866 … Further, the Spycatcher principle could not operate to prevent the publication of matters referred to in open court. If such publication is to be prevented, either the court must sit in private, or an order contra mundum must be made.’ We deal in Chapter 3 (3.43) with the requirement for notice to be given to the media where a contra mundum order is sought. 2.08 The identity of any child concerned in any proceedings (other than criminal proceedings) may be protected by an order under the Children and Young Persons Act (CYPA) 1933, s 39 (see Chapter 7 (7.61), although it is unlikely this would be required in a family court because of the statutory protection in family proceedings that we explain in this chapter.

Section 41 Criminal Justice Act 1925 2.09 CJA, s 41 makes it an offence to take photographs in court in most circumstances, specifically where the photograph is of a judge, juror, witness or party. It also prohibits the publication of any such photograph or any drawing made of those persons in court. Although the section doesn’t prohibit photography per se, it is likely to be a contempt in the face of the court to take photographs whilst the court is sitting. The photographs which are prohibited are those which are taken or made in the court room or building, or in the precincts of the court, or which are made of the person while he is entering or leaving the court–room or any such building or precincts. 2.10 A video recording of a court hearing is also prohibited by this provision, since a video is in essence a series of photographs.1 1

Anomalously, this seems to cover the taking of photographs of children at adoption celebration ceremonies, even though they are not taken for publication. Although there is a caveat in the section in respect of sketches made ‘with a view to publication’, the construction for the section

23

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS

Section 9 Contempt of Court Act 1981 2.11 Section 9 prohibits the making or publication of sound recordings in respect of court hearings. There are exceptions for the purposes of the official court recording equipment, and the court has the power to give permission to record where appropriate. In fact, the section prohibits the bringing into court of a device for recording sound without the leave of the court. Whilst this would now obviously cover mobile phones, laptops and tablets as well as dictaphones, the court routinely permits the parties and legal representatives to bring their phones into court provided they are on silent and not used to record. Indeed, with the increase in electronic bundles and the use of email, it is essential to the smooth operation of proceedings that advocates at least are permitted electronic devices in the court room. 2.12 The court’s discretion is a general one, and it is permitted to impose conditions. So, for example, the court may permit a party with a particular physical or learning disability to make a recording instead of notes, for later playback to help them remember what has been said, or it may grant a journalist permission to record a hearing to ensure accuracy, on condition that the recording is not published or distributed. 2.13 Section 9 in effect renders the making of a video recording of a hearing or part of a hearing a contempt because it incorporates an audio recording. Thus, the various covert videos of court hearings which can easily be found on YouTube probably amount to both a contempt of court pursuant to CCA 1981, s 9 and a criminal offence under CJA 1925, s 41. 2.14 This provision is disapplied in the Court of Appeal for the purposes of the Court of Appeal (Recording and Broadcasting) Order 2013: the Court of Appeal (Recording and Broadcasting) Order 2013, SI 2013/2786, art 4.

Who can attend family hearings held in private 2.15 The rules on who can attend private hearings are now found in the Family Procedure Rules (FPR) 2010, r 27.10–27.11, which came into effect on 6 April 2011.2 2.16 FPR 2010, r 27.10 provides that proceedings to which the rules apply will be held in private, except where the rules (for example in Pt 7 of the rules: Matrimonial and Civil Partnership Proceedings or Pt 37: Contempt of Court) or

2

does not apply this exception to photographs. The answer in theory may lie in the Crime and Courts Act (CCA) 2013, s 32 which empowers the Lord Chancellor to make exceptions, or a judge to make a specific direction, but it appears the Lord Chancellor has not acted and it seems likely that the provisions of s 41 may be sometimes overlooked in this respect. The original rule was the Family Proceedings Rules 1991, r 4; this was amended with the introduction of r 10.23, allowing the media to attend from April 2009. The rules were renamed ‘Procedure’, from the original ‘Proceedings’ rules drafted with the introduction of the Children Act 1989.

24

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS other legislation provides otherwise, or the court so directs. It is explained in r 27.10(2) that ‘in private’ means proceedings at which the general public have no right to be present. 2.17

Rule 27.11(2) sets out who can attend a private family court hearing:

(a) an officer of the court (judges; lawyers; court staff); (b) a party to the proceedings; (c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf; (d) a Cafcass or Cafcass Cymru officer; (e) a witness (although the rule does not affect any power of the court to direct that witnesses shall be excluded from the hearing until they are called to give their evidence (r 23.11(6)); (f) duly accredited representatives organisations; and

of

news

gathering

and

reporting

(g) any other person whom the court permits to be present. 2.18 ‘Duly accredited’ in FPR, r 27.11(2)(f) refers to accreditation in accordance with any administrative scheme currently approved (FPR, r 27.10(7)). At present, the approved scheme is that the media representative must hold a press card issued by an organisation authorised by the UK Press Card Authority. To be eligible for such a card, the applicant must be wholly or significantly concerned professionally as a media worker who needs to identify herself in public; she must earn most or all of her income on the front-line of the news business. The organisations that can issue the cards include the National Union of Journalists and large broadcasters like the BBC and ITV. 2.19 The most common category of person permitted to attend under FPR, r 27.11(2)(g) is that of Mckenzie friends, but it might also include non-accredited media representatives and law reporters (who may not hold press cards). 2.20 The court has discretion to order a variation in the attendance of anyone described above, under FPR, r 27.11(3), where the court is satisfied that: ‘(a) this is necessary— (i)

in the interests of any child concerned in, or connected with, the proceedings;

(ii)

for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii) for the orderly conduct of the proceedings; or (b) justice will otherwise be impeded or prejudiced.’ 2.21 Under FPR, r 27.11(4), the court may exercise the power in para (3) of its own initiative or pursuant to representations made by any of the persons listed 25

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS in para (5), and in either case having given to any person within para (2)(f) who is in attendance an opportunity to make representations. Paragraph 5 states that ‘at any stage of the proceedings, the following persons may make representations to the court regarding restricting the attendance of the media in accordance with paragraph (3)— (a) a party to the proceedings; (b) any witness in the proceedings; (c) where appointed, any children’s guardian; (d) where appointed, a Cafcass or Cafcass Cymru officer, on behalf of the child the subject of the proceedings; (e) the child, if of sufficient age and understanding. There is no right to attend, under 27.11(1): (a) hearings conducted for the purpose of judicially assisted conciliation or negotiation; (b) proceedings under— (i)

Part 13 (section 54 of the Human Fertilisation and Embryology Act 2008);

(ii) Part 14 (applications in adoption, placement and related proceedings).’ 2.22 So, the media do not have a right to attend dispute resolution hearings  – which would include a dispute resolution appointment (DRA), first hearing dispute resolution appointment (FHDRA) (to the extent that the judge plays an active part in the conciliation process PD27B para 2.1) or financial dispute resolution appointment (FDR) – but PD27B para 2.1 specifically provides that they may attend Issues Resolution Hearings (IRH) in public law cases (PD27B para 2.1). This reflects the function of these processes as alternative dispute resolution by means other than adversarial trial, which has traditionally been privileged and must encourage free exchange of information in order to be effective. Nor can the media, as of right, attend a hearing in parental order applications. There is judicial discretion to allow attendance although it seems unlikely to be requested. 2.23 The effect of the wording of FPR, r 27.11(1)(b)(ii) is less clear than FPR, r 27.11(1)(a) and (b)(i). Policy papers issued on transparency have tended to suggest that stand-alone adoption hearings would always be strongly protected by privacy rules, for obvious reasons. However, it is now common to consolidate applications for placement orders with the associated care proceedings. The question therefore arises as to whether a final hearing on care and placement falls within sub-section (ii) giving the media no right to attend, or is to be treated as other children proceedings where the media are permitted. Part 12 of the FPR governs care proceedings and Pt 14 (where there are no rules allowing media 26

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS attendance) governs placement and adoption. There are differing views on this but we suggest the starting point should be that the media are permitted. It appears that when the new rules first came into force in 2009, the then President of the Family Division, Sir Mark Potter, took a similar view: ‘… a question has arisen about the extent to which media representatives are entitled to attend care proceedings when heard together with an application for a placement order and whether the existence of a concurrent placement application should, by itself, be treated as a reason to exclude representatives of the media from hearings in the linked care proceedings, where a direction for non-attendance would not otherwise be justified on the limited grounds set out in rule 10.28(4) of the Family Proceedings Rules 1991 (‘FPR 1991’). 4.

The changes introduced by FPR 1991, r 10.28 (and in the magistrates’ court by the Family Proceedings Courts (Children Act 1989) Rules 1991, r 16A) do not affect proceedings under the Adoption and Children Act 2002, which are governed by the Family Procedure (Adoption) Rules 2005. These have not been amended in parallel with the Family Proceedings Rules to cater for the attendance of media representatives in relation to placement order applications in care proceedings.

5. Thus, representatives of the media are not entitled as of right to attend hearings in adoption or placement proceedings held in private. Nonetheless, in the High Court and county courts, the court has a discretion to allow them to be present. 6.

The personal and confidential nature of proceedings for an adoption order means that it would not generally be appropriate for the court to permit media representatives to be present at an adoption hearing. However, the same considerations do not usually apply in proceedings for a placement order and, in such proceedings in the High Court or a county court, the court may consider it appropriate to allow media representatives to be present.

7. In particular, where an application for a placement order is heard together with care proceedings, the court should, when considering whether to admit media representatives, take into account their general right to attend hearings in care proceedings. In such a case, it would normally be appropriate for the court to allow representatives of the media to be present, unless a direction under FPR 1991, r 10.28(4) is necessary in relation to the care proceedings or there is some feature of the placement application which means that media representatives should not be present (for example, where there is a need to preserve the confidentiality of a proposed placement or where the interests of a prospective adopter or other person who is not before the court may be adversely affected by the attendance of the media). The existence of a placement application should not, by itself, be treated as a reason for making a direction under FPR 1991, r 10.28(4) excluding the attendance of media representatives in respect 27

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS of the care proceedings. [NB This is a second piece of guidance issued in the month of April 2009, and follows on from that issued on 22 April 2009 which is now largely embodied in PD27B.’3 2.24 Although it does not appear to have arisen since 2009, representatives of the parties ought to be prepared to deal with this issue, if and when it arises, as it appears to remain a lacuna in the rules. If the parties have any concerns about potential media attendance, it would be wise to draft the order effecting consolidation so as to make clear whether proceedings are to proceed under FPR, Pt 14 or Pt 12. 2.25 The rules themselves give no power to admit persons other than parties or legal representatives where FPR, r 27.11 is disapplied (as in Pt 14 proceedings), because the general discretion under FPR, r 27.11(2)(g) is also disapplied, but we suggest this too is an oversight on the part of the drafters which can be remedied by reference to the overriding objective and the courts’ broad case management powers under FPR, r 4.1(3)(o).

Excluding the media from attendance 2.26 Guidance on applications to exclude the media (now an application under FPR, r 27.11(3)) was given in Re X (A Child) (Residence and Contact: Rights of Media Attendance) [2009] EWHC 1728 (Fam); [2009] 2 FLR 1467, heard at the Royal Courts of Justice in the first week that journalists were allowed to attend in 2009. This was a successful application on behalf of the child to exclude the media from a hearing, under what was then Family Proceedings Rules 1991, r 10.28(4)(b). A celebrity father was in dispute with his child’s mother about residence and contact. Having heard evidence from a child psychiatrist and social workers about the further distress that would be caused to the child by increased publicity, Mark Potter P weighed the rights and interests of the media with those of the child. He concluded that, as there was danger of information leaking out if the media attended, the reporting restrictions that he could impose would be insufficient to protect the child’s identity. Cases concerning the children of celebrities were no different in principle from those involving any other children, and in cases involving r 10.28(4), the focus of the court would be on the children’s interests and not the parents’ interests. Media attention would be more intense in the case of children of celebrities, and their need for protection from intrusion and the danger of leakage to the public would also be more intense. 2.27 With regard to procedure, Potter P added that an applicant wishing to exclude the media should raise the matter with the court before a substantive hearing, for consideration of the need to notify the media in advance of the proposed application (as now covered in PD27B, para 6).

3

This note, entitled: President’s Guidance Note: Care Proceedings involving placement order applications – Attendance of the Media now appears only to be available on the Family Law Week website. www.familylawweek.co.uk/site.aspx?i=ed35010.

28

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.28 A more recent application to exclude the media from proceedings concerned the surviving children of an internationally notorious crime; their parents and grandmother had been shot and killed in France by persons unknown. In Re Al-Hilli (Reporting Restrictions), also known as: Surrey CC v Al-Hilli [2013] EWHC 2190 (Fam); [2014] 1 FLR 403, the chief constable of police had been joined in care proceedings and applied under FPR 2010, r 27.11(3)(a)(ii) for the media to be excluded from those proceedings. Applying the principles in Re Child X, above, Baker J held that there was no risk to the children’s Article 8 (or Article 6) rights posed by media attendance. There was, by this stage, no real and immediate threat to their safety, although there may have been just after the family had been killed. He pointed that the rules and practice direction were flexible and can be revisited at any time during the proceedings, should circumstances change. 2.29 Although the courts might be reluctant to exclude the media, and will do so only if the limited grounds set out in r 27.11(3) are made out (PD27B para 2.1–2.3), it has been suggested that the shortage of court reporters, and the risk that they might waste time by going to court but not being able to publish anything, discourages attendance in any event. 2.30 An example of the efforts that can be made to ensure that hearings that are of genuine public interest are made accessible to the press is Re HK (A Child) (Serious Medical Treatment), also known as: An NHS Hospital Trust v GM, DK, HK (by his children’s guardian) [2017] EWHC 1710 (Fam), where the Press Association had been contacted by Baker J to join an urgent telephone hearing. As he explained para 18: ‘… it seemed plain that the order that I was being invited to make was a substantive order in respect of H’s medical treatment and that such a hearing should ordinarily take place in open court. There is no good reason why that should not apply in respect of a telephone hearing. Where possible, it is important that the press are able to attend in some form at least all such hearings including those over the telephone … I took the view that, in these urgent circumstances, it was important for the hearing to take place in public subject to a reporting restriction order which precludes at this stage identification not only of the child and the family but also of the Trust and the treating clinicians. Accordingly that is the order that is in place at the moment. As I have said, it may be amended in due course.’ Although this was not a hearing held in private, it is a clear indicator of the general move toward ensuring the involvement of trusted media sources in cases where public understanding is desirable. 2.31 FPR 2010, rr 27.10 and 27.11 are supported by PD27B which emphasises that journalists in attendance have no right to read court documents. PD27B also sets out guidance on making representations for attendance or exclusion from attendance including, where it is sought to exclude the media, the need in certain circumstances to give notice to the media via the Press Association’s Media Lawyer Injunctions Application Alert Service (explained in Chapter 3 at 3.44–3.49. 29

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS

Status of a hearing attended by the media 2.32 If there are journalists or others in court under rules 27.11(2)(f) and (g), a question arises as to whether the hearing is still being held ‘in private’, given that it might be more accurate to say that the matter is being held in open court with the public excluded. The term ‘in private’ is relevant because it is used in the Administration of Justice Act 1960, s 12, explained below. In Norfolk CC v Webster [2006] EWHC 2733 (Fam) Munby J (as he then was) had suggested at para 121 that allowing the media in to a hearing might mean it stopped it being held ‘in private’. However, that comment was made before the rule change in 2009 and any hopes that the media might have had that s 12 was no longer applicable were swiftly dashed, as observed by Sir Andrew McFarlane in a speech to Resolution in March 2009, ‘The current law on reporting restrictions will remain in force and un-amended to accommodate the insertion of the media into the courtroom’. 2.33 More recently, in X v X (Anonymisation) [2016] EWHC 3512 (Fam), Munby P observed that the prohibition on publishing in s 12 applied equally whether or not the information or the document being published had been anonymised. Removing identifying details does not mean that the information is no longer ‘related to proceedings held in private’. 2.34 In summary, only hearings held in open court may be attended by the public, but accredited media representatives are entitled to also attend most hearings held in private. The rules allow variations of this starting position, at the court’s discretion, in individual cases. Being in attendance, however, does not necessarily equate to free rein over what information can then be shared or published, but the parameters will differ depending on the type of family proceedings in question, as we explain more fully below.

Access to court documents by the media and others 2.35 There is no general right of access to documents filed or referred to in the course of family proceedings other than to the parties themselves.4 PD27B makes clear that even where the media are permitted to attend a private hearing this does not entitle them to sight of documents referred to. FPR, r 29.12 sets out the general position that no document lodged with the court office shall be open to inspection by any person (other than a party or their legal representative)

4

Note that whilst many adult children seeking information about the proceedings relating to them will therefore be able to access court records as parties (and PD14 sets out a specific process for adopted adults), those who were subject children in private law proceedings who were not made parties currently cannot. Discussions were held at the Family Procedure Rules Committee on 3 April 2017 in an attempt to resolve this anomaly but at the time of writing it remains, although adult children can obtain redacted records by means of a subject access request under the Data Protection Act (DPA) 1998.

30

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS without the permission of the court5,6. In 2015 the rule was amended to clarify that it applied to copies of documents as well as originals (Family Procedure (Amendment No 3) Rules 2015 (SI 2015/1868)). 2.36 The parties themselves may not disclose documents in children proceedings to third parties save as provided for in FPR, rr 12.73, 12.75 and PD12G/PD14E. With regard to adoption, PD14E on communication of information is different in some respects from PD12G. 2.37 Different rules and considerations apply in respect of financial remedy proceedings and Family Law Act 1996, Pt IV proceedings, and in the Court of Appeal as we set out below.

Divorce, dissolution and financial remedy 2.38 FPR, r 22.19 provides that in matrimonial and civil partnership proceedings (which are generally held in public) a witness statement which stands as evidence in chief is open to inspection during the course of the final hearing (unless the court directs otherwise). The rule sets out the limited circumstances in which the court may refuse the inspection. This rule will only bite in the small number of contested divorce or civil partnership hearings in open court and not on financial remedy proceedings. This provision exactly mirrors the position in civil proceedings set out at Civil Procedure Rules (CPR), r 32.13 and accordingly also applies to Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) proceedings. 2.39 FPR, r 22.20 provides that in both matrimonial and civil partnership proceedings and financial remedy proceedings held in private a witness statement may not be used for any collateral purpose (but see PD9B which specifically permits disclosure by a party in connection with Child Support Act 1991 matters). It is arguable that this prevents the publication by the parties or any third party of a witness statement or the contents of it, and that this will include Form E and associated exhibits. 2.40 FPR, r 7.20 permits inspection of the certificate of entitlement to a decree, the decree itself and the evidence that was filed under FPR, r 7.19(4),

5

6

There are very limited exceptions to what a party may inspect such as adoption documentation – although there is a specific entitlement for an adopted adult to receive various documents concerning his adoption. In July 2017, apparently in light of an Information Commissioners Office decision about subject access requests, the Lord Chief Justice updated guidance to the Judiciary on Data Protection to reflect that ‘there are limited circumstances in which at least part of [a judge’s] notes may fall to be disclosed as a result of the provisions of the DPA 1998. The right is not to receive a copy of a particular document, even one that is redacted to remove references to the personal data of other people. The right is to receive a copy of personal data held in an intelligible format’, but reaffirming that ‘Deliberations are not the personal data of a party in a case’. There is no published judgment but see The Panopticon blog for a copy of the decision letter and useful discussion: https://panopticonblog.com/2017/07/11/disclosure-judges-handwritten-notes-ico-speaks/.

31

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS that is, the statement in support of the decree being made – not the petition or response. 2.41 In financial remedy proceedings FPR, r 9.46 and PD9B set out the limited circumstance in which a party may safely disclose information without being in contempt of court, but see further discussion regarding the implied undertaking and the Judicial Proceedings (Regulation of Reports) Act 1926 below at 2.58 and 2.71.

Civil and Family Law Act 1996 proceedings 2.42 The distinct positions in civil and FLA proceedings are set out below at 2.145 and 2.148 respectively.

Judgments 2.43 A legal representative must not distribute an unapproved draft judgment to the lay party or beyond until it has been handed down or without the permission of the court (See O’Connell v Rollings & Ors (Administrators of Musion Systems Ltd) [2014] EWCA Civ 806 and Crown Prosecution Service v P [2007] EWHC 1144 (Admin); [2008]1 WLR 1024). FPR, r 12.73 makes clear that ‘nothing in rule 12.75 and PD 12G permits the disclosure of an unapproved draft judgment handed down by any court’.

Court Orders 2.44 Even in children proceedings, an order is publishable unless expressly prohibited (but subject to the other restrictions regarding the anonymity of the child) (AJA 1960, s 12(2)). 2.45 Whilst the standard Child Arrangements Programme (CAP) templates and Case Management Order (CMO) templates orders do expressly prohibit the disclosure in public of the names of any party mentioned in the order, they contain no general prohibition on publication as standard. Given the tendency for orders to include recitals touching on substantive issues it may be necessary in some instances for the court to make a specific order prohibiting publication of the terms of the order. 2.46 FPR, r 29.12 provides that a copy of an order made in open court will be issued to any person who requests it.

Power of court to release documents 2.47 Notwithstanding the default position under the FPR, the court does retain a power to order disclosure of documents to the media on application, 32

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS notwithstanding para 2.3 of PD27B (which predates two decisions dealing with the release of documents lodged or referred to in the course of civil proceedings NAB v Serco ([2014] EWHC 1225 (QB) and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618). 2.48 In Norfolk County Council v Webster [2006] EWHC 2898 (Fam); [2007] 2 FLR 415 (See Case Study 3, Appendix 1) Munby J said: ‘[42] Today in the Family Division, as in [other courts], we have a system under which many matters that would in the days of purely oral advocacy have been spoken in court by counsel are now set out in written documents, prepared by counsel, which are pre-read by the judge before the hearing and which are therefore not read out in court during the hearing. […] [43] But it is vital that this wholesome move in the direction of an enhanced degree of written advocacy … should not be allowed to damage the vital public interest in open justice. If the media are to be permitted to attend a hearing such as that which took place on 3 November 2006 (and, for the reasons I gave in Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) [2007] 1 FLR 1146, it was very much in the public interest that they should be) then the very same public interest requires, in my judgment, that the media should be allowed to see [certain specific] documents …’ If not, Munby J continued, still at [43]: ‘the ability of the public, to understand what took place during the hearing would be severely compromised. This outcome would defeat the very purpose of permitting the media to be present’. 2.49 One recent example of the release of documents to the media was in the (proceedings concerning the surviving sibling(s) of Poppi Worthington, (Cumbria County Council v M and F [2014] EWHC 2596 (Fam) see Case Study 7, Appendix 1). Peter Jackson J (as he then was) permitted disclosure of the factfinding judgment of which he had deferred publication of pending criminal investigations – only to identified legal advisers to the media for an identified purpose and subject to strict controls. The media lawyers needed to know the nature of the court’s findings to allow them to consider the justification for the continuing reporting restrictions on an informed basis and to formulate their position. The restrictions imposed were [at 21]: ‘(1) Before disclosure takes place, a senior legal adviser in each of the seven participating media organisations must give this written undertaking to the court: (i) That the copy of the judgment that they will receive will be kept in a secure place within the legal department. It will not be photocopied, e-mailed or put into any electronic form. 33

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS (ii) That the judgment is to be read only by legal advisers for the purpose of considering whether to make any application in relation to the reporting restriction order or other issues concerning disclosure of information from the proceedings. (iii) That it is understood that it will be a contempt of court giving rise to criminal penalties if this undertaking is breached. (2) Upon receiving the undertakings from the relevant individual at each organisation, the judgment will be sent electronically by my clerk to each of those specific individuals. The lawyer at the relevant organisation can confirm that the electronic copy will be deleted, once a copy has been printed and that they will only save a hard copy of the document, in the terms set out above at paragraph 21(1)(i).’ 2.50

Later, at the re-hearing of the fact finding, Jackson J ordered that:

‘Any media representative who attends will be provided with the full 2014 judgment, the medical reports, the minutes of the experts’ meetings, the schedules of agreement and disagreement and the summary of medical evidence. These documents are for information, to assist with understanding the course of the hearing, and they are not for publication. They can be removed from court but they are to be kept safe and are not to be copied or given to others.’ F v Cumbria County Council [2016] EWHC 14 (Fam); [2016] Fam Law 277 at [37]. 2.51 On appeal of this decision, in Re W [2016] EWCA Civ 113; [2016] 4 WLR 39, Peter Jackson J was largely upheld, although McFarlane LJ expressed considerable unease at the level of openness, acknowledging however the extremely unusual circumstances of the case. 2.52 One side effect of the court sitting in public in financial remedies proceedings, as a minority of the High Court Bench prefer to do, is that the balance of arguments vis a vis access to and use of documents may shift, that is to say, a judge might be more likely to exercise the discretion to permit access to documents to which the media are not automatically entitled, by way of analogy with civil proceedings or otherwise.

Disclosure for possible use in criminal proceedings or to regulatory or prosecuting authorities 2.53 The Children Act (CA) 1989, s 98 provides limited protection to parents in public law proceedings only in terms of the use to which their evidence may be put in criminal proceeding if disclosed. For a useful exposition of the issues in this area and its impact upon decisions regarding the disclosure of documents to the police or prosecuting authorities, including a consideration of the impact of a change in attitude towards transparency over recent years see the judgment of 34

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS Baker J in X And Y (Children: Disclosure of Judgment to Police) [2014] EWHC 278 (Fam); [2015] 1 FLR 1218. 2.54 See also X, Y and Z (Disclosure to the Security Service) [2016] EWHC 2400 (Fam); [2016] 4 WLR 153, where MacDonald J set out the tensions between various competing objectives: ‘58. It is important when considering applications of this nature that the court have proper regard to the importance of maintaining confidentiality in cases concerning children, particularly during the currency of proceedings. Whilst the landscape in respect of the confidentiality of family proceedings has changed considerably since the decision in Re C (A Minor)(Care Proceedings: Disclosure) sub nom Re EC (Disclosure of Material) twenty years ago, the clear rational for maintaining confidentiality remains in terms of ensuring that publication of information which would be antithetic to the welfare of the child or prejudicial to the forensic process before the family court does not take place and in terms of encouraging those who come before the family courts to be frank with a view to achieving the best possible outcome for the child. Parliament has decided that the information that is the subject of the application before the court should, subject to certain exceptions provided by the rules of court, be confidential to the proceedings. Parliament has further decided that it is the court who should determine whether the exceptions provided by the rules of court should be deployed in a given case. 59. Within the context of this statutory framework, in a given case the court may be obliged either to refuse to order disclosure or, if disclosure is ordered, to maintain a degree of control over the manner in which confidential information disclosed is handled by those to whom it is disclosed with a view to balancing the competing rights involved. With respect to the latter, when making orders for disclosure the court can, where it considers it necessary, control how the disclosure is managed using ancillary orders to ensure that disclosure takes place in a manner that is necessary to achieve the ends for which disclosure is given whilst maintaining fidelity to the principle of confidentiality in family proceedings. Whilst, as in this case, an order permitting disclosure may be merited it may also be the case that conditions will need to be attached to that disclosure in order to achieve the proper balance between the competing principles and rights engaged by the application (Re X (Children) [2008] 1 FLR 589 at [38] and [39]). 60. Within this context, it is important to note that an order permitting disclosure or onward disclosure need not necessarily equate to dispensing completely, or even substantially, with the confidentiality of the proceedings. The rules and practice guidance governing the confidentiality of family proceedings have been constructed to enable co-operation with investigating authorities whilst ensuring that there is not indiscriminate sharing of information outside the confines of the agencies in question.’ 35

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.55 In financial remedy proceedings, judges are reluctant to permit further disclosure of evidence for the purposes of investigation into fraud, perjury or tax evasion (DE v AB [2014] EWCA Civ 1064; [2015] 1 FLR 1119. A decision at first instance Y v Z [2014] EWHC 650 (Fam); [2014] 2 FLR 1311sets out the various authorities).

Disclosure by a party to a journalist 2.56 FPR, rr 12.75(1)(c) and (d) cannot be prayed in aid to render lawful the discussion of the details of children proceedings with a journalist absent the permission of the court, and we can think of no other part of the rules which would (although as set out elsewhere in this chapter there is no prohibition on a parent telling their story if they do not give the details of what has gone on in court). See Kent County Council v B [2004] EWHC 411; [2004] 2 FLR 142, where Munby J as he then was specifically confirmed that dissemination of information or documents to a journalist amounts to publication for the purposes of s 12, discussed from 2.87 below. We discuss working with journalists at 4.172. 2.57 The provisions of FPR, rr 12.73/75 and PD12G have since given some protection to certain categories of publication identified by Munby J as prohibited at that time (see below at 2.109–2.114). The counter arguments to this proposition are that a complaint is distinct from a campaign, and that it is not necessary to go to the press in order to pursue a complaint, because various formal or statutory mechanisms are available (complaints procedures, appeals, ombudsman) and there are other democratic processes available to effect change of the law. However, this secondary legislation should probably be liberally interpreted in the light of emerging European and domestic jurisprudence regarding Article 10 ECHR and the right of the press as watchdog to receive information in the public interest (See Magyar Helsinki Bizottság v Hungary (ECHR 18030/11, 8 November 2016). What is clear is that even if FPR, r 12.75 does permit disclosure of documents to a journalist, of which we are doubtful, it does not permit onwards disclosure by way of publication in a newspaper or on a website without the express permission of the court – a fact of which most journalists and mainstream media legal teams are well aware. No doubt this is why it is comparatively rare for material to be published in the mainstream media in contravention of these rules. See 2.170 below in respect of appellate proceedings in the court of appeal.

PUBLISHING IN DIFFERENT TYPES OF FAMILY CASE Divorce, dissolution, nullity and judicial separation 2.58 The Judicial Proceedings (Regulation of Reports) Act 1926 was introduced in Parliament in response to King George V being appalled at the level of salacious details about divorce suits, brought by members of the aristocracy, available to readers of the popular press of the day (See Rapisarda v Colladon [2014] 36

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS EWFC 1406; [2015] 1 FLR 584 for an exposition of the history leading to the Act). Since Victorian times, there had been consternation amongst some in the upper classes because divorce hearings in open court, including evidence and cross examination (usually involving details of alleged adultery), had become a source of public entertainment. 2.59 Accordingly, the Judicial Proceedings (Regulation of Reports) Act 1926, s 1(1)(b) made it unlawful to print or publish anything in relation to proceedings for divorce; nullity; or judicial separation, apart from: 1. The names, addresses and occupations of parties and witnesses. 2. A concise statement of charges, defences and counter charges of which evidence has been given. 3. Submission on points of law and decisions on these. 4. The judgment and any observations by the judge on giving judgment. 2.60 The list in s 1 now appears anachronistic because divorce is largely an administrative matter, and the days of witnesses and charges are long gone. However, the 1926 Act is still in force and applies in proceedings for divorce, dissolution, nullity or judicial separation, because the decrees are read out in open court. Cretney (1997) dismissed the Act as ‘effectively a dead letter’ because evidence for the ground for divorce has long been confined to papers. However, to the extent that the Act applies to financial remedy proceedings it may not be obsolete – see 2.63 and 2.66 below. The Act has rarely been invoked, although on one occasion, the President (Sir Stephen Brown) decided that it prevented the press from publishing full details about an application by the Queen’s Proctor to set aside a divorce decree granted to Lord Moynihan, because the proceedings were effectively still ongoing (Moynihan v Moynihan [1997] 1 FLR 59). 2.61 A breach of this section is an offence punishable by a term of imprisonment  – but such an offence can only be committed by a proprietor, printer, publisher or editor, and a prosecution can only be taken by the AttorneyGeneral. 2.62 Section 1(4) exempts any communication to parties or for the purpose of bona fide law reports, which we discuss in Chapter 4. It provides: ‘(4) Nothing in this section shall apply to the printing of any pleading, transcript or evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.’ 37

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.63 Section 1(4) was considered in Rapisarda v Colladon [2014] EWFC 1406; [2015] 1 FLR 584 in relation to the ‘publishing of any notice or report in pursuance to directions given by the court’, and interpreted as giving the court a discretion that: ‘… plainly leaves the judge free to include in or exclude from his judgment whatever material he thinks fit. In that sense the judge has a discretion – and, in my judgment, a discretion which is fettered only by the dictates of the judicial conscience.’ [39] In Rapisarda, the President was sitting in open court to hear a case of petition fraud. A question arose as to the extent to which the proceedings could be published, and the court had to consider the impact of the 1926 Act on the potential reporting of the case. Under s 1(4) the President gave leave to publish the whole of the proceedings, but also commented: ‘Much more important in the real world is the ongoing uncertainty as to whether the 1926 Act applies to the reporting of ancillary relief (financial remedy) proceedings.’ [31] ‘This is truly a disturbing state of affairs. Something needs to be done, and, it might be thought, done as a matter of urgency.’ [35] ‘On the assumption that the 1926 Act perhaps applies to ancillary relief (financial remedy) proceedings, judges may in future wish to consider whether to exercise discretion in such cases under section 1(4).’ [44] 2.64 This conundrum regarding publishing from financial remedy proceedings arises from the fact that they, unlike the decree itself are normally dealt with in private, and are said to be subject to an implied undertaking of confidentiality, as discussed below at 2.65 where we discuss the applicability of s 1 to financial remedy proceedings.

Financial Remedies on Divorce etc. 2.65 This part of the chapter explains the law where there is no CA 1989 or Adoption and Children Act (ACA) 2002 application, nor is there an application about the upbringing or maintenance of a child. Therefore, the restrictions we explain later in this chapter, under CA 1989, s 97 and the Administration of Justice Act (AJA) 1960, s 12 would not apply. Although divorce petitions and other matters relating to the status of marriage or civil partnership are heard in open court, as explained at 2.04 above, other hearings held in the Family Court are held in private (unless otherwise specified) under FPR 2010, r 27.10. This privacy does not, in itself, bring them within AJA 1960, s 12 because they are not about children. We now set out those restrictions that do, nevertheless, apply in financial remedy proceedings where there are no children who would come within protective legislation. We deal with applications that may be made to vary these automatic restrictions in Chapter 3. 38

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.66 We noted above at 2.63 that the President queried in 2014 whether the Judicial Proceedings (Regulation of Reports) Act 1926 might apply to financial remedy proceedings (as opposed to merely the main suit), and whether judges might consider exercising their discretion about how much to include and exclude in their judgments under s 1(4). In Rapisarda v Colladon [2014] (above), the President considered that the more recent 1968 amendment of the 1926 Act to include failure to maintain cases within the ambit of s 1, apparently because the view was taken at that time that this was an anomaly wherein all other financial remedies were already covered. The President considered that ‘This amendment is explicable only on the basis that Parliament assumed, like the Law Commission, that other forms of what we would now think of as ancillary relief were already caught by section 1(1)(b).’ However, having noted that previous judicial comment on the subject has thus far been strictly obiter he does not go on specifically to rule on the matter, sidestepping the need to do so through his clever use of s 1(4). 2.67 The President’s invitation to other judges to exercise the newly discovered discretion under s 1(4) was taken up by Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam). She said that it was unclear whether the restrictions set out in s 1(1)(b) applied to financial remedy proceedings. The court proceeded on the assumption that the Act did apply and therefore restricted publication, apart from directions that certain categories of information could or could not be reported, exercising its discretion under s 1(4). On the other hand, Sir Michael Keehan (writing extra-judicially) takes the view that an application for financial remedy is the subject of a separate set of procedural rules from matrimonial or civil partnership orders (viz FPR, Pt 9 and Pt 7), so he doubts that the provisions of the 1926 Act apply to financial remedy proceedings (Keehan 2017). 2.68 In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam); [2016] 2 FLR 1 Mostyn J was persuaded to change his own mind about the applicability of s 1 of the 1926 Act to financial remedy proceedings: having concluded in DL v SL [2015] EWHC 2621 (Fam); [2016] 2 FLR 552, that the Act did apply to financial remedy proceedings. However, in Appleton he took the view that as s 1 was intended to apply only to proceedings heard in open court, it did not apply. 2.69 More recently, in HRS Louis Xavier Marie Guillaume Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma v HRH Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma & Anor, [2017] EWHC 3095 (Fam), [2017] 4 WLR 223, MacDonald J also considered the question of whether the JP(RP)A 1926 applies to financial remedy proceedings – but because all parties (including the media) had taken the apparently pragmatic decision not to argue the point, and because it was not strictly necessary, MacDonald J did not think it appropriate to attempt to resolve it. 2.70 Therefore, it remains unclear whether or not this provision does apply to financial remedy proceedings and it is perhaps surprising that more s 1(4) directions are not apparently made, out of an abundance of caution. However, 39

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS what has been resolved is that the JR(RP)A 1926 does not apply to appellate proceedings (Norman v Norman [2017] EWCA Civ 49). See below at 2.168. 2.71 Proceedings in the Family Court, which include applications for a financial remedy under Pt 9 of the FPR, fall under FPR, r 27.10 which states that hearings will be held in private except where the rules or any other enactment provides, or (subject to any enactment) where the court directs otherwise. 2.72 There is notable judicial divergence at High Court level as to how FPR, r 27.10 should be interpreted in practice in financial remedy matters, where there are fewer automatic restraints on publication than in children proceedings. That ongoing dispute is summarised (but not tackled) in Norman v Norman [2017] EWCA Civ 49, where at the foot of the judgment it was indicated that the issue was ‘shortly to be considered’ by the Court of Appeal (in March 2017, but there is still no news at the time of writing). 2.73 Mostyn J takes the view that financial remedy proceedings are ‘quintessentially private’ and that FPR, r 27.10 (amongst other provisions) supports this conclusion (DL v SL [2015] EWHC 2621 (Fam)), whilst Holman J takes the view that such matters should be routinely listed in open court and that FPR, r 27.10 is merely a starting point rather than a presumption – (Luckwell v Limata [2014] EWHC 502 (Fam), [2014] 2 FLR 168; Fields v Fields [2015] EWHC 1670 (Fam) [2016] 1 FLR 1186). In the article by Sir Michael Keehan referred to at 2.68 above, he commented that Holman J was probably the only ‘money’ judge in the High Court who believed that financial cases at that level should be held in open court. Keehan wrote that the rule is clear that proceedings ‘will’ be held in private and that despite the importance attached by all judges of the Division to greater openness and transparency in the family justice system, it would be ‘surprising’ if the Court of Appeal favoured a default position of public hearings for financial remedy cases. 2.74 Macdonald J in Luxembourg (above) summarised the position on attendance: that although the public have no right to be present, under FPR, r 27.11, accredited members of news gathering and reporting organisations may be present at proceedings held in private. Under FPR, r 27.11(3) media representatives may be excluded where the court is satisfied that exclusion is necessary, on the grounds set out in the rule. In Re X (A Child) (Residence & Contact – Rights of Media Attendance) [2009] EWHC 1728 (Fam); (discussed at 2.26–2.27 above), Potter P confirmed [at 56] that the reference to a ‘discretion’ to exclude media representatives in the Practice Direction was not strictly accurate, as the court has to apply a test of necessity. Notwithstanding that confirmation, the existing PD27B maintains that technical error (para 5.1). 2.75 FPR, PD27B, para 5.4 gives two specific examples of a situation where justice will otherwise be impeded or prejudiced, the first being a hearing in relation to financial matters where the information being considered by the court includes price sensitive information, such as confidential information which might affect share price of a publicly quoted company. 40

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.76 Flowing from this unresolved issue is the ancillary but important question of what material can be published. If proceedings are heard in open court pursuant to FPR, r 27.10(1)(b), prima facie nothing prevents the publication of any information gathered at such hearing, absent the imposition of a reporting restriction order (RRO) to ameliorate the impact of sitting in open court and to restore some vestige of privacy. If proceedings are heard in private, the question rises as to whether the press should be permitted to publish certain information – in the context of the privacy of proceedings and the existence of the implied undertaking of confidentiality in the compulsory disclosure of documents. The question of whether the implied undertaking binds third parties (the media) remains unresolved (Macdonald J in Luxembourg (above) at para 79). 2.77 The conventional view is that information disclosed in financial remedy proceedings remains private, even after proceedings conclude, as a result of the onerous duties of disclosure peculiar to those sorts of proceedings, giving rise to the implied undertaking (Clibbery v Allan (No 2) [2002] EWCA Civ 45; [2002] 1 FLR 565). In Clibbery, the court was clear that the prohibition is on all reporting of written or oral evidence or disclosed documents unless the permission of the court has been given. In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), a case involving celebrities Nicole Appleton and Liam Gallagher, Mostyn J expressed the firm view that the amendment of the FPR in 2009 to permit the attendance of the press did nothing to abrogate the principles set out in Clibbery in respect of the implied undertaking. Mostyn J also rejected the proposition that the implied undertaking could not bind third parties. In his view [at 9]: ‘Although section 12 of the Administration of Justice Act 1960 does not prohibit the reporting of proceedings held in private per se (unless they wholly or mainly concern children) the existence of the implied undertaking in relation to confidential information compulsorily extracted has the same effect. If a party were to walk out of court and tell the press what the other had said in the witness box then he or she would be in contempt; and, if the press were to publish it, they would be equally guilty by their complicity.’ 2.78 Mostyn J went further, and expressed the view that the starting point in financial remedy proceedings was privacy, giving two scenarios where ‘higher interests’ might ‘justify the overreaching of the confidentiality assured by the implied undertaking’ – iniquity or the need to correct false impressions and misconceived facts. In the course of his judgment, Mostyn J acknowledged that he may have been wrong in respect of the implied undertaking and its application to third-party journalists but unfortunately, the Court of Appeal have yet to consider a case that would enable them to resolve it. What can be said, however, is that the implied undertaking applies as between the parties and will be a relevant factor to be considered in the course of any Re S balancing exercise (See Chapter 1). We discuss this further in Chapter 3. 2.79 In Cooper Hohn, Roberts J said that neither r 27 nor FPR, PD27B gave explicit assistance on the extent to which the press could report what they heard 41

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS in court. They were prevented from seeing documents about which evidence was given, and one factor the court had to consider in the context of exclusion was whether reporting or disclosure restrictions would provide sufficient protection to the party seeking exclusion. She emphasised that the Practice Direction made plain that reporting and disclosure restrictions which arose by operation of law were unaffected by the rule (paras 81–90, 99). Consequently, the implied undertaking continued because of the strong public interest in ensuring that parties properly discharged their obligation to give full and frank disclosure of all documentation concerning their resources. Policy considerations supported the private nature of financial remedy proceedings. 2.80 The drafters of FPR, r 9.46 and PD9B7 set out limited permissions when a communication of information from financial remedy proceedings will not be a contempt of court. This appears to be based upon an assumption that the implied undertaking is all encompassing in its effect and capable of being enforced by way of contempt of court if breached.8 2.81 A witness statement filed in Pt 7 (Matrimonial) or Pt 9 (Financial) proceedings is not to be used for any other purpose, unless the court gives leave or the hearing was held in public (FPR, r 22.20). This rule appears to bind third parties.

Children cases Administration of Justice Act 1960, s 12 2.82 Even where the media may be present at a family court hearing in accordance with FPR 2010, r 27.11, reporting on those proceedings remains restricted. We explain how to apply to lift restrictions to allow reporting on a case, or to tighten them in Chapter 3. 2.83 Automatic restrictions on sharing information about family court cases that involve children are found in the Administration of Justice Act 1960, s 12, which relates to proceedings held in private. Effectively, because most family court hearings are held in private (even if the media are there), this section means that proceedings that relate to a child’s upbringing are subject to strict restrictions, with a prohibition on communicating most information about matters that are or were before the court. The operation and effects of s 12 will be explained in detail below, because it is essential to be aware of the nature of these restrictions. 2.84 Strict as its effect is in family courts, the section is worded as follows because it was drafted to clarify what could be communicated about court 7 8

Brought into force in 2015 by Family Procedure (Amendment No 3) Rules 2015 (SI 2015/1868). For example, if one compares PD12G (applicable to children matters) with PD9B, it appears to be the case that a party or representative may disclose papers to a regulator to deal with a complaint in children matters, but is prohibited from doing so in financial remedy proceedings. It is difficult to see a justification for this anomaly.

42

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS proceedings held in private and what would not be in contempt of court (s 1(4)). Section 12(1) did not enlarge, but liberalised, the common law by defining the limits of permissible publication (Re F (A Minor) (Publication of Information), also known as: Re A (A Minor) [1977] Fam 58; [1976] 3 WLR 813). That application had been brought by the Official Solicitor after a news report that a child had been made a ward of court. 2.85 The context is that contempt of court here is a common law contempt, which is merely described in relief by AJA, s 12. That is to say, s 12 defines what is not contempt, but does not precisely delimit what actions will in fact amount to contempt. The mere fact that a publication is not a publication permitted by s 12 in combination with the FPR 2010, Pt 12 and PD12G does not necessarily mean the publication will amount to a contempt. The question is: did the publisher know that she was giving information relating to court proceedings and that the proceedings were private proceedings? If she did not, there will be no contempt at common law even if the publication has been made outwith the protections of s 12 and the FPR. In Re F (above), Denning MR, in the minority, thought that there would be a contempt if the publisher was merely reckless, but considered that knowledge that the proceedings were prohibited by law was required, rather than merely knowledge of their essential privacy. 2.86 In other words, s 12 restated the principle of open justice from Scott v Scott [1913] AC 417 (see 1.08–1.09) by specifying that even where a court had power to hold proceedings in private, it was exceptional to treat a report on them as unlawful. Section 1(i)(a) is the most relevant provision in family law. Section 1(i)(b) relates to mental health and mental capacity cases, which we explain in Chapter 7. Sub-sections (c) and (d) relate to hearings held in private on sensitive matters of national security and commercial matters, respectively. S 12 (as amended) ‘Publication of information relating to proceedings in private. (1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say— (a) where the proceedings— (i)

relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)

are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)

otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

[…] (e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published. 43

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS (2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication. (3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers. (4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).’ Before explaining what can and cannot be published in accordance with AJA 1960, s 12, we first define ‘publication’.

The meaning of ‘publication’ in s 12 2.87 The meaning of ‘publication’ in AJA 1960, s 12 was explored by Munby J (as he then was) in Kent County Council v B [2004] EWHC 411; [2004] 2 FLR 142. He gave ‘publication’ in s 12 the same meaning as that in defamation law, which means that most forms of dissemination, whether oral or written, would constitute a publication. 2.88 In particular, Munby J found that there was a ‘publication’ within AJA 1960, s 12 even when the recipient of information disclosed was a public body or official. The case before him concerned information that a mother wanted to pass on to the General Medical Council in making a complaint about health professionals in a child protection context. The mother’s solicitor had also passed information about the care proceedings on to government ministers. None of these actions were permissible under s 12 (without court agreement). The judgment in the care proceedings, an expert witness report and other documents, and case summaries the mother had prepared, had been passed to the mother’s MP, the Solicitor General, the Minister of State for Children, as well as to journalists. All of these actions were all prohibited by s 12 and constituted prima facie contempt of court. 2.89 Munby J confirmed that there was an exception to this wide definition of publication where there was a communication of information by anyone to a child protection professional (see 2.105 below). However, his clarification that AJA 1960, s 12 prohibited communication to professional bodies and MPs highlighted areas of concern about the consequences of s 12 and led to a public consultation and the enactment of the Children Act 2004, s 62 which enabled court rules to be made to relax s 12 (by adding s 12(4)). The Explanatory Note to the Act says: ‘It is envisaged that rules of court will set out the cases in which publication of information relating to children is authorised. Being authorised by rules of 44

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS court, such publication will not constitute contempt. Subsection (2) amends section 12 of the Administration of the Justice Act 1960 to make it clear that the reference in subsection (4) to publication which does not constitute contempt includes cases where the publication is expressly authorised by rules of court.’ 2.90 The subsequent changes in the Family Proceedings Rules 1991 which eased these restrictions are now found in FPR 2010, r 12.73, which we set out in Appendix 3 and discuss at 2.109 below. 2.91 Although Kent does not specifically deal with electronic communication, social media or the internet, it is clear that by analogy many such forms of electronic communication would amount to ‘publication’ for the purposes of AJA 1960, s 12. For example, in Doncaster MBC v Haigh/Watson (various citations: see Case Study No 1, Appendix 1 and Chapter 5), distribution of information via email amounted to a publication.

Publication abroad 2.92 International communications pose practical and jurisdictional problems in enforcing s 12. These were addressed in Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam); [2014] 2 FLR 151 which concerned a 12-year-old child resident in England, who had a British father and Slovakian mother. Subsequent to care proceedings being commenced, the mother returned to Slovakia and enlisted the support of local media there. It was clarified that, in principle, an attempt by a court in England and Wales to control foreign media was not permissible and would, in any event, probably be futile. However, ‘where internet or satellite technology is involved’ matters were different because the domestic court would not be interfering with the purely internal affairs of a foreign state. In Re E, therefore, the High Court would not seek to interfere in any way with the print or broadcast media in Slovakia, or any foreign country, even if this was in English. A RRO made in relation to internet and satellite services was confined to services using the English language. The effect of the RRO was summarised as allowing the mother to publish whatever she wished in the foreign print or broadcast media or, so long as it was not in English, on the internet. 2.93 The principle of non-interference in a foreign jurisdiction was also examined in Re J (A Child) [2013] EWHC 2694 (Fam); [2014] 1 FLR 523, paras 44–65, where identification of the child was at issue (see Chapter 3 (3.15, 3.50). In that case it was said that, in principle, orders can be made against foreign internet providers – but there are notably few examples of this in published judgments.

45

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS

Information under s 12 2.94 The ‘information’ that is prohibited from publication under s 12, without leave, was itemised in Kent County Council v B [2004] EWHC 411; [2004] 2 FLR 142 as: ●● Accounts of what had gone on in front of the judge sitting in private ●● The publication of documents such as: ●● affidavits, ●● witness statements, ●● reports, ●● position statements, ●● skeleton arguments or other documents filed in the proceedings, ●● transcripts or notes of the evidence or submissions, and ●● transcripts or notes of the judgment. ●● Publication of extracts, quotations or summaries from such documents. 2.95

In 2001, Munby J had observed about wardship cases:

‘Section 12 does not operate to prevent publication of the fact that wardship proceedings are on foot, nor does it prevent identification of the parties or even of the ward himself. It does not prevent reporting of the comings and goings of the parties and witnesses, nor of 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.’ (Kelly v BBC [2001] Fam 59; [2001] 2 WLR 253, page 72.) 2.96 1497:

As he later explained in A v Ward [2010] EWHC 16 (Fam); [2010] 1 FLR

‘113. Put shortly, it is not a breach of section 12 AJA 1960 to publish a fact about a child, even if that fact is contained in documents filed in the proceedings, if what is published makes no reference to the proceedings at all. After all, as Lord Denning MR said in In re F, it is not a contempt to publish information about the child, only to publish ‘information relating to the proceedings in court’. Or, as Scarman LJ put it, ‘what is protected from publication is the proceedings of the court’. 114. In other words one has to distinguish between, on the one hand, the mere publication of a fact (fact X) and, on the other hand, the publication of fact X in the context of an account of the proceedings, or the publication of the fact (fact Y) that fact X was referred to in the 46

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS proceedings or in documents filed in the proceedings. The publication of fact X may not be a breach of section 12; the publication of fact Y will be a breach of section 12 even if the publication of fact X alone is not. 115. It follows that there is much material contained in the trial bundles … the publication of which will not involve any contempt of court under section 12 unless (and I wish to emphasise the point) the information or documents are published as part of or in the context of an account of the care proceedings or in such a way as to link them with the care proceedings – in which case there will, as I have explained, be a contempt under section 12.’ 2.97 Regarding a court judgment itself, the President explained in Re X (A  Child) (Application for Reporting Restrictions: Media Notification) [2016] EWHC 1668 (Fam) (see 2.133 below): ‘A judgment handed down in private in a Family Division or Family Court case to which section 12(1)(a) of the Administration of Justice Act 1960 applies … cannot be published without the permission of the judge. That is the effect of section 12. The judge may attach conditions to such permission.’ [2] 2.98 Only a version authorised by the judge can be published to anyone not listed in the rules as being in attendance (see Chapter 4, at 4.07 and 4.143). Nothing in FPR, r 12.75 and PD12G permits the disclosure of an unapproved draft judgment handed down by any court (FPR, r 12.73). 2.99 AJA 1960, s 12 does not prohibit publication of ‘the nature of the dispute’, nor the bare fact that an identified witness had given evidence for or against a particular party to the proceedings. It is difficult in some instances to identify a clear demarcation between a description of the nature of the dispute and publishing information that is prohibited, but the passage above from A v Ward [2010] is helpful. In cases of doubt, it is suggested that advance permission should be sought as a precaution.

Children who want to discuss proceedings 2.100 It follows that AJA 1960, s 12 prohibits a child from discussing, in public, their own views and experiences. The position where they might want to do so was considered in Kelly v BBC [2001] Fam 59; [2001] 1 FLR 197; [2000] 3 FCR 509. Bobby Kelly was 16-year-old boy who had left home, against his family’s wishes, to join a religious group known as the ‘Jesus Christians’ and had been reported missing. Because of the family’s concerns, he was made a ward of court. He got in touch with his family and the BBC to say that he wanted to be interviewed about his decision and experiences. 2.101 Munby J held that AJA 1960, s 12 was limited to protecting the privacy and confidentiality of (i) of the documents on the court file and (ii) of what has 47

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS gone on in front of the judge in his courtroom. The confidentiality of documents held by the court was also protected by r 4.23 of the Family Proceedings Rules 1991 (now broadly replicated at FPR, rr 12.73/12.75). 2.102 In his judgment, the media did not require the leave of the court either to interview a ward to publish or broadcast the interview. In publishing or broadcasting the media would have to take care to avoid any breach of AJA 1960, s 12 but, so long as they do, no contempt is committed by the media interviewing a child who is known to be a ward of court or publishing or broadcasting such an interview. 2.103 In Re Roddy (A Child) (Identification: Restriction on Publication), also known as Torbay BC v News Group Newspapers [2003] EWHC 2927 (Fam); [2004] 2 FLR 949, a 16-year-old child claimed Article 8 and 10 rights to publicise ‘information’ about her own court proceedings. The press were eager to interview her about the circumstances surrounding her pregnancy and experiences in care. She was judged to be ‘of an age, and has sufficient understanding and maturity, to decide for herself whether that which is private, personal and intimate should remain private or whether it should be shared with the whole world’. While there were complicated RROs to protect the identity of her baby and the teenage father, the Gillick approach to adolescent autonomy (Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] 1 FLR 224) was uppermost in the decision to allow her to speak to the press [paras 50–56]. (See Chapter 3 (3.20–3.62)). 2.104 Once children have grown up, they might want to discuss what happened to them. In BBC v Rochdale [2005] EWHC 2862 (Fam) the court was clear that former wards of courts who were now adult were able to waive their anonymity and participate in a television programme about social work intervention some years earlier. Ryder J confirmed that although s 12 did protect the content of evidence given by witnesses, there was no expectation that continued confidentiality was guaranteed in all circumstances, and that s 12 did not prevent the naming of witnesses in child protection cases. Rochdale had argued that the social worker and their families would be harmed personally and professionally if named; social workers as public servants working in a confidential environment should be protected by a cloak of anonymity save where there has been dishonesty or bad faith. This was rejected by Ryder J. because the anonymity had been put in place only to protect the children (See also Chapter 3, 3.30 regarding the anonymity of professionals).

Section 12 and sharing information in child protection 2.105 FPR, r 12.73(1)(a)(viii) permits a professional acting in furtherance of the protection of children to communicate information concerning the proceedings. In S v SP and Cafcass [2016] EWHC 3673 (Fam), Baker J held that ‘in furtherance of child protection’ should be interpreted broadly to give it effect as intended. The father’s application for the committal of the Cafcass officer for disclosing information to the police in breach of the rules was dismissed. 48

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.106 PD12G permits the disclosure of a judgment to the police for the purposes of a criminal investigation. However, neither provision enables the parties to make blanket disclosure of documents filed within proceedings, and an application must be made in respect of documents sought for ‘line of enquiry’ use by the police in a criminal investigation and s 98 restricts the use to which the parents’ own evidence may be put in criminal proceedings (Children Act 1989, s 98 see 2.53 above). 2.107 With regard to the police, the Court of Appeal held that because AJA 1960, s 12 was primarily intended to protect family proceedings held in private, it did not extend to documents in the possession of social workers which had neither been filed with the court nor were to be used in the relevant proceedings. It was clear from government guidance on child protection under the Children Act 1989, published in 1991,9 that the police and social services were permitted to share, in the interests of a child’s welfare, information which was confidential in the hands of each agency. Leave was not required under the Family Proceedings Rules 1991, r 4.23 (now FPR, rr 12.73 and 12.75) before documents and reports prepared by social workers could be disclosed to the police, because r 4.23 was limited to documents held by the court (Re W (Minors) (Social Worker: Disclosure) [1999] 1 WLR 205; [1998] 2 FLR 135. 2.108 However, in Re A (Criminal Proceedings: Disclosure) [1996] 1 FLR 221; [1996] Fam Law 142 (CA (Civ Div)), under AJA 1960, s 12 and what was then r 4.23, a solicitor who had acted in care proceedings could not pass information to counsel acting in related criminal proceedings without the court’s permission. That now seems to have been superseded by FPR, r 12.73(1)(a) (ii) and (iii) whereby communication of information is permitted (without restriction as to purpose) to ‘the legal representative of a party’ and ‘a professional legal adviser’. However, that rule does not permit the legal adviser in criminal proceedings to them disclose such documents to any other person or into any other proceedings without permission from the family court (and in any event CA 1989, s 98 may restrict the use to which they can be put (Reed 2014).

Ways in which it is lawful to share information under the court rules 2.109 The main court rules relating to AJA 1960, s 12 are FPR, rr 12.73, 12.75, 14.14, PD12G and PD14E. FPR, rr 12.73 and 12.75 are set out in Appendix 3 in full.10

9 Now Working Together to Safeguard Children Department for Education, 2015. 10 It is worth noting that PD12G is often mistakenly said to apply to all family proceedings (see Wolanski and Wilson para 32). In fact, FPR, rr 12.1(2), 12.73, 12.75 (and the PD which flows from them) apply to Pt 12 proceedings and those which otherwise relate wholly or mainly to the maintenance or upbringing of children. As this appears to encompass Pt 14 proceedings, it appears that FPR, r 14.14 and PD14E are supplemental to the Pt 12 rules and the PD rather than alternatives.

49

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.110 It is helpful to think of the rules in three categories, as set out in X, Y and Z (Disclosure to the Security Service) [2016] EWHC 2400 (Fam); [2016] 4 WLR 153, by MacDonald J: ‘i)

Communications under r 12.73(1)(a), which communications may be made as a matter of right where the communication is to persons specified in r 12.73(1)(a);

ii)

Communications under r 12.73(1)(c) [and 12.75] and PD12G paras 1 and 2, which communications may be made in accordance with the terms of the Practice Direction but are subject to the direction of the court, including in appropriate circumstances that the communication should not be made;

iii)

Communications under r 12.73(1)(b), which communications may only be made with the court’s permission.’ (our emphasis).

2.111 Broadly speaking, communication falling into the first category is communication that is practically necessary for the purposes of the smooth operation of the proceedings (by and to those involved in or assisting with the case) and is unconditional. Rule 12.75 permits confidential disclosure by way of discussion to any person to obtain support, advice or assistance in the conduct of the proceedings, complaints or mediation (thereby permitting discussion with an MP for example). However, onward disclosure is restricted. 2.112 Communications falling in the second category are limited by purpose, so that information may be disclosed to a specified person or body for that purpose only. This encompasses matters that are ancillary to the conduct of the proceedings, such as disclosure for the purposes of criminal investigation, to obtain therapy, to deal with a complaint made about someone involved in the case or for research or regulatory purposes. It also permits disclosure to a McKenzie friend. 2.113 FPR, r 12.73(2) expressly states that nothing in this part of the FPR permits communication to the public at large or any section of it, ie it does not override the restrictions imposed by AJA 1960, s 12. 2.114 See also Chapter 5 (5.44) for a discussion of how these rules may be interpreted in the context of communication of information via the internet and social media.

Duration of s 12 2.115 Although the underlying offence is a common law offence, the provisions of s 12 are not limited in time. It is therefore potentially a contempt to publish information even after the conclusion of proceedings. It seems to have been generally assumed therefore that any publication of information relating to current or former proceedings concerning a child continues to be a contempt in perpetuity. The Family Court Practice (2017) relies upon the obiter remarks of Scott Baker J in Re E (A Minor) (Child Abuse: Evidence) [1991] 1 FLR 420, FD (a wardship case), and says that ‘presumably the same principle applies’ to other types of 50

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS children proceedings too. Not only are these remarks obiter, but in context it is clear that they merely establish that it potentially remains a contempt to publish information ‘even if the wardship proceedings are discharged’. In Clayton v Clayton (see 2.125 below) the Court of Appeal appears to have proceeded on the assumption that s 12 continued to bite even after proceedings concluded. Yet, in Re F (orse A) (A Minor) (Publication of information) [1977] Fam 58, the court talks only of imminent, current or recent wardship proceedings in connection with a s 12 type contempt. The question remains, therefore, for how long following the conclusion of proceedings should one treat s 12 as being live in the absence of a specific order? This might be until the youngest subject child is 18, or until the subject child is Gillick competent and consents, or, possibly, forever. The answer may lie in the purpose behind this specific form of contempt, which is said in Re F to be driven by the essential privacy of the matters discussed in court or described in papers, rather than the risk of prejudicing a trial within anticipated or current proceedings, as with other forms of contempt. The need for and entitlement to privacy will not lapse with the conclusion of the proceedings and, in practice, any person who wishes to publish material arising from them will be wise to either seek and obtain judicial permission to publish or the consent of all those whose privacy is affected (which may include parents and third parties).

Children Act 1989, s 97 2.116 The Children Act 1989, implemented in October 1991, created a new offence with the purpose of protecting children who were subject to proceedings under that Act from being publicly identified. The Act unified aspects of public and private law applications so that the welfare principle applied in the former and to most of the latter. Accordingly, CA 1989, s 97 reflected the belief that children in family court proceedings are there through no wish or action of their own and it is normally in their welfare interests to grant them anonymity, whether they be subject to an application by a local authority, such as care proceedings, or by a family member, such as a residence or contact dispute between separated parents. 2.117 The provision, found in CA 1989, s 97, originally applied only to family proceedings courts (cases heard by magistrates) but were extended to the High Court and those county courts which heard family proceedings, and later to adoption proceedings under the Adoption and Children Act 2002. Since the introduction of the Family Court by the Crime and Courts Act (CCA) 2013 on 22 April 2014, CA 1989, s 97(2) now states: ‘No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify – (a) Any child as being involved in any proceedings before the High Court or the Family Court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with regard to this or any other child; or (b) An address or school as being that of the child in any such proceedings.’ 51

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS Sections 97(1), (7) and (8) applied to the former family proceedings courts and were repealed by the CCA 2013, s 75(a). Section 97 is set out in full in Appendix 3.

The meaning of ‘publishing’ in s 97 2.118 The words ‘to the public at large or any section of the public’ in s 97(2) were inserted by the Children Act (CA) 2004, s 62(1) with effect from 12 April 2005. During the public consultation after Kent County Council v B [2004] EWHC 411 (Fam); [2004] 2 FLR 142, it had become apparent that there was a risk of CA 1989, s 97 being breached simply by a parent mentioning to any individual that they were involved in a contact dispute. 2.119

The Explanatory Note accompanying the CA 2004 says:

‘Section 62(1) amends section 97 of the Children Act 1989 to make clear that the publication of material from family proceedings which is intended, or likely, to identify any child as being involved in such proceedings (or the address or school of such a child) is only prohibited in relation to publication of information to the public or any section of the public. This section will make the effect of section 97 less prohibitive by allowing disclosure of such information in certain circumstances. In effect, this means that passing on information identifying, or likely to identify, a child (his school or his address) as being involved in court proceedings to an individual or a number of individuals would not generally be a criminal offence.’ 2.120 It therefore appears that ‘publishing’ a child’s name or other identifying detail is caught by CA 1989, s 97 only if this is communicated to more than a few individuals, unlike ‘publishing’ what happened in court which may be contempt under AJA 1960, s 12, irrespective of the size or nature of the audience. Consequently, the media can report certain limited details of a family court hearing, provided there is no breach of AJA 1960, s 12, but are prohibited from reporting anything which would, or might through jigsaw identification, reveal a child’s identity. Under CA 1989, s 97(5), ‘publishing’ includes television and radio broadcasting. However, unlike reporting restrictions in youth courts (C&YPA 1933, s 49(3)), the section is not limited to press and broadcasting providers (see Chapter 7, 7.57). The prohibition is not confined to mainstream media reporting but will include parties to the proceedings, members of the family, and anyone who publicly comments. 2.121 The effect of CA 1989, s 97 is that any person who communicates identifying details in a public place about a child who is subject to a CA 1989 or an ACA 2002 application may be committing a criminal offence. This raises questions about social media and the level at which using a Facebook account, for example, might constitute a ‘section of the public’, which we explore in Chapters 5 and 6. 52

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS

Dispensing with the restriction under s 97(4) 2.122 It is unusual for a child subject to ongoing Children Act proceedings to be named; a notable case is Norfolk CC v Webster [2006] EWHC 2733 (Fam); [2007] 1 FLR 1146 (See Case Study 3, Appendix 1). 2.123 Under CA 1989, s 97(4), the Family Court may lift the CA 1989, s 97 restrictions wholly or partly, if satisfied that the welfare of child requires it. As we note in Chapter 3, such an order may be made by the court if the child is missing, as happened in Minnock and Baldwin (See Case Studies 2 and 6, Appendix 1). If associated proceedings are held in open court where the parent is named, it appears that it will be necessary to make a CA 1989, s 97(4) order if the judge concludes that the child’s welfare is better served by publicity than the likelihood of jigsaw identification. For example, in a case where a parent is committed to prison for contempt of court, the Practice Direction: Committal for Contempt of Court – Open Court [2015] para 4 stipulates that: ‘Derogations from the general principle [of the hearing, judgment and order all being public] can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Derogations shall, where justified, be no more than strictly necessary to achieve their purpose.’ 2.124 The Practice Direction is clear that the principle applies ‘irrespective of the proceedings in which they arise’, but if the contempt arises from ongoing CA 1989 or ACA 2002 proceedings, CA 1989, s 97(2) will need to be dispensed with unless the child’s welfare brings him or her within the exception.

Identifying a child after the proceedings have ended 2.125 In Clayton v Clayton [2006] EWCA Civ 878; [2007] 1 FLR 11, the Court of Appeal held that CA 1989, s 97 ceases to have effect at the end of proceedings, so that if continued anonymity is sought by or on behalf of the child, an application for an injunction to take effect at the end of the hearing will be required. 2.126 Clayton was an unusual case because although the child (who lived with her mother in Wales) was subject to proceedings regarding residence and contact under CA 1989, s 8, she had been abducted by her father, generating widespread publicity and a police search until they were found in Portugal. At that point, the child was no longer named nor pictured in the media. After Mr Clayton had served a prison sentence for the abduction, the parents managed to come to an agreement about contact and he sought self-publicity through writing books and making videos of the child. The county court judge decided that s 97 had ceased to be effective once the proceedings concluded, but he continued an injunction against identifying the child because her Article 8 rights to privacy outweighed her father’s Article 10 rights to freedom of expression. The father appealed.

53

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.127 The Court of Appeal, in a judgment delivered by Sir Mark Potter, then President of the Family Division, agreed that CA 1989, s 97 ceased to have effect when the CA 1989 proceedings ended. However, a judge could, in the welfare interests of the child and in order to protect her privacy under Article 8, make an injunction or an order prohibiting identification for a period beyond the end of the proceedings. In deciding to make a long-term injunction aimed at restricting the reporting and publication of proceedings involving children, the Court was obliged to conduct a balancing exercise between the Article 8 rights of the child and the Article 10 rights of the other party. 2.128 The Court held that because AJA 1960, s 12 prevented publication of the substance of the proceedings, it was not generally right to assume that identification of a child as having been involved in proceedings would engage her welfare or fail to respect her family or private life. The construction of CA 1989, s 97 does not dilute the provisions of AJA 1960, s 12, which would continue to limit reporting information relating to the proceedings. 2.129 With regard to the child in this case, the Court of Appeal upheld Mr Clayton’s Article 10 rights to express himself as a fathers’ rights campaigner, but his plans to take the child abroad to make a video diary were a matter that did involve her welfare and Article 8 rights. In conclusion, although the injunction was discharged as being too wide, a prohibited steps order was made under CA 1989, s 8 restraining him from revisiting Portugal with her or from involving her in the publication of any information relating to the abduction until further notice. 2.130 One of the proposals in Family Justice in View (MoJ 2008) was to reverse Clayton, and extend protection of the child’s identity to age 18. This elicited a campaign spearheaded by Mr Clayton, and supported by The Times, that aggrieved parties needed to be able to identify themselves in order to gain media attention. On 27 April 2009, the Lord Chancellor, Jack Straw, made a written statement to Parliament that he was now minded not to reverse Clayton, having had ‘time to reflect and reconsider’ (HC Hansard 27 April 2009 col 38WS). He made no reference to the consistent message throughout the consultation process that most respondents were in favour of extending CA 1989, s 97 to post-proceedings. 2.131 The current position therefore remains, that CA 1989, s 97 ceases to have effect on the date of the final order (We deal with appeals at 2.159 below). The risk of a child being identified because they feature in a judgment is instead protected by the rubric, as explained by the President in Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam); [2012] 1 FLR 466: ‘The rubric is not an injunction … It is not drafted in the way in which injunctions are usually drafted. There is no penal notice. And the procedures required by s 12(3) of the Human Rights Act 1998 and the President’s Practice Direction (Applications for Reporting Restriction Orders) will not have been complied with. But this does not mean that it is unenforceable and of no effect. On the contrary, it is, in my judgment, binding on anyone who seeks to make use of a judgment to which it is attached. And anyone who disobeys it is, in principle, guilty of a contempt of court.’ (Re RB, para 13) 54

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.132 He went on to explain that the rubric is in two parts: first to dis-apply AJA 1960, s 12 so that the authorised judgment would not fall within AJA 1960, s  12, but meaning that the reporter is not immunised against committing contempt unless s/he complies with the second part of the rubric, which will prohibit identifying the child. Someone who publishes or reports such a judgment in a way which does not comply with the second part of the rubric may be guilty of a contempt of court, not because they have breached an injunction but because of s 12 itself. In other words, there is a quid pro quo in being able to publish but on condition of anonymity. 2.133 The President emphasised in Re X (A Child) (Application for Reporting Restrictions: Media Notification) [2016] EWHC 1668 (Fam), that: ‘the rubric in its standard form applies, as a matter of language, only to judgments handed down in private. Section 12 does not apply to the contents of a judgment handed down in public. Nor, does anyone need a judge’s permission to publish or report a judgment given or handed down in public, unless, there is a specific injunctive or other order preventing publication.’ [Para 5] However, in Re X a RRO was subsequently made even though the name of the family was previously widely (and lawfully) published. 2.134 In practice however, there is considerable inconsistency amongst the judgments published on BAILII in finding a rubric attached, its content, or whether it is merely assumed to apply (Doughty, Twaite and Magrath 2017). See also Chapter 6 regarding enforcement of breaches of the rubric.

Prosecutions under s 97 Children Act 1989 2.135 There are no known prosecutions under CA 1989, s 97 and it may act as a deterrent rather than a punitive measure, especially as it is so much easier to understand than some other privacy legislation. The only reported case on s 97 apart from Clayton, appears to be R (Dacre) v City of Westminster Magistrates Court [2008] EWHC 1667 (Admin); [2009] 1 WLR 2241. This was an attempt by a Fathers 4 Justice campaigner to stop the Daily Mail publishing an interview she had given them, but subsequently changed her mind about. She cited the possibility that the story would identify her children as a basis for a private prosecution. The newspaper and editor applied for judicial review of the district judge’s decision not to stay the prosecution. Their application was upheld by Latham LJ, who concluded that allowing such a prosecution would be an abuse of process because the mother could not possibly complain that the editor or paper might be in breach of CA 1989, s 97 when she herself had willingly and deliberately imparted the information to him. The judgment mentions that, in the event, nothing was published. 2.136 It may be more effective, where there are concerns that a child might be identified, for an injunction to be sought, than contemplating or warning about using s 97. This appears to be what happened in C v M [2005] EWCA Civ 1536, 55

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS where a father had published details that might be sufficient to identify the child subject to the private law dispute, and the mother had applied for his committal for breach of injunctions made in the county court. Although she also made reference to s 97 in her application, Ward LJ pointed out that action under s 97 would have required (at that time) proceedings in the magistrates’ court and there had been none.

The combined effect of s 12 AJA and s 97 Children Act 1989 2.137 According to the 1993 LCD consultation (p 24), the combined effect of s 12 and s 97 was that: ‘The various provisions are presumably cumulative in their effect so that if proceedings are lawfully heard in private and if reporting is covered by one of the provisions in section 12, then it will be a contempt of court to publish even those details which the statutory provision would allow.’ (emphasis in original) 2.138 This was disputed by Dixon (2001) on the basis that it was confusing to try to interpret the law as cumulative, when s 12 demarcates contempt while s 97(2) creates a criminal offence. His view was that successive statutory provisions had come into force in answer to problems perceived at the time. Munby J (as he then was) spent 34 paragraphs explaining the statutory framework in Kent County Council v B [2004] (paras 56–90) but almost all of this related only to s 12 and he did not attempt to read CA 1989, s 97 as integral to that analysis, but rather as an additional restriction. It was unsurprising that the five consultation papers issued between 2005 and 2010, as discussed in Chapter 1, called for a rationalisation of the law. 2.139 The most recent explanation is offered by MacDonald J in Southend Borough Council v CO and BW [2017] EWHC 1949 (Fam): ‘The restrictions on the publication of information relating to proceedings with respect to children are contained in the Children Act 1989 s 97 and the Administration of Justice Act 1960 s 12. The Children Act 1989 s 97 prohibits the publication of ‘material which is intended, or likely, to identify’ the child. This prohibition comes to an end once the proceedings have been concluded, as they have been in this case (see Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 11). The Administration of Justice Act 1960 s 12 continues to have effect after the proceedings have concluded but does not protect the identity of anyone involved in the proceedings, not even the child (see Re B (A Child) (Disclosure) [2004] 2 FLR 142 at [82], A v Ward [2010] 1 FLR 1497 at [79] and In re X and others (Children) (Morgan and others intervening) [2012] 1 WLR 182, sub nom Re X, V and Z (Expert Witness) [2011] 2 FLR 1437 at [32]). The court has power both to relax and to supplement these statutory restrictions.’ [18] 2.140 In the Southend case, the parents had posted a petition on a popular website, Change.org, objecting to care orders having been made in respect of 56

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS their four children ‘without evidence’, and calling for a campaign to petition the Prime Minister for the reunification of the family. The petition did not come to the attention of the local authority for some six months after proceedings had ended, so although people might have been able to identify the children, CA 1989, s 97 no longer applied (See further Chapter 5 (5.02, 5.03, 5.23, 5.44)).

Sexual Offences (Amendment) Act 1992 2.141 Where a complaint of a (qualifying) sexual offence has been made within or referred to within proceedings the court and parties are bound by the Sexual Offences (Amendment) Act 1992 (SO(A)A 1992), s 1, which confers lifelong anonymity upon the complainant. For more detail see para 2.156 below dealing with Family Law Act 1996, Pt IV matters, where this is likely to be more relevant in the absence (usually) of AJA 1960, s 12 restrictions.

Avoiding risks of jigsaw identification 2.142 Section 97(3) creates a defence for a person accused of breaching the section to prove that she did not know, and had no reason to suspect, that the published material was intended, or likely, to identify a child. Nevertheless, parties and practitioners should be aware of the potential risks of jigsaw identification, where pieces of information published in different places might be connected by a reader and lead to a child being identified. This risk is especially high if there are connected criminal proceedings held in open court. Even the most careful judge can find this a remarkably difficult task. For example, in H v A [2015] EWHC 2630 (Fam); [2016] 2 FLR 723 MacDonald J went to lengths to conceal the identities and current whereabouts of a family in a CA 1989, s 8 dispute sent to BAILII, because of the father’s extreme violence, but a journalist on reading the judgment found the names quickly through internet searches. He immediately informed the judge, who had the judgment taken down from BAILII so he could review it before being republished. 2.143 The Transparency Project’s Guidance Note: Publication of Family Court Judgments, contains an anonymisation checklist, and may assist in respect of thinking through issues around jigsaw identification. It is reproduced in full at Appendix 2.

International abduction cases 2.144 AJA 1960, s 12 does not specifically refer to Hague Convention proceedings. In Re Alcott [2016] EWHC 2414 (Fam) it was agreed by counsel that there was no case-law expressly considering this point but that the court could invoke the inherent jurisdiction so as to trigger subsection (1)(a)(i). The judge, Alex Verdan QC (sitting as a Deputy High Court Judge), commented that there was no need for a formal application to be issued for him to do that [paras  21–23]. This was an urgent hearing and the matter was not considered 57

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS in depth. It may be more likely that an international abduction case falls under AJA 1960, s 12 regarding the upbringing of a child but, although if there is any doubt, the inherent jurisdiction can and should be invoked as it was in this case.

Trusts of Land and Appointment of Trustees Act 1996 proceedings 2.145 In Trusts of Land and Appointment of Trustees Act (ToLATA) 1996 proceedings, which are dealt with under the CPR, the general rule is that a hearing will be in public (CPR, r 39.2). There is discretion to hold a hearing in private on specified grounds, most relevant being: ●● it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; ●● a private hearing is necessary to protect the interests of any child or protected party; ●● the court considers this to be necessary, in the interests of justice. 2.146 There is no automatic entitlement to anonymity but see Williams v Hackney London Borough Council [2015] EWHC 2629 (QB), which deals with the approach to anonymity for a child in civil proceedings, and Chapter 7 at 7.72 generally). 2.147 Pursuant to CPR, rr 31.22 and 32.12 collateral use by a party of a disclosed document that has not been read to or by the court or referred to in open court is prohibited without permission (see NAB v Serco ([2014] EWHC 1225 (QB)). Documents exhibited to a witness statement are, for the purposes of inspection, to be treated as if they formed part of the witness statement (Barings plc v Coopers & Lybrand [2000] 1 WLR 2353). Even where a document has been read into the proceedings the court may impose restrictions on its use. As set out above there is a right of inspection of documents, although that too may be derogated from if the criteria are met (r 32.12).

Part IV Family Law Act 1996 proceedings 2.148 below.

The relevant provisions in respect of this type of application are set out

FPR, r 10.5 provides expressly that applications under Pt IV will be dealt with in private unless the court directs otherwise. As such the provisions of FPR, r 27.10 regarding the attendance at hearings apply: the press will ordinarily be permitted unless some other order is made, whilst the public will not – again unless some other order is made.11

11 Burrows (2017) has questioned the vires of various aspects of the FPR which purport to abrogate the open justice principle without (it is said) express Parliamentary approval. For the purposes of

58

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.149 Unlike the Children Act or financial remedy proceedings, there is no specific provision or rule that prohibits the communication of information arising from the proceedings, or which prevents the collateral use of documents produced within them, but depending on the facts of a particular application, other provisions may come into play and restrict what may or may not be published. We set these out below.12

Full financial disclosure directed 2.150 Clibbery v Allan [2002] EWCA Civ 45; [2002] Fam 261 concerned the use of information arising from Family Law Act (FLA) proceedings. In that case the Court of Appeal made clear that the fact that proceedings were private under the rules did not in and of itself give rise to a duty of confidentiality or prohibition on publication of information. Such proceedings were private, but not secret. 2.151 The Court of Appeal said that if the court dealing with an application for an occupation order directed full financial disclosure in order to properly consider financial needs and resources, the parties might be bound by an implied undertaking or by AJA 1960, s 12 just as they would be in financial remedy proceedings where a compulsory disclosure regime operates as a matter of course. We respectfully suggest that directions for the parties to file full financial disclosure above and beyond narrative statements whose contents are as elected by the parties, are likely to be rarely made.

Children involved 2.152 In Clibbery there were no children, so AJA 1960, s 12 did not bite. However, where an application under Pt IV is made by or on behalf of a relevant child for a non-molestation order or occupation order intended to protect the child himself, it is arguable that AJA 1960, s 12 will apply to those proceedings, on the basis that the proceedings ‘relate wholly or mainly to the maintenance or upbringing of a minor’ (s 12(1)(a)(iii)), but the position is not entirely clear. In most instances the application will be primarily for the purposes of protecting the applicant adult, and the protection of the child will be ancillary to that where they are at risk of suffering harm through witnessing abusive behaviour or of being caught up physically in adult abuse. It should not be assumed that s 12 applies. Where Pt IV proceedings are formally consolidated with CA 1989 proceedings, as they sometimes are, we suggest that the provisions of AJA 1960, s 12 clearly apply.

this book we proceed on the assumption that the FPR are vires and that ‘private’ as used in the FPR does not equate to ‘secrecy’, as expressly confirmed by the Court of Appeal in Clibbery, but for those interested in this debate see David Burrows blog posts in the References at the end of the chapter. 12 As noted by Munby LJ in his Hershman-Levy Memorial Lecture speech (2010), had the doomed Children, Schools and Families Act 2010. Part 2 ever been brought into force, that would have introduced greater restrictions in this area.

59

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.153 However, where there is a relevant child, CA 1989, s 97 does apply to Pt IV Proceedings. That provision includes not just applications brought under the CA 1989 but any family court proceedings in which a CA 1989 power may be exercised. Since pursuant to CA 1989, s 10(1)(b) the court has power of its own motion to make various Children Act orders in any matter where a question arises with respect to the welfare of a child, this potentially brings Pt IV proceedings involving children under the ambit of s 97 even where AJA, s 12 may not bite.

Sexual offences alleged 2.154 Furthermore, where allegations made in an application for injunctive relief of this sort include allegations of specified sexual offences, including rape, there is a lifetime ban on the identification of the complainant/applicant or the publication of information likely to so identify him/her, which the Family Court has no power to dis-apply (SO(A)A 1992, s 1). This is likely to have a knock-on effect on the ability, even if this was thought appropriate, to identify the alleged or proven perpetrator of such offences in the context of a family court judgment or documents produced for the purposes of the proceedings, which are likely to include much contextual and potentially identifying information about the complainant’s former intimate partner and possibly parent of his/her child.

Judgments 2.155 Judgments arising from such proceedings are rarely published, not least because they are most often dealt with at district judge or bench level (in respect of whose judgments the 2014 Guidance on publication of judgments does not specifically apply), although there are one or two notable published judgments from High Court judge level, usually where proper procedure has not been followed (see Jackson J in R v R (Family Court: Procedural Fairness) [2014] EWFC 48. On appeal, Jackson J needed to record the circumstances disclosed by the appeal, but he stated that ‘in doing so [he would] disguise the identity of the family concerned’. In JM v CZ [2014] EWHC 1125 (Fam) Mostyn J published a short judgment relating to the costs of a non-molestation application where compromise had been reached, but he observed the failure to comply with the correct procedure in respect of without notice applications and indicated that if matters had not been compromised, he would have been likely to deliver his judgment in open court and in un-anonymised form ‘in conformity with the movement towards much greater transparency in family proceedings’.

Anonymity 2.156 Although as set out above there are some specific provisions which may confer anonymity on an applicant in Family Law Act 1996, Pt IV proceedings, there 60

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS is no specific provision which prohibits the identification of the respondent. As we note in the introduction to this topic, some commentators have argued that particularly where a respondent is found responsible for culpable and abusive conduct leading to the making of a non-molestation or occupation order, the respondent should be identified as they would be in criminal proceedings for the same offence and as they would be if found in breach by the criminal courts of any provision of the non-molestation order. In many instances, however, the need to protect the victim of abuse and any relevant child is likely to lead to the contrary conclusion, and there is unlikely to be a significant appetite on the part of victims to identify their perpetrator. There may of course be situations where an application has been made maliciously or found otherwise to be without merit and, there again, there is no specific provision prohibiting the use of documents or communication of information or identification of the applicant (other than the patchwork set out above). In the case of culpable abuse or culpably malicious applications, there are potential arguments for ‘naming and shaming’ depending on the facts of the case and in particular the involvement of any children (see for example the remarks of the Court of Appeal in Norman v Norman [2017] EWCA Civ 49 concerning unconscionable conduct by one party, albeit in a somewhat different context, and Mostyn J in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) where iniquity or the need to correct false information might justify overreaching confidentiality arising from the implied undertaking – but those were not children cases). 2.157 It is certainly the case, however, that even where a criminal defendant is the parent of the victim’s child or the former partner of a victim of sexual assault that defendant will be publicly named during and following a criminal trial, although the existence and identity of the child, and the nature of the relationship between the victim and defendant will most often not be reported in order to comply with SO(A)A 1992, s 1 and pursuant to criminal reporting restrictions designed to protect the victim. There are certainly anomalies as between the approach adopted by the criminal and family courts, but we would respectfully suggest that the position is not entirely analogous, as the level of public interest is dissimilar in a criminal context, and the fact that the statutory frameworks in each jurisdiction are quite different. 2.158 In some instances, unauthorised publication of information by a respondent concerning the applicant might well amount to a breach of the substantive non-molestation order, depending on the wording of the relevant prohibition. Of course, where the facts support such a course of action and no other provision is likely to be apt or effective, an application for a reporting restriction order may be made in the usual way.

61

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS

Appellate proceedings The legislative framework for appeals 2.159 The Domestic and Appellate Proceedings (Restriction of Publicity) Act (DAP(RP)A) 1968, s 1 applies to appellate proceedings in the Family Court, High Court and Court of Appeal. Section 1 provides that: ‘(1) Where an appeal is brought against a decision of the Family Court or High Court, or an application is made for leave to appeal against a decision of any of those courts, and that court had power to sit in private during the whole or any part of the proceedings in which the decision was given, then, subject to subsections (2) and (3) below, the court hearing the appeal or application shall have power to sit in private during the whole or any part of the proceedings on the appeal or application. (2) Without prejudice to the next following subsection, the court hearing the appeal or application shall give its decision and the reason for its decision in public unless there are good and sufficient grounds for giving them in private and in that case the court shall state those grounds in public.’ 2.160 FPR, r 27.10(1) provides that proceedings to which the FPR apply (which includes appeals heard at Family and High Court level): ‘will be held in private, except – (a) where these rules or any other enactment provide otherwise; (b) subject to any enactment, where the court directs otherwise.’ 2.161 There is no other rule in the FPR in respect of appeals that countermands this general provision, but DAP(RP)A 1968, s 1 does appear to be a relevant enactment which, we suggest, supports the proposition that any appeal heard by the Family Court or High Court should be in public unless, having carried out a Re S type analysis (see Chapter 1) of the competing Article 8 and 10 rights it has concluded that it is both necessary and proportionate for the hearing to be taken in private, and has gone on to pronounce its reasons in public. We can see no reason why this provision ought not to be applied to appeals in the Family Court/ Family Division and indeed the Act was expressly amended by Parliament in 2014 to incorporate the creation of the Family Court. 2.162 In DE v AB [2014] EWCA Civ 1064 (see also the first instance decision: Y v Z [2014] EWHC 650 (Fam), Ryder LJ considered the question of privacy in appellate proceedings. Although the appeal in question was heard in the Court of Appeal we suggest the principles set out have wider application to appeals heard in the Family and High Courts. It is a relatively unusual example of a published permission judgment and although not binding is persuasive.

62

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.163 In that matter, which arose from protracted CA 1989, Sch 1 proceedings, but which concerned the mother’s appeal against an injunction prohibiting her from publishing certain information adverse to the father obtained during the Sch 1 proceedings, the father sought an order that the permission hearing should be held in private in order to prevent the proceedings being self-defeating. Ryder LJ formed the view that harm to the father through publication of the contested information by means of a permission hearing held in open court was exactly what the mother sought to achieve. However, although the father contended that any discussion of the issues in open court (taken with the prior judgment of Bodey J that was already in the public domain) would lead to jigsaw identification, Ryder LJ nonetheless considered that a more proportionate way of managing the issue was to sit in open court but to place interim restrictions on what could be published through the Contempt of Court Act 1981, s 11 and therefore sitting in private was not justifiable under DAP(RP)A 1968, s 1. Subsequently, having refused the mother permission to appeal the injunctions were continued. It does appear that this was in part made possible because almost nobody was in fact in court. Ryder LJ was very clear that sitting in private on an appeal (in the Court of Appeal at least) would be exceptional: ‘it is necessary for me to record that an application to cause part of the appellate process to be heard in private should be a very rare application indeed. Given the inevitable and proper moves to transparency within the family courts it would be an entirely retrograde step that would potentially damage family justice were this court to be persuaded to sit in private on anything other than an exceptional basis. It was not necessary to decide to do so on the application made in this case because a more proportionate mechanism was available.’ 2.164 We would respectfully suggest that where a more proportionate course of action is possible, neither the Court of Appeal nor the High Court nor Family Court could properly justify sitting in private pursuant to DAP(RP)A 1968, s 1, notwithstanding the general provisions in the (subordinate and conditional) FPR, r 27.10. Interestingly, Ryder LJ said that: ‘Even if it had been necessary to sit in private I would have done so with representatives of the media being present and able to take notes, that subject only to undertakings or orders to protect the prohibited information, would have enabled them to exercise their proper role in the public interest in the administration of justice.’

Family Court and High Court 2.165 As noted above, appellate proceedings within the Family Court fall under the FPR and operate therefore on the same basis as the first instance proceedings in matters of privacy and publication (unlike higher appeals which operate under the CPR). 63

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS 2.166 Appellate proceedings falling under para 4A of the table at 2.1 in PD30A (essentially appeals from Circuit Judge or Recorder in cases other than public law, contempt or second appeals) were previously dealt with at Court of Appeal level but were delegated downwards to the High Court bench in 2016 by the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016. Although these appeals fall within the FPR scheme of hearings in private, it has been suggested by Baker J that it might be more appropriate for them to continue to be heard in open court, as they would have once been, when handled by the Court of Appeal.13 It had been reported in the press that Baker J had indicated at a preliminary stage that such cases may well be dealt with in open court – but it is unclear whether this in fact happened. The court certainly has the power to depart from the provisions of FPR, r 27.10 and sit in open court (and as we argue at 2.61 above it ought in each case to specifically consider the matter before deciding to sit in private in order to ensure that any interference with Article 10 is necessary, proportionate and lawful), but it is unclear whether or not this is happening in practice, routinely or at all. It is possible therefore that the judiciary will consider that some appeals at this level ought to be heard in open court, and lawyers should be prepared and advise their clients of this possibility.

Court of Appeal 2.167 Where appellate proceedings take place in the Court of Appeal, CPR, r 39.2 is applicable and the provisions around anonymity and private hearings are materially different. CPR, r 39.2 provides that these hearings are generally heard in open court, and that in any event the court may order that the identity of a party or witness is not to be disclosed to protect their interests. We explain the relevant rules where a hearing (or part of it) may be taken in private in Chapter 3. 2.168 Practice guidance in Pink Floyd Music Ltd v EMI Records Ltd, Practice Note [2010] EWCA Civ 1429; [2011] 1 WLR 770 confirms that the practice of the Court of Appeal is to conduct a private hearing or to employ anonymisation only where necessary for the proper administration of justice. That guidance applies to financial remedy appeals (Norman v Norman [2017] EWCA Civ 49). 2.169 Further, the Court of Appeal also confirmed that the Judicial Proceedings (Regulation of Reports) Act 1926, s 1 was not to be construed as applying to appeals against financial remedy orders, and as such did not restrict the reporting of them. 2.170 In appeals in the Court of Appeal, CPR, PD52C provides for copies of skeleton arguments to be provided to accredited law reporters and journalists (anonymised in children cases). Paragraph 33 also contains ancillary provisions about the use to which such documents may be put and the process for varying the arrangements in individual cases.

13 This was discussed on The Transparency Project website on 30 October 2016, see www. transparencyproject.org.uk/high-court-appeals-to-be-heard-in-open-court/.

64

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS

Alternative dispute resolution 2.171 Under the FPR, r 27.11(1)(a), accredited members of news gathering and reporting organisations may not be present at hearings conducted for the purpose of judicially assisted conciliation or negotiation (read strictly there is no power under r 27.11 (whether r 27.11(2)(g) or otherwise) to permit the media access where there is no default right, because the whole of r 27.11 is disapplied for the purposes of judicially assisted conciliation but no doubt the court has power through use of the overriding objective and its general case management powers to remedy this if justice requires it). As Holman J pointed out in Fields v Fields [2015] EWHC 1670 (Fam) at [5], in financial remedy proceedings the parties can take advantage of a ‘totally private and totally privileged’ Financial Dispute Resolution (FDR) hearing. Alternative dispute resolution, either in the court setting, or through mediation or arbitration, can be attractive to wealthy couples who might wish to avoid any chance of publicity. Press reports in 2009, for example, suggested that Earl Spencer (the brother of the late Diana, Princess of Wales) and his wife agreed to settle matters out of court after their application to exclude the media from attending the hearings was refused (Spencer v Spencer [2009] EWHC 1529; [2009] EWHC 2 FLR 1416). The Institute of Family Law Arbitrators states that ‘Family arbitration is essentially private. The media are not entitled to attend hearings, which are at venues you and your ex-partner agree. Only both of you, your representatives, the arbitrator, and any others agreed will be permitted to be there.’ Mediators accredited by the Family Mediation Council follow a strict Code of Practice regarding confidentiality, which extends to all stages of mediation meetings, whether about finance, children or both.

PRACTICE POINTS 2.172 1. Where children are involved in a case, parties need to be made aware of and advised about the restrictions imposed on them by AJA 1960, s 12, CA, s 97 and the court rules. 2. Parties should be advised that journalists have a right to attend a family court hearing, but there will be an opportunity to make representations if the journalists then want to write about it. 3. There are ambiguities and possible gaps in the privacy protection afforded in financial remedy and, in particular, FLA 1996 proceedings. Practitioners should be alert to these and be ready to advise clients where there is likely to be media interest or where another party may be inclined to leak information. 4. A client who wants to vary or object or raise any issues about privacy and publicity should be advised as explained in Chapter 3.

65

THE EXTENT OF PRIVACY IN FAMILY PROCEEDINGS

REFERENCES 2.173 D Burrows, at https://dbfamilylaw.wordpress.com blog posts dated 20 and 21 December 2017. C Cavendish ‘Wronged parents need the oxygen of publicity’ The Times, 20 March 2009. S Cretney ‘Disgusted, Buckingham Palace …’ The Judicial Proceedings (Regulation of reports) Act 1926. (1997) 9 Child and Family Law Quarterly 43. J Dixon ‘Children and the statutory restraints on publicity’ Family Law (2001) 757. J Doughty, A Twaite and P Magrath, Transparency through publication of family court judgments (Cardiff University 2017). The Family Court Practice (Lexis 2017). M Keehan ‘Publicity in financial remedy proceedings’ (2017) 47 Family Law 830–843. Lord Chancellor’s Department, Review of Access to and Reporting of Family Proceedings, a consultation paper (1993). A McFarlane, Keynote Address to the Resolution Conference, 20 March 2009. Ministry of Justice Family Justice in View (Cm 7502, 2008). J Munby, ‘Lost Opportunities: Law Reform and Transparency in the Family Courts’ The Hershman-Levy Memorial Lecture 1 July 2010 (available on the Association of Lawyers for Children website) L Reed, ‘Section 98 of the Children Act 1989: bad or just misunderstood?’ (2014) Family Law 1003. A Wolanski and K Wilson, The Family Courts: Media Access & Reporting July 2011, (President of the Family Division; Judicial College; Society of Editors, 2011).

66

Chapter 3

ORDERS RESTRICTING OR PERMITTING REPORTING

KEY ISSUES 3.01 ●● Jurisdiction 3.05–3.09 ●● What can be restricted? 3.10–3.14 ●● Realistic options 3.15–3.19 ●● When will a reporting restriction order be justified? 3.20–3.29 ●● Naming experts and professionals 3.30–3.38 ●● How to apply for reporting restrictions 3.39–3.61 ●● Applying to relax the automatic restraints 3.62–3.78 ●● Responding to an application for reporting restrictions/to relax the restraints 3.79–3.116

KEY RESOURCES 3.02 ●● Children Act 1989. ●● Human Rights Act 1998. ●● Administration of Justice Act 1960. ●● FPR, PD12D – Inherent Jurisdiction (including Wardship) Proceedings. ●● FPR, PD12E – Urgent business.

67

ORDERS RESTRICTING OR PERMITTING REPORTING ●● FPR, PD12G, PD9B, PD14E – Communication of Information. ●● FPR, PD12I – Applications for Reporting Restriction Orders. ●● President’s Practice Direction: Applications for Reporting Restriction Orders [2005] 2 FLR 120. ●● Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam), [2014] 1 WLR 230 (The 2014 Guidance). ●● Pink Floyd Music Ltd v EMI Records Ltd, Practice Note [2011]1 WLR 770. ●● Cafcass Practice Note: Applications for Reporting Restriction Orders (18 Mar 2005) [2005] 2 FLR 111 (but NB this document was updated March 2015 and the FLR citation will produce the original text only. An up to date version can be found in Appendix 3. ●● A Wolanski and K Wilson, The Family Courts: Media Access & Reporting July 2011, (President of the Family Division; Judicial College; Society of Editors, 2011). ●● Materials on the Press Association’s Media Lawyer Injunctions Alert Service (formerly CopyDirect) website including template order and checklist form; (www.medialawyer.press.net/courtapplications/index.jsp) (but note that at the time of writing the Cafcass Practice Note is not the up to date version – see Appendix 3). ●● The Transparency Project Guidance Notes: Media Guide (www. transparencyproject.org.uk/resources/) and Publication of Family Court Judgments (Appendix 2).

INTRODUCTION 3.03 Chapter 2 sets out what restrictions will automatically apply in family proceedings of a particular sort. This chapter deals with situations where: ●● it is necessary to further tighten automatic restrictions on reporting; ●● where a party or interested party seeks to relax those automatic restraints, or ●● where an order is necessary to clarify what the parameters of lawful reporting or publication are. 3.04 As described in Chapter 2, there are differences in law, context and approach as between cases which concern children, and those which do not. Reporting restrictions will predominantly (but not exclusively) be relevant in the context of children cases, but much of what is said in this chapter is applicable to reporting restrictions in the context of financial remedy or other non-children matters. The distinctions explained in Chapter 2 should be kept in mind when considering applying for variation of the standard restrictions. Where there are particular issues or practice points applicable only to a specific category of nonchildren proceedings we have set that out in a separate section. 68

ORDERS RESTRICTING OR PERMITTING REPORTING We use the abbreviation ‘RRO’ to refer to reporting restriction orders in this chapter. Unless otherwise specified, references to ‘the PD’ are references to Practice Direction 12I.

JURISDICTION 3.05 The court has the power under the inherent jurisdiction, now exercised in combination with the powers and duties of the court under the Human Rights Act (HRA) 1998, to relax or reinforce automatic restraints, including the Administration of Justice Act (AJA) 1960, s 12, the Children Act (CA) 1989, s 97(2) and other statutory and common law restrictions described in Chapter 2 (Kent County Council v B, sub nom Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam); [2004] 2 FLR 142 – see paras 83–86 in particular.1 3.06 The inherent jurisdiction is often described as the ‘vehicle’ for these applications,2 which are ultimately decided on Human Rights principles. It is worth unpacking that proposition: such applications are not substantive human rights applications falling within HRA 1998, s 7, as they do not concern the (proposed) action of a public body. Rather, these are applications for substantive orders under the inherent jurisdiction which the court as a public body must decide on HRA principles so as to discharge its own duty to act compatibly under HRA 1998, s 6. Thus, such orders should not be made unless the court’s statutory powers are inadequate – but if the court concludes that such an order is necessary in order to avoid a breach of its duties under HRA 1998, s 6 then the order is permissible. 3.07 The court is most likely to be balancing Article 8 (right to private and family life) against Article 10 ECHR (freedom of expression), but Article 6 and more rarely Articles 2 or 3 (or other Articles) may also be engaged. Neither Article  8 nor 10 takes precedence – both are subject to qualification where the rights of others are engaged. HRA 1998, s 12(4) requires the court to have particular regard however to the importance of freedom of expression, and to the extent to which material has or is about to become available to the public, the extent of the public interest in such material being published and the terms of any relevant privacy code or regulation. In Re Stedman [2009] EWHC 935 (Fam) King J (as she then was) expressed the view that this applies in cases concerning children or in respect of private and confidential information as much as in any other case without such features (Re Stedman para 81).

1 2

But the Family Court has no power to alter the effect of the Sexual Offences (Amendment) Act (SO(A)A) 1992, s 1). Eg, Hershman & MacFarlane, Children Law and Practice at B1102, per Hale LJ in Re S (A child) [2003] EWCA Civ 963 (10 July 2003), [2003] 3 WLR 1425, [2004] Fam 43.

69

ORDERS RESTRICTING OR PERMITTING REPORTING 3.08 A judge of the Family Court has jurisdiction pursuant to the Matrimonial and Family Proceedings Act (M&FPA) 1984, s 31E, which gives the Family Court all the powers of the High Court (with limited exceptions, see M&FPA 1984, s  31E(3) and County Courts Act (CCA) 1984, s 38(3)). However, as a matter of judicial allocation policy, such applications are required to be commenced in and (usually) reserved to the High Court (but see 3.91 below in respect of financial remedy matters). 3.09 The Court of Appeal suggested in Clibbery v Allan [2002] EWCA Civ 45; [2002] Fam 261, at paras 78–79), that in cases where neither AJA 1960, s 12 nor the implied undertaking apply (ie cases not concerning children or financial remedies) the court might consider use of the Contempt of Court Act 1981, s 11 (See Chapter 2 for further discussion of Clibbery).

WHAT CAN BE RESTRICTED? 3.10 The inherent jurisdiction is often said to be ‘theoretically boundless’.3,4 At one end of the spectrum, a restriction might prohibit the publication of any information about a person or set of proceedings whether anonymised or not, and at the other end of the spectrum it might prevent only the publication of a single specific piece of information such as the name of a child or a location. Most cases will fall somewhere in between the polar extremes, and careful consideration of the purpose of the restrictions should enable the customisation of restrictions to meet the needs of the case without unnecessary interference in the freedom of expression of the press and individuals, and without unnecessary interference with the principle of open justice. Blanket restrictions may be justified in extremis, but even in the paradigm example where parallel criminal proceedings are contemplated or ongoing and any publication might prejudice that process, such blanket restriction is likely to be time limited (see, for example, the case of Poppi Worthington where Peter Jackson J (as he then was) issued a public statement setting out the reasons for withholding publication of a judgment (to avoid prejudicing ongoing criminal investigations)) before, at a later stage, permitting the publication of further material and even allowing daily reporting of the rehearing proceedings subject to various safeguards (see Case Study 7, Appendix 1).

3

4

Eg, see the observations of Waite LJ in R v Central Independent Television Plc [1994] Fam 192, at 207–208: ‘the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages’ since relied on many times.’ Subject to the usual caution against undermining the will of Parliament as expressed through legislation. See also LB Redbridge V SA [2015] 3 WLR 1617, which says that the inherent jurisdiction is ‘not a lawless void permitting judges to do whatever [they] consider right’ per Hayden J, R v Central Independent Television PLC [1994] (Fam) 192 at 207-8 per Waite LJ, and HBV v LA & Anor (Wardship Costs Funding Order) [2017] EWHC (Fam) 524)).

70

ORDERS RESTRICTING OR PERMITTING REPORTING 3.11 The court will usually be asked to exercise the restraint jurisdiction in respect of the mainstream press or broadcast media, but may also be asked to do so in respect of private individuals or corporate bodies – for example parties to proceedings or their supporters or associates, those writing or operating blogs, websites or otherwise publishing material on social media or the internet or who are distributing material in other ways. In either case HRA 1998, s 12 requires the court must have ‘particular regard to the importance of the convention right to freedom of expression’. Further, such publications may – or may not – fall within the category of material described in HRA 1998, s 12(4) of ‘material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material’, in respect of which the extent of prior publication and level of public interest is a factor which the court must specifically consider. Although HRA, s 12 is rarely expressly referred to in the published authorities, these factors are clearly significant in many reported cases, where the role of the journalists as watchdog comes up time and time again, along with the public interest in the material they wish to publish (or lack of it). 3.12 The High Court has the power to make a mandatory order requiring the removal of information already published, by a certain deadline where appropriate, but this power is exercisable only in the High Court itself, as the Matrimonial and Family Proceedings Act 1984, s 31E(3) taken with the County Courts Act 1984, s  38(3) makes clear that the Family Court has no mandatory jurisdiction. 3.13 Examples (in children cases) of restrictions placed on material published by or on behalf of parents rather than the media include: ●● In Doncaster Metropolitan Borough Council v Watson (various citations, see Case Study 1, Appendix 1) Ms Watson (a supporter of the mother Ms Haigh) published information in breach of a pre-existing RRO, by communicating through e-mails with a large number of third parties, and by giving material to an internet provider based abroad, resulting in publication of allegations (which judges had repeatedly held to be without foundation) and which put the identity of the child into the public domain. ●● In Re J (A Child) [2013] EWHC 2694 (Fam); [2014] 1 FLR 523 Munby P permitted the continued publication by the Father of a video on social media and a UK-based website, showing the removal of his new born baby under an emergency protection order shortly after a home delivery. The President concluded that the anonymous child would not be identifiable from his image and the balance fell in favour of permitting the father to exercise his freedom of speech about the removal of his child. ●● In Southend Borough Council v CO [2017] EWHC 1949 (Fam) Macdonald J permitted the continued publication of an online petition by a parent regarding the removal and adoption of her children, notwithstanding that they were probably identifiable (see Chapter 2, 2.139–2.140, and Chapter 5). ●● In P and Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26, Pauffley J dealt with the publication on YouTube of interviews of subject children coached into making allegations of satanic ritual abuse. The videos had gone viral and 71

ORDERS RESTRICTING OR PERMITTING REPORTING at the date the judgment was published, 10 March 2015, more than 4 million people worldwide had viewed them. Pauffley J gave judgment in public but declined to name the children. At pa 20 she noted: ‘Notwithstanding injunctions restraining Ms Draper [the mother] and Sabine McNeill [the internet provider, also referred to in the Doncaster MBC case above], one of her supporters, from publishing information from the proceedings on the internet or elsewhere, such material continues to be uploaded. Efforts to persuade internet servers to remove material have been of only limited value. As soon as information is removed by one provider, it emerges elsewhere.’ (see Case Study 5, Appendix 1). ●● In April 2017 Samantha Baldwin disappeared with her children following the delivery of a judgment containing findings adverse to the mother. The court permitted some publicity to assist in the search, but in addition supporters aligning themselves to the mother, published significant amounts of detailed information about the children’s alleged experiences (which, as in the Doncaster MBC case, had been held to be without foundation) (See Case Study 6, Appendix 1). ●● In the case concerning the treatment of terminally ill baby Charlie Gard, no reporting restrictions were in place, bar a prohibition on identification of treating and proposed treating clinicians. A campaign to raise funds for Charlie’s treatment had commenced prior to the instigation of proceedings, and thereafter the matter was heard largely in open court without anonymisation of the family, with vast amounts of publicity at all stages right up to and after Charlie’s death (See Case Study 18, Appendix 1). 3.14 It will be immediately obvious from the nature of the above cases that there are real issues with the enforceability of reporting restriction orders in the new internet era. Enforcement will be considered below and in Chapter 6, but it should feature in decision making around whether to make an application for injunctive protection for or on behalf of a child, and what the terms of such protection can sensibly cover.

Realistic options 3.15 Although in Re J (A Child) [2013] EWHC 2694 (Fam); [2014] 1 FLR 523 (above at 3.13 and 3.51 below) the President made clear that it is in principle possible to injunct a foreign internet provider such as Facebook, this is likely to be difficult in practice, and unlikely to be a complete answer where an individual or group of individuals are determined to publish and republish. Material may reappear on other sites as soon as it is taken down. The P and Q (Case Study 5, Appendix 1) and the Doncaster MBC v Watson cases (Case Study 1, Appendix 1) make clear that the original publisher may quickly lose control of the information and be powerless to remove it or prevent its further distribution (and note the difficulties that national governments and vast international companies such as YouTube have in effectively preventing the re-uploading of terrorist

72

ORDERS RESTRICTING OR PERMITTING REPORTING propaganda or training material where the terrorist networks are determined to carry on). In those circumstances, applications to commit the originating contemnor are unlikely to cure the problem and are only likely to be purposeful as a deterrent to others. Further, particularly in the case of material published in support of a campaign against actual or perceived injustice or heavy handedness by the state, an application can be perceived as oppressive or can make publishers more determined to disseminate the material at all costs. Hence an application for RROs can be counterproductive. These factors are likely to explain why there are so few published committal judgments arising from material published by campaigners and parents. 3.16 Where a significant amount of distorted information has been published online, particularly where it has gone ‘viral’, contempt proceedings may be a disproportionate use of resource and energy. A more productive and adaptive approach may be to seek permission to publish a neutral summary of facts to rebalance any tendentious or inaccurate accounts. In some cases, the most pragmatic response will be to do nothing, but in others some sort of positive action is required both in order to deal with media or public attention and disquiet that may lead to placement disruption or distress to a child, or to ensure that for the benefit of a child later in life the public record is set straight, or simply as a matter of public accountability (as discussed generally in Chapter 5). 3.17 For an interesting analysis of these issues see Re Stedman [2009] EWHC 935 (Fam) (see 3.07 and 4.1). In that matter King J observed, at para 77: ‘It is accepted that all these articles, photographs and images are in the public domain and may well be unaffected by the proposed Reporting Restrictions Order. Even if the court makes the order sought it is simply unrealistic to imagine that all the website proprietors all over the world will get notice of the injunction and will act upon it.’ 3.18 In that case it was suggested at least some of the material had been published by the press contrary to the spirit of an existing RRO, but exploiting a lacuna in the drafting of it. Considering the significance of that in terms of future orders, King J said that: ‘there is another aspect of the maintenance of judicial authority to be considered and that is that the courts must not be seen to make an order which would appear to the public to be ludicrous or absurd and which is unenforceable.’ (87) 3.19 A proposal by the local authority for the ‘controlled release’ of an approved statement was said by King J to be an unacceptable interference with the press’ Article 10 rights to the manner in which the press could use the information. (In other cases the court has itself issued some form of explanatory press statement or permitted the publication of specified basic facts – see 3.104 below).

73

ORDERS RESTRICTING OR PERMITTING REPORTING

WHEN WILL A REPORTING RESTRICTION ORDER BE JUSTIFIED? 3.20 The scenarios in which an application for a reporting restriction order will be necessary are many and varied. There are three broad categories: cases of public or media interest; where there is actual, threatened or likely breach of the automatic restraints by a person or organisation connected with or interested in the case; or where there is a particular sensitivity or vulnerability that means it is especially important to ensure the maintenance of an appropriate level of privacy. The following list of examples is illustrative rather than exhaustive: ●● The media have attended or expressed an interest in reporting the case and the automatic restraints are not thought to provide adequate protection to a child or vulnerable party, or in a financial case to a commercial interest (or in an appellate case the automatic restraints do not apply in the same way because the hearing will usually be in open court). For example, the automatic restraints might be adequate in a case concerning a child where there is no particular press interest, but the risk of jigsaw identification might be unacceptably high where the mainstream or local media propose to report the case, and the prohibition on publication of certain identifying details is necessary. It is this type of case where there will be strong arguments on behalf of the media that reporting restrictions are a disproportionate interference with their Article 10 rights and that publication is in the public interest. If criminal justice is involved, reporting restrictions based on Article 8 claims are exceptional (see Chapter 7). ●● A hearing has been held in open court (including an appellate hearing) meaning that the automatic restrictions do not apply, and it is necessary to reinstate some level of anonymity or privacy protection through an order. In Re Times Newspapers aka R v Abdulaziz [2016] EWCA Crim 887; [2016] 1 WLR 4366 the Court of Appeal upheld a Contempt of Court 1981, s 11 order in respect of inadvertently detailed explanations given by a judge sitting in open court, but emphasised that restraining the publication of something said in open court was a matter of extreme sensitivity, not to be made lightly and without careful scrutiny. In DE v AB [2014] EWCA Civ 1064 (24 July 2014) Ryder LJ did the same. ●● The combination of information lawfully in the public domain is likely to lead to identification or some other harm to a child or vulnerable adult – for example, information in a published judgment, information on social media or news reports that gives details of the family or background but which does not offend against CA 1989, s 97 or AJA 1960, s 12 because it neither names the child nor gives details of what has taken place in court or the contents of court documents. ●● There is a risk of the family or child being sought out and this leading to harm through harassment, distress or disruption, for example by vigilantes,

74

ORDERS RESTRICTING OR PERMITTING REPORTING journalists, family members or those who may pose a risk to the child or a vulnerable adult (such as perpetrators of past harm, or those who may behave in a predatory or manipulative way). ●● There has been publication of information in breach of the automatic restraints, particularly if wilful rather than inadvertent, and/or a clear risk that (more) information may be published that would identify the child or otherwise expose him to risk of harm. For example, through the detail of care proceedings being placed on social media, with the child identified by name or photograph, or details of allegations regarding abuse suffered by the child being placed on social media. ●● There is a need to prevent publication in order to prevent some form of prejudice to a party or to a criminal trial. ●● There is some pressing commercial interest that requires protection following compliance with disclosure obligations in a financial remedy matter. ●● It is necessary to clearly delineate what remains prohibited in the context of the court granting permission for publication of material that would otherwise be automatically restrained. 3.21 Whether a reporting restriction is justified in a particular case will depend upon the facts of any particular case, the risks to which the application is addressed and the extent of the restriction sought. As a RRO amounts to an imposition on Article 10 it must be both necessary and proportionate. Thus consideration must be given to the specifics of what is to be restricted, and what does not need to be restricted – a blanket all or nothing approach is unacceptable: such applications ‘fall to be decided not on the basis of rival generalities but by focusing on the specifics of the rights and interests to be balanced in the individual case’ (Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, at para 64, per Potter P. See also Peter Jackson J in Cumbria County Council v M and F [2014] EWHC 2596 (Fam) (28 July 2014) (proceedings arising from death of Poppi Worthington (See Case Study 7, Appendix 1), who deprecated a ‘scatter-gun’ approach of the local authority who had: ‘indicated that it was asking for the widest restrictions on the basis that the court could cut back on its request. That scatter-gun approach is inappropriate in applications of this kind. It is the responsibility of any applicant, particularly if it is a public authority, to analyse the need for restrictions and only to seek those that can reasonably be justified.’ 3.22 The mere fact that automatic restraints have been or might be breached does not in itself justify the imposition of a reporting restriction order. Any application must be specifically justified with reference to the risk of harm, through unnecessary or disproportionate interference with Article 8 rights or some other specific harm. Evidence is required, and whilst in cases where there has so far been no publicity, an element of speculation may be unavoidable – it must be underpinned by analysis and assessment of the specific facts and circumstances. Pure speculation or generic propositions expressing a presumption 75

ORDERS RESTRICTING OR PERMITTING REPORTING that publication will be inevitably harmful to the child will not do, as made clear in Birmingham City Council v Riaz [2014] EWHC 4247 (Fam) (15 December 2014) by Keehan J:5 ‘There comes a point, however, where evidence is not merely speculative but is pure speculation, even from experienced professionals, with no sound or cogent underlying evidential basis. Given the Draconian and wide ranging nature of RROs, I am of the view that evidence of this nature will not be sufficient or adequate to provide an evidential basis to justify the making of an order.’ 3.23 In most cases the justification will relate to potential breaches of Articles 8 or 10 ECHR rights, but in some cases the court may need to also consider other rights such as Articles 6, 2, 3 if engaged. 3.24 As a result of the court’s duties as a public body under the HRA 1998, the jurisdiction is not limited to publicity that is likely to have an adverse effect on proceedings. Even where there are no ongoing proceedings and the child is not the subject of a care order, there is still jurisdiction to make a RRO (Re Roddy (A Minor); Torbay Borough Council v Associated Newspapers Ltd [2003] EWHC 2927 (Fam) para 17, quoting Latham LJ in the Court of Appeal in Re S (a child) [2003] EWCA Civ 963; [2004] Fam 43 (upheld by the House of Lords, House of Lords citations below).However, whilst the court is ‘at least entitled to consider the grant of an injunction in cases such as this even if publicity is not directed at the child or his carers and could not be shown to have an adverse effect on the care proceedings […] that will undoubtedly be a significant factor in deciding whether or not an injunction should ultimately be granted.’ (per Latham in Re S, para 75)

THE BALANCING EXERCISE 3.25 The leading authority on the exercise that the court is required to carry out can still be found in Re S (A child) [2004] UKHL 47; [2005] 1 FLR 591, as discussed in Chapter 1. 3.26 If a RRO is sought in respect of a child, their welfare is generally said to be relevant but not the paramount consideration, because this is not a decision about the upbringing of a child, although McFarlane LJ recently queried (obiter)

5

See also Re Roddy (A Minor); Torbay Borough Council v Associated Newspapers Ltd [2003] EWHC 2927 (Fam), Re W (Children) (Identification: restrictions on publication) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, Southend Borough Council v CO & Anor [2017] EWHC 1949 (Fam), City and County of Swansea v XZ and YZ v The Children, The Press, Media and Others [2014] EWHC 212 (Fam).

76

ORDERS RESTRICTING OR PERMITTING REPORTING in W (Children) [2016] EWCA Civ 113 (pas 41–43) whether this proposition was correct. Of particular note is para 59 of Clayton (see Chapter 2 at 2.125–2.130), where Sir Mark Potter P distinguishes the scenario in Re S (a child) [2004] UKHL 47 (where the RRO was sought in order to protect a child whose parent had been involved in criminal proceedings from the public fallout arising from reporting of the trial), from a case where the issue was a parent in Children Act proceedings potentially being prevented from engaging in public discussion of arrangements made, proposed, or ordered in relation to his child, and where such discussion would be harmful to the welfare of that child. ‘In such a case … the observation of Lord Steyn that earlier case law on the inherent jurisdiction of the High Court may be relevant in regard to the balancing exercise to be carried out under the ECHR provisions, applies, because the injunction is sought and granted as part of the court’s consideration of a question regarding the upbringing of the child concerned: see s1 (1) of the 1989 Act. In such a case, the child’s welfare, which of course includes respect for his or her privacy free from damaging publicity, is the court’s paramount consideration.’ 3.27 Whether or not the child’s welfare is paramount, the court is still obliged to apply an intense focus to the potential interference with Article 8 and Article 10 rights that would arise from making or declining the order (Re S (A Child)) – and we suggest that in most cases the overlaying of CA 1989, s 1(1) would have little practical effect, particularly since it is likely in most cases to be offset by the specific provisions of HRA 1998, s 12 regarding the protection of Article 10 rights (although of course in rare cases it will be contended that the child’s Article 8 or 10 rights entitle or require the publication of information, eg Re Stedman [2009] EWHC 935 (Fam)). 3.28 It is worth remembering that the inherent jurisdiction may be invoked only where statutory provisions cannot provide adequate protection. For example, in some cases a clear reminder to the relevant person about the scope and effect of the automatic restraints and/or a prohibited steps order under CA 1989, s 8 preventing a parent from disclosing information may be sufficient. In some cases, the remote and largely theoretical prospect of the Attorney General bringing criminal contempt proceedings in the event of any wrongful publication (see Chapter 7) will be an inadequate deterrent and the applicant/court will wish to have the more tangible protection offered by a printed order that can be enforced by committal proceedings by the family court if necessary and without reference to the Attorney General. 3.29 Finally, proper consideration should be given, before applying, to whether or not an order is really necessary AND to whether or not it is going to achieve the desired purpose. Consider amongst other things, the ‘Streisand Effect’, a term coined for attempts to hide, remove, or censor a piece of information which has the unintended consequence of publicising the information more widely, usually through the Internet.

77

ORDERS RESTRICTING OR PERMITTING REPORTING

Restricting the identification of experts, professionals and the local authority 3.30 Neither the general law nor AJA 1960, s 12 confer any right to anonymity on professionals, local authorities or experts (British Broadcasting Corporation v CAFCASS Legal [2007] EWHC 616 (Fam) (30 March 2007) / Re Ward (A Child) [2007] EWHC 616 (Fam); [2007] 2 FLR 765. See also Re Roddy (above) and BBC v Rochdale [2005] EWHC 2862 (Fam), Chapter 2, at 2.104). 3.31 Although it is open to a professional or expert witness to apply to the court for an order that their identity should be withheld from publication, class claims – namely claims which are generic to a whole class of professional – are unlikely to succeed. Professionals, experts or local authorities asking the court to offer them anonymity need to be able to demonstrate that the balancing exercise tips in their favour. First though, they will need to persuade the court that their Article 8 rights (or other relevant rights) are engaged at all (Norman v Norman [2017] EWCA Civ 49; [2017] 1 WLR 2523). 3.32 Where there is to be some publication of information, the party requesting anonymity of a social worker or the local authority must show a compelling justification for the anonymisation of the local authority and/or social workers. That is made clear in the 2014 Guidance, but that guidance is based on a significant body of case law going back much further in respect of the naming of social workers. See A v Ward [2010] EWHC 16 (Fam), and S (A  Child acting by the Official Solicitor) v Rochdale Metropolitan Borough Council and the Independent Reviewing Officer [2008] EWHC 3283 (Fam), [2009] 1 FLR 1090, in which the argument that the naming of social workers or local authorities will worsen difficulties with recruitment has generally received short shrift. For a more recent example see Re ABC (A child) [2017] EWFC B75 (30 October 2017), HHJ Wildblood QC. 3.33 Similarly, generic arguments that social workers might be vilified or harassed if named have cut little ice with the courts (A v Ward). The position is similar in respect of the naming of experts or other professional witnesses. The burden of justifying such a restriction on publication will lie with the person who seeks it. 3.34 It is axiomatic that mere assumption will be insufficient (see Southend Borough Council v CO [2017] EWHC 1949 (Fam) and the authorities referred to at pa 25–26). There will usually need to be specific circumstances and evidence in support of a contention that there is some need to provide anonymity that the general law does not automatically confer, especially where there is a countervailing public interest in their being named – as there will often be in cases involving children. 3.35 See A v Ward for a discussion of the important procedural requirements where it is proposed to publish a judgment naming a professional, which in that case were not followed. Any person who is to be named ought to be put on notice in order that they may seek a reporting restriction if they wish. 78

ORDERS RESTRICTING OR PERMITTING REPORTING 3.36 Although the 2014 Guidance is silent on any requirement to give notice to a professional witness who it is proposed to be named in a judgment: ‘in all cases where a judge gives permission for a judgment to be published … public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named;’ (pa 20) 3.37 It is clear that where the intention is to publish a judgment identifying a professional witness who is to be the subject of adverse findings or criticism, Article  8 may well be engaged, and would demand that basic requirements of procedural fairness are followed, including notice: see Re W (A Child) [2016] EWCA Civ 1140; [2017] 1 WLR 2415, per McFarlane LJ. See Chapter 4 for a discussion of the 2014 Guidance and the naming of professionals in published judgments. 3.38 So far as expert witnesses’ own reports are concerned, an application by a psychiatrist to lift restrictions to vindicate his reputation following a parent’s allegations in the press was unsuccessful. Although the court accepted that he had been traduced and defamed by the mother, this did not free him from his continuing duties of confidentiality nor justify removing the AJA 1960, s 12 limitations on the 46 court documents (including ten of his own reports) that he had asked to be discussed openly. (Re C (A Child) (Care Proceedings: Disclosure of Documents) [2015] EWFC 79, [2017] 1 FLR 82).

PROCESS – HOW TO APPLY FOR REPORTING RESTRICTIONS 3.39 Although some applications are likely to be urgent and the procedure below may therefore need some adjustment, it is important to comply with these procedural points, as far as is practicable, to ensure success and to avoid censure. See PD12E for the procedure for urgent out of hours applications, in particular confirmation that CAFCASS Cymru do not operate an out of hours service, but that Cafcass (England) will respond on their behalf until the next working day.

The Application 3.40 Applications fall under the inherent jurisdiction, so must be commenced in the High Court, although they can subsequently be transferred to the Family Court if appropriate (see PD12D and PD12I, para 22 Allocation and Gatekeeping for Care, Supervision and other Proceedings under Pt IV of the Children Act 1989 (Public Law), para 27 Allocation and Gatekeeping for Proceedings under Pt II of the Children Act 1989 (Private Law) and President’s Guidance, Jurisdiction of the Family Court: Allocation of cases within the Family Court to High Court judge level and transfer of cases from the Family Court to the High Court, 28 February 2018). 79

ORDERS RESTRICTING OR PERMITTING REPORTING They should therefore be issued using form C66. A C2 issued under Pt 18 is not the correct procedure, but where there are existing proceedings or where there have been previous proceedings the relevant case number(s) and allocated Judge (if known) should be included in the application, and any forthcoming hearing dates flagged. 3.41 Practice Direction 12I confirms that RROs can only be made in the High Court and are normally dealt with by a judge of the Division. The PD advises that if the need for an order arises in existing family proceedings in the Family Court, judges should either transfer the application to the High Court or consult their Family District Liaison Judge. The urgent out of hours number (0207 947 6000) is also provided. 3.42 Notwithstanding that applications must be commenced in the High Court, there are instances of orders being made by judges of the Family Court. There may be some merit in cases where there are existing proceedings in simultaneously issuing a C2 in the court in which proceedings are ongoing, in order to facilitate early liaison between the allocated judge and more senior judiciary as to which judge is best placed to deal with the application, and cross referring. There is no jurisdictional bar on a matter being dealt with in the Family Court by the allocated judge or another local judge (see M&FPA 1984, s 31E, Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/840) and The President’s Guidance, 28 February 2018 (above)), the issue is one of judicial allocation policy. However, particularly in cases involving applications for orders against all the world or restraining the press, it is unlikely that such matters will be authorised to be dealt with below Circuit Judge level (see para 21 Allocation and Gatekeeping for Care, Supervision and other Proceedings under Pt IV of the Children Act 1989 (Public Law) – although there is no equivalent provision in the Private Law allocation guidance).

Notice and interim relief 3.43 Applications for contra mundum orders (orders against the whole world) must be on notice to the press and interested parties (unless exceptional circumstances or urgency precludes this, when a short holding order may be appropriate until the matter can be reconsidered on notice). HRA 1998, s 12(2) provides that no relief that may impinge upon the exercise of Article 10 rights may be granted unless the respondent to any such application is present or represented or the court is satisfied that the applicant has taken all practicable steps to notify them or there are compelling reasons justifying non-notification (see Bristol City Council v C [2012] EWHC 3748 (Fam)). HRA 1998, s 12 is set out in full in Appendix 3. HRA 1998, s 12 does not appear to require service upon the media where the order is against named individuals such as the parties, but the named individual must be served, but where there is known or anticipated media interest it would be wise to treat the media as required respondents. 3.44 HRA 1998, s 12(3) prohibits the grant of interim relief to restrain publication before trial unless the court is satisfied the application is likely to 80

ORDERS RESTRICTING OR PERMITTING REPORTING establish that publication should not be allowed. ‘Likely’ in this context means that there is a real prospect of establishing that publishing should not be allowed (Re Roddy, where there was no evidence in support of a speculative contention that publication of the teenaged mother’s story in the national press would destabilise the adopted daughter’s placement if the adopters came to read it, and interim relief was refused). 3.45 Applicants should be alert to these requirements in order to ensure that interim protection is granted, where justified. 3.46 Practice Direction 12E endorses the detailed procedure set out in the 2005 CAFCASS Practice Note: Applications for Reporting Restriction Orders (18 Mar 2005) [2005] 2 FLR 111, jointly issued by the Official Solicitor and Cafcass Deputy Director of Legal Services. 3.47 Service is in the first instance to be effected on the national media via the Media Lawyer Injunctions Alert service. It is important to consider whether or not there is any national news organisation that must be separately notified (The Financial Times and Sky News are not members of Media Lawyer Injunctions Alert Service, which is a subscription service), or whether in the circumstances of the individual case there are any local news organisations or individuals who ought to be separately notified. 3.48 In Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam); [2014] 2 FLR 410 (see Case Study 11, Appendix 1) at para 46, Munby P gave detailed guidance about the operation of the Media Lawyer Injunctions Alert Service: ‘There is a page on the Injunctions Alerts Service website – http://www. medialawyer.press.net/courtapplications/mediaorganisations.jsp – which lists the media organisations served, and the relevant telephone numbers, and which states at the top: “The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly.” The service was also established on the basis that subscribing organisations would be taken to have been served with an application if notification was sent via the service. The system works as follows: Would-be applicants are supposed to call a number, given in the Practice Note, and speak to the Customer Services staff who deal with the service. They then send the documents, electronically (which is easier) or by fax, to the service. These documents are, if necessary, scanned to be put into electronic form, and are then distributed via e-mail alerts to the national 81

ORDERS RESTRICTING OR PERMITTING REPORTING media. Distribution is followed up by calls to each of the subscribing organisations to check that service has been received. The service does not: 1: Serve regional and local newspapers, or magazines 2: Serve orders which have been obtained from the courts (despite the continuing efforts by some law firms to use it for this purpose). The website’s Home page, and the pages for the Practice Direction, Practice Note and for the Notification system all contain a red-bordered box detailing what it does and not do. The box is the same on all pages...’ 3.49 In Bristol City Council v C [2012] EWHC 3748 (Fam) there had been a complete failure by the Local Authority, who sought an emergency reporting restriction order, to serve the media in accordance with the requirements of HRA 1998, s 12(2). On the return date, Baker J reiterated that: ‘It is axiomatic that, save in exceptional circumstances, any application for a reporting restriction order should be made on notice to the media … there is a danger that those who practise in the family justice system fail to give proper consideration to the Article 10 rights of the media. It is not the first time that an ex parte order has been made without notice to the media in circumstances which could not be described as exceptional. This must now cease. The media are undoubtedly and rightly aggrieved by this practice.’

Respondent Based Abroad or publication abroad 3.50 It is (in theory at least) possible to obtain an order against a foreign respondent such as a foreign internet provider or website operator (Re J (A Child) [2013] EWHC 2694 (Fam); [2014] 1 FLR 523, para 44). FPR, Pt 6 must be complied with, but permission to serve out of the jurisdiction is not required. An applicant for an order against a person or body abroad must first of all deal with jurisdiction by a) proving service and b) providing evidence as to the applicable law regarding permissibility of the relevant method of service (for example, email or letter). Further, the court may decline to exercise its power to make an order if it is likely to be futile. In order to persuade the court to exercise the discretion, the applicant will need to a) provide evidence as to the likelihood of the foreign court enforcing the order of the High Court of England and Wales and, if so, through what mechanism, and b) evidence of the local approach to questions of freedom of speech. 3.51 In Re E (A Child) [2014] EWHC 6 (Fam); [2014] 1 WLR 2670, a mother was permitted to publish her story in her home country of Slovakia, and on the internet if not in English (and as long as she did not identify the child). Munby P said that ‘as a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible.’ This was because there is no justification for the courts in one country seeking to control 82

ORDERS RESTRICTING OR PERMITTING REPORTING the media in another, contrary to principle, and it would ‘in all probability be an exercise in futility’. 3.52 The reason that the position is different vis a vis foreign internet or satellite companies is that the media have an extra-territorial effect ie the information is accessible throughout the world. Any order against such an organisation specifically or contra mundum must make clear that the English court is not seeking to interfere in any way with the print or broadcast media in any foreign country, even if it is the English language which is being used. 3.53 In Re P (A Child) [2013] EWHC 4048 (Fam) (17 December 2013) (see Case Study 11, Appendix 1). Munby P made an order dealing with territorial limitations in the following terms, which is a useful template (this is not in the current standard order but is in the draft issued in March 2018). ‘In respect of persons outside England and Wales: (i)

Except as provided in sub-paragraph (ii) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(ii) The terms of this order will bind the following persons in a country, territory or state outside the jurisdiction of this court: (a) the First and Second Respondents or their agents; (b) any person who is subject to the jurisdiction of this court; (c) any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court; (d) any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and (e) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state. Undertakings to the court The Applicant will not, without permission of the Court, seek to enforce this order in any country, state or territory outside England and Wales.’ 3.54 This wording was also re-used by the President in Re E (above), whilst in DL v SL [2015] EWHC 2621 (Fam); sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] 1 WLR 1259, Mostyn J made an order expressed in very similar (but not identical) terms.

Joinder of child 3.55 In many, but not all, cases there will be existing proceedings and the child will already be a party (and their solicitor or Cafcass guardian should therefore be served). 83

ORDERS RESTRICTING OR PERMITTING REPORTING 3.56 In cases where a child is not a party or is no longer represented because the substantive proceedings have concluded, the court will need to consider whether or not the child ought to be made a party and represented (FPR, r 16.4) or his views otherwise obtained. Much will depend on the context and the age of the child. In some circumstances, for example where a parent is seeking to tell their story and wishes to present an alternative viewpoint from the conclusion reached by the court, the Article 10 rights of the parent may be in direct conflict with the Article 8 rights of the child – and may be irreconcilable (See, for example, the decision of Hayden J in Re J (A Minor) (application for permission to Appeal) [2016] EWHC 2766 (Fam).

Checklist 3.57 The up-to-date checklist on the Media Lawyer site should be completed and handed in to the court before the commencement of the hearing. It currently requires: ●● Confirmation that the applicant has served the necessary documents via Media Lawyer Injunctions Alert Service, which are: $$ Application $$ Witness statements $$ Legal submissions $$ Draft order $$ Explanatory note ●● To specify who has been served, how and when and to attach proof of service. ●● Any explanation for non-compliance and confirmation that if some documents have not been served sufficient information has been provided to enable the media to decide whether to attend or be legally represented. ●● Confirming the duty to ensure immediate service of the order upon sealing.

Supporting Material 3.58 Applications for restrictions must be supported by evidence which specifies the actual harm or risk of harm that is said to support the need for an order which will interfere with the Article 10 rights of the press or any individual respondent (See CAFCASS practice Note/checklist). Speculative or generic assertions of concern are unlikely to be adequate (see extract from judgment of Keehan J in Birmingham City Council v Riaz [2014] EWHC 4247 (Fam) at 3.20 above6).

6

See also, eg, Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam) (01 November 2006) (Case Study 3, Appendix 1), where the Guardian’s concern regarding the potential impact

84

ORDERS RESTRICTING OR PERMITTING REPORTING 3.59 In addition, an application should be accompanied by a draft order and checklist and an explanatory note, to help those served to understand the nature of the case. In any case where notice of an application has not been given, the explanatory note should explain why.

Draft Orders 3.60 Applications should set out the proposed terms of the restrictions, which should be drafted in precise terms that cause the least possible interference consistent with the protective objective. The template order should be used. It can most readily be found in electronic (but, unhelpfully, not Microsoft Word) format on the Media Lawyer Injunctions Alert Service site. See 3.120 below for drafting issues to consider.

Service of Orders 3.61 The Media Injunctions Alert Service is a notice service only and does not serve orders. Applicants will need to make arrangements for orders to be served upon news agencies in the usual way.

APPLYING TO RELAX THE AUTOMATIC RESTRAINTS Who may apply? 3.62 Relaxation applications are most commonly made by the mainstream media (often in the face of opposition by one or other party), or by a parent (occasionally a child) who wishes to be able to tell their story, either to highlight injustice or poor treatment, or to raise awareness of some cause (for example a rare medical condition). Occasionally an application will be made in order to rebalance the information in the public domain when a tendentious or inaccurate account has been published. See below for further discussion of such scenarios.



on the child of permission to identify was rejected as ‘speculative’, and HRS Louis Xavier Marie Guillaume Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma v HRH Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma & Anor [2017] EWHC 3095 (Fam) (05 December 2017) citing Clayton 2006 at 51. Per MacDonald J: ‘whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child (see Clayton v Clayton [2006] Fam 83 at [51]). In this case, it is important to recognise that the court does not have before it cogent evidence demonstrating that the children would have been adversely affected were the information in issue published, even though I acknowledge that seeing this litigation played out in the newspapers and online, or seeing publicity about the house they consider to be their home, is unlikely to be of positive benefit to children who are old enough to understand what is happening.’

85

ORDERS RESTRICTING OR PERMITTING REPORTING 3.63

Examples of applications driven by the media include:

●● ‘Big money’ cases such as Norman v Norman [2017] EWCA Civ 49; [2017] 1 WLR 2523 and Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam); [2016] 2 FLR 1, as discussed in Chapter 2 (2.65). ●● The 2014 judgment of King J concerning the death of Ellie Butler was only published after seven media organisations took the case to the Court of Appeal following the conviction of Ellie’s parents (See Case Study 9, Appendix 1) ●● There was significant media interest in proceedings concerning the death of Poppi Worthington (See Case Study 7, Appendix 1) where Peter Jackson J set up an unusual regime to facilitate the media’s proper reporting of this case of significant public interest. 3.64 Examples of those driven or pursued with support of a parent (or competent child) include: ●● Re Roddy (A Minor); Torbay Borough Council v Associated Newspapers Ltd [2003] EWHC 2927 (Fam); [2004] 2 FLR 949: a Gillick competent 17-year-old who had fallen pregnant aged 12, and whose child had subsequently been adopted wished now to tell her story to the press. She was permitted to do so, subject only to restrictions necessary to protect the adopted child. A mature child’s wishes to express herself pursuant to Article 10 should ordinarily be respected. See Chapter 2 (2.103). ●● Norfolk County Council v Webster [2006] EWHC 2733 (Fam); [2007] 1 FLR 1146 (Case Study 3, Appendix 1). Parents whose older children had been adopted before subsequent medical evidence demonstrated that there had been a miscarriage of justice, were permitted to tell their story after a comprehensive balancing exercise set out in the judgment. This was a joint application by the parents and some media outlets to attend care hearings (before the 2009 rule change – see Chapter 1). ●● The ‘forced Caesarean’ case, Re P [2013] EWHC 4048 (Fam); [2014] 2 FLR 410, where the story broke after the mother approached the media, there being no judgments in the public domain at the time. (See Case Study 11, Appendix 1). ●● In Tickle v Council of the Borough of North Tyneside [2015] EWHC 2991 (Fam) a journalist sought permission to report details of care proceedings with the support of the mother. The application was granted, resulting in a Guardian Long Read (Tickle 2016; Tickle and Reed 2016). 3.65 Other examples of restrictions being relaxed with parents’ or children’s support are: ●● In Kelly v BBC [2001] Fam 59; [2001] 1 FLR 197 (see Chapter 2, 2.100). ●● In British Broadcasting Corporation v CAFCASS Legal [2007] EWHC 616 (Fam); [2007] 2 FLR 765 (30 March 2007) / Re Ward (A Child) [2007] EWHC 616 (Fam); [2007] 2 FLR 765; [2008] 1 FCR 417, parents whose child suffered a fracture thought to be non-accidental were exonerated. They wished to participate in 86

ORDERS RESTRICTING OR PERMITTING REPORTING a documentary made by the BBC about their experience. An application was made for the publication of the judgment and disclosure to the BBC of video footage that identified the child (not for broadcast). Various participants in the process wished to preserve their anonymity. There was no objection to the public identification of the family, the child, the children’s guardian, the local authority, the hospital or the police force. But the social workers, the police officer, and some of the treating doctors and the expert witnesses preferred to preserve their anonymity. The public interest in the publication of the judgment was obvious subject only to the question of anonymisation. An order was made permitting the documentary to go ahead with restrictions on the identification of various professionals. (See further 3.69 below). ●● Re Stedman [2009] EWHC 935 (Fam), where the father of the child of a very young mother had been inaccurately and widely reported in the media to be a 13-year-old boy called Alfie, and where the reporting of the negative DNA results was permitted, in part, to set the record straight. (But see also 3.05, 3.15). ●● The adoptive parents of a 16-year-old in Re K (A Child) (Wardship: Publicity) [2013] EWHC 3748 (Fam); [2014] 2 FLR 310 sought permission to identify themselves in anonymous form to discuss their experiences with the media of parenting a child who had reactive attachment disorders, of working with the local authority and of engaging with the family justice system. HHJ Bellamy partially lifted the AJA 1960, s 12 restrictions to allow public debate while still protecting the child’s identity. He also released an anonymised version of an ex tempore judgment regarding the provision of therapy for the girl. However, he retained some aspects of specific information within s 12. The parents could only name individual professionals in the context of discussing factual information already in the public domain. ●● In Buckinghamshire County Council v Andrew [2017] EWFC B19 (26 April 2017) the parents and child were named, allowing them to raise awareness of the risk of symptoms of Ehlers Danloss Syndrome being mistaken for inflicted injury: ‘The parents have asked that I give my reasons in an open judgment to enable them to openly engage in the debate and development of knowledge around the syndrome known as EDS IV. I give this open judgment with the agreement of all parties’ (see Case Study 8, Appendix 1). 3.66 In addition, the court may relax restrictions or even positively seek the assistance of the press in publicising a case where a child has gone missing or been abducted (See Minnock and Baldwin, Case Studies 2 and 6, Appendix 1) (PD12F 4.15–16) (See further Chapter 2 at 2.114 and 2.122). ●● In other cases, the court will dis-apply the usual restrictions and will permit the identification of a child or family where prior publicity may render any restriction without purpose, and therefore without justification, such as Great Ormond Street Hospital v Yates [2017] EWHC 972 (Fam); [2018] 1 All ER 569 (See Case Study 18, Appendix 1) and Re Alcott [2016] EWHC 2414 (Fam). ●● Examples of applications (apparently) instigated by the Local Authority are relatively sparse, but see below for a fuller discussion of the more complex legal 87

ORDERS RESTRICTING OR PERMITTING REPORTING position for corporate parties wishing to publish information or make public statements (see 3.101 below).

Lifting automatic restrictions may require others to be imposed 3.67 It is important to recognise that a request to the court to relax certain aspects of the automatic restraints (for example an application to report the detail of what has gone on in court within the ambit of AJA 1960, s 12) may go hand in hand with a need to reinforce the restraints in other areas (for example a reporting restriction order that prohibits the publication of names or certain other specified identifying features). That is to say, the imposition of certain safeguards may facilitate a successful application for permission to tell a particular story. Any applicant for an order permitting them to publish information that would otherwise be restricted should give early and careful thought to what the quid pro quo of a permissive order might be – and should ask themselves what safeguards could be put in place to enable the court to strike the balance between safeguarding the privacy or wellbeing of child or family without preventing them from telling this story. An application which shows an appreciation of the potential risks or adverse consequences of publication, and has engaged with those issues, is more likely to be successful. 3.68 In British Broadcasting Corporation v CAFCASS Legal; Re Ward (A Child) [2007] EWHC 616 (Fam); [2007] 2 FLR 765. Because the proceedings had ended, CA 1989, s 97 did not apply and there was nothing to stop the naming of the child or family, or indeed the professionals – unless the court made some order. But AJA 1960, s 12 continued to restrict discussion of the facts and evidence in the case. Therefore, Munby J had to exercise both the restraint and disclosure jurisdictions to permit the documentary to go ahead in a way which would adequately meet the competing interests. 3.69 As described in Re Ward there is often a process of discussion and refinement that leads the parties towards a consensus about the appropriate terms of any restrictions, or at any rate to narrow the issues (See also Tickle at 3.64 above.). 3.70 By contrast in Re Roddy (A Minor); Torbay Borough Council v Associated Newspapers Ltd [2003] EWHC 2927 (Fam), the fact that the Mail on Sunday and the teenager who wished to tell her story agreed that any story should not include details likely to identify her adopted daughter did not ‘meet the point’ because once interest was generated other outlets might wish to do so. An injunction protecting the daughter’s identity was therefore made. 3.71 In RB (Adult) (No 4) [2011] EWHC 3017 (Fam); [2012] 1 FLR 466 para 16) the standard rubric has been explained as simultaneously permitting publication of information, whilst also restricting other information, as discussed in Chapter 2 at 2.131.

88

ORDERS RESTRICTING OR PERMITTING REPORTING 3.72 Opening hearings to the public can bring with it an onerous task of anonymising evidence, as has happened in the Court of Protection, discussed in Chapter 6. 3.73 For an interesting example of the quid pro quo in operation in the civil field, see NAB v Serco [2014] EWHC 1225 (QB), where the claimant complained of sexual assault whilst an immigration detainee at Yarls Wood, operated by Serco. The Guardian sought access to Serco’s internal report on their handling of the assaults which had been filed in proceedings by the claimant but not read out in open court. They ‘pragmatically’, offered an undertaking that, if allowed access to the report, they would maintain the anonymity of the claimant and of the alleged perpetrator. Their application was granted pursuant to Civil Procedure Rules (CPR) r 31.22(2). There was a legitimate public interest and proper journalistic purpose in inspection of the document.

Link identification 3.74 Relaxation applications may relate to the wording of the rubric on a published judgment to permit linking ie identification of a party as the person referred to in a judgment. See Re B; X Council v B (No 2) [2008] EWHC 270 (Fam); [2008] 1 FLR 1460, where some years after publication of a judgment with the usual rubric attached, the mother and her children (by then 15 and 10) sought and were granted permission first to amend the rubric on the published judgment so as to remove the prohibition on identifying the local authority, and subsequently to identify themselves as the family in that judgment. In his judgment Munby J (as he then was) queried the wisdom of their doing so, but concluded it was a matter for them. 3.75 See London Borough of Haringey v Musa [2014] EWHC 962 (Fam) (19 March 2014); [2014] EWHC 1200 (Fam) (11 April 2014); [2014] EWHC 1341 (Fam) (16 March 2014) (Holman J); [2014] EWHC 2883 (Fam) (3 July 2014) for an example of a case which became so notorious that the court ultimately had to sanction a change of name to protect the children from further placement moves and the risk of disruption (see Case Study 19, Appendix 1).

PROCEDURE TO APPLY FOR RELAXATION OF THE AUTOMATIC RESTRAINTS/FOR PERMISSION TO REPORT 3.76 An application to relax the provisions of AJA 1960, s 12 should be dealt with under the same procedure set out above regarding an application to restrict reporting. As explored at 3.68 above, it many instances a relaxation in one area may necessitate a restriction to be imposed elsewhere. A relaxation application may prompt an application for a RRO by another party, or may itself need to encompass a proposed reporting restriction order (or at least spell out what concessions it is acknowledged will need to be made in order to achieve the relaxation sought). However, in practice, such applications are most commonly likely to arise when 89

ORDERS RESTRICTING OR PERMITTING REPORTING a journalist is in attendance at a hearing in ongoing proceedings, when an application may be made orally, at least in the first instance. 3.77 In the event that a party to the proceedings wishes to make an application to relax restrictions (for example where a parent wishes to tell their story, or a party wishes to publish information in order to correct inaccurate or unbalanced material already in the public domain) they should apply using form C66 – unless the matter is raised at a hearing and the judge dealing with the matter is prepared to deal with the matter orally. In the case of concluded proceedings, an application in form C66 will be required, giving details of the allocated judge who dealt with the previous proceedings, in order that liaison about appropriate allocation of the matter can take place between the High Court and local judiciary. 3.78

Any application should set out where possible:

●● what categories of information it is proposed should be permitted for publication; ●● what categories of information it is accepted should remain confidential; ●● whether the parties to the proceedings have been canvassed; ●● whether the application is opposed fully or partially (if known). It would appear that an application which is unopposed by the parties to the proceedings may be more likely to be capable of being dealt with by the former/ allocated judge in the Family Court.

RESPONDING TO AN APPLICATION FOR REPORTING RESTRICTIONS/RELAXATION 3.79 Clients are likely to be unfamiliar with reporting restrictions (even professional clients) and may need an explanation of what is being proposed before they are able to give informed instructions on any application. 3.80 Lay parties may be alarmed at the thought of the details of proceedings being published through a judgment or featuring in news items – particularly local news items. It is important to talk through with a lay party (including a child of sufficient age and understanding to have such a discussion) what their particular anxieties are, and to ensure that they understand that anonymity is likely to be maintained, including a bar on publishing identifying details. Lay parties will most likely be best placed to inform you as to the particular facts and details which are most likely to render them, their family or their placement vulnerable in some way or which are most likely to cause distress or risk local or jigsaw identification. Many lay parties are content with the notion of publication of a judgment once reassured that proper anonymisation can be put in place, and the same is likely to be true in the case of a relaxation application. It is important, however, that a lay party understands that media coverage may include views or descriptions 90

ORDERS RESTRICTING OR PERMITTING REPORTING of the parties’ or their behaviour that are unfavourable, upsetting or even unfair. This is particularly so of news stories drawn directly from hearings or interviews with individuals involved, but also applies to those items based simply on an interpretation of the contents of an approved, published judgment. 3.81 It may be that a wholesale restriction on publication of information can be avoided by a more focused and customised restriction on identifying or high-risk information. It is best to attempt constructive discussion. Do not assume that representatives of the media will have no understanding of the human issues or that they will not be willing to exercise some restraint in order to better protect the vulnerable (see Series et al 2016 pp 35–37). They will often be a valuable resource in terms of identifying a practical way forward, such as the suggestion of a delay in delivery/publication of a judgment until half term, when the child could be better protected and prepared came from the press (see Re J (A Minor) [2016] EWHC 2766 (Fam) where this approach was adopted by Hayden J, following on from a suggestion made by the press in (unidentified) judgment of Keehan J).

DRAFTING AND CONSEQUENTIAL ENFORCEMENT ISSUES 3.82 Applicants may wish to consider to what extent it is necessary to bolster the wording in the standard order (set out in full in Appendix 3), to more explicitly cover the sending of emails, the publication of material on social media or the distribution of leaflets or flyers, or the holding up of banners in a public place – which may not be covered (or at any rate not understood by an individual respondent as being covered) by the standard prohibition in the template: ‘the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service …’ 3.83 Where journalists are at court, it is worth considering whether, through discussion with the press about what they will and won’t report, the need for a reporting restriction order can be obviated (or at any rate if the need for a contest on the terms of such an order can be avoided – see for example the suggestion in Re J (A Minor) (Application for Permission to Appeal) (3.81 above) to defer publication of the judgment until the half term holiday that was accepted by all parties and adopted by the court ‘to minimise the fallout for the child himself and to ensure that he had adults around him to support him from any impact the publication of the judgment might have on him directly or indirectly’.7

7

See also Tickle v Council of the Borough of North Tyneside & Ors [2015] EWHC 2991 (Fam) where the parties ultimately were able to agree on the terms of an order and Bodey J said ‘there should be sensible and responsible dialogue as soon as possible, with a view to finding an early modus vivendi. With the application of give-and-take, a measure of common-sense, and the engagement

91

ORDERS RESTRICTING OR PERMITTING REPORTING 3.84 In practice, it will be rare for an application for relaxation to result in a completely free rein over publication of information. Even where an application is successful, there may be a need to spell out in the form of a RRO what residual information cannot be published (usually around identification). Applicants for orders relaxing the automatic restraints should therefore be prepared to assist the court with the drafting of an appropriate order spelling out both what is permissible and what remains restricted. 3.85

We set out below a checklist that relates to the drafting of RROs:

●● Template wording for RROs is available in the PD and on the Media Lawyer Injunctions Alert Service site. This wording is unfortunately somewhat arcane and difficult to understand for non-lawyers. If this standard wording is used, it may be wise to include a plain English explanatory cover letter when serving non-lawyers, although care should be taken to ensure that any precis is in fact accurate (see Southend Borough Council v CO [2017] EWHC 1949 (Fam) for an example of a very inaccurate summary of the effect of the automatic restraints to a mother) (also see the suggested wording in cases where there are territorial issues, see 3.51 above). ●● Orders should be as specific as possible, and confidential annexes should be used where necessary. ●● Clear end-dates should be specified (whether that be the youngest child’s eighteenth birthday or some other specified date). It will be exceptional for an order to be justified in perpetuity. ●● A named contact should be provided in the event of any query. ●● The order should make clear whether it is a final order or is due for reconsideration. ●● We suggest that any order should also provide for a copy to be lodged with the Judicial Press Office and with the court manager or designated family judge at the local court named in any published judgment, in order that they can deal with any enquiries (but clear instructions must be provided to them as to service of the order on any member of the public/press enquiring, in particular where there is a confidential annexe). ●● It is further suggested that any order should also provide for service upon any accredited member of the press or practising legal professional upon request (in our experience there is often confusion by some lawyers as to whether service is permitted). ●● Penal notices must be placed on the first page of any order in order to make the order enforceable (see Re Newman (An Application By Gloucestershire County



of the Children’s Guardian, it should be possible in most cases to come up with a formula based on decided authority which steers a path between (a) the need for greater transparency in the public interest, and (b) the need to respect the privacy and sensitivities of those whose lives are involved. Even if complete consensus cannot be reached through such a collaborative approach, it should be possible considerably to narrow the issues.’.

92

ORDERS RESTRICTING OR PERMITTING REPORTING Council for the Committal To Prison of) [2014] EWHC 3136 (Fam) and Newman (No 2) [2014] EWHC 3399 (Fam)). ●● The order should make provision for who is to be automatically served – this will usually include Media Lawyer Injunctions Alert Service and those national media organisations who do not subscribe, but we suggest should also include the relevant local press and any other individual or organisation who the parties are aware has written about the case or expressed an intention to do so.

FINANCIAL REMEDY PROCEEDINGS 3.86 As noted in Chapter 2, proceedings for financial remedies are normally held in private under FPR 2010, r 27.10 and are subject to (possibly) the restrictions of the Judicial Proceedings (Regulation of Reports) Act (JPRRA) 1926, s 1 and an implied undertaking of confidentiality. Debate as to who is bound by the implied undertaking and in what circumstances continues. It certainly does not appear to prevent a party from providing his own documents, or information about his own confidential affairs, to third parties, including journalists (Wolanksi and Wilson 2011, para 43), with the exception that FPR, r 22.22 prohibits the collateral use of even one’s own witness statement without permission (or unless the matter has been heard in public). Practitioners whose clients seek stronger or fewer restraints will need to take account of the current uncertainty in the law. 3.87 We would respectfully suggest that once an application is made in respect of publicity or restraint, the correct approach is the conventional balancing approach set out in Re S, rather than the presumptive approach indicated by Mostyn J in Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam); [2016] 2 FLR 1. However, this will need to be the subject of consideration by the higher courts before clarity can be achieved, though it is no doubt correct that in some cases the factors identified such as iniquity or the need to correct false impressions might well be material or even determinative factors in some cases. 3.88 The Court of Appeal in Norman v Norman [2017] EWCA Civ 49 certainly considered that unconscionable conduct might well be a material factor to be weighed up in the question of public versus private interests, which is perhaps an uncontroversial proposition – but in that case the court was specifically considering the balance in appellate proceedings in open court, expressly disavowing any applicability of its decision in respect of first instance matters. 3.89 For the moment, when advising parties in financial remedy proceedings, particularly in the High Court or where there are likely to be facts of interest to the media, practitioners will need to be alert to the uncertainty around issues around privacy – and the potential to consider whether a RRO is necessary and justified and if so in what terms. As noted by Mostyn J in DL v SL [2015] EWHC 2621 (Fam) in 2015: ‘It is my opinion that the present divergence of approach in the Family Division is very unhelpful and makes the task of advising litigants very 93

ORDERS RESTRICTING OR PERMITTING REPORTING difficult. A party may well have a very good case but is simply unprepared to have it litigated in open court. The risk of having it heard in open court may force him or her to settle on unfair terms. In my opinion the matter needs to be considered by the Court of Appeal and a common approach devised and promulgated. Obviously if the view of Holman J is upheld and adopted then the rest of us will have to follow suit.’ 3.90 In January 2018, the President of the Family Division announced plans for ‘reporting of judgments’ in small and medium-sized cases proceeding in the new Financial Remedies Courts. It is unclear at the time of going to print what this will mean in practice, but it is likely that the publication of financial remedy judgments will become more routine even at District Judge level.8

Financial remedy cases – procedure for applying for restrictions or lifting of restrictions 3.91 Mostyn J has expressed the view that the court of trial may deal with reporting restriction orders in financial remedy cases (see para 4 of Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam): ‘It is my clear opinion that the court of trial has full power to make a reporting restriction order in proceedings which are not ‘children proceedings’ within the terms of FPR 25.2(1). The only financial remedy proceedings which qualify as children proceedings are those which relate ‘wholly or mainly to the maintenance or upbringing of a minor’. Children proceedings fall squarely within PD12I and so any reporting restriction order in such proceedings can only be made by the High Court. Otherwise, so it seems to me, the court of trial is fully vested with the power to control the reporting of the proceedings before it. It would be strange, to say the least, if the court of trial could exercise the power to exclude the press, and to decide whether to anonymise or redact its judgment, but not to control what could be reported about the case as it proceeded. Plainly, should the court of trial be minded to make a reporting restriction order the notice procedure in PD12I should be followed to the letter.’ 3.92 As noted at 3.05 and 3.10 above, there is certainly no jurisdictional bar on a judge of the Family Court making such orders (M&FPA 1984, s 31E). Appleton is persuasive, but not binding, authority for the proposition that an application for a RRO in a money case may be made to the court of trial and need not be issued in the High Court. Given the tendency for media interest to be restricted only to wealthy celebrity couples, it is likely in practice that in most cases where such an application is warranted the matter will be dealt with at High Court level. However, the Appleton case is one example of a celebrity case that was (until the RRO issue cropped up) being dealt with at Circuit Judge level.

8

Eighteenth View from the President’s Chambers [2018] Fam Law 156.

94

ORDERS RESTRICTING OR PERMITTING REPORTING 3.93 On the basis set out in Appleton therefore, an application may be made under Pt 18 using Application Notice FP2. It would be wise if following such a procedure to cite the basis upon which it is said the court of trial is able to deal with the matter. It is nonetheless possible that judges at Family Court level may decline to deal with such an application without the authorization of the relevant Family Liaison Judge.

FAMILY LAW ACT 1996 PART IV PROCEEDINGS 3.94 We discuss the automatic restraints applicable to this type of application (such as they are) in Chapter 2. 3.95 Whether an application is necessary may depend upon whether the proceedings are clearly wholly or mainly concerned with the maintenance or upbringing of a child as well as whether the court has adopted a compelled disclosure regime equivalent to that in financial remedy proceedings. The latter would give rise to an implied undertaking of confidentiality. In circumstances where there is a dispute or lack of clarity about what is prohibited or where a publication/breach is anticipated, an application may be justified and necessary. 3.96 Assuming that the proceedings do not trigger AJA 1960, s 12 or CA 1989, s 97, the implied undertaking or SO(A)A 1992, the authors’ view is that there is no prohibition on publication of information arising from Pt IV proceedings (see Clibbery v Allan [2002] EWCA Civ 45; [2002] Fam 261). As summarised by Munby LJ (2010): ‘And what of proceedings under Part IV of the Family Law Act 1996? What is the regime which applies to them? The answer appears to be no regime of any sort at all, except perhaps in relation to any children who may be involved and subject always to the principle (equally applicable in ancillary relief proceedings) that you cannot publish, until it has been read out in open court, material which has been extracted from the litigants under compulsion.’ 3.97 It is the view of the authors that CA 1989, s 97 applies to any Pt IV proceedings in which a child is involved at all, even if that involvement is not so major as to bring proceedings within AJA 1960, s 12 (see Chapter 2). However, if there is any doubt about the applicability of s 97 an order may be sought. Even if s 97 applies it will of course not subsist past the conclusion of proceedings. 3.98 The only automatic anonymity protection afforded to adult parties in proceedings of this type is that offered by SO(A)A 1992. 3.99 Although judgments arising from this type of proceedings are rarely published and are unlikely to fall within the ambit of the 2014 guidance due to

95

ORDERS RESTRICTING OR PERMITTING REPORTING the judicial tier to which they are typically allocated, it may be that publication of the judgment in case involving grave allegations of abuse will be considered appropriate under Sch 1(i), but para 20 of the President’s 2014 Guidance is clear that anonymity should ordinarily be afforded to all parties and that they ‘should not normally be named in the judgment approved for publication unless the judge otherwise orders’.

PUBLICATION OF JUDGMENTS IN RESPECT OF APPLICATIONS FOR REPORTING RESTRICTIONS 3.100 Pursuant to the President’s 2014 Guidance the expectation is that judgments arising from ‘any application for an order involving a restraint on publication of information relating to the proceedings’ will be published. From the authors’ own experience of obtaining RROs in order to be able to write about cases in the media, it is apparent that this is not happening consistently. That may be because, pursuant to para 17 of the 2014 Guidance no judgment already exists in a publishable form and nor has the judge already ordered that the judgment be transcribed (particularly likely where an extempore judgment is delivered at an interlocutory stage, or because there are compelling reasons why the judgment should not be published (for example, because publication would be self-defeating). Those dealing with such applications should be aware however that the court may wish to publish its judgment and should be ready with instructions as to whether any particular redaction will be necessary.

PROACTIVE ENGAGEMENT WITH MEDIA INTEREST 3.101 Here we suggest that a proactive engagement with actual or likely media interest may be a better way of protecting the privacy of children and families than ignoring issues or operating on the basis of a complete information blackout. We also discuss some of the particular difficulties that arise from the additional legal duties and constraints placed upon public bodies, which are likely to affect the way in which local authorities (and Cafcass) can engage with such interest. 3.102 We suggest that, where possible, any application for a reporting restriction order should be accompanied with a proposed approved statement of facts to be published above and beyond the required explanatory note. 3.103 The point at which the court is considering reporting restrictions or any application for permission to publish is the point at which it is sensible for the parties (the local authority in particular) to consider whether a statement of facts can or should be published to enable the public to accurately understand or contextualise material in the public domain.

96

ORDERS RESTRICTING OR PERMITTING REPORTING 3.104 In the absence of an approved statement of facts, the public are likely to have access to information derived from parents and therefore reflecting their understanding and perspective of the situation, and may be hampered in their understanding by either a refusal to comment or the issue of a bland statement that ‘the local authority cannot comment on individual cases’ or that it is ‘committed to child protection’. A local authority is likely to be constrained by data protection and confidentiality duties as much as by the privacy of proceedings themselves pursuant to AJA 1960, s 12, but the court can alleviate those difficulties through the publication by the court of a statement of facts, or possibly by granting permission to the parties to publish information on specified points only. 3.105 It is important to recognise that a permissive order under the inherent jurisdiction (or CA 1989, s 97(4) is one which relieves the parties of the burdens imposed by AJA 1960, s 12 or CA 1989, s 97 or the implied undertaking – that is to say burdens and restrictions arising from the proceedings – but does not affect any other duty external to the court process. In particular, the publication by the local authority of even an anonymised statement concerning a subject child is likely to amount to the processing of sensitive personal data for the purposes of the Data Protection Act (DPA) 1998 and is therefore only lawful if an exemption applies or if the data protection principles are complied with and one of the criteria set out in each of Schs II and III to the Act are fulfilled. 3.106 The exemption from the non-disclosure provisions contained in the DPA 1998, s 35(1) only applies ‘where the disclosure is required by or under any enactment, by any rule of law or by the order of a court’. Thus, an order merely permitting but not requiring the Local Authority to publish information does not absolve the Local Authority of any duty to ensure that it is meeting its obligations to a child (or any other person) as data controller. In addition to statutory duties, it is likely that a local authority responsible for the care and information concerning a child in need will be bound by a common law duty of confidentiality towards that child (and potentially her family members) (it is beyond the scope of this text to consider those duties in detail). Consent from the data subjects or those whose private information is held would of course resolve this problem, but in the context of a Local Authority wishing to correct inaccurate or partially reported facts or respond to criticism, this consent may not be forthcoming. 3.107 In a case of heightened media interest, where the managed release of information is considered likely to reduce the pressure or risk to a child or placement arising from intense media attention, a local authority may legitimately wish to process personal information about a child but must do so lawfully, currently with reference to Schedules II and III of the DPA 1998. This presents some difficulties. 3.108 As of 25 May 2018, the current data protection regime will be replaced with a new Data Protection Act and the General Data Protection Regulation will have direct effect. At the time of writing the Data Protection Bill is still passing through Parliament, but the draft Bill is likely to alter the definition of ‘personal data’, the consent requirements in respect of processing data, and the available 97

ORDERS RESTRICTING OR PERMITTING REPORTING exemptions in the absence of consent (of competent child or holder of parental responsibility). In particular, the draft Bill (currently) contains materially different provisions in respect of processing on public interest grounds that may alleviate some of the current difficulty where a local authority wishes to publish (process) data about a child in their care either for the benefit of the individual child or the broader public benefit, but where consent cannot be relied upon. 3.109 Whatever the precise details of the new Data Protection regime post May 2018, in this respect the local authority (and guardian) are in a more closely regulated position than the child or parents who, as individuals rather than data controllers or state bodies, are only constrained insofar as there are applicable privacy provisions arising from family proceedings. If information that parents wish to disclose is not caught by the automatic restraints, or if the court’s permission is granted, there are no further hurdles for parents who wish to tell their story, however partial that story may be. The corporate parties, particularly the local authority, are in a more difficult position. Even where certain data has been made public by a parent, this will not in and of itself afford a defence to the publication of information about the child or of additional data about the parents not made public by them. 3.110 All of this means that the task for a local authority which finds itself caught up in media interest in a case concerning a child in its care or with whom it is involved is fraught with problems. Notwithstanding these difficulties, we suggest that a local authority’s wider democratic duty to the public means that it should nonetheless consider whether and how it can respond to legitimate requests for comment or contribute to proper public understanding by releasing limited information to rebalance legitimate public discussion. It is potentially harmful for distorted information to be widely distributed online in a way which, if later found by a child or associated family member, may give them a false understanding of the background or cause them unnecessary distress. If information cannot be removed from the public domain we would suggest that a local authority has a duty to the child and the public to consider whether or not it can ameliorate any potential damage by the focused publication of neutral, fact based contextual information – either by publishing what it lawfully can (with proper regard to its duties to the individual’s it has statutory responsibility for) or by inviting the court to publish such information. 3.111 Any local authority who considers that it is appropriate and necessary to process data through publication of a press statement or the giving of an interview would be wise to keep clear records of the decision-making process and the rationale for any decision to publish, including the basis of any consent relied upon. 3.112 In circumstances where the court is persuaded itself to publish an information document or statement of facts there will be no processing of data by the local authority, who may then refer to or republish the information that the court has itself published. Clearly, this would be a far more straightforward means of achieving the objective of putting into the public domain factually accurate information to counter or rebalance other inaccurate or one-sided material 98

ORDERS RESTRICTING OR PERMITTING REPORTING published elsewhere, but of course ownership of such a statement is with the judge who must be able to endorse its contents as accurate and appropriate for publication. There is precedent for this approach: ●● In Doncaster MBC v Haines (see Case Study 1, Appendix 1) where at the request of the local authority and guardian the court published a document entitled ‘the information’ in order to set the record straight where the mother and associates had published misleading (and probably defamatory) information about the proceedings, including wrong allegations that the father had abused the child (the court had specifically exonerated him). Wall P said ‘I have taken … the opportunity to alter the document myself, to anonymise it and to expand it. It will be attached to this judgment in the form in which I have drafted it. It will then be in the public domain in the form in which I ­have approved it’. ●● In the so-called Tower Hamlets ‘muslim foster carer’ case (See Case Study 15, Appendix 1) where the local authority published a statement on their website which it was reported that the court had permitted ‘to quell “frenzied speculation” around the case and allow the child a degree of privacy’ (www. transparencyproject.org.uk/the-muslim-foster-carer-case-again-what-elsehas-emerged/). Unusually, in that case the judge published an anonymised version of her own Case Management Order, which contained quite significant amounts of background factual information. The local authority then published an ‘agreed’ document setting out the conclusions of an investigation, and recording that the mother disputed those conclusions. It is unclear however whether the mother consented on behalf of the child to the publication of the document as opposed to the contents of it. 3.113 As we have noted above AJA 1960, s 12 type permission does of itself render data processing lawful, and the statement in fact contained mainly data about the local authority’s internal investigation rather than the proceedings (which would not have been prohibited by AJA 1960, s 12 in any event), along with a small amount of basic factual information about the proceedings which was largely already in the public domain. Unfortunately, and contrary to Sch 1(vi) of the 2014 guidance on publication of judgments, there is no published judgment setting out the basis upon which the RRO in that case was granted, nor in respect of the apparent permission to publish a statement – so the legal basis upon which the court or the parties were proceeding is not entirely clear. It does not appear that the mother gave her consent to the processing of either her own personal data or that of her child, as The Guardian reported the mother’s objection to the publication of the document (www.theguardian.com/society/2017/oct/02/ girl-had-warm-relationship-with-muslim-foster-carers-court-told/). 3.114 In Re ABC (A child) [2017] EWFC B75 a grandmother persuaded the court to publish her prepared statement regarding her negative experience of applying for and being assessed as a special guardian for her grandchild, and alongside that the court also published a contextual statement prepared by the guardian in order to ‘provide some other, necessary, explanation of the background in anonymised terms’. Those comments were published via annex to the publication judgment. 99

ORDERS RESTRICTING OR PERMITTING REPORTING 3.115 The publication of an approved statement by the court does not resolve the inherent difficulty for a local authority that wants to constructively and promptly respond to media enquiries or requests for interviews. Local authorities will need to consider whether they can make any meaningful response to such enquiries, other than to offer general information about the policies and approach of the authority and to explain the legal barriers to saying more about the individual case. Where the press have made the effort to offer a right of reply or to seek information to ensure balance, it is probable that they will then use that explanation of the legal barriers to a fuller response, even if they do not quote in full. This is preferable to an apparent silence through defensiveness or belligerence. 3.116 Many of these issues will apply to the processing of data by Cafcass through a children’s guardian, as Cafcass are, like a local authority, both data processors and a public body.

PRACTICE POINTS Representations from journalists 3.117 Professionals who are unfamiliar with the attendance of journalists at court may be unused to them making oral representations regarding reporting restrictions or relaxations at a hearing that they attend. There is nothing improper or irregular in this; the court has an overarching duty to conduct its proceedings with reference to the ECHR rights (Human Rights Act (HRA) 1998, s 6), including Article 10, and therefore to adjudicate on issues arising in the course of a hearing or in respect of proceedings concerning the exercise of Article 10. There is no requirement for the press to be represented in order to address the court.

No copy approval 3.118 It is not appropriate to seek advance sight of a proposed publication (Re Roddy, para 88) and it will rarely be offered, although the press will usually be happy to confirm that they will not publish certain identifying facts, or to identify those that they do wish to include in order to identify the issues.

Serve legal bloggers 3.119 We suggest that where an application for a reporting restriction order is made it would be good practice to serve established legal blogs with the order at the same time as the press are notified via the Media Lawyer Injunctions Alert Service.

100

ORDERS RESTRICTING OR PERMITTING REPORTING

Drafting 3.120 The standard order on the Media Injunctions Alerts Service is the best starting point for drafting an order but it is important to recognise that each order will need to be tailored to the requirements of the case. Whilst the material in the standard order is usually essential, this does not cover everything or provide detailed wording for particular sorts of case. Published judgments are a good source of titbits for drafting purposes. 3.121 Mostyn J’s order at Annex A of his judgment in DL v SL [2015] EWHC 2621 (Fam) is a helpful template for orders relating to financial proceedings, in that it prohibits publication of: ‘any report of the case that … refers to or concerns any of the parties’ financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors’ correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.’ 3.122 Munby P’s judgment in P (A Child) [2013] EWHC 4048 (Fam) sets out what we suggest is a model form of order in a case concerning children, and in respect of territorial limitations (see 3.51 above), and we suggest is in both respects more comprehensive than the standard order. As such it represents a useful reference point when drafting an order. In particular it prohibits publication of: ‘information likely, whether directly or indirectly, to lead to the identification of the child as being: (a) A child who is or has been subject of proceedings under the Children Act 1989 or the Adoption and Children Act 2002; and/or (b) A child who has been removed from the care of her parents; and/or (c) A child whose contact with her parents has been prohibited or restricted.’ 3.123 The standard order is non-specific here, leaving the applicant or court to ‘set out the feature of the situation which has led to the granting of the order' but we have set these out here because they are likely to be applicable in many cases where such an order is justified, although they will need appropriate adaptation. 3.124 In cases where a child has died and proceedings relate to a surviving sibling(s), orders will typically prevent the publication of the gender or age of the surviving sibling(s), or any identifying characteristics of the sibling set, in order to protect the identity of the surviving sibling(s).

101

ORDERS RESTRICTING OR PERMITTING REPORTING

REFERENCES 3.125 Hershman & MacFarlane, Children Law and Practice, Bloomsbury Press (2017). J Munby, ‘Lost Opportunities: Law Reform and Transparency in the Family Courts’ The Hershman-Levy Memorial Lecture 1 July 2010 (available on the Association of Lawyers for Children website). L Tickle, ‘I saw his fluffy little head going out the door’: one woman’s fight to keep her baby’, The Guardian, 20 February 2016. L Tickle and L Reed, Press Reporting of Care Proceedings (2016) Family Law 72. The Transparency Project, Media Guide, March 2017, www.transparencyproject. org.uk/resources/. The Transparency Project, Publication of Family Court Judgments: a guidance note for families and professionals (2017) (Appendix 2). L Series, P Fennell and J Doughty, The participation of P in welfare cases in the court of protection. (Cardiff University, 2017). A Wolanski and K Wilson, The Family Courts: Media Access & Reporting July 2011, (President of the Family Division; Judicial College; Society of Editors, 2011).

As we went to press (March 2018), the President issued a draft new standard reporting restriction order (numbered Order 14.1) for consultation, so the latest template should be checked.

102

Chapter 4

PUBLISHING AND REPORTING ON COURT JUDGMENTS

KEY ISSUES 4.01 ●● What is published 4.03–4.06 ●● Why it is published 4.07–4.18 ●● Where it is published 4.19–4.28 ●● How to find it 4.29–4.79 ●● The effect of transparency on publication 4.80–4.141 ●● Dealing with post-publication issues 4.142–4.171 ●● Working with the media and researchers 4.172–4.193 ●● Complaining about published content 4.194–4.219

KEY RESOURCES 4.02 ●● BAILII: www.bailii.org. ●● Judiciary website: www.judiciary.gov.uk. ●● ICLR: www.iclr.co.uk. ●● J Doughty, A Twaite and P Magrath, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people (Cardiff University, 2017). 103

PUBLISHING AND REPORTING ON COURT JUDGMENTS ●● Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam), [2014] 1 WLR 230 (The 2014 Guidance). ●● The Transparency Project, Media Guide – Attending and reporting family law cases (2017). ●● The Transparency Project, Publication of Family Court Judgments – A guidance note for families & professionals (2017).

INTRODUCTION 4.03 This chapter deals with all aspects of the publication of case outcomes, mainly but not exclusively in the form of reasoned judgments, and their reporting in official, professional, academic and news media channels. It considers the effect of the 2014 Guidance and on the number of judgments published after hearings in private. It also explains how legal practitioners can work with the media and researchers, and how to correct or complain about something after it has been published. 4.04 At the most basic level, a court or judge publishes their judgment to explain the reasons for the decision they have made in a case. Publication in this rather technical sense may be just to the parties in the case and their lawyers. But there are reasons for publishing the court’s judgment more widely, including the fact that it is a basic requirement of open justice, it informs the public, it provides a public record and, where the case decides a disputed or uncertain question of law, it sets a precedent. 4.05 Although this chapter is primarily concerned with issues in relation to the publication of the court’s judgment, it will deal where appropriate with other information arising out of court hearings, such as documents used in court, the evidence of witnesses, the arguments of advocates, and orders of the court dealing with the management or disposal of aspects of the case. Some of this may also be reported. When a court gives judgment, the judge or judges may hand down a written version, or they may deliver their reasons orally, in which case the judgment will need to be transcribed before it can be published. 4.06 Publishing is not the same as reporting, although there is an obvious overlap. A published judgment is one that has been made available, either as a printed transcript or, more usually now, electronically on a website. A judgment is described as being reported when some additional work has been done to summarise, interpret, or quote from it. A report of a judgment in the media will usually summarise the decision in the case and quote some aspects of the reasoning, but it will rarely set out the entire judgment. A legal summary or digest will likewise focus on the essential elements of the decision, but concentrating on the issues of law. A law report, on the other hand, will incorporate the entire judgment into a longer document containing additional material designed to enhance its use as a precedent or authority in the study and practice of law. When a lawyer talks about a case being reported, they may simply mean that the 104

PUBLISHING AND REPORTING ON COURT JUDGMENTS transcript of the judgment has been published; but properly speaking that is not the same as a law report.

WHY JUDGMENTS ARE PUBLISHED To inform the parties 4.07 The court has a duty to give reasons for its decision. It is a fundamental aspect of the right to a fair trial to be able to know and understand why the court has decided as it did. The reasons given by the court must be adequate and clear enough for that purpose (see English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605; [2002] 1 WLR 2409, CA; Re A (Children) (Judgment: Adequacy of Reasoning) (Practice Note) [2011] EWCA Civ 1205; [2012] 1 WLR 595, CA; and Re N-S (Children) (Care and Placement Orders: Judge’s Reasons) [2017] EWCA Civ 1121; [2017] 4 WLR 133). 4.08 The ‘parties’ includes their legal advisers, who will need to consider the court’s reasoning and may need to explain that to the lay parties. But where they act for a disappointed party, they will also need to consider whether the court has made an error of law, and whether there might be grounds for an appeal to a higher court. 4.09 Where one or more of the parties, or those affected by the judgment, are children, it may be of benefit to retain a copy of the judgment for them to read later on in life, as an aspect of their personal history, and to help them understand the decisions that have been made affecting their care and upbringing (but see Chapter 2, 2.35).

To inform the public 4.10 The public has a right to know what the courts are doing in its name. If open justice depends on the potential for scrutiny of the judicial process, traditionally taking the form of sittings in open courts with a public gallery and a press bench in them, the principle can also embrace the idea of public access to court listings, results and, above all, judgments. 4.11 Open justice is not the only principle at stake. There is also the fact that judge-made law is part of the law of the land, which citizens should be able to discover for themselves. Like the statutes which are now freely available online at www.legislation.gov.uk (even if not kept entirely up to date), case law is a primary source of law. If, as is often averred, ‘ignorance of the law is no defence’, then access to the law must be guaranteed. Indeed, it is a central tenet of the rule of law that the law should be easily discoverable. 4.12 That said, transparency means more than just access to content. The publication of large numbers of judgments on a legal website like the British and Irish Legal Information Institute (BAILII) is extremely valuable, but for public viewers 105

PUBLISHING AND REPORTING ON COURT JUDGMENTS who do not have the skills to search for, navigate or interpret raw judgments, it is not enough to help them understand the law, and BAILII does not have the resources to provide the additional interpretation tools necessary to help them. (See Chapter 1 for a more detailed discussion of the importance of public legal education.)

To keep a public record 4.13 The debates in Parliament are routinely recorded in Hansard. There is no equivalent in relation to even the senior courts. Although what happens in court is said to go ‘on the record’, it is not recorded for public consumption, only for the court’s own administration. Certain documents, like claim forms or orders, may be accessible to researchers, on application to the court, and hearings may be recorded aurally with a view to potential transcription (by a third party, for reward) but there is no routine, systematic public record of what passes day by day in court. If this is so in open court, it is even more so for hearings in private. 4.14 The closest, therefore, that we can get to a comprehensive record of what passes in the court is the publication of judgments, which explain what has happened in a case. Even this is haphazard and far from comprehensive. In the past (see below) it was dependent on private or charitable publishers selecting those cases that appeared to merit reporting for legal study and practice, as discussed in more detail in the next section. With the advent of electronic publishing and the ability to manage large databases of content, a more comprehensive approach has been possible. But it is far from complete. With some exceptions, as discussed below, the courts themselves are not routinely publishing their own output, which may be considered anomalous. That leaves BAILII as the closest we currently get to anything like Hansard.

To record a precedent 4.15 Law reports in the sense in which we understand them today developed in tandem with the doctrine of precedent, or stare decisis: the idea that a rule of the common law, having been discovered and declared by a court of record, must be applied in any subsequent similar case, unless and until overturned or modified by a more senior court. A precedent cannot be cited and applied in a later case, or studied and understood by students of the law, unless and until it has been reported. 4.16 By the sixteenth century, individual reporters were publishing volumes of series of case reports under their own names, not necessarily contemporaneous, for whose precedential value they could vouch professionally. Barristers and judges often kept manuscript notebooks of useful cases, and some of these found their way into publication. However, the Nominate Reports as these were called, after the individuals in whose names they were published, offered patchy, overpriced and often unreliable coverage. It was only with the establishment in the late nineteenth 106

PUBLISHING AND REPORTING ON COURT JUDGMENTS century of the official Law Reports, published by what became the Incorporated Council of Law Reporting for England and Wales (ICLR), that reasonably priced, accessible, comprehensive and reliable coverage of judge-made law became available. 4.17 Additional coverage, often targeted at more specialised practitioners, has since been added by various commercial publishers. More recently still, unreported cases (which do not necessarily record a precedent) consisting only of the judgment transcript have been published either by the courts themselves or on BAILII. 4.18 For a more detailed discussion of the history of law reporting, see the introductory essays in P Magrath (ed), The Law Reports 1865–2015 Anniversary Edition (ICLR).

WHERE AND HOW CASES ARE PUBLISHED Publication by the court 4.19 The court may give its judgment orally at the end of the hearing, or it may reserve judgment to a later date and hand down a written version. Sometimes it will state the decision it has reached, reserving its reasons to be given in writing later. Sometimes it will address narrow issues confined to the management of the case, or give wider guidance applying to other cases of a similar type. It’s important, therefore, to distinguish between the different types of utterance, as it were, of the court.

Rulings, orders and recitals 4.20 Before it gives its final judgment, a court may give a ruling or order during a case, to do with the management of the case or the preservation of its subject matter, but it’s rare for something like that to be published in any wider sense, let alone reported. There might be a point of law involved in deciding whether to impose an injunction, say, to freeze someone’s assets or require them to produce certain evidence, but for the most part such orders depend on established principles and will not give rise to anything noteworthy, let alone set a precedent. Judgments, whether reported or not, which merely determine procedural applications, may not be cited as authorities: see Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, para 6. If the judge does give a short, reasoned judgment on the point, indicating that it is of wider application, it might then be published, for example as a ‘practice note’. (See, for example, on the question of a non-party applying for permission to copy certain documents on the court file: ABC Ltd v Y (Practice Note) [2010] EWHC 3176 (Ch); [2012] 1 WLR 532.) 4.21 However, some courts do include a recital of facts or even reasons in an order, indeed they are required to incorporate certain information into each order according to the templates that are in use in private and public law children 107

PUBLISHING AND REPORTING ON COURT JUDGMENTS proceedings. The same may well be done by the parties themselves when drafting an agreed or consent order for the court’s approval. Such recitals may contain not just a summary of the case history but also a lot of personal information about the parties and family members, about their conduct, concessions about their relationship, and details about children’s lives from which, even if anonymised, jigsaw identification might be possible (see further Chapter 2 at 2.48 and Appendix 2).

Reasons and results 4.22 A judgment, or reasons for judgment, may explain the decision in a case, but it is not the same thing as the order given by the court at the conclusion of the hearing. The order will identify the parties and state the result of the case (such as a finding of liability) before listing the consequential remedies, which may include awards of damages, the granting of an injunction, or the making of arrangements as to where and with whom a child should live. 4.23 Judgments which have been reserved are usually more polished and clear, though they may also be considerably longer, given the extra time for research and citation. Judgments given ex tempore or ‘off the cuff’ are apt to be less polished and sometimes not as well expressed as they might have been. As Lord Hoffman observed in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 at 1372: ‘The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes …’ 4.24 If the judgment is not already written, it will need to be transcribed if it is to be published in any wider sense. But this is not essential to the fairness of the trial. It is enough to have given the reasons in court in the presence of the parties and/or their representatives. If judgment is given orally, those present in court will be able to make a note of it, which could be circulated for the purposes of giving further advice; but any subsequent reliance on that note in court, as a record of what was said, would almost certainly depend on the note being agreed between the parties and approved by the judge. 4.25 If judgment is given in open court, any reporters present (including both news media representatives and law reporters), would be able to make a note of the judgment and use that to generate some form of further publication. Moreover, any member of the public exercising their right to attend open court would also be able to listen to the judgment and make notes. Where judgment has been handed down in open court, a reporter or member of the public can apply to the court for a copy of the judgment, though if there aren’t enough copies they may need to pay for the costs of duplication. If the judgment was given orally, then they will need to order and pay for a transcript to be made. (See below, 4.72 Obtaining a copy of the transcript.) 108

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.26 If a party cannot be present or represented when the court gives judgment, the court must ensure that its decision and the reasons for that decision are made available to the absent party. Where judgment is given in the absence of a party, the rules provide for it to be set aside where the party applies within a reasonable time and can demonstrate a good reason for failing to attend: see CPR, r 39.3(3) and FPR, r 27.5.

Guidance 4.27 Sometimes, as well as deciding an issue in a case, a judge will give practice guidance of a more general nature. In this sense, the court is using the judgment as an opportunity to deliver something akin to a practice direction. See, for example: ●● Re D (Children) (CAFCASS: Safeguarding Checks) (Practice Note) [2014] EWHC 2376 (Fam); [2015] 1 WLR 818 (Guidance as to circumstances in which safeguarding inquiries to be made of third parties and seeking of consent therefor). ●● NHS Trust 1 v G (Practice Note) [2014] EWCOP 30; [2015] 1 WLR 1984 (Guidance on procedural steps and evidence to be filed in applications to court for approval of treatment of pregnant woman lacking capacity to consent to proposed obstetric treatment). ●● Re W (A Child) (Adoption Order: Leave to Oppose) (Practice Note) [2013] EWCA Civ 1177; [2014] 1 WLR 1993 (Approach of Court of Appeal when considering appeals from judgments, concerning adoption orders, given before guidance on how judges should approach applications for leave to oppose making of such orders). 4.28 Permission to appeal may be given, and a number of test cases heard together, simply in order to be able to deliver an authoritative judgment giving guidance on a troublesome point, as in R v Thompson (Practice Note) [2010] EWCA Crim 1623; [2011] 1 WLR 200 (Guidance as to appropriate directions to jury regarding use of the internet while retiring to consider verdict).

Publication to BAILII and court websites 4.29 The judge (or their clerk in the High Court), may then send a copy of the judgment to BAILII, the Courts and Tribunals Judiciary website, and/or ICLR, as well as to the official court transcribers. 4.30 Publication on BAILII is more or less instantaneous. That is because BAILII (who have a contract with the Ministry of Justice) are not expected to undertake any editorial work on the judgment, and it is supposed to be supplied using an approved Microsoft Word template which facilitates the automated conversion from Word (or more precisely a text file in the .docx format) to HTML (Hypertext Markup Language) for display on the website. Alongside the HTML dynamic display of formatted text on screen there will be a downloadable PDF (Portable 109

PUBLISHING AND REPORTING ON COURT JUDGMENTS Document Format) or RTF (Rich Text Format) document, based on the approved version of the judgment actually sent by the court, and therefore the more ‘official’ version to be used, if at all, for citation in court. 4.31 Poorly formatted judgments, not conforming to the approved template, may take longer to convert to HTML, but by and large BAILII manages publication in a matter of hours rather than days, following receipt of the text file from the court. 4.32 The Judiciary website (www.judiciary.gov.uk) only publishes a selection of court judgments and sentencing remarks, chosen by reference to their likely media interest rather than their usefulness as precedents or for legal research. However, it does provide a much more comprehensive coverage of tribunal decisions. As a website, it remains separate from those of the HM Courts and Tribunals Service (HMCTS) and the Ministry of Justice (MoJ). 4.33 Although the content of judgments is generally believed to be covered by Crown copyright, the government does not publish them – at least not in any official and comprehensive way. The Judiciary website may be the nearest it gets to doing so, but (having regard to the doctrine of separation of powers) there might be an argument for saying the government should not be custodians of the judgments of the independent judiciary1, and that the judiciary (or the courts) should be managing their own judgments. 4.34 That is what the UK Supreme Court does, on an exemplary website that is a model of transparency and accessibility (www.supremecourt.uk). Alongside each judgment is a press summary written by the judicial assistants at the court, and this is read out by the judge responsible for giving judgment. It is also filmed, as are hearings in the court, and may be viewed on the court’s YouTube channel. 4.35 Though its decisions are heard by the same judges in the same building, the Judicial Committee of the Privy Council has its own website (www.jcpc.uk). It hears final appeals from British overseas territories and dependencies, such as the Channel Islands, and some Commonwealth and former colonial jurisdictions, notably in the Caribbean. Its website provides access to judgments going back to 2009, but these are not accompanied by press summaries or video recordings in the same way as those of the Supreme Court. (Earlier cases are available from BAILII.) 4.36 Tribunals such as the Employment Appeal Tribunal, Competition Appeal Tribunal, and the Upper Tribunal (which handles a variety of matters, such as immigration, tax, land registration etc) and some of the various chambers of the First-tier Tribunals from which it hears appeals, publish many of their judgments either on their own websites or via the Tribunal Decisions section of the Judiciary website. 1

See, eg, P Magrath, ‘Judgments as Public Information’ (2015) 15 Legal Information Management pp 189–195.

110

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.37 It therefore appears that the tribunals are very well served, with their judgments being made publicly accessible, as are the Supreme Court and Privy Council, but the High Court and Court of Appeal are not. Given that the majority of precedents will be set in the latter, this seems anomalous but may reflect the Ministry of Justice’s confidence that those cases will be curated and reported by legal publishers.

Legal publishers 4.38 A number of legal publishers collect and publish judgments in the form of full text law reports, and some of them also publish unreported judgment transcripts. The two main multi-content databases, LexisNexis and Westlaw, both include what they describe as ‘official transcripts’ alongside law reports, legislation, text books, journals and commentary. Transcripts are generally obtained on a permanent subscription from the official court transcribers, but they may also have reporters in court to provide case notes for Lawtel (part of Thomson Reuters, who own Westlaw and the Practical Law Company) or the All England Reporter (published by LexisNexis). 4.39 However, many of the law reports published on LexisNexis and Westlaw are provided by the Incorporated Council of Law Reporting for England and Wales (ICLR), under a licensing arrangement which does not include judgment transcripts. These are now published by the ICLR, alongside all its full text law reports and case summaries and digests, on its own website (www.iclr.co.uk), and while the case reports are accessible only with a subscription, the transcripts and case summaries are freely available to anyone, just like BAILII. 4.40 LexisNexis have a website, Family Law Online, which has freely available news and comment linked to its subscription services. Family Law Week, also freely available, offers news, articles and case summaries (often with the full judgment attached).

Law reports and transcripts 4.41 Since judgments are often described as being ‘reported’ when in fact it is only the transcript that has been published, it may be worth unpacking the difference between the two. 4.42 Most cases in the courts do not involve a disputed point of law. If the law is well settled, the only dispute concerns its application to the facts, once those facts have been determined from the evidence. For this reason, the vast majority of cases at first instance, even in the High Court or equivalent jurisdictions, are not reported. In the Court of Appeal a larger proportion may be reported; but even at the highest appellate level, in the Supreme Court (formerly the House of Lords), where permission to appeal is only granted on the basis of a point of law of general importance, there are cases which do not make it into the law reports. 111

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.43 A law report incorporates the judgment itself, wrapped up inside a bigger document with a number of ‘value added’ elements. These include, typically: ●● the headnote (a short factual summary and a brief recapitulation of the legal principles decided – the ratio decidendi of the case); ●● indexing catchwords or key words (categorising the subject matter of the case under a taxonomy of index headings and brief indications of the points in issue); ●● lists of the cases referred to in judgment, and sometimes also any additional ones cited in the hearing; ●● a note on the pleadings and procedural history of the case (confusingly known as the ‘facts paragraph’); ●● a note of the orders made after judgment has been delivered, and ●● the name of the reporter – who must be a qualified (though not necessarily practising) barrister or solicitor, in order to vouch for the accuracy of the report. 4.44 In the case of the official series of The Law Reports published by the ICLR, these elements additionally may include a synopsis of the legal argument as it was presented at the hearing. 4.45 For many years, the only or principal way of obtaining a copy of a judgment was to use a law report of the case. But not all cases are reported, and in the absence of a published law report, an unreported transcript (a) provides access to the contents of the judgment for the purposes of research; and (b) may be cited in court in the absence of a reported version of the case. 4.46 Both transcripts and law reports set out the full names of the main parties, the court where the case was heard, the name(s) of the judge or judges sitting there, the date of judgment and the names of barristers and solicitors appearing in the case.

Citation of cases Law reports 4.47 Traditional law reports have a system of citation based on the name of the series in which the report appeared, together with the year, volume and page or case number. Thus, WLR stands for the Weekly Law Reports, All ER stands for the All England Reports and Cr App R stands for the Criminal Appeal Reports. 4.48 The official series of The Law Reports are divided into four divisions or sub-series: ●● AC which stands for the Appeal Cases, covering final appeals to the Supreme Court (formerly the Appellate Committee of the House of Lords) and the Privy Council; 112

PUBLISHING AND REPORTING ON COURT JUDGMENTS ●● Ch covering cases in the Chancery Division of the High Court and appeals to the Court of Appeal and references to the European Court of Justice therefrom; ●● QB (or KB) covering cases in the Queen’s/King’s Bench Division of the High Court and appeals and references therefrom; ●● Fam covering cases in the Family Division of the High Court, the Family Court, and appeals and references therefrom. 4.49 Where a case has been reported in The Law Reports, that report should generally be cited in preference over any other version of the same case: see Practice Direction (Citation of Authorities) [2012] 1 WLR 780, para 6. (In criminal courts, the Criminal Appeal Reports (Cr App R) enjoy equal status: see Practice Direction (Criminal Proceedings) [2013] EWCA Crim 1631; [2013] 1 WLR 3164.) 4.50 Otherwise, it is considered best practice to cite either WLR or All ER, if they are available. Both are general series covering all the courts. If not, another series may be cited. 4.51 There are a large number of specialised series of reports, dealing with a range of subject and practice areas. Those relevant to this book include the Family Court Reporter (FCR) and Family Law Reports (FLR) which deal with family cases, and the Court of Protection Law Reports (COPLR). Public law cases involving welfare, adoption and care may also be reported in the Public and Third Sector Law Reports (PTSR) or the now defunct Local Government Reports (LGR or BLGR). 4.52 Unfamiliar citations can be looked up in a reference work such as the Index to legal citations and abbreviations (Sweet & Maxwell, Fourth ed, 2013) compiled by the late Donald Raistrick, or online via the Cardiff Index to Legal Abbreviations (www.legalabbrevs.cardiff.ac.uk).

Transcripts 4.53 One of the innovations for which BAILII has been responsible, thanks to its founding chairman, the late Sir Henry (formerly Lord Justice) Brooke, is neutral citations. This is a system of unique references to individual judgments based on the year, an abbreviation for the court, and a case number. 4.54 The advantage of this system is that it enables the level of the court, and therefore the status of a judgment, immediately obvious. The main abbreviations are as follows: UKSC: Supreme Court; EWCA: Court of Appeal – followed by either Civ or Crim; EWHC: High Court – followed, after the number, by one of a number of suffixes identifying the division or list, eg (Fam), (COP), (QB) (Admin) etc. 113

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.55 Following the President’s practice guidance discussed below, two new abbreviations were introduced: EWFC for Family Court judgments; EWCOP for Court of Protection. 4.56 Where a judgment is given by a judge who is not a High Court judge or sitting as such, or where a neutral citation has not been assigned by the court, the number of the case is prefaced by a B. 4.57 Where a case has a neutral citation, that should be cited together with the best publication reference for a law report: see Practice Direction (Judgments: Neutral Citations) [2002] 1 WLR 346. 4.58 The advantage of neutral citations is that they are unique to the case and, especially where case names may be ambiguous or anonymised, make the case easy to search for online.

Law reports and news reports 4.59 Law reports have a very specific function or set of functions, of which the average litigation client will be largely unaware. They include education, professional reference and research, and support for the administration of justice. All of these purposes may also be served by judgment transcripts. 4.60 News reports of judicial proceedings perform a different or additional role of keeping the public informed about what is happening in the courts. This includes, in particular cases, satisfying public interest or curiosity in the fate of those involved in litigation but also, explaining rather than simply reporting legal issues. However, a news report of a case can be selective of the facts reported and biased or tendentious in the way it presents them. 4.61 Historically, law courts have always been a good source of news stories, especially for the local press. Traditional journalistic training would almost always include a stint in the magistrates’ court gathering material for a page or so that every local newspaper would run, including the free ones, listing recent traffic offences, drunk-and-disorderlies, and minor episodes of criminality. Sometimes these would be picked up by the national press. 4.62 Moreover, the more serious newspapers would employ on their staff a specialised and experienced legal affairs correspondent, who would understand the background and context of legal developments, be able knowledgeably to interview senior legal figures, and ensure that law stories were properly reported. 4.63 The internet has changed the business model and news dynamics of local newspapers, over the last decade or so. As advertising has plummeted, and as news stories have begun to be available far more immediately online, revenues 114

PUBLISHING AND REPORTING ON COURT JUDGMENTS for local news organisations have declined steeply – more so than for the national press (though this has also suffered). The commercial problems facing the local press were amongst the Article 10 factors that Lord Steyn put into the balance in Re S (A Child) [2004] UKHL 47 (as discussed in Chapter 1). The result has been that far fewer journalists do their training on local newspapers, and those that do spend their time harvesting stories off social media channels or rejigging press releases, rather than attending the local courts. The role of the specialist legal correspondent has, with a few notable exceptions, largely disappeared. 4.64 A consequence of the decline in the traditional journalistic training involving court reporting is that many of the younger journalists operating on the online news gathering model do not necessarily have a grasp of the legal restrictions on reporting. Given the complexity of some of the rules, it should not be assumed that all journalists will be fully informed. 4.65 An exception to the general decline in standards of legal news reporting is the Press Association (PA) which, despite a drop in the numbers of reporters covering the courts, maintains a tradition of professional expertise in reporting what goes on there. There is a small team embedded in the Royal Courts of Justice in London, and nationwide the PA continues to cover law courts, though not as extensively as before. 4.66 The PA law service also manages the notification of injunctions and other orders via its subscriber-only Injunction Applications Alert Service, on the Media Lawyer website (http://medialawyer.press.net). This used to be known as the CopyDirect service, and that is the name that continues to appear in most practice directions.

Linking to the judgment 4.67 News publishers now usually get the stories about the courts via the internet. In the case of national papers, a stock phrase has evolved: ‘Detail of the case has emerged in a written ruling published on a legal website’, code for ‘we’ve just spotted this on BAILII’. News outlets rarely link to source material, particularly judgments, leaving the reader unaware that they can check the material themselves. 4.68 It may be thought that a link to the judgment, read in conjunction with other details included in the story, could complete a jigsaw of identity, so this habit may be caution, rather than an unwillingness to credit sources outside the organisation. Linking to a publicly available judgment is good practice for any journalist reporting and discussing a case, so those responsible for publishing the judgment (including but not limited to the judge) need to be aware that, when released into the public domain, it may contain details which, whilst not in themselves capable of identifying a minor, may be combined with other details available elsewhere, help to create a composite picture from which their identity could emerge. 115

PUBLISHING AND REPORTING ON COURT JUDGMENTS

Publication by the parties 4.69 We discuss the phenomenon where parties themselves publish or communicate information about their case through social media in Chapter 5. Another avenue is to go to the press or other media outlet, to engage their interest in reporting their case more widely. This assumes the media are not already aware of the case, which is a safe assumption to make, if the litigant is not a celebrity, given the declining rate of news coverage of the courts generally, and the specific obstacles to such coverage in the case of family cases heard in private. 4.70 If a litigant goes to the media with their story, they will almost certainly lose control over how that story appears thereafter, but many journalists will want to investigate a case of injustice and may, in doing so, champion the interests of the litigant concerned. 4.71 It can be very difficult for parents to understand why they cannot discuss their children and the disputes over where and with whom they should live, given how strongly they must feel about the matter, if they have been to court. The problem is less acute if they talk to a journalist, since the article will be checked by subeditors and editors and possibly also by a media lawyer. However, a family law client would need to be advised that even this scrutiny might not be enough to ensure that they were not in breach of restrictions; and see Chapter 2 for a discussion of the issue of disclosure of information to journalists.

Obtaining a copy of the transcript 4.72 If the judge does not hand down a written judgment, or order a transcript of the judgment to be provided at public expense (as happens in some cases) then, subject to any reporting restrictions, a transcript may be ordered by one or more of the parties, or by anyone interested in the case, such as a legal publisher or news media organisation. 4.73 A party will generally need to order a transcript, if one is not already available, if they plan to appeal against the judgment. The cost of such a transcript may be available from public funds, subject to a means-tested application, or where there is already legal aid available. 4.74 Legal publishers routinely order transcripts of judgments in the senior courts, with a view to publishing them or turning them into law reports (as described in 4.38 above). 4.75 Transcripts are not confined to judgments. Hearings are also recorded digitally in all courts and most tribunals and provided there is no objection or restriction (in which case the matter may need to be the subject of a formal application for the court’s permission), a transcript of the hearing can be ordered. It is unusual to order a hearing to be transcribed for an appeal except where, for example, it is alleged that a judge demonstrated bias towards a witness or party

116

PUBLISHING AND REPORTING ON COURT JUDGMENTS in the course of cross-examination, or there is a dispute over what evidence was actually given. In criminal cases, a transcript of the hearing is sometimes called for to support the claim that there has been a miscarriage of justice. Such transcripts are not cheap, however. The Centre for Criminal Appeals has reported it can cost up to £20,000 to access a three-week trial transcript. 4.76 In private hearings, only the parties themselves may order a transcript of the hearing or judgment, unless the judgment is one the judge orders to be transcribed with a view to publication on BAILII, subject to anonymisation and reporting restrictions and bearing a rubric at the top. 4.77 The courts do not provide transcription services themselves. They outsource the process to transcription services who are either assigned to a particular court as its official transcribers or are members of a panel of transcribers who can be called upon to provide such services when needed. Information about obtaining a transcript is available from the Court Recording and Transcription Unit (CRATU) at the High Court in London and from the court where the hearing took place. It requires filling in a form, EX107, and a further form EX105 if applying for public funding for the cost of it. 4.78 Where a party is considering obtaining a transcript in a case where one is not already available, it is worth bearing in mind that, once transcribed, the judgment may be published on BAILII, and may then be picked up by the media. 4.79 Other considerations for parties to think about in relation to publication of judgments are discussed in the Transparency Project’s Publication of Family Court Judgments – A guidance note for families & professionals (2017) (Appendix 2).

PUBLICATION ON BAILII UNDER THE 2014 TRANSPARENCY GUIDANCE The President’s practice guidance 4.80 As noted in Chapter 1, in January 2014, the President of the Family Division issued practice guidance to judges in family proceedings to take effect from 3 February 2014: see Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam); [2014] 1 WLR 230. (Equivalent guidance was given in relation to the Court of Protection; for further discussion of this, see Chapter 7.) Variously known as ‘the transparency guidance’ or the ‘2014 Guidance’, it was intended to address problems about media misreporting of cases that were held in private. The  guidance was intended to be a first step toward opening up the courts, while at the same time continuing to protect the privacy of parties. 4.81 This first step was that judgments in certain categories of cases about children would routinely be sent to BAILII, so that the media and the public could 117

PUBLISHING AND REPORTING ON COURT JUDGMENTS read them. The guidance covered not only decisions in the Family Division of the High Court but also those of the newly created Family Court (which exercises the jurisdiction formerly exercised by a county court hearing family cases or a magistrates’ court specially constituted as a Family Proceedings Court). 4.82 The opening paragraph states that the guidance is intended to ‘bring about an immediate and significant change in practice in relation to the publication of judgments in family courts …’. This reflects the background against which the guidance was issued, the troubled history of tension between privacy and publicity in the family courts (See Chapter 1).

Summary of effect of the Guidance 4.83 Prior to February 2014 it was very unusual for a county court judgment to be published anywhere, although the volume of High Court Family Division judgments sent to BAILII had been rising. 4.84 The guidance was to take effect from 3 February 2014. It applies to circuit judges; High Court judges; and all judges sitting in the High Court, and to all judgments made under the inherent jurisdiction with regard to children and vulnerable or incapacitated adults. (Cases about incapacitated adults (and children aged 16 and 17) would normally be heard in the Court of Protection but there is power under the inherent jurisdiction to protect an adult who has capacity and may be vulnerable for some other reason, for example the inherent jurisdiction was used to protect victims of forced marriage before statutory protection was available.) It is unclear whether it was intended specifically to apply to recorders, but although there have been a very low number of judgments published by recorders under the guidance this does seem to be on the increase. 4.85 Whilst it is correct to say that the guidance itself is not specifically directed at district judges or magistrates (para 8), the underlying law and principles are of general application. The court is not entitled to decline to publish merely by reference to the tier of judge. All tiers of judiciary have the same duties under the Human Rights Act 1998, s 6 not to act in a way that is incompatible with ECHR rights, so a judge may not decline to deal with an application for publication merely due to their judicial rank and the ‘non-applicability’ of the guidance. 4.86 The guidance applies to two classes of judgments that the judge must ordinarily allow to be published (para 16 and 17) and another class that may be published (para 18) (emphasis in the original). Judgments that must ordinarily be published: 1. Under para 16, where the judge concludes that publication would be in the public interest, whether or not a request for publication has been made. This  gives the individual judge discretion as to whether publication would be in the public interest, but public interest is not defined. It appears to be a wholly subjective test, although has subsequently been applied with reference to relevant case law. 118

PUBLISHING AND REPORTING ON COURT JUDGMENTS 2. Under para 17, where a judgment relates to certain listed categories of case type and a written judgment already exists or there is to be a transcription. The starting point is that permission should be given unless there are compelling reasons otherwise. 4.87 This indicates that the judge has limited discretion in deciding against publication and suggests that judgments in these categories would routinely be sent to BAILII. However, under para 19 it states that, in deciding whether, and if so when, to publish a judgment, the judge shall have regard to all the circumstances; the relevant ECHR articles; and the effect of publication on any current or potential criminal proceedings. Furthermore, only judgments already in publishable form (presumably typed), or which have already been ordered to be transcribed from a recording, are expected to be sent under paras 16 and 17. 4.88 The categories of case that come within para 17 and relate to the Family Court are: (i)

a substantial contested fact-finding hearing at which serious allegations, for example allegations of significant physical, emotional or sexual harm, have been determined;

(ii) the making or refusal of a final care order or supervision order under the Children Act 1989, Pt 4, or any order for the discharge of any such order, except where the order is made with the consent of all participating parties; (iii) the making or refusal of a placement order or adoption order under the Adoption and Children Act 2002, or any order made for the discharge of any such order, except where the order is made with the consent of all participating parties; (iv) the making or refusal of any declaration or order authorising a deprivation of liberty, including an order for a secure accommodation order under the Children Act 1989, s 25; (v) any application for an order giving or withholding of serious medical treatment, and (vi) any application for an order involving a restraint of publication of information relating to the proceedings. 4.89 The purpose of the guidance is that the types of case that tend to attract the most public interest or controversy, where the state is exercising its most draconian powers – such as where children may be removed from or lose contact with parents – should be to open to public scrutiny on BAILII. 4.90 Thirdly, judgments may be published on BAILII at the request of a party, where this is approved by the court, under para 18 (see A and B (Children) [2016] EWFC B115 and A and B (Findings against a social worker) [2016] EWFC 68 for recent examples of this). This part of the guidance appears to be rarely used. That may be due, at least in part, to the fact that under para 22 of the guidance it is the party seeking publication who has to pay for the cost of ordering 119

PUBLISHING AND REPORTING ON COURT JUDGMENTS a transcript, if the judgment is not already in written form. (By contrast, judgments published under para 16 of the guidance are transcribed at public expense, while the cost of those published under para 17 are borne equally by the parties.) 4.91 Another reason why, anecdotally, it appears that few judgments are published at the request of a party under para 18 may be because those judgments usually fall into para 17(ii) or (iii) so when they appear on BAILII the reader may assume that was why they were there. 4.92 In the two-year sample of 837 judgments that were published under the guidance and analysed in a research project in which two of the present authors were involved (Doughty, Twaite and Magrath, 2017 – ‘the Cardiff research’), the numbers that fell into the relevant paragraphs were: 16

306

17(i) 127 17(ii) 140 17(iii) 214 17(iv) 11 17(v) 19 17(vi) 16 18

3

4.93 Any judgment published on BAILII or elsewhere following a hearing in private, including but not limited to those published under the President’s guidance, should appear with a ‘rubric’ at the top, which explains what can and cannot be published about the case, and warns of the risk of identification of anonymised parties. The purpose of the rubric is explained by the President in Re X (A Child) (No 2) [2016] EWHC 1668 (Fam); reported as In re X (A Child) (Application for Reporting Restrictions: Media Notification) [2016] 4 WLR 116 at paras 2–5. 4.94

The 2014 guidance states at para 21 that:

‘The version approved for publication will contain such rubric as the judge specifies. Unless the rubric specified by the judge provides expressly to the contrary every published judgment shall be deemed to contain the following rubric: “This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”’ 120

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.95 The evaluation of the Guidance (Doughty, Twaite and Magrath 2017) found that there were very wide variations in practice as to whether a rubric did appear and what it contained. This might easily lead to confusion.

Status of the Guidance in law 4.96 The President anticipated that the 2014 guidance would lead into a more formalised system in due course. However, nearly four years later, this has not happened, despite a consultation in August 2014 in which he sought the views of practitioners and other interested parties on the impact of the guidance and related matters (see Transparency – the Next Steps [2014] Fam Law 1331.) What may have been envisaged as a short term introductory measure has therefore become a semi-permanent fixture. The reasons why the President issued guidance rather than a formal practice direction are probably twofold. 4.97 First, although the instructions contained in the guidance were detailed and specific, he intended to review, and consult on, their effect and to revise them in due course. This would be easier to do if their status was less formal. Guidance can be drafted and published as quickly as a judgment and circulated quickly to the judiciary. 4.98 Secondly, the guidance was never intended to change the substantive law, which could only be done with parliamentary approval. It was simply to prompt judges to think about the issues around publication, by setting out the principles to ensure more rigorous consideration of them in individual cases, while also encouraging them to publish more of them. This was more easily done by way of a guidance document. Issuing a formal practice direction would have required the involvement of the Lord Chief Justice, and the approval of the Lord Chancellor, under the procedure mandated by the Courts Act 2003, s 81, as amended by Pt 1 of Sch 2 to the Constitutional Reform Act 2005. That would have involved delay; and, having been issued, such a direction would be less flexible to revise and update later on, following review. 4.99 At the time of writing, though subject to revision (see Chapter 8), the President’s guidance remains in place in its original form, although it appears to be observed far more frequently by High Court judges than circuit judges. Family law clients should be advised accordingly that their case might find its way on to a publicly accessible website, albeit by way of an anonymised judgment.

The guidance and human rights 4.100 The 2014 guidance states that where cases fall within para 16 or 17, the ‘starting point’ is that they will be published on BAILII. A balancing exercise, between any competing rights, under the European Convention of Human Rights, will then be undertaken (para 19). Before the guidance took effect, family proceedings in the lower level courts were rarely published, unless the automatic 121

PUBLISHING AND REPORTING ON COURT JUDGMENTS restraint under the Administration of Justice Act 1960, s 12 was varied or lifted. The question therefore arises as to whether the position regarding Article 8 and Article 10 has changed. As established in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, neither article has precedence over the other. 4.101 In Re C (a Child) (Private Judgment: Publicity) [2016] EWCA Civ 798; [2016] 1 WLR 5204, heard by the Court of Appeal in July 2016, Lord Dyson MR described the guidance as reflecting domestic and Strasbourg jurisprudence (the law as interpreted by courts in England and Wales and by the European Court of Human Rights). He cited McFarlane LJ in Re W (Children) [2016] EWCA Civ 113; [2016] 4 WLR 39 at [32]–[40] in support. 4.102 In Re W, McFarlane LJ had stated that the default position remains, under AJA 1960, s 12: ‘… one which prohibits the publication of any information relating to the proceedings. That default position, which is designed to protect children, can, where appropriate, be modified by a judge upon the application of a party or the media. It has in any event been tempered by the President’s transparency initiative, the purpose of which is to allow greater public access to, and understanding of, the work of the family courts.’ 4.103 In Re W, moving from that default position to allow a degree of controlled publicity was a matter of judicial discretion that had been exercised by balancing Article 8 and 10 interests. It was agreed in Re W that the fact-finding judgment fell within para 17(i) of the 2014 guidance. 4.104 Each of these cases (Re C and Re W) were notorious, relating to children who had been found to have died at the hands of their respective fathers, and featured very high-profile matters of public interest. According to the Court of Appeal, in these two cases, the 2014 guidance encapsulated the balancing exercise to be carried out by the court when considering Articles 8 and 10. It did not reverse the position under AJA, s 12, despite making publication the ‘starting point’ if the case came within para 17. 4.105 In H v A (No 2) [2015] EWHC 2630 (Fam); [2016] 2 FLR 723, MacDonald J undertook a very detailed analysis of nearly 30 paragraphs, which he described at [94] as: ‘the parallel analysis of the importance of the rights engaged in this case and the respective justifications for interfering with the same set out above, in which I have considered each of the children’s best interests as a primary consideration, and applying the ultimate balancing test of proportionality.’ 4.106

However, he went on to say at [100]:

‘It is important, once again, to reiterate the matters set out at paragraph 22 of this judgment, derived from the observations of McFarlane LJ in Re C, 122

PUBLISHING AND REPORTING ON COURT JUDGMENTS concerning the case management nature of the decision whether or not to publish the judgment in a suitably anonymised form. It would be undesirable for the question of whether or not a judgment should be published to become an issue that is the subject of the kind of detailed examination I have been required to engage in this case … ordinarily, the exercise of discretion concerning the publication of the judgment will be a simple case management decision to be taken at the conclusion of the judgment and following a broad consideration of the applicable principles with basic reasons.’ 4.107 More recently, in the High Court, in October 2016, Hayden J considered a submission by parties not to publish a judgment that would otherwise be in the public interest, because there were ‘compelling reasons’ under para 17 not to do so: see Re J (A minor) [2016] EWHC 2595 (Fam). However, he states that he based his decision to publish on para 16 (the judge’s general duty to publish where the judge considers that to be in the public interest), although the decision on the care application would have also fallen within para 17 (ii). In any event, he rejected the arguments put forward to ‘depart from the guidance’, and reiterated that the balance is to be drawn between Convention rights, with no presumption that Article 8 carries more weight than Article 10. At para 37 he said: ‘High Court and Court of Appeal authority is to follow the established balancing exercise, namely focusing on the respective art 8 and art 10 interests, and then balancing these. (Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593.) What may have changed is the point at which this exercise is undertaken. Rather than being considered on the rare occasion of a s 12 application, it should now be considered for every case where the judge thinks publication is in the public interest (para 16) and in every case that falls within the para 17 categories.’2 4.108 Peter Jackson J (as he then was) has described the purpose of the guidance as follows: ‘A salient purpose of the guidance is to promote understanding of and confidence in the proceedings of the Family Court. But beneficial though that goal is, it is not an end in itself. Rather, it is part of a necessary process to ensure that the rights of individuals and the public … referred to above, are properly balanced. That cannot happen if confidentiality in the proceedings of the Family Court, a public body, is allowed to trump all other considerations. A balance has to be struck in each case, using the guidance as a valuable aid. There will still be cases where, notwithstanding the guidance, publication is not permitted, and other cases where the judge will authorise wider publication than that contemplated by the guidance.’ (Wigan BC v Fisher and Thomas [2015] EWFC 34 at [20]) (our emphasis)

2

See also Chapter 1, (1.51).

123

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.109 The sentence we have underlined emphasises the concept of the guidance as a means of balancing rights, rather than imposing a new policy. However, research (described below) has shown that many circuit judges are more likely to be following the pre-February 2014 practice of non-publication by default, rather than explicitly conducting a balancing exercise between Articles 8 and 10. Judicial workload is likely to be a disincentive to publication, given the additional time required to deal with submissions, decisions approval and anonymisation of judgments in such cases.

Compliance by judges 4.110 The response of the judges to the 2014 guidance to whom it applied was analysed in the Cardiff Research (Doughty, Twaite and Magrath, 2017). 4.111

As the executive summary of their report explained:

‘The aims of this research study were to analyse the cases that were published in the first two years of the guidance, to evaluate the effects of, and responses to, the guidance, by the courts and the media and other stakeholders and the contribution that the guidance has made to increasing public legal education.’ 4.112 The Cardiff research disclosed that compliance by judges had been patchy. Over the two years immediately following the publication of the President’s transparency guidance, there were wide variations between courts and between judges as to whether judgments were sent to BAILII. Some courts appeared to publish regularly and others never at all. In general, High Court judges, perhaps with greater experience of sending judgments to BAILII and having better facilities for their preparation and distribution, published more often than local circuit judges. Although the establishment of the Family Court in April 2014 put the publication of judgments from non-High Court judges on BAILII on a more formal footing, with a separate database being established for the purpose, it did not necessarily provide the judges involved with better facilities. 4.113 Among the judgments published there were variations in practice regarding anonymisation and identification of children, families and professionals. The responses of the judges questioned as part of the research also varied considerably, with some rather less enthusiastic about publication (seen as both risky and an administrative burden) than others, indicating that not all the judiciary could be seen as subscribing to the same level of enthusiasm for transparency as the President himself.

Anonymisation process 4.114

The 2014 guidance states at para 21 that:

‘Unless the judgment is already in anonymised form or the judge otherwise orders, any necessary anonymisation of the judgment shall be carried out, 124

PUBLISHING AND REPORTING ON COURT JUDGMENTS in the case of judgments being published pursuant to paragraphs 16 and 17 above, by the solicitor for the applicant in the proceedings and, in the case of a judgment being published pursuant to paragraph 18 above, by the solicitor for the party or person applying for publication of the judgment. The anonymised version of the judgment must be submitted to the judge within a period specified by the judge for approval.’ 4.115 The ultimate responsibility for publication of the judgment in an appropriately anonymised form remains that of the judge, as the President made clear in his judgment in Re X (A Child) (No 2) [2016] EWHC 1668 (Fam); [2016] 4 WLR 116 at [30]. 4.116 The Cardiff research revealed that issues around the proper anonymisation of judgments was a major concern of circuit judges, who may lack the time and resources needed to ensure that their judgments can be safely published, without risk of anonymisation errors and jigsaw identification. 4.117 Although the initial burden of anonymisation under para 21 of the guidance appears to be placed on solicitors, in practice where barristers are instructed it would be part of their responsibility to carry out the anonymisation or at least check that the anonymisation had been done correctly. 4.118 In local practice guidance issued by HHJ Clifford Bellamy in July 2015, when he was DFJ at Leicester Family Court (Leicester and Leicestershire Local Family Justice Board, ‘Practice Note: Transparency at the Family Court in Leicester’, 15 July 2015) the judge set out his own approach to compliance with the President’s 2014 guidance, including: ‘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.’

Notwithstanding the limited formal status of such a local guidance document, this offers a useful insight into the process as it applies in practice. 4.119 Para 20 of the 2014 Guidance states that judgments should normally be anonymised in respect of the children and families involved, while experts should normally be identified by name. Other parties, such as non-expert witnesses, may be anonymised where their identity could lead to jigsaw identification of the children or family members whose identity is sought to be protected. For this reason, it is not uncommon for the lawyers involved in the case, particularly the instructing of solicitors, whose firms may have an identifiable location, or the local authority concerned in a public law case, to be anonymised. 125

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.120 There may be other reasons for anonymising certain parties, including experts or professionals such as social workers, for example because they have been criticised in the case and may be subject to professional disciplinary proceedings which would make it unfair to identify them at the stage when the judgment is published. The Cardiff research found a number of cases where the judge had been explicit about their reasons for naming or not naming a practitioner. (See Chapter 3, 3.25 et seq for a fuller discussion about restricting the identification of experts, professionals and local authorities.) 4.121 Although the location of the court might conceivably be redacted, it seems that a judge’s name is never redacted or anonymised (save for the example of an accidental redaction below). (The Civil Procedure Rules provide at r 40.2(1) that ‘Every judgment or order must state the name and judicial title of the person who made it, unless …’ and there are then a number of exceptions. But there does not appear to be an equivalent provision in the Family Procedure Rules, which may be an oversight.) 4.122 In one case mentioned in the Cardiff research a judgment appeared to have been published on BAILII with no judge’s name: it was written up by one newspaper, complete with a quote from a prominent family justice campaigner as an example of ‘taking anonymisation a step too far’, before it became apparent that the omission was a simple mistake. The judge’s name had been present all the time on the original RTF transcript of the judgment sent to BAILII, and only did not appear on the HTML web version because of a formatting error (see P Magrath, S Phillimore and J Doughty, ‘Transparency: the strange case of the judge with no name’ [2015] Fam Law 422). 4.123 However, redacting the court name and leaving the judge identified may be pointless if the court address can easily be found online by searching the name of a circuit judge.

Anonymisation errors 4.124 The research also found a number of cases involving anonymisation errors, which were brought to the attention of the judges concerned, and of the President – who described the procedure to be adopted in such cases in Re X (A Child) (No 2) [2016] EWHC 1668 (Fam); [2016] 4 WLR 116 at paras 31–32: ‘31. It is a matter of public record that both Dr Julia Brophy, formerly of Oxford University, and Dr Julie Doughty, of Cardiff University, are currently engaged in research, funded by the Nuffield Foundation, into various aspects of transparency in the family justice system. That research has my full support. In the course of her research, Dr Doughty identified a number of family judgments on BAILII containing identifying details. She brought her concerns to HMCTS on 18 May 2016.

126

PUBLISHING AND REPORTING ON COURT JUDGMENTS 32. HMCTS responded with an e-mail to Dr Doughty sent, as it happened, on 16 June 2016. The e-mail, which I had seen and approved before it was sent, was as follows:

‘The judgments identified as part of your research have been removed from BAILII and will, if the judges concerned think appropriate, be amended and re-published. In those cases where the judge has retired, the judgments have been referred to the President of the Family Division.



Judges are responsible for anonymising and sending their judgments to BAILII. Judges may ask for the assistance of counsel, solicitors or others in the task of anonymising the judgment but the responsibility for checking the judgment and sending it to BAILII is the responsibility of the judge and the judge alone.



HMCTS takes the security of personal data very seriously. Where a sensitive data breach is reported, our specialist Information Assurance and Data Security Team are notified and a rigorous impact assessment is conducted. If, as part of that process, it is considered to be high impact then the ICO is informed.



In terms of work to be done now, HMCTS is reviewing its internal guidance to judges’ clerks on the protocols for releasing judgments to BAILII, and is currently discussing this with the President of the Family Division to ensure it aligns with judicial guidance. The President of the Family Division has indicated that he intends to issue fresh guidance on the anonymisation of judgments following the publication of research on the issue which is expected in the summer. He is likely also to publish fuller guidance to judges on sending judgments to BAILII and taking them down from BAILII.



We have made improving the process for removing judgments a priority. Currently, if BAILII is notified of a potential error and the judgment needs to be removed at short notice, they have specific contacts in the Judicial Office who will facilitate that process. Work is also underway to make this process more efficient by clarifying the roles and process within the Judicial Office and HMCTS for contacting judges to consider taking judgments down from BAILII, making amendments and re-publishing them.



While we work to put these new arrangements in place if, as part of your research, you find any other judgments which you believe to contain an error please contact the Judicial Office press office on 0207 073 4852 and they will ensure that the judge responsible for the judgment is contacted. Where a judge cannot be contacted, or has retired, the matter will be referred to the President of the Family Division.’

(See also Chapter 3, on the topic of anonymisation generally, Chapter 8 on draft judicial guidance, and the Anonymisation Checklist in Appendix 2.) 127

PUBLISHING AND REPORTING ON COURT JUDGMENTS

Judgments adapted or designed for transparency For the parties 4.125 Given that one of the purposes of transparency is to help promote understanding of the legal process by non-lawyers, it is not enough that judgments should be published. They should also be clear and easy to understand for the parties themselves and any other member of the public reading them. 4.126 In the first annual BAILII lecture, ‘No Judgment – No Justice’ (2012) given by Lord Neuberger, then President of the UK Supreme Court, he said that: ‘Judgments are the means through which the judges address the litigants and the public at large, and explain their reasons for reaching their conclusions.’ 4.127 For justice to be seen to be done, he said, two fundamental requirements had to be satisfied. First, judges should give publicly available reasons for their judgment. Second, those judgments must be reliably disseminated and reported. The second was satisfied, in the first place, by publication on BAILII, but then, in the cases that merited or required it, in the enhanced versions supplied in published law reports. 4.128 As to the first requirement, ‘Judgments must speak as clearly as possible to the public’. As he explained, at paras 10–11: ‘[10] … the fact that legal professionals are trained to read judgments is no excuse for poor judgment-writing. It is like suggesting that statutes don’t need to be well-drafted because lawyers and judges are adept at interpreting them. The fact that the system can rectify or ameliorate defects is no excuse for having the defects in the first place. Secondly, reference to lawyers, judges and academics is myopic. They are only part of the audience. Perhaps somewhat idealistically, it can be said that they are not even the most important part of the audience. The public are the real audience, even if the public seems happily indifferent about almost all court judgments. [11] Judgments must speak as clearly as possible to the public. This is not to suggest that Judgments could, or even should, aim to be bestsellers. Chance would be a fine thing. But every Judgment should be sufficiently well-written to enable interested and reasonably intelligent nonlawyers to understand who the parties were, what the case was about, what the disputed issues were, what decision the judge reached, and why that decision was reached. Non-lawyers may not be able to grasp the finer details of the legal issues, because such understanding often can only come from many years of legal education and practice. They should however be able to understand what the case was about, even if they are unable to appreciate all the intricacies of the more abstruse legal principles.’ 128

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.129 In practice, some judges are much better at this than others. Historically, Lord Denning (Master of the Rolls from 1962 to 1982) was renowned for his very clear, simply written judgments. In The Family Story (1991) pp 207–208, he explained his approach to judgment writing (in somewhat literary terms) as follows: ‘I try to make my judgments live … I start my judgment, as it were, with a prologue – as the chorus does in one of Shakespeare’s plays – to introduce the story. Then I go from act to act as Shakespeare does – each with its scenes drawn from real-life … I finish with a conclusion – an epilogue again as the chorus does in Shakespeare. In it I gather the threads together and give the result …’. 4.130 Good judgment writing is not just about structure, though this helps; it is also, and perhaps primarily, as Lord Neuberger explained, about language. 4.131

As the judicial authors of an Australian study on the subject say:

‘Judgments should be easy to read. The use of plain, everyday language helps to achieve this. Unless there is a need for it, technical language and legal jargon should be avoided. This does not require judges to resort to an artificial, simplistic writing style, but rather to use normal and sensible words and phrases.’ (L Dessau and T Wodack (2003)) 4.132 Some family judges have gone to lengths to make their judgments readily understandable, in particular to the parties involved in the case. (And in doing so, they have done things not done before.) Peter Jackson J was widely praised for writing in especially simple language for the benefit of a mother with learning difficulties and her children, even incorporating emoji faces when discussing a quoted note: ‘The mother left a message in the caravan for the father’s sister, who I will call the aunt. It told her how to look after the family’s pets. The message said that the family would be back on 3 August. It has a ☺ beside the date. After the family left, the police searched the caravan. They found the message and say that the ☺ is winking, meaning that the mother knew they wouldn’t be coming back. I don’t agree that the ☺ is winking. It is just a ☺. The police are wrong about that, and anyhow they didn’t find anything else when they searched the caravan.’ Lancashire County Council v M and others [2016] EWFC 9, para 27(13). 4.133 The same judge attracted further praise when he wrote his judgment in a later case in the form of an open letter to a 14-year-old boy (‘Dear Sam …’) whose views he departed from. Both parents were unrepresented in the Family

129

PUBLISHING AND REPORTING ON COURT JUDGMENTS Court: see Re A (Letter to a young person) [2017] EWFC 48. (Sam was presumably not the boy’s real name, and the other parties are referred to in the case header as ‘A Father’ and ‘A Mother and Stepfather’.) 4.134 This trend of directly addressing the parties at an accessible but nonpatronising level can also be seen in a Court of Protection case conducted by Hayden J, where family members, including 12 and 14-year-old boys, had given evidence, Salford Foundation NHS Trust v P [2017] EWCOP 23.

For the media 4.135 The likelihood of a judgment being picked up by the media may influence the way it is written or delivered. This can occur in two ways. 4.136 First, and most commonly, where the court is aware of particular media interest, particularly if the judgment is a long one involving complicated facts and issues, the court will issue an accompanying press statement or summary. This cannot be relied upon as a legal precedent but is useful in ensuring that the press coverage and public understanding of a case is not coloured by misunderstanding of the judgment itself. For lawyers it can also be a convenient quick entry into the case, where a publisher has yet to provide a law reporter’s case summary or digest. The UK Supreme Court provides press summaries of all its judgments, as well as a YouTube video recording of their delivery (in summary form) in the court itself. 4.137 In some cases, however, the judge will directly address the media in the judgment, conscious that the case is likely to attract publicity, and perhaps even using the opportunity to enlist their help in promoting the interests of justice. 4.138 An example of such a case occurred in the series of judgments issued by HHJ Stephen Wildblood QC in the so-called ‘missing mum’ case of Rebecca Minnock (See Case Study 2, Appendix 1). On 12 June 2015, HHJ WiIldblood QC gave a judgment in which, at para 2, he expressly thanked the press for their help in locating the child: ‘There has been considerable press coverage of this case and I am very grateful to the press for the assistance that they have given. The press are the eyes and ears of our society and have a vital role to play within it; the quality of press reporting has been very high, in my opinion and I would ask that the same effective relationship between the court, the press and the police should continue in the best interests of Ethan.’ Williams v Minnock (Case No: VS13P00027) additional judgment of 12 June 2015) (unreported) 12 June 2015, Bristol Crown Court. There is no neutral citation and

130

PUBLISHING AND REPORTING ON COURT JUDGMENTS none of the eight judgments eventually given in the case was posted on BAILII, having been made available only on the Judiciary website. 4.139 Something similar happened in the case of Samantha Baldwin, another mother who appeared to have abducted her children in apprehension of a court order against her (See Case Study 6, Appendix 1). HHJ Lea, having allowed a certain amount of publicity in order to help locate the missing mother and children, released a short judgment on 10 April 2017, in part to correct widespread misinformation about the case in the press and, especially, on social media. He began: ‘In this case I exercised my discretion to allow a controlled degree of publicity to assist the children to be found. That does not give the media a licence to report generally about this case. There has been much ill-informed speculation in some sections of the media. I give this short judgement, as to the essential facts.’ 4.140 In another case Holman J thanked the BBC (who appear to have applied for him to sit in open court), and the media generally for their sensitivity in reporting the case, which involved a baby (M) born with a serious degenerative and progressive medical condition. The NHS Trust sought a declaration that it would be lawful, notwithstanding his parents’ refusal to consent, and in M’s best interests, to withdraw ventilation and provide only pain relief to allow M to die with dignity. ‘I am in no doubt that it was appropriate that this case, not just this judgment but almost the whole of the evidence, be heard in public and I am glad that the BBC made their application. I have not personally felt that the presence of the media has been intrusive in the court room; nor, so far as I could observe, has it been oppressive to, or added to the burden upon, the parents, even when giving their evidence. I thank the media for the sensitivity they have shown, at any rate within the court room.’ See An NHS Trust v MB (A Child Represented by CAFCASS as Guardian ad Litem) [2006] EWHC 507 (Fam) at [1]. This judgment is an example of a case where all the parties were anonymised, including the solicitors as well as the doctors and the hospital, and the NHS trust that brought the application. Only the barristers were identified. 4.141 In contrast, the media coverage of some more recent cases involving hospitals, such as those of Ashya King and Charlie Gard, have caused huge disruption to their services. See Re King (A Child) [2014] EWHC 2964 (Fam) and Re Gard (A Child) [2017] EWHC 1909 (Fam); [2017] 4 WLR 131. (For more examples of the relationship between transparency and media reporting, see the Case Studies in Appendix 1.)

131

PUBLISHING AND REPORTING ON COURT JUDGMENTS

AMENDING A JUDGMENT AFTER PUBLICATION 4.142 Once a judgment has been authorised by the judge and released for the law reports and/or sent to BAILII it will be difficult to pull back from publication (see above extract from Re X (A Child) (No 2) [2016] EWHC 1668 (Fam); [2016] 4 WLR 116 for the practical mechanisms). This is only possible to a limited extent, and only in the short term, which emphasises the need to consider issues of publication and ask questions about children’s rights to participate in and be consulted on the extent and nature of possible publication before it happens.

The authorised judgment 4.143 The version of a judgment handed down or delivered in court is not to be taken as the final approved version unless there is a statement on the front of the document stating that: ‘I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.’ 4.144 The usual process is for the judgment either to be transcribed, if given ex tempore, or formatted for publication by one of the official transcribers assigned to the court, who will send it to the judge (or each of them if there is more than one) for approval. That approved version is then distributed to the parties, if they request it, and to BAILII and legal publishers who have ordered a copy. 4.145 A draft version of the judgment that is going to be handed down is often distributed to counsel in advance, with a view to counsel checking for errors, so that they can be flagged up at the hearing when judgment is formally handed down. Although counsel may see it before hand down, it is effectively embargoed: it may not be shown to, nor its contents communicated to, the parties themselves until one hour before judgment is due to be given. See CPR PD40E – Reserved Judgments (which seems to apply equally in family proceedings, in the absence of any equivalent in the FPR) and O’Connell v Rollings [2014] EWCA Civ 806, and Director of Public Prosecutions v P (No 2) [2007] EWHC 1144 (Admin); [2008] 1 WLR 1024. 4.146 If anyone present when judgment is given has identified an error in the judgment, it can be drawn to the judge’s attention and corrected there and then, or within a few days thereafter. The corrected version is then sent to the transcribers for formatting. However, if the judge has already indicated that the version handed down is the final approved version, then it is the judge’s responsibility, or that of their clerk, to issue the corrected approved version to anyone who may already have the uncorrected version.

132

PUBLISHING AND REPORTING ON COURT JUDGMENTS

The Slip Rule 4.147 Where a minor error in a judgment is detected after an interval, it may be corrected under what is known as the ‘slip rule’. Both CPR, r 40.12 and FPR, r 29.16 provide, in identical terms: ‘(1) The court may at any time correct an accidental slip or omission in a judgment or order. (2) A party may apply for a correction without notice.’ 4.148 There is a limited time in which this can be done, despite the apparently wide terms of the rule. Once the formal order has been drawn up and perfected or sealed, the judge or court is functus officio (their authority in the case has expired) and no longer has jurisdiction over the case. The only remedy then is to appeal. 4.149 The jurisdiction is limited to those parts of the judgment that actually form part of or contribute to the ‘judgment or order’ of the court that would be amenable to appeal. Findings of fact which do not form part of the judgment so as to be amenable to appeal in themselves cannot be amended at any time under the slip rule, it would appear. It is only something that forms part of the end product of the proceedings that can be corrected under the slip rule, which cannot be used simply to ‘set the record straight’. Moreover, a court’s refusal to amend such non-appealable parts of the judgment cannot be challenged on appeal. See Re A (A Child) (Appeal: Jurisdiction) [2014] EWCA Civ 871; [2014] 1 WLR 4453, CA.

Post-judgment redaction 4.150 The decision in Re A (above) suggests that a mistake such as the failure properly to redact names in a judgment or the accidental mention of a fact that might contribute to jigsaw identification would not fall within the slip rule because that name or fact is unlikely to form part of the ‘end product’ decision. In practice, a judge would simply reissue the judgment in a corrected form to BAILII and any publishers wishing to report the case. This has occurred in a number of cases of which the authors are aware (see below in 4.163). 4.151 In most cases, assuming they were even aware of the issue, the parties would consent. The problem would occur if an objection were raised either by the media, wishing to disclose a name, or by someone such as a social worker or other professional wishing to have their name redacted. What happens if no application is made before judgment is given and the judge wishes to accede to such a request afterwards? Can the judge amend or reissue the judgment? Not under the slip rule, it would seem. 4.152 However, in connection with children at least, a judge or court does have considerable scope to alter a judgment even after the order is sealed, as 133

PUBLISHING AND REPORTING ON COURT JUDGMENTS confirmed by Lady Hale in Re L and B (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8; [2013] 1 WLR 634. The judgment of the Supreme Court, given by Lady Hale, discusses the factors relevant to the exercise of discretion. The discretion could certainly be exercised to redact or un-redact names and to conceal or disclose other facts. 4.153 In that case, the judge in care proceedings, when making findings of fact as to which parent was responsible for non-accidental injuries to a child, having initially found the father to blame, then changed her mind and decided it could have been either but there was insufficient evidence to identify which. On appeal, the Court of Appeal reversed the revision and restored the original judgment blaming the father. On the father’s appeal, the Supreme Court reversed that decision and restored the judge’s second judgment. 4.154 The judgment, at paras 32–45, considers the position where the order has already been sealed. In the case of care proceedings, it appears to contemplate the possibility of revisiting findings of fact at any time before the final care order is made, so that an intermediate fact-finding judgment would not be barred from revision providing the care proceedings were still going on. (Re S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678 cited.) The same might not be true in other types of case. However, whilst acknowledging that the arguments for and against were ‘finely balanced’, the judgment deliberately refrains from deciding the question of revision post-sealing of order, as that was not the position in Re L and B. 4.155 Re L and B was applied by Mostyn J in a Hague Convention case, Re F (A Child) (Return Order: Power to Revoke) [2014] EWHC 1780 (Fam); [2014] 1 WLR 4375 in ruling that, in all proceedings relating to children – not just care proceedings – the court has power to vary or revoke any order under FPR, r 4.1(6), the court’s general powers of management: ‘A power of the court under these rules to make an order includes a power to vary or revoke the order’. 4.156 That presumably does not apply to judgments but it reinforces the latitude accorded to proceedings involving children. Whether the same latitude is accorded in other types of case, such as those concerned with financial remedies, is unclear. 4.157 See also Re K-L (Children) [2015] EWCA Civ 992, [2016] 4 WLR 123, where a judge gave three different, inconsistent judgments and Re L and B was followed. 4.158 Further, the court’s duties under the Human Rights Act 1998, s 6 not to act in contravention of convention rights would extend to remedying an error or wrong decision in respect of publication which impacted upon an individual’s Article 8 rights.

134

PUBLISHING AND REPORTING ON COURT JUDGMENTS

Postponement of publication or of full publication 4.159 A judge can also issue an unredacted version of a judgment which was initially redacted on grounds of public policy, as happened in Oldham Metropolitan Borough Council v Makin [2017] EWHC 2543 (Ch) (the Brady funeral case.). 4.160 The judgment initially issued in that case on 13 October 2017 did not disclose the name of the person to whom the judge, Sir Geoffrey Vos, Chancellor of the High Court, had conferred under the Senior Courts Act 1981, s 116 the power to act as executor of the deceased, the multiple murderer Ian Stewart-Brady, in respect of the organisation of his funeral. It was a local authority official, whose name was disclosed in a later, unredacted edition of the judgment, released on 9 November 2017. The latter also disclosed details of where, following the initial order, Brady’s remains had been cremated and how disposed of. These had been concealed initially in order to protect the feelings of the families of Brady’s victims and to avoid the risk of public disorder should details of the funeral arrangements become public before the event. 4.161 In essence the two were the same judgment; there was no correction, and the full version would have been distributed to the parties in the case. Although it is more usual for a judge simply not to release a judgment for publication until the conditions for public consumption are met, particularly if the case was heard in private, there is no reason why, where reporting restrictions can legitimately be imposed, but there is considerable public interest in a case, a redacted version cannot be given immediately and a fuller version later released. Any direction to such an effect should, as was done in the Oldham v Makin case, be included in the judge’s order. 4.162 Judgments given privately or subject to reporting restrictions can be published at a later date, eg once related criminal proceedings have been concluded (as in the case of Poppi Worthington, discussed in Chapter 3, and see Case Study 7, Appendix 1), or conceivably once a child has reached maturity. A more modest postponement occurred in Re J (A Minor) (application for permission to Appeal) [2016] EWHC 2766 (Fam), where publication was deferred until school half term to reduce the risk of impact on the child.

Withdrawing a judgment from BAILII 4.163 As noted in 4.124 et seq above, there have been cases where BAILII has been asked to remove a judgment which required correction and replacement. It is also possible to remove a judgment which may have been sent in error. Although a judgment in a High Court Children Act 1989, Sch 1 application, Antonio v Rokos (2016, unreported) was posted on BAILII and generated some press coverage and social media debate, it then transpired that although the judge had sent his judgment to BAILII, counsel for the parties had not been aware of this. The published judgment is headed that the judge was ‘sitting throughout in public’ but he seems to have be the only person involved who was aware that it was 135

PUBLISHING AND REPORTING ON COURT JUDGMENTS not a private hearing. Schedule 1 applications do not fall within the President’s guidance, but as discussed in Chapter 2, the openness or privacy of financial cases is still uncertain. 4.164 There have also been examples of the wrong version of a judgment being sent to BAILII, namely an unredacted or not fully checked and redacted version. Although, when this happens, a lawyer reading ‘Recent decisions’ will usually notice and alert BAILII, from where someone will check with the relevant court, a small number had been sitting apparently unnoticed for many months when the guidance evaluation was undertaken (Doughty Twaite and Magrath 2017). Under the protocol set out in Re X (A Child) (No 2) [2016] EWHC 1668 (Fam); [2016] 4 WLR 116, anyone detecting an error in the judgment should in the first instance approach the judge concerned, via the Judicial Office, whose responsibility it is to decide whether or not to take down or correct or further redact the judgment. Failing that, it is possible to approach BAILII directly and use their feedback form to draw attention to the error, but BAILII will still need to invite the judge to decide what to do about it. However, there seems to be no mechanism whereby HMCTS notifies the parties where there has been a breach of privacy or data protection, unless there is evidence it has had some effect.

Withdrawal of judgment altogether 4.165 Where a court is not functus officio, it remains possible to withdraw the judgment (and its operation on the parties) altogether. Sometimes this is done in order to re-issue it in another form, which is tantamount to issuing a revised version. It may conceivably be done in order to reverse the decision (again, only if no order has yet been sealed). However, it could be done because the parties have settled the case, because supervening circumstances have rendered the judgment otiose or unnecessary, or the judgment has for some other reasons become academic. 4.166 In Pittalis v Sherefettin [1986] QB 868 the judge withdrew his judgment almost as soon as it had been made and granted a different order. It was held that he had been entitled to do so. 4.167 Nevertheless, once they have issued something in writing or begun to give an oral judgment, a judge has a discretion to complete the process even if the parties object. 4.168 In Prudential Assurance v McBains Cooper [2000] 1 WLR 2000 the parties, had seen or been told about the contents of the draft judgment sent to counsel in advance of delivery on a date to be fixed. Before the judge actually delivered it, the parties agreed to settle the action and purported to withdraw it from the court. The judge nevertheless concluded there were strong public policy grounds for delivering the judgment, though he adjourned doing so pending the parties’ appeal. The Court of Appeal held that the process of giving judgment began with the distribution, in accordance with the practice direction, of the draft of the 136

PUBLISHING AND REPORTING ON COURT JUDGMENTS judgment for the purpose of enabling the parties’ legal representatives to check for typographical or factual errors, and that thereafter the judge had a discretion whether or not to complete the process by actually giving judgment in open court. (The position would have been different if the parties had settled before the judge had issued his draft, even if he had concluded the hearing and begun to draft the judgment.) 4.169 Almost exactly the same thing happened in F & C Alternative Investments (Holdings) Ltd v Barthelemy (No 1) [2011] EWHC 1851 (Ch); [2012] Bus LR 884, where Sales J, citing the Prudential case, said at para 8 that ‘it is not the function of the practice of providing judgments to the parties in draft before hand down to allow them “to have more material available to them to help them to settle their dispute”.’ 4.170 But once the court is functus, it can no longer withdraw the judgment. That is what occurred in Bate v Mishcon De Reya [2006] EWCA Civ 597. The judge, sitting in the Mercantile Court, issued a judgment and then, after the order had been made and entered, purported to withdraw the judgment and issue a revised one, in which he omitted certain findings of dishonesty which, apparently, he had had second thoughts about. He then made a revised order, against which there was an appeal. The Court of Appeal took the view that the only order against which they could hear an appeal was the earlier one, but they dismissed the appeal and set aside the later order as having no effect, the judge being functus officio when purporting to make it. 4.171 However, see Re L and B (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8; [2013] 1 WLR 634 and Re K-L (Children) [2015] EWCA Civ 992; [2016] 4 WLR 123 (see 4.152–4.157 above).

WORKING WITH JOURNALISTS AND THE MEDIA Media attendance and reporting of hearings 4.172 Members of the public including journalists can usually attend any hearing in open court, as we explain in earlier chapters. Journalists may also attend some types of hearings where the general public are excluded, for example hearings in a Youth Court (Children and Young Persons Act 1933, s 47, as explained in Chapter 7) and family proceedings, as explained in Chapter 2. This applies only to accredited media representatives, who hold a press card. Other individuals who might want to attend for journalism or research purpose will need to make an individual application to the court. 4.173 Here we explain more about how media representatives might become involved in reporting family cases (in situations other than where the parties themselves approach the media, which is covered in 4.69 et seq above and Chapter 5; see also Appendix 2).

137

PUBLISHING AND REPORTING ON COURT JUDGMENTS

How do the media find out about a case? 4.174 Most law court buildings are open to the public, although they may have security systems in place, and it may be necessary to use a different entrance to get into the public gallery, especially in the Crown Court for criminal trials. Inside a court building there will be an information point or noticeboards indicating which cases are ‘listed’ for hearing each day. Cause lists (lists of cases to be heard) are available for the High Court, Court of Appeal and various tribunals on the Ministry of Justice website, and the Supreme Court has its own website which lists all forthcoming cases and also carries judgments of the cases it has already heard. Cause lists for cases heard in County Courts and other courts outside London can be found on the CourtServe website (www.courtserve.net). 4.175 Cause lists generally only list the name of the case and in many family cases the names are not identified, so the information may not be particularly helpful to reporters in deciding whether there may be anything worth reporting in a case. 4.176 Where a case has been heard, but judgment has not yet been given (‘reserved’), the cause list may not announce the fact that judgment is to be given on a particular day until the day (or even the night) before it happens. However, the lawyers in the case and of course the parties may notify the press. Failing that, a journalist can try calling the court office. 4.177 In the Royal Courts of Justice journalists are more likely to be in the building in any event looking for something of interest to cover. In other courts they will usually attend only where there is a case of particular interest that they have been notified of by one of the parties or heard about from other journalists.

Reporting the hearing 4.178 The general rule is that what happens in open court, including the identity of the parties and the contents of any documents relied on in the hearing, may be reported afterwards. But this general rule is subject to a number of statutory restrictions. 4.179 See Chapter 2 for a detailed description of what restrictions are in place in respect of the reporting of a hearing attended by the media. 4.180 Anyone attending a trial in open court, whether sitting in the press bench or the public gallery, is allowed to take notes without first seeking permission: see R (Ewing) v Crown Court at Cardiff [2016] EWHC 183 (Admin); [2016] 4 WLR 21. If the hearing is a private one, an accredited media representative, or anyone else attending by permission of the court, may need to ask permission to take and retain notes of what is happening. In very extreme cases, such as those involving national security, even accredited journalists have been asked to hand their notes 138

PUBLISHING AND REPORTING ON COURT JUDGMENTS back to the court and not to take them away, but this is exceptional and no such practice should be required for ordinary cases either in open court or private hearings. 4.181 See Chapter 2 (2.04, 2.11) for information about the taking of photographs, making of images or video/audio recordings. 4.182 If the hearing is in open court, and the court has not made any order restricting or preventing reporting, then as a general rule anything that happened in the hearing can be reported. This includes the contents of any documents read out or referred to in the hearing, unless otherwise directed, and anything said by the witnesses and the parties or their lawyers in the hearing. 4.183 Where the automatic restraints under AJA 1960, s 12 apply to a hearing held in private, those will continue after the conclusion of the case (see Chapter 2). There may also be a reporting restrictions order (See Chapter 3). However, once a judgment has been published on BAILII or elsewhere, it is in the public domain and whatever is in the judgment (subject to the rubric) can be reported in the media whether or not they have attended the hearing or visited the court where judgment was given. The restraints will continue to apply to material not contained in the judgment unless specifically permitted.

Media access to documents 4.184 Unlike other types of proceedings, in most family proceedings, media representatives are not entitled to receive or view court documents referred to in the course of evidence, submissions, or judgment. In family proceedings, especially when heard in private, a media representative will need to apply to the judge to see documents referred to during proceedings. The judge must then carry out a balancing exercise, considering on the one hand the right of the litigants (if they object to disclosure) to privacy and a fair trial, and on the other the right of the media to be able to follow and to report the proceedings fairly and accurately. See Chapter 2, 2.35. 4.185 It is possible for the court to permit the media to see documents to enable the reporter to follow and understand the proceedings, whilst restricting their wider use and disclosure of their contents (see Case Studies 7 and 18 in Appendix 1 where journalists were given sight of documents for this purpose). 4.186 In the Court of Appeal, an accredited reporter, or a member of the public with permission of the court, can ask to see public documents such as the judgment being appealed against, the Appellant’s Notice (setting out the grounds of appeal), and the advocates’ Skeleton Arguments (a written outline of legal submissions). In relation to the latter, where a party is represented in the Court of Appeal, the representative must bring and deposit with the court usher two spare copies of his or her Skeleton Argument for provision to accredited court reporters: see CPR, PD52C, para 33.

139

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.187 Apart from the Skeleton Arguments (which by para 33(2) of PD52C are supposed to be provided in suitably anonymised form in any appeals in family proceedings involving children), some of these documents may have been drafted on the assumption that matters discussed in them would remain confidential to the parties and their advisers, so there may be legitimate reasons not to show them to anyone else. The person to ask is the Clerk of the Court, who keeps a copy of these documents in the Court File. 4.188 Sometimes the Court of Appeal is only hearing an application, for example for permission to appeal (PTA), in which case there will be limited documentation and it is unlikely it would be shown to anyone else.

Correcting or complaining about a media report 4.189 Many newspapers and most broadcasters try to publish only accurate reports with reasonable balance, but while regulated broadcasters are required to do this, newspapers are required only to avoid deliberate inaccuracy, and may hold and express strong, even biased, opinions. The judiciary have stressed that this is a vital element in the free press and that it is not for them to exercise editorial control. 4.190 The regulatory code under which most newspaper publishers operate does not currently prevent newspapers from publishing stories that ‘cherry pick’ isolated aspects of judgments for scandalous or controversial headlines that will sell papers, while ignoring the rest. They are not required to link to the judgment nor offer a genuinely balanced presentation. And, once information is out, it may remain forever ‘out there’ on the web even after the passage of time. It can be picked up and repeated, in later news reports or on social media, discovered by future employers, or indeed social workers and local authority officials. The internet makes permanent and instantly accessible what used to be ephemeral printed copy, gathering dust in ancient cuttings libraries, or rarely aired tins of archive footage. Nowadays, fake news travels fast. 4.191 In some cases, newspaper or media reports actually distort the facts so as to give a completely misleading impression of what actually happened in a case. If so, a complaint can be made to the publisher or broadcaster responsible. We say more about this below. There are also regulatory rules under the Editors’ Code which forbid them from harassing and distressing people about whom they are investigating a news story, such as the recently bereaved, or victims of crime. 4.192 Unless the situation is one where it would be appropriate to involve the court (for example, because it may involve a contempt of court), then the parties, their advisers or others affected by a problem with media reporting of a case should complain either to the publisher or broadcaster or, if they do not obtain a satisfactory response, to the appropriate regulator (if there is one). 4.193 Newspaper regulation has been the subject of some controversy in recent years, following the Leveson Inquiry into phone-hacking and other abuses 140

PUBLISHING AND REPORTING ON COURT JUDGMENTS by newspaper publishers. We discuss this more fully in Chapter 8, where we also consider certain recent developments that may result in changes to the relevant legislation and the possible resumption of Pt 2 of the Leveson Inquiry.

Complaining to the publisher 4.194 Most newspaper publishers have a procedure for complaining about the content of their publications. Details of their complaints policies and procedures will be listed on their websites. 4.195 Many of them are regulated by the Independent Press Standards Organisation (IPSO). If so, they are required as a condition of their membership to have effective mechanisms for complaint about breaches of its Editors’ Code of Practice. Complaints should normally be made within four months of print publication or within one year of content first appearing online. The publisher undertakes to respond within 28 days, failing which a complaint should then be made to IPSO. 4.196 IPSO encourages those making complaints to exhaust the publishers’ own complaints procedure before pursuing the matter with IPSO itself. Where the complainant has not first approached the publisher, their complaint directly to IPSO will usually then be referred back to the publisher, which is given 28 days to respond, unless it requests IPSO itself to investigate the matter. Full details of its complaints process and the Editors’ Code may be found on IPSO’s website (www. ipso.co.uk). 4.197 There is another print and online media regulator, IMPRESS, which regulates a number of smaller and online publishers but does not currently have any major newspaper members. 4.198 Some leading newspapers, such as the Financial Times, The Guardian, The Independent and the Evening Standard, do not belong to IPSO or IMPRESS or any other regulator, but effectively operate a system of self-regulation, sometime by reference to an external arbitrator. Details of their complaints procedures and policies will likewise be available on their websites.

Exceptions from the scope of complaints 4.199 Most of the newspaper publishers’ complaints policies exclude three notable areas from complaint. 4.200 One of these concerns headlines. Both the Mail and the Express groups say in their complaints policies that ‘Complaints about headlines will normally only be considered in the context of the article as a whole to which they relate.’ The problem is that headlines often distort the underlying story, yet many people do not read the article itself, and it tends to be the headline rather than the perhaps more nuanced report that gets circulated on social media. 141

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.201 A second common area of exception is what the Daily and Sunday Telegraph complaints policy describes as ‘concerns about matters of taste/decency and due impartiality’. 4.202 Thirdly, most newspaper publishers now provide space for readers to add their comments ‘below the line’ (ie the end of the article) which the newspapers usually declare ‘have not been mediated’ (ie checked or edited, let alone ‘legalled’ before being published). As with social media, because those commenting are members of the public who are unlikely to be aware of any reporting restrictions or legal restraints, they may make inappropriate comments on a family court hearing or judgment or by their comments expose a child involved to jigsaw identification. Yet such comments are routinely excluded from the scope of complaint (though they may not be excluded from the scope of legal proceedings).

Complaining to a media regulator 4.203 Neither IPSO nor IMPRESS are required by law or by the contract with their members to enforce legal restraints such as court reporting restrictions, contempt of court rules, or the law of defamation. Those need to be enforced through the courts. Their task is to enforce their respective editorial codes of practice. However, in areas such as privacy or harassment, there may well be an overlap. 4.204 Where a complaint relates to any issue under the Editors’ Code, IPSO can take forward a complaint from anyone directly affected by the article or journalistic conduct or their authorised representative. Complaints can be lodged using the online complaints form or in writing. They must be made within four months of the conduct or publication complained of. Once the complaint has been received by IPSO, it is assessed by IPSO’s own staff to see if it falls within their remit and involves a potential breach of the Editors’ Code of Conduct. 4.205 If the complaint has not previously been made to the publisher concerned, IPSO will refer the matter to them to the editor of the relevant publication and await a response from them. Once the matter has been considered by the relevant publication, or if it has not been responded to within 28 days, IPSO itself will step in. It will try to resolve the majority of complaints within 90 days. 4.206 The matter may then be escalated to the Complaints Committee. Finally, it may be reviewed by the Complaints Reviewer.

Complaints by a third party 4.207 One area which has caused problems is where a complaint is made by a third party. In principle, IPSO will accept complaints from someone other than the party affected if the complaint relates to an issue under Clause 1 of the Editors’ Code, which concerns accuracy. But it will not entertain complaints 142

PUBLISHING AND REPORTING ON COURT JUDGMENTS by a third party about anything else under the Editors’ Code. This is so even if the complaint is about something that the person affected is prevented or precluded from complaining about by reason of their position or some longstanding convention – such as the one that prevents judges from disputing or discussing in public any criticism of something they’ve done in a professional capacity. 4.208 To take an example, as reported on the Transparency Project, in September 2016 a group of family lawyers (Christopher Sharp QC, Sarah Phillimore, Lucy Reed and Mark Senior), having complained unsuccessfully to the Daily Mail about the accuracy of comments by one of its columnists when discussing something Sir James Munby P had said in his fourteenth View from the President’s Chambers, then took up the matter with IPSO. Without accepting whether or not the columnist’s comments were indeed inaccurate, in breach of Clause 1 of the Editors’ Code of Conduct, IPSO declined to hear the complaint on the grounds that it had not been put forward by Sir James himself. IPSO relied on reg 8 of its own Regulations (2013), which provides: ‘The Regulator may, but is not obliged to, consider complaints: (a) from any person who has been personally or directly affected by the alleged breach of the Editors’ Code; or (b) where an alleged breach of the Editors’ Code is significant and there is a substantial public interest in the Regulator considering the complaint, from a representative group affected by the alleged breach; or (c) from a third party seeking to correct a significant inaccuracy of published information. In the case of third party complaints the position of the party most closely involved should be taken into account.’ 4.209

IPSO’s response to the complaint by the group of lawyers was:

‘In accordance with IPSO’s regulations, in determining whether to take forward your complaint under Clause 1, the Committee took into account the position of the party most closely involved. The alleged inaccuracy related directly to Sir James Munby and the views he expressed in ‘A View from the President’s Chamber’. The Committee noted that whilst we know what Sir James said in the document, it would not be possible to determine whether his remarks had been misconstrued without his input. As such the Committee took the view that it would not be possible or appropriate to investigate your complaint without Sir James’s input.’ (The Transparency Project, ‘Response from IPSO to our complaint about the Daily Mail’, 9 Oct 2016.) 4.210 On this basis it seems that, unless it was directly affected, a court would be regarded as a ‘third party’ in relation to any claim about a person involved in a case before that court, for example that their privacy had been infringed or that reporters were harassing them on leaving court. It would be for the party to complain directly, if pursuing the matter under the Editors’ Code about something other than inaccurate reporting. Courts do not tend to complain about inaccuracy, though others may do on their behalf. 143

PUBLISHING AND REPORTING ON COURT JUDGMENTS 4.211 In fact, we are not aware of any example of the court complaining directly to IPSO, nor would it be appropriate for it to do so. However, a court may prompt an affected party to do so. 4.212 In Westminster City Council v H [2017] EWHC 1221 (Fam) the judge, Hayden J, drew attention to a serious breach of Article 8 of the Editors Code in relation to the child in the case, and indicated that it was for the CAFCASS guardian to report the matter to IPSO, the newspaper’s regulator. Clause 8 of the Editors’ Code says: ‘(1) Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries. (2) The restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals or similar institutions.’ 4.213

The judge said, at para 27:

‘Whilst I am satisfied that the process has been sufficiently fair for me to have made findings in relation to breaches of the IPSO code, I do not consider it to be necessary to do so. It is neither the purpose or function of this court to make such findings. This is a matter for IPSO. I go no further than indicating that it is the responsibility of H’s Guardian to refer this matter to the Code of Practice Committee.’ 4.214 Evidently he did not think it appropriate for the court itself to pursue a complaint about an intrusion into the privacy of a child in hospital, either to the newspaper concerned, the Daily Mail, or to its regulator, IPSO.

Remedies 4.215 IPSO has the power to require a publisher to publish a correction, clarification or apology or to amend or remove an online article. It can also require the publisher to publish a letter or article by the complainant, or to issue a private letter of apology, or to provide assurances about future publication or conduct. 4.216 The size, placement and prominence of a correction can be dictated by IPSO, but in practice it rarely expects or requires corrections to have anything like the same position or prominence as the original publication.

Complaints about broadcasting 4.217 Broadcasters are required to abide by the Ofcom Broadcasting Code which has been drawn up by Ofcom under the Communications Act 2003 (as amended) and the Broadcasting Act 1996 (as amended). The Code covers standards 144

PUBLISHING AND REPORTING ON COURT JUDGMENTS in programmes, sponsorship, product placement in television programmes, fairness and privacy. 4.218 In most cases, Ofcom requires a complainant about a programme to pursue the matter initially with the broadcaster concerned, whether the programme has already been broadcast or the infringement is anticipated in a programme not yet broadcast. 4.219 However, in the case of complaints by persons featured in or affected by a programme already broadcast, who feel they were treated unfairly or their privacy was infringed, they may approach Ofcom directly, using their Fairness and Privacy complaint form. This may be found on their website (www.ofcom.org.uk).

WORKING WITH RESEARCHERS 4.220 The protection of private information in family proceedings poses problems for researchers who cannot easily access data from the courts or other sources, but practitioners will want to assist with research studies, if they can. Solicitors, barristers and other professional advisers all have their own ethical codes which should spell out what sort of information they can and cannot share with a researcher about their own work. 4.221 FPR 2010, PD12G, para 2.1. states that it is lawful for a party, any person lawfully in receipt of information or a proper officer to communicate information about family proceedings to a person or body conducting an approved research project for the purpose of an approved research project. Provided this approval has been obtained, the communication of information will not fall with the AJA 1960, s 12 criteria for possible contempt (although this does not relieve a legal adviser from her duty of confidentiality). This approval needs to be obtained from the Ministry of Justice and is a very lengthy and rigorous process. 4.222 A research project based in a university that is going to access any personal views or data will also have its project scrutinised and approved by a research ethics committee. Any requests for help with research should confirm that these steps have been taken and should also explain how the data will be kept confidential and secure. Requests about research in local authorities need to be made through the Association of Directors of Children’s Services in England and the Association of Directors of Social Services in Wales. Details about how to approach Cafcass or its staff about research are set out on its website.

PRACTICE POINTS 4.223 ●● Judgments are published for a variety of reasons but the primary one is to inform the parties what has happened in their case and why. They are also published as 145

PUBLISHING AND REPORTING ON COURT JUDGMENTS a function of open justice. Thought should be given as to whether Information published from a case will be confined to legal websites and publishers or go wider and enter the public domain through media coverage. ●● The President’s 2014 Guidance was intended to open the family courts to greater media and public scrutiny. Parties need to be aware of the likelihood of publication of the judgments in their cases, the circumstances in which that might happen, and the need to effectively anonymise and redact them. ●● Ensure that there is a draft order which properly and clearly deals with: $$ A) avoiding any difficulties over legal aid funding by setting out why the transcript is being obtained – for an appeal, for the benefit of the child in later life or to inform future carers, because of public interest (or a combination) – and as a consequence who will pay and in what shares. $$ B) whose responsibility it is to carry out redaction (the Guidance details this but it is often helpful to be specific and to provide a deadline for a first redaction draft, and it is in any event open to the court to vary the default position set out in the rules). ●● Check and double check anonymisation. Consider the matters set out in the ALC guidance and Appendix 2 and whether anonymisation needs to extend to other identifying information. Do not rely heavily on the Ctrl+F ‘find and replace’ functions in word processing software; this has led to failure of redaction in a number of judgments. ●● Although in principle public bodies and public officials should be named, there may be unintended consequences, such as a hospital being besieged by the media and endangering other patients, so in exceptional circumstances it can be proportionate to extend anonymity. ●● If an unredacted judgment appears on BAILII, either contact BAILII direct, using its feedback form www.bailii.org/bailii/feedback.html or contact the judge via the Judicial Office. The latter is the approach suggested by the President. ●● Media interest in family cases is not always beneficial and caution is needed; if necessary, an official complaint can be made.

REFERENCES 4.224 Denning (Lord), The Family Story (Butterworths, London, 1991) pp 207–208. L Dessau & T Wodack ‘Seven Steps To Clearer Judgment Writing’ in R Sheard (ed), A Matter of Judgment: Judicial decision-making and judgment writing (Judicial Commission of New South Wales, 2003). J Doughty, A Twaite and P Magrath, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance 146

PUBLISHING AND REPORTING ON COURT JUDGMENTS on publishing family court judgments involving children and young people (Cardiff University, 2017). P Magrath, ‘Judgments as Public Information’ (2015) 15 Legal Information Management pp 189–195. P Magrath (ed), The Law Reports 1865–2015 Anniversary Edition (ICLR, 2015). P Magrath, S Phillimore and J Doughty, ‘Transparency: the strange case of the judge with no name’ [2015] Fam Law 422. D Neuberger (Lord), ‘No Judgment – No Justice’ (First Annual BAILII Lecture, 2012) www.supremecourt.uk/docs/speech-121120.pdf. D Raistrick, Index to legal citations and abbreviations (Sweet & Maxwell, Fourth ed, 2013). The Transparency Project, ‘Response from IPSO to our complaint about the Daily Mail’, 9 Oct 2016 www.transparencyproject.org.uk/response-from-ipsoto-our-complaint-about-the-daily-mail/.

147

148

Chapter 5

THE INTERNET AND SOCIAL MEDIA

KEY ISSUES 5.01 ●● The role of legal advisers 5.04–5.12 ●● Restraining publication of material on social media 5.13–5.21 ●● What sort of information do parents actually publish and why? 5.22–5.52 ●● Is it permitted? 5.53–5.56 ●● How information goes viral 5.57–5.58 ●● Monitoring social media 5.59–5.62 ●● Getting material removed from social media platforms 5.63–5.68 ●● Archived material and the right to be forgotten 5.69–5.72 ●● Foreign internet providers 5.73–5.75 ●● Proactive responses to media attention 5.77

KEY RESOURCES 5.02 ●● Children Act 1989. ●● Human Rights Act 1998. ●● Administration of Justice Act 1960.

149

THE INTERNET AND SOCIAL MEDIA ●● FPR, PD12D – Inherent Jurisdiction (including Wardship) Proceedings. ●● FPR, PD12E – Urgent business. ●● FPR, PD12G, PD9B, PD14E – Communication of Information. ●● FPR, PD12I – Applications for Reporting Restriction Orders. ●● President’s Practice Direction: Applications for Reporting Restriction Orders [2005] 2 FLR 120. ●● Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam), [2014] 1 WLR 230. ●● Pink Floyd Music Ltd v EMI Records Ltd, Practice Note [2011]1 WLR 770. ●● Cafcass Practice Note: Applications for Reporting Restriction Orders (18 Mar 2005) [2005] 2 FLR 111 (but NB this document was updated March 2015 and the FLR citation will produce the original text only. An up to date version can be found in Appendix 3. ●● A Wolanski and K Wilson, The Family Courts: Media Access & Reporting July 2011, (President of the Family Division; Judicial College; Society of Editors, 2011). ●● Materials on the Press Association’s Media Lawyer Injunctions Alert Service (formerly CopyDirect) website including template order and checklist form; (www.medialawyer.press.net/courtapplications/index.jsp) (but note that at the time of writing the Cafcass Practice Note is not the up to date version – see Appendix 3). ●● The Transparency Project Guidance Notes: Media Guide (www. transparencyproject.org.uk/resources/) and Publication of Family Court Judgments (Appendix 2).

THE INTERNET IN DAILY LIFE 5.03 Regardless of what the law and court rules say about the privacy of family proceedings, there is an enormous amount of information published about them every day by those involved in such proceedings, much of it in apparent, technical or flagrant breach of the rules around communication of information (FPR, rr 12.73/12.75 and PD12G). That is the reality which forms the backdrop to this chapter. It is pointless to try to pretend that parents and wider family members do not regularly publish information about what is happening in the court case, and about their views of the professionals who are scrutinising and making decisions about their lives, or the ex-partners and family members they have fallen into dispute with and are litigating against. That applies in particular to proceedings concerning children, but also in the context of divorce and the ancillary financial remedy matters.

150

THE INTERNET AND SOCIAL MEDIA

THE ROLE OF LEGAL ADVISERS 5.04 It is the view of the authors that legal representatives for all parties have a responsibility to maintain a basic understanding of the functionality of the major social media platforms and the rules surrounding the communication of information relating to proceedings in order to give meaningful and case specific advice to the parents and professionals instructing them. 5.05 It is important for lawyers and other professionals to properly understand how the piecing together of disparate pieces of information may lead to or enable the identification of a child, vulnerable adult or placement, or to the distribution of prejudicial or highly sensitive and upsetting intimate information, potentially to those who might exploit it. That requires a basic understanding of how the internet and social media operate and are used. We provide some basic explanations here for those who are not users of social media in their personal or professional lives. 5.06 Whilst the law is complex and confusing to apply, and although not all clients will wish, need or be able to absorb the full details of the law in this area, it is incorrect to suggest to a parent that there is a blanket prohibition on the online discussion of their case. It will be necessary to explain to clients the interplay between the FPR, the Administration of Justice Act 1960, s 12 and the Children Act 1989, s 97. It is this latter provision which parents posting in Facebook groups are likely to fall foul of, as Facebook prohibits anonymous or fake name accounts, thereby making it difficult not to potentially identify a subject child (even assuming a parent is aware it is prohibited in the first place). Section 12 does not in fact prohibit general discussion of the interventions of social workers or matters outside court proceedings, although parents are often given the impression that it does when raising such issues with lawyers in the context of legal proceedings. 5.07 It is critical that those involved in assisting parties to decide whether or not to seek or object to publication of a judgment, and who are involved in the processes of identifying what needs to be redacted and execution of that redaction should be mindful of the risks of jigsaw identification, to ensure that they are minimised. An understanding of what is already in the public domain may be informative here, as may be an assessment of the risks that the parents or other family members may be minded to supplement information contained in any judgment with other information. The risk that a parent may want to tell their story in some way that may identify their child or location may be capable of management through an appropriate injunctive order, without necessarily preventing publication of the judgment itself. 5.08 Any advice given to parents should be both legally accurate and rooted in the context of the case (whether by their own lawyers or by other professionals) and commensurate with the parent’s ability to understand the concepts and boundaries on publication – parents need to understand that whilst it may be lawful to publish certain information, it may not be advisable to do so because of the potential impact on the child, or ramifications within the proceedings (for example, it may contribute to a perception that they are difficult to work with or hostile or may demonstrate a lack of insight into the issues at hand which is 151

THE INTERNET AND SOCIAL MEDIA prejudicial to their case). And they need to understand that working out what can and cannot be published is not always straightforward. 5.09 Telling a parent that it is unlawful to do something when in fact this is not the case is unlikely to assist in maintaining or rebuilding positive working relationships (see Southend Borough Council v CO & Anor [2017] EWHC 1949 (Fam); [2017] 4 WLR 185 for an example of a local authority misinforming parents about what was and was not permissible, suggesting that an order prohibited conduct which it did not). Analogously, parents often report to The Transparency Project that they have been incorrectly advised by professionals that it is unlawful for them to record meetings because of ‘data protection’.1 5.10 Simply telling a parent to stay away from social media as a stock response by a lawyer who prefers not to engage with these issues is potentially a failure to properly advise. 5.11 An awareness of the sorts of questions asked by and responses/guidance offered to parents online is likely to enhance a lawyer or social worker’s ability to understand parental anxiety or defensiveness or to help them to decode superficially odd questions.2 Recurring themes on such forums or on certain notorious advice websites includes advice: ●● not to name or register the birth of a baby as this somehow hampers the ability of the state to take control of a child; ●● not to let social workers into the property; ●● to flee the jurisdiction before the birth of a child; ●● advice not to accept the jurisdiction of the court because all law is based on consent and that the adoption of an unusual naming protocol (eg John of the family Smith) will prevent the court from having any power over the litigant (the ‘freeman of the land’ myth); ●● advice to record all engagements with social workers/professionals; ●● advice to say certain things to achieve the desired result even if not true; ●● advice to decline a drug test or to refuse to cooperate with assessments; ●● advice that experts (or lawyers) are all in the paid employ of the local authority; ●● advice that Cafcass or judges or lawyers are biased; ●● advice that social workers routinely lie or are corrupt; ●● advice that social workers get bonuses for each child adopted, or that there are adoption targets for numbers of adopted children to be achieved (as opposed to targets for the speed of adoption of those children who are subject to placement orders);

1 See: Parents recording social workers – A guidance note for parents and professionals, The Transparency Project, Jan 2016, www.transparencyproject.org.uk/resources. 2 See: L Reed, Crisis in care – crisis in confidence?, [2018] Fam Law 95.

152

THE INTERNET AND SOCIAL MEDIA ●● advice to sack your lawyers, and ●● advice about disrupting goodbye contacts. 5.12 Armed with prior knowledge of the sorts of misleading advice that is often given online, those professionals advising and supporting parents may be able to spot signs that their clients have been reading such advice from references they make and questions they ask and may then be able to tackle the issue more constructively/effectively.

RESTRAINING PUBLICATION OF MATERIAL ON SOCIAL MEDIA 5.13 The principles set out in Chapter 3 in respect of reporting restriction orders (RROs) and restraints on free speech apply to social media or other webbased platforms exactly as they do to the mainstream print and broadcast media. Whilst the mainstream media (MSM) operate online and through social media and their output is subject to similar regulatory and legal constraints in that forum as in print, the distinction is that litigants are now able to publish themselves at will, even where the MSM are uninterested or fearful to tread. Thus, where information may have previously been passed to the MSM but lain unpublished, today it may well be published anyway – and without having been ‘legalled’ first (as it would ordinarily be before being published by the MSM). In this chapter we look in particular at the specific issues which arise from the widespread use of social media in this context. 5.14 Because of the potential for material to ‘go viral’ (to disseminate exponentially) and because of the ‘Streisand effect’ (the tendency for the problem to get worse once attention is drawn to it by trying to shut it down) it is important for early consideration to be given to whether or not an individual/body who wishes to secure removal or restraint of material on social media concerning family proceedings has the resource and commitment to see through and enforce any such restriction effectively. In cases where an individual has the support of others within their social networks, enforcement may need to be against a number of specified, identifiable individuals with the assistance of social media companies before it can be considered meaningful or effective. There is little point seeking an order against all the world if it will not or cannot be effectively enforced. Assuming that all committal hearings are published on the Judiciary website (in accordance with the clear guidance that they should be so published), it appears that very few enforcement applications are followed through (but see Chapter 6 which suggests not all such judgments are published). However, it does not follow that non-enforcement means all such orders are obeyed. P and Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26 (19 March 2015) (See Case Study 5, Appendix 1) is an obvious example of a case where the court deprecated the wide dissemination of videos of the subject children making (false) allegations of satanic ritual, yet a significant amount of material remains in the public domain, including the video ‘disclosures’ and the names of the children and their parents. RROs were in place, but appear to have been utterly ineffectual, and it appears likely that a decision was taken that it would be futile and potentially counterproductive 153

THE INTERNET AND SOCIAL MEDIA to attempt to enforce any such order, the court instead choosing to publish a judgment refuting the allegations of ritual abuse and contextualising the material on the internet for those prepared take time to read it. 5.15 One unintended consequence of making a reporting restriction order that is then not enforced is that those who are happy to disregard it will continue publishing with impunity, whilst the more responsible journalists and legal bloggers may well consider themselves constrained from publishing even sensible commentary. This state of affairs means that it is difficult to correct distorted or partial information that is circulating online, which in itself may be harmful – to the children or parties concerned or in promulgating rumours that generate anxieties or hostility in readers who are unconnected to the case. In such cases it may be difficult to weigh up the impact of making an order that is unlikely to be universally complied with. 5.16 However, although they are comparatively infrequent, there are a few examples of quite significant punitive action being taken where a particularly egregious publication has occurred (see, for example, Doncaster Metropolitan Borough Council v Watson [2011] (various citations, Case Study No 1, Appendix 1) where the mother’s McKenzie friend who had published information via email and on websites identifying the child and her mother as part of a campaign against perceived injustices was sentenced to nine months imprisonment for contempt (later purged). 5.17 Although a lawyer would be capable of appreciating the distinction between a more grave breach, requiring intervention, and a merely technical breach that can be overlooked, it must be difficult for litigants to know what to make of these apparent inconsistencies in approach, and there is no research on how fact specific or detailed any advice from lawyers is likely to be in this area, if indeed any advice is routinely given at all. The evaluation of the President’s guidance suggests that lawyers rarely mention to clients that the court judgment may appear on BAILII (www.bailii.org), far less advise them in detail about what can lawfully appear online. This is not helped by the lack of an up-to-date HMCTS guide (Doughty, Twaite and Magrath 2017). 5.18 Notwithstanding this reality however, the difficulties in interpreting and applying the law in this area (even for lawyers) to the specific facts of a case, may dissuade even the well intentioned from seeking advice or support online, or from the lawful and unobjectionable publication of information. In the experience of the authors, professionals and courts often take a dim view of any indication or suspicion that a parent has or wishes to speak to a member of the press or to publish material about their case, regardless of the contents or their motivation – and parents are often well aware of this and find it is reinforced by their own lawyers.

PARENTS ASKING FOR ADVICE, HELP OR SUPPORT 5.19 For an introduction to some of the reasons why parents seek support online see L Reed, Crisis in care – crisis in confidence? [2018] Fam Law 95. Parents 154

THE INTERNET AND SOCIAL MEDIA involved in private law disputes may well be isolated and unrepresented and have no option but to turn to the internet for guidance and emotional support. Parents in public law proceedings will usually be represented (or have such advice and representation available to them) but may start from a place of mistrust of authority (including lawyers) and find it difficult emotionally or psychologically to accept difficult advice or guidance from them. Where a lawyer has been unable to build a trusting relationship (and even where they have) parents regularly seek to check their understanding with others in similar situations and often the response received compounds misunderstands or mistrust, creating a vicious circle. 5.20 Information about proceedings is often posted on closed groups as context for specific questions about how court proceedings or child protection processes work, or as part of requests for assistance with appeals etc. It may contain complaints or criticisms of the conduct of professionals or judges. It may be highly selective, and the writer may demonstrate extreme distress or a lack of understanding of the process their family is involved in – such individuals are very vulnerable to poor advice. Even if they do not have access to them, professionals should be aware that these groups do exist, and that their clients and service users may be receiving guidance from individuals in such groups – advice which may be echoing their own or which may be directly contradicting it. 5.21 Immersion by a parent in certain online support forums or groups may have the effect of reinforcing a pre-existing sense of alienation from the court or child protection process which they are expected to engage with. This is a reality for many of the vulnerable and distressed parents that professionals are working with and one that in our view the legal and child protection communities have yet to fully grapple with or adapt to.

WHAT SORT OF INFORMATION DO PARENTS PUBLISH ONLINE? 5.22 There is mixed awareness among professionals of what material is in fact available online, depending on whether they themselves use social media professionally or personally, and on their levels of IT literacy. Unless it is actively looked for, and time is taken to build relationships with individuals or groups, access is closed for much of this activity and material will therefore be invisible or go unnoticed by practitioners. The predominant categories of information published take the following forms: ●● Spontaneous venting about or description of experiences in Facebook status updates etc. ●● Name, photos and biographical information published in order to aid searching for an adopted child, providing a link back for a child to find parent when old enough. ●● Requests for advice, help or support in an individual case.

155

THE INTERNET AND SOCIAL MEDIA ●● More targeted campaigns against or around a particular agency (social services, Cafcass etc) or the family justice system generally – often via a blog or dedicated anonymous Twitter account – which is dedicated to the purposes of exposing injustice (generally or in their individual case), incompetence or systemic failure or bias. Sometimes aggrieved individuals will coalesce and form a campaign group, with varying degrees of formality. Increasingly, public petitions are being used – they may be issue based or centred around an individual family.

PLATFORMS 5.23 There are many websites, social media platforms or forums on or through which material is communicated or published by parents or by others – and things are changing all the time. This chapter cannot not set out to cover them all. Rather, we have provided information on those which are (currently) most commonly used and which seem likely to remain relevant for the foreseeable future.

Facebook 5.24 Facebook is a platform with ever changing privacy settings. Users must post in their own names and, depending on the level of privacy chosen, their posts, profile picture and profile information will be visible to the public at large, to their friends or to friends of friends or selected persons. Users are often unfamiliar with or mistaken about their own privacy settings, meaning that they often post information that is visible to a wider audience than intended. 5.25 ‘Tagging’ an individual within a post makes an otherwise restricted post visible to friends of that tagged person. 5.26 Users who are friends with another user will be able to who see who that friend is also connected to (often identifying children or new partners or wider family). 5.27 Depending on privacy settings, a user will be able to share a friend’s posts, making it visible to all that user’s own friends. This means that the potential for material posted by a parent often has far greater visibility and potential to be spread widely than they appreciate. 5.28 Users can post on their own feeds or on pages run by themselves or others or in Facebook groups that they have joined (anyone can start a page or group and set their own terms of membership or internal rules, and administrators of such groups can change the settings – including the privacy settings – at will). Posts on pages or comments on the posts of other people or pages will generally be visible to others. Some groups are publicly visible and open access, whilst others are ‘closed’ (existence of group visible to the public, but membership must be approved and content is visible to members only) or even ‘secret’ (invisible to all but members, and invite only). 156

THE INTERNET AND SOCIAL MEDIA 5.29 The authors are aware of vast numbers of closed and secret groups that discuss Cafcass, social work and family courts, in which privacy settings and administration changes frequently, as those who run groups fall in and out of dispute with members and other group administrators. 5.30 Facebook has a facility for private messages (like text messages or emails) to be sent between (two or more) users. 5.31 As with any other social media platform, a post or private message can be preserved by way of a ‘screengrab’ and re-distributed even once deleted. 5.32 Where parents join a closed or secret group or post to a Facebook page about their case, their name and profile picture will be visible. Where that profile picture is or includes a picture of the child, or where the child’s first name is mentioned in the post, the child is likely to be identifiable, and it is arguable that a breach of the Children Act 1989, s 97 has taken place. However, see Chapter 2 for discussion of the narrower test for publication in the s 97 context than in the case of AJA 1960, s 12 – particularly given the purpose behind the 2004 amendments of s 97, ie to protect parents from inadvertently committing an offence when merely holding discussions with a number of individuals rather than a section of the public. Further, from the s 12 perspective, it is arguable that (depending on the settings, administration rules and membership of a particular group) such a publication would fall under FPR, r 12.75(1)(a) which permits the communication of information relating to the proceedings ‘to any person where necessary to enable that party by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings’. 5.33 Given the lack of prosecutions of offences under s 97, discussed in Chapter 2, it is also not necessarily the case that an application for injunctive orders to remove published material or prevent further publication/dissemination would be granted merely because the publication of information amounts to a prima facie breach of CA 1989, s 97 or AJA 1960, s 12. See Southend Borough Council v CO & Anor [2017] EWHC 1949 (Fam); [2017] 4 WLR 185 and discussion of it (Chapter  2, 2.45) for an illustration of a case where a local authority’s mere assertion that it was ‘common sense’ that the publication of prohibited information would be harmful and therefore should not be permitted was inadequate to discharge the burden upon them as the party seeking to restrain Article 10 rights. Further, given the evidential barriers associated with an alleged publication to a closed group an application for injunctive relief, and especially committal applications, would be very difficult to pursue in practice. A further difficulty is how to approach the apparent mismatch between the Kent CC v B [2004] EWHC 411 (Fam); [2004] 2 FLR 142 broader definition of publication that offends AJA 1960, s 12 and the transposition of this in the FPR (at r 12.73) which prohibits publication only on a narrower s 97 type basis – to the public at large or a section of it. It is into that gap that much Facebook publication is likely to fall. 5.34 There is therefore a class of information (and we would suggest there are innumerable examples falling within this class every day) which is probably in clear or probable breach of the automatic legal restrictions upon publication of 157

THE INTERNET AND SOCIAL MEDIA information, but which would be highly unlikely to form a base for prosecution, committal proceedings or injunctive relief. Such is the anomalous state of the current legislative web in this field.

Twitter 5.35 Posts (tweets) on Twitter are publicly visible but are more likely to be seen by users who are following the posting account. Direct messages (DMs) are private between sender and recipient. To be able to send a DM, the default setting is that the sender and recipient must be following one another on Twitter (an approximate equivalent of friends on Facebook). 5.36 The annex to the judgment in Jack Monroe v Katie Hopkins [2017] EWHC 433 (QB) [2017] 4 WLR 68 is a useful basic guide for the uninitiated to how Twitter works (although the precise detail of how Twitter functions are being upgraded all the time). Since this document was prepared (by Greg Callus, counsel for the Claimant), Twitter has permitted users to tweet messages of up to 280 characters in length, rather than the traditional 140. 5.37 Material travels around Twitter by means of retweeting (sharing with one’s followers on Twitter), with users having the option to comment on or reframe the original tweet as they share. Because there is less granularity in the privacy settings available on Twitter there is greater potential for a tweet to ‘go viral’ than a Facebook post. 5.38 As with any other social media platform, a tweet or direct message can be preserved by way of a ‘screengrab’ and re-distributed even once deleted. Moreover, tweets are frequently embedded (visually quoted/republished) in blogs or even in mainstream media reports.

Comments on websites, blogs or public discussion forums 5.39 The authors have experience of moderating comments posted on legal blogs for which they are responsible. It is quite common for individuals to give their full name when commenting, and to include significant detail in the body of their comment concerning their child’s circumstances, their ex-partner, and what has happened in the court process. Whilst it is our practice to edit out names and facts which are likely to be identifying locally, to those involved in the case or more broadly, or which appear to breach s 97 or s 12, we anticipate that in many instances this does not happen because non-specialist moderators do not have sufficient knowledge of what is and is not prohibited to be able to respond in this way. Whilst it is likely that some moderators will adopt a cautious approach and block an entire comment if they have any concerns, in our direct experience it is also often the case that comments containing clear breaches of s 97 or s 12 are published without redaction or editing.

158

THE INTERNET AND SOCIAL MEDIA 5.40 Examples of sites where family court litigants may go to engage in discussion, share experiences or to seek advice or support about their particular circumstances include: ●● Mumsnet, where threads are publicly visible, but users are permitted to use pseudonyms. ●● Families Need Fathers, which operates a closed member only discussion forum. ●● Wikivorce, where threads are publicly visible. ●● Mainstream news sites where people are able to post comments ‘below the line’, which in our experience are moderated for various things but probably not with reference to CA 1989, s 97 or AJA 1960, s 12. ●● ‘Name and shame’ type websites where people are encouraged to share their adverse experiences of the family courts or professionals, and where they will often name themselves, and ‘shame’ the judge a Cafcass officer or social worker or an ex-partner, whilst providing a potential identification jigsaw. ●● Specialist family law blogs such as Child Protection Resource, which are moderated. There are many others. 5.41 In Re G (A Child) (Contempt: Committal Order) [2003] EWCA Civ 489; [2003] 1 WLR 2051 (CA (Civ Div)), the Court of Appeal, when setting aside a procedurally irregular suspended committal order, said: ‘There was evidence that access to the ‘help room’ on the Families Need Fathers website was limited to members who had paid an annual subscription and who wished to seek or provide advice. It was not, we think, completely obvious that any technical contempt was gratuitously intentional.’ 5.42 There does not appear in that case to have been a full consideration of the extent of publication or whether it amounted to publication to a section of the public because there were other obvious procedural flaws that meant the order had to be set aside in any event.

YouTube 5.43 Although relatively few in number, there are a handful of examples of covertly recorded videos of family court hearings published on YouTube. More commonly (but still comparatively infrequently) the removal of children from a parents’ home is recorded by them (covertly or overtly) and this removal is placed on YouTube (see Re J (A Child) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, the video of that removal is still on YouTube at the time of publication). Rarely, videos of children being interviewed feature, along with recordings of meetings or discussions with social workers. However, far more common are videos of parents describing to camera their experiences or opinions for the benefit (as they see it) of 159

THE INTERNET AND SOCIAL MEDIA others, warning them of corruption or pitfalls and offering guidance on how to deal with it, or footage of protests outside court or in other public places that they have engaged in. YouTube (now owned by Google) is amenable to requests for such videos to be taken down, backed with an injunctive order, but there are practical difficulties where a network of individuals is determined to republish material taken down. The videos of the children in P and Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26 (19 March 2015) have been re-published via numerous different YouTube accounts in order to ensure that the material remains accessible.

CAMPAIGNS 5.44 There are a number of examples of parents seeking and obtaining permission to pursue a public campaign on a matter of importance to them and of public interest (as well as a number which have proceeded without permission and in the face of RROs). 5.45 One example of a permitted campaign is the parents of Effie Stillwell (Buckinghamshire County Council v Andrew & Ors [2017] EWFC B19 (26 April 2017), Case Study 8, Appendix 1 – see also Chapter 3) who were permitted to identify themselves and her as the participants in a case of suspected inflicted injury in order to raise awareness of Ehlers Danloss Syndrome and the mimicking of inflicted injury sometimes associated with it. 5.46 See also Re K (A Child) (Wardship: Publicity) [2013] EWHC 3748 (Fam); [2014] 2 FLR 310, an example of adoptive parents being permitted to tell their story of parenting a child with attachment disorders and their experiences of the family justice system’s reactions to them (Chapter 3, 3.63). 5.47 In Re J (A Child) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523 above, the court restrained the naming of the child through a contra mundum injunction but declined to restrain the continuing publication of images of the child in the form of a video of the execution of an emergency protection order shortly after its birth. Munby P distinguished the case of a young baby from older children on three principal grounds: ‘First, the reality is that although anyone can identify a baby by its name it is almost impossible, unless you are the parent, to distinguish between photographs of children of that age who have the same general appearance. Second, the reality, at least with current domestic technology where searches of the internet are by word (name) and not image, is that unless you have a name, or a mass of other identifying details, it is going to be very difficult, if not impossible, to locate anonymous postings about an individual. Third, in a case such as this, although there may be a powerful argument for asserting that the baby who features in a filmed episode should not be named, there are at least as powerful arguments for asserting that the publication on the internet of film such as I am concerned with here, commenting on

160

THE INTERNET AND SOCIAL MEDIA the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby.’ 5.48 It is difficult to reconcile this approach with a children’s rights perspective; when the baby is older and may become aware of the circumstances of his birth. Furthermore, the continuing existence of the video online might affect future permanence planning for a child if it acts as a disincentive to potential adopters. 5.49 The Doncaster Metropolitan Borough Council v Haigh/Watson series of judgments (various citations – see Case Study 1, Appendix 1) illustrate an impermissible campaign and its consequences, in that instance where a mother and her supporters determinedly published information via wide email distribution and online, identifying both mother and child. There the mother’s Mckenzie friend was sentenced to nine months imprisonment (later purged). See further in case studies. P v Q is a further example of an impermissible campaign (see case studies). See also Haringey v Musa [2014] (Various Citations, See Case Study 19, Appendix 1).

Petitions 5.50 There are other instances of distressed and aggrieved parents whose children have been removed resorting to online campaigns or petitions in the hope of securing their return or raising funds for legal costs of appeals. Often these will name the child or include a photograph of them, and they may include details such as size and breakdown of sibling group, ages or dates of birth, judge and location – which in combination may be potentially identifying, particularly if they obviously map onto (or link to) a published judgment on BAILII. 5.51 In some instances, crowdfunding or petition platforms have removed information apparently in response to a RRO, only for subsequent comments to inadvertently republish identifying information, for example where a friend of the family posts a supportive message in which they refer to the child or parent by name (see, for example, Southend Borough Council v CO & Anor [2017] EWHC 1949 (Fam)). 5.52 In Southend, the parents were permitted to continue an online petition to Parliament concerning the adoption of their children (See Chapter 2 (2.137)). Macdonald J was very clear in stating that this was a decision based upon its facts, and the question of whether or not any other online petition would be permissible or not would depend upon the facts of the case, no doubt including the circumstances of the family and the nature of information contained in the petition or proposed petition. This means that neither those advising parents or local authorities or children should assume that a petition will or will not be allowed – they should advise clients based upon their analysis of the specific facts of the individual case. As well as conducting a balancing exercise in respect of the competing Article 8 and 10 rights, the Southend case raised but did not resolve the 161

THE INTERNET AND SOCIAL MEDIA question of the proper limits of the parents’ Article 11 right to freedom of peaceful assembly and association, essentially because the parents’ case was made out on the basis of Article 10 without recourse to Article 11. Nor did the court specifically resolve the question of the parents’ rights to petition the crown, derived from Magna Carta and the Bill of Rights, although the court observed that, ‘The right of the citizen to petition Parliament or the Government in respect of a personal grievance has thus been, and remains a fundamental constitutional principle’. Macdonald J said that ‘However, in a case where the balancing exercise were to come down in favour of injuncting a parent from circulating online a petition aimed at seeking redress from Parliament, it may well be necessary to go on to consider whether the fact that “all commitments and prosecutions for such petitioning are illegal” under the Bill of Rights of 1689 renders such a course unlawful.’ This leaves open for a less clear cut case the possibility of arguments based upon the operation of the Bill of Rights. It is clear from this case that the particular nature of online publication, namely an attempt to secure redress from the government or parliament, was a material factor. It is likely to be a material factor in future petition cases, but how significant a factor will depend upon any countervailing Article 8 type risks.

IS THE PUBLICATION PERMITTED? 5.53 It can be seen from the illustrations above, that the question of what a parent may or may not post on social media without specific permission is not as straightforward as a blanket ban. AJA 1960, s 12 does not bite where communication of information falls within the permitted categories set out in FPR, rr 12.73, 12.75 or PD12G, so ‘information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated’: ●● where necessary to enable that party by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings (r 12.75(1)(a)); ●● where necessary to enable that party to make and pursue a complaint against a person or body concerned in the proceedings; or regarding the law, policy or procedure relating to Pt 12 proceedings (children) (r 12.75(1)(c) and (d). ●● to a lay adviser, a McKenzie Friend, or a person arranging or providing pro bono legal services, to enable the party to obtain advice or assistance in relation to the proceedings (PD12G). In each of these scenarios successive communication is permitted with the consent of the originator providing it is for the same specified purpose. However, FPR, r 12.73(2) provides that these rules do not permit communication ‘to the public at large, or any section of the public, of any information relating to the proceedings’. CA 1989, s 97 also contains the parameter of publication to ‘the public at large, or any section of the public’ of the prescribed information (name, photos, school or address etc). 5.54 It is well established that FPR, r 12.75(1)(a) is wide enough to embrace discussions with a constituent’s Member of Parliament or extended family 162

THE INTERNET AND SOCIAL MEDIA members, and it is at least arguable that it also permits discussion with other parents or lay advisers in the context of a closed membership discussion forum, for example a Facebook group – but the question of whether such discussions are ‘confidential’ or amount to ‘publication to a section of the public’ is likely to be highly fact specific (for example it may depend on factors such as the size and security settings of the group and whether or not real names are used). We would suggest however, that unless a group’s membership comprises merely a handful of people, it is likely to amount to a ‘section of the public’, even if that section of the public interested in joining the group and accessing the material must be approved before being granted access (See Re G at 5.41 above for a case of publication to a closed group, but unfortunately this issue is not grappled with in that judgment). 5.55 Direct or private messages via platforms such as Twitter or Facebook Messenger are unlikely to be problematic (unless screen grabbed and republished), but posts from accounts in the real name of a parent or family member may offend CA 1989, s 97 if proceedings are ongoing. Even where anonymised or pseudonymic accounts are used to publish information over time the identity of the user or the family described may become apparent through the aggregation of pieces of information about a child’s or family’s circumstances. Of course, general discussion, even if public, of a child’s general circumstances and matters in a child’s day to day life outside the court arena are not objectionable and fall within the proper scope of parental responsibility, even though some parents are averse to the publication of information about their children online, there is a broad spectrum of legitimate views about this issue. 5.56 The legal restrictions in place (or which might be put in place if the court is invited to exercise the restraint jurisdiction by way of injunction) are not concerned with the publication of any and all information about a child who is (has been) involved in proceedings, but only that information which is likely to identify him as a child in that class, or which is information confidential to that process. There is further discussion of these aspects of the FPR, Pt 12 at Chapter 2 (2.109).

HOW INFORMATION GOES ‘VIRAL’ 5.57 Where a group or network of individuals is determined to disseminate information, the removal of an item may be futile, because the offending item will be re-uploaded elsewhere and the cycle will begin again (5.43 above). In June 2017, Google announced that it was taking extra steps to increase the speed with which it removed terrorist content from YouTube – it is notable that even with significant human, technological and financial resources behind this work, and increasing political pressure, Google have still struggled to keep on top of this issue. Against that backdrop, any expectation that re-uploads of material relating to cases concerning children can be completely prevented is probably unrealistic. 163

THE INTERNET AND SOCIAL MEDIA 5.58 It is not clear how consistently flagrant breaches of confidentiality or privacy rules are enforced by means of committal proceedings against individuals, but the lack of obvious regular sanctioning of those who commit this sort of breach can do nothing to dissuade others from doing likewise. In many instances, it is likely that the pursuit of a committal application is thought unhelpful to the overall case dynamic, or possibly a poor use of energy and resources. See, for example, Minnock (see Case Study 2, Appendix 1) where the father elected not to pursue the mother via committal on her return with the child.

MONITORING SOCIAL MEDIA 5.59 The monitoring of social media accounts of parents and families by the state (through the local authority or CAFCASS) may give rise to legal issues which social work professionals may not always fully appreciate. In this context, monitoring of social media by social services will typically take place in the following scenarios: ●● where a child is missing or thought vulnerable to sexual or other exploitation via social media (either through their own accounts or accounts they have access to); ●● where a parent’s account of their lifestyle, location or associations is doubted (drug use, association with risky adults, ending of violent relationship etc); ●● where confidential, sensitive or identifying information about the child or proceedings is being distributed via social media (for the purposes of discovery and removal of material and enforcement of any contempt); ●● where there is concern about unauthorised publication of information that may expose a child (or other adult) to risk or, on occasion, concern that a local authority, agency, individual social worker or professional may be the subject of criticism or abuse’, and ●● generalised ‘fishing’. 5.60 Some monitoring will be for the purposes of gathering evidence on substantive issues. Other monitoring will be focused on the potentially harmful nature of the publication itself. It is the latter which we focus on here. It is beyond the scope of this book to fully set out the potential legal issues arising from such monitoring, but we highlight below some aspects that those advising both social work clients and families may wish to give some thought to. 5.61 It is important to bear in mind that where a local authority acquires and holds data relating to an individual sourced even from publicly visible social media posts, that information will most likely be amenable to a subject access request under data protection legislation and must be processed in accordance with the data protection principles. In a recent Serious Case Review the authors suggested social workers should search and monitor the social media output of families to

164

THE INTERNET AND SOCIAL MEDIA enhance assessments, but it is not at all clear that such processing of data would necessarily be lawful.3 5.62 In most instances the covert surveillance of social media activity of those involved in family proceedings by a local authority for child protection purposes will not attract the protection available from the authorisation scheme derived from the Regulation of Investigatory Powers Act (RIPA) 2000, because it does not satisfy the crime criteria (see, for example, Protection of Freedoms Act (PFA) 2012 – changes to provisions under RIPA 2000, Home Office guidance to local authorities in England and Wales on the judicial approval process for RIPA 2000 and the crime threshold for directed surveillance.4 See also the Investigatory Powers Act (IPA) 2016 which makes it an offence to intercept public telecommunications data (eg Facebook posts) without consent or lawful authority, and which effectively prohibits the collection or recording of a parents’ Facebook posts, probably even those posted publicly. Any local authority who wishes to deploy such techniques must therefore be mindful of whether any such interference with Article 8 rights of those under surveillance are both necessary and proportionate and whether the IPA 2016 in particular permits such action. The provisions of RIPA 2000 and the IPA 2016 are beyond the scope of this publication.5 Suffice to say that the ad hoc checking of social media accounts by social workers is likely to be problematic.

GETTING MATERIAL REMOVED FROM SOCIAL MEDIA PLATFORMS 5.63 Most social media platforms have a semi-automated mechanism for users to report offensive or inappropriate material. Usually, a ‘report’ function will not be sufficiently sophisticated to capture an objection on the basis that it breaches a child’s confidentiality or the rules around privacy of family court proceedings. Instead it will be necessary to make an individualised approach. A request for the removal of information may be made even in the absence of an injunctive order. Where an injunctive order is sought and made it will be necessary to serve that order on the relevant legal department, at their UK office if such exists.

3

N Pettitt & K Perry, Serious Case Review of Child G, Wolverhampton Safeguarding Children Board, 5 January 2018; see L Stevenson, ‘Social workers could use social media checks to ‘enhance’ assessments, serious case review says’, Community Care, 11 January 2018, www.communitycare.co.uk/2018/01/11/ social-workers-use-social-media-checks-enhance-assessments-serious-case-review-says/. See also T Turner, ‘A tailored media response’, 2040 Information Law Blog, 9 October 2014, for an illustration of inappropriate and probably unlawful data processing through monitoring of the social media output of Sara Ryan, whose son, Connor Sparrowhawk, died in the care of Southern Health. 4 www.gov.uk/government/uploads/system/uploads/attachment_data/file/118173/local-authorityengland-wales.pdf. 5 But see guidance published by the Office of Surveillance Commissioners, now under the remit of the Investigatory Powers Commissioner’s Office, www.ipco.org.uk. The Commissioner has confirmed to the authors that the intention is to republish guidance formerly held on the OSC website, but at the time of publication it is not accessible.

165

THE INTERNET AND SOCIAL MEDIA 5.64 Twitter support information states that in the first instance a request for content removal on the basis that material violates the terms of service should be made (https://support.twitter.com/articles/41949). However, Twitter also has a dedicated site for legal requests (see: https://legalrequests.twitter.com/forms/ landing_disclaimer). 5.65 The most relevant aspects of the Twitter terms of service (at 4 January 2018) (other than abusive or harassing content) were: ‘Unlawful use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content. Private information and intimate media: You may not publish or post other people’s private information without their express authorisation and permission. You may not post or share intimate photos or videos of someone that were produced or distributed without their consent. Read more about intimate media on Twitter. Threats to expose/hack: You may not threaten to expose someone’s private information or intimate media. You also may not threaten to hack or break into someone’s digital information.’ 5.66 The private information policy states that ‘posting another person’s private and confidential information is a violation of the Twitter rules’ and confirms that this would include images or videos that are considered and treated as private under applicable laws. It should therefore be relatively straightforward to secure removal of an image of a child the subject of Children Act (CA) 1989 proceedings by reference to CA 1989, s 97. 5.67 Facebook’s information about removal of content in relation to privacy is limited. In a report about their activity in this area they say: ‘We restricted access in the UK to items in response to court orders relating to defamation and bullying and in accordance with requests from the National Offender Management Service and UK Gambling Commission. We also restricted items alleged to be illegally prejudicial to an ongoing criminal trial.’ 5.68 As at September 2017, Facebook say that 177 pieces of content have been restricted on this basis. It appears that Facebook have limited experience of removal of content in the context of family proceedings, and their response cannot be guaranteed.

ARCHIVED MATERIAL AND THE RIGHT TO BE FORGOTTEN 5.69 Material published online may continue to be accessible even after deletion via automated archiving services such as the Wayback Machine, Google Cache or Archive.is. Search results may display links to and summaries of pages that have been deleted for a period of time after deletion. 166

THE INTERNET AND SOCIAL MEDIA 5.70 The names and addresses of individuals who register particular domains are also publicly searchable, unless registration has been via a proxy or a specific request to withhold details has been made. Such services are amenable to removal of material where presented with a contra mundum reporting restriction order which requires the removal of material. 5.71 It is also now possible to ask Google (or other search engines) to remove material from search results under the right to be forgotten. The detail of this is beyond the scope of this book, however see the following resources: ●● The Information Commissioners Office provides information on the right to be forgotten (prior to the implementation of the General Data Protection Regulation (GDPR) in May 2018 (see: https://ico.org.uk/concerns/search-results/). ●● The Information Commissioners Office GDPR Guidance explains ‘right of erasure’ or ‘right to be forgotten’ post GPDR enforcement (May 2018) (see https://ico.org. uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/ individual-rights/right-to-erasure/). ●● Information about Google’s procedures can be found at: www.google.com/ webmasters/tools/legal-removal-request?complaint_type=rtbf&pli=1. ●● There is a helpful fact sheet regarding Case C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González, which clarified relevant provisions in Directive 95/46/EC (1995 Data Protection Directive) and Article 8 of the Charter of Fundamental Rights of the European Union (see: http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_ protection_en.pdf). ●● The anticipated enactment of a new Data Protection Act 2018 as part of the GDPR implementation process may bring some further changes in this area (the Bill was passing through Parliament at the time of writing – see 8.69–8.74). 5.72 Those representing parents will wish to offer sensible advice about the potential impact on their case of publishing information on sites operated or contributed to by disgruntled litigants, for example, defamatory or satirical websites criticising family court judges and the difficulties of securing the removal of such information once up. It is often not easy to track down the correct contact details or webpage through which to submit requests for material to be removed, and copies of any relevant injunctions as each internet service will have a slightly different set-up. Clients may need assistance securing the removal of material either posted by themselves or by others.

(FOREIGN) INTERNET PROVIDERS 5.73 Re J (A Child) [2013] EWHC 2694 (Fam); [2014] 1 FLR 523 confirms that (in theory at least) it is possible to enforce against a foreign internet provider for publication in this jurisdiction, although there are important territorial 167

THE INTERNET AND SOCIAL MEDIA limitations (see publication abroad, Chapter 3, 3.50–3.54). In practice it will be necessary to: ●● identify the host company or publisher; ●● locate the appropriate address for service and relevant department if applicable (not always straightforward); ●● check the rules regarding service out of the jurisdiction; ●● effect service in compliance with those rules. 5.74 In many instances, it will be neither proportionate nor a good use of energies to attempt this, particularly if the information has been published in multiple locations and by multiple publishers and is going to be very difficult to eradicate completely. 5.75 Once material is removed, it will be necessary to ensure that no archived version remains publicly accessible on the Wayback Machine or similar, and to seek removal of any such archive page.

PRACTICE POINTS Evidential matters 5.76 Those who wish to obtain or enforce injunctions in relation to publication of information on social media will need some basic familiarity with the platforms and the appropriate way to gather and present evidence of this sort. ●● Learning how to screenshot (take a picture of a web page or message on social media), or to save a web page as a pdf for future inclusion in a witness statement are basic skills that can be easily learnt. A screenshot will usually automatically save a time and date stamp in the filename. It is important that such material is exhibited to a witness statement produced by the person who created it, explaining its provenance, showing a printout of the filename and file information in an explorer window, and confirming when and how it was created or saved so that the material is demonstrably authentic. ●● It may be necessary to produce evidence demonstrating who is operating a particular account that is publishing information. ●● In the case of tweets it is wise to copy and save the unique URL referable to the individual tweet.

Proactive responses to media attention 5.77 ●● Where a case has attracted, or seems likely to attract, significant media attention, those representing all parties may wish to give early consideration to the 168

THE INTERNET AND SOCIAL MEDIA question of whether the better management and containment of such media attention might be achieved by providing limited information to the media, rather than adopting a lockdown approach which can be counterproductive. Whether this is appropriate or even possible will depend on the facts of each individual case. See Chapter 3 for a discussion of the legal and practical issues here. ●● See Chapter 4 for a discussion of press regulation and options available in the case of inaccurate reporting.

REFERENCES 5.78 J Doughty, A Twaite and P Magrath, Transparency through publication of family court judgments (Cardiff University 2017). L Reed, Crisis in care – crisis in confidence? (2018) Family Law 95. The Transparency Project, Parents recording social workers – A guidance note for parents and professionals (2016). The Transparency Project, Publication of Family Court Judgments: A guidance note for families and professionals (2017).

169

170

Chapter 6

ENFORCEMENT

KEY ISSUES 6.01 ●● Types of enforcement 6.03 ●● Committal for contempt of court 6.04–6.10 ●● Civil contempt – procedure and proportionality 6.11–6.53 ●● Criminal contempt 6.54–6.60

KEY RESOURCES 6.02 ●● FPR 2010, Pt 37; PD37A. ●● Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195; [2015] 2 All ER 541. ●● Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam); [2014] 1 WLR 230 (The 2014 Guidance).

TYPES OF ENFORCEMENT 6.03 ●● Enforcement of breaches of the Administration of Justice Act (AJA) 1960, s 12 where there is no reporting restriction order (RRO) in place may be achieved by way of committal for civil contempt (or criminal contempt). In addition, or alternatively, a RRO may be sought. 171

ENFORCEMENT ●● Enforcement of the terms of a specific RRO or a judgment rubric when breached is by way of committal for civil contempt. The rules governing civil contempt proceedings in the Family Court/High Court are set out at FPR, Pt 37, supplemented by PD37A. ●● Enforcement of breaches of Children Act (CA) 1989, s 97 is by way of criminal prosecution. The offence is a summary offence, punishable by way of fine. There are no reported examples of such a prosecution. Where there is an actual or anticipated breach of CA 1989, s 97 it may be more appropriate and effective to seek a RRO so that there is a more immediate deterrent and in order that the Family Court may deal with any breach. Where a judgment is published usually the rubric will cover similar territory to that prohibited by CA 1989, s 97 and enforcement of that may be dealt with by the Family Court.

IS COMMITTAL THE RIGHT RESPONSE? 6.04 Useful guidance is offered by Butler-Sloss P in Re G (A Child) (Contempt: Committal Order), [2003] EWCA Civ 489; [2003] 1 WLR 2051, in the course of setting aside a disproportionate and irregularly made suspended committal order: ‘Where a party may be in contempt of court by virtue of a breach of the general rules of confidentiality, for example by publicising a welfare report, but there has been no breach of a specific court order, there may be more than one way for the court to deal with it. In some cases, the breach may be obvious. It may be admitted. It may have been intentional and serious or alternatively may not be seriously culpable. If the breach is admitted, a warning together, if necessary, with a specific undertaking or injunction in terms to prevent a recurrence of the breach may be sufficient. Circumstances vary widely, but a committal order, even if suspended, is a last resort normally reserved for serious, intentional and, in most cases, repeated contempt of court which has been established by due process (Danchevsky v Danchevsky [1974] 3 All ER 934, [1974] 3 WLR 709; Ansah v Ansah [1977] Fam 138, [1977] 2 All ER 638 at 144 ….’ [para 21] 6.05 In Middlesbrough Borough Council v M & Ors [2016] EWFC 71, at the conclusion of a judgment in which he found the mother and step father guilty of contempt and sentenced them to a three-month committal order (suspended for 12 months), and re-imposed injunctive orders, Cobb J specifically addressed all parties including the social workers about the limitations of injunctive orders and applications for committal. The breaches had arisen from the very difficult extended family dynamics and the geographical proximity of the various family members: ‘The social workers themselves have a responsibility in this case to assist this family to achieve relationships which are free from discord, in the girls’ interests. Nobody doubts, nobody disputes, that this is an exquisitely difficult situation, with people who feel very strongly about the current situation. But the injunction that was made in March and the injunction 172

ENFORCEMENT that I have made today are not the best way of dealing with this family. It is certainly not the only way of dealing with this family, and I encourage the professionals involved with the family to do what they can to reduce the tensions in the family, in such a way that the girls can enjoy their lives with their grandparents and enjoy a relationship with their mother. I do not say what I say to be critical of anyone in the case and I hope it does not come across that I do. I realise how difficult it is, but injunctive orders and applications for committal are not the optimal way of trying to regulate this family’s difficult set of relationships.’ [66] 6.06 As we describe below, the procedure for committal applications where there is no order in place is more onerous, and such applications are both rare and serious. Where there is no pre-existing RRO it may be appropriate in the first instance for a RRO application to be made instead of moving straight to committal proceedings. 6.07 Quite apart from the comments made by Butler-Sloss P about the need to consider a proportionate response to a breach, there is an evident need to consider what can be achieved through an application to enforce an order via committal. Will it result in the removal of offending material from the public domain or prevent future breaches? Will it advance the interests of the child in question? Is there a risk such an application might be counterproductive or a distraction? And in relation to broader issues, is there a need to demonstrate that the court’s orders must be obeyed or that privacy restrictions complied with? 6.08 It is worth noting that an application for committal in itself will not result in the removal of offending material from the public domain so will not necessarily cure the mischief. As such, committal applications may be most effective as deterrent rather than enforcement. Even where the imminent threat of imprisonment forces a damascene moment upon a contemnor, accompanied by an attempt to purge the contempt through removal of published material, it may prove difficult for that contemnor to remedy the breach, as seen in the case of Doncaster MBC v Watson [2011] (various citations, see Case Study 1, Appendix 1) where a McKenzie friend tried and failed to secure the removal of material sent by her to the operator of a foreign website, as that operator was unwilling to assist. 6.09 Where there is a network of supportive campaigners, an application to commit may simply make other members of that network more determined to republish or redistribute the offending material, as the attempt to commit may convince them even more of the pressing public interest in whatever perceived scandal is at hand being exposed. Thus, such applications may in practice be counterproductive and utterly ineffectual. 6.10 Depending on the facts of individual cases, there may need to be careful consideration to who is the appropriate respondent to any enforcement application – the parent who has provided or passed on information or the publisher of it, whether that be journalist, editor or (foreign) internet provider. This is discussed in Chapter 3. 173

ENFORCEMENT

CIVIL CONTEMPT 6.11 The standard of proof is the criminal standard. The burden is on the applicant. The procedural requirements for committal proceedings are well known and not set out in full in this chapter. FPR, Pt 37 and PD37A apply. 6.12

The components of the contempt are:

●● Intentional publication contrary to AJA, s 12(1)(a) (or where there is a RRO or rubric s 12(1)(e)) or contrary to an undertaking given, and ●● Knowledge that such publication was prohibited.

Knowledge 6.13 The mere fact that a publication is not a publication permitted by AJA, s 12 in combination with Pt 12 FPR/PD12G does not necessarily mean the publication will amount to a contempt. The question is: did the publisher know that he was giving information relating to court proceedings and that the proceedings were private proceedings? However, knowledge of the private nature of proceedings is sufficient knowledge (see Chapter 4, 4.15). 6.14 A party is likely to know proceedings are private either by way of having received legal advice or through the commonplace mainstream description of the family courts as ‘secret’. Although there are examples of publishers narrowly escaping censure where a wrongful publication was made innocently if negligently (see eg Official Solicitor v News Group Newspapers Ltd [1994] 2 FLR 174; [1994] 2 FCR 552) we can find no example of a parent being punished for breach of the terms of a rubric or for publishing information contrary to s 12 in the absence of a specific injunctive order of which they had notice. In Re C (a child)(committal for breach of court order) [2005] EWCA Civ 1536, the Court of Appeal concluded that a father’s breach of the rules as a result of publishing judgments arising from family court proceedings, without obtaining the necessary leave from the court, did not justify his being under threat of being sent to prison. An application to commit for breach of a specific order had failed, because although his publication was a breach of the order, the court was not prepared to commit for a breach of s 12 that had not been a part of the committal application and where, as a result of what had been said at an earlier Court of Appeal hearing, the father had been ‘led [wrongly] to believe that he could publish the judgment with impunity’. The judgments in that case remain published online. 6.15 In a scenario where a party in good faith communicates information confidentially pursuant to FPR, r 12.75/PD12G but the recipient goes on to wrongfully disseminate that information contrary to the rules, it will be necessary to establish knowledge on the part of the disseminator in order to enforce. There may be little purpose in attempting to enforce against a party in such circumstances. 174

ENFORCEMENT 6.16 In the case of an alleged breach of order, knowledge of the terms of the order will be the relevant knowledge and in the case of a rubric, we suggest, knowledge of the terms of the rubric (see below at 6.24). 6.17 With regard to intention, where a journalist had read court documents on the premises without leave and subsequently written about them, Sir Donald Nicholls V-C said: ‘The essential vice lies in knowingly interfering with the court’s documents. This is as much an interference with the administration of justice as knowingly interfering with the court’s officers. The boundary line is to be drawn at the point where there has been a taking of information from documents in the custody of the court knowing that leave was needed and that it had not been obtained. In such cases there is an act of interference with the judicial process; there is also an intention to interfere, because the act was done with knowledge that it was a contravention of the prescribed judicial process.’ Dobson v Hastings [1992] Ch 394.

Proving a specific breach of an order 6.18 In order to enforce a breach of a RRO the order must itself comply with the basic requirements of clarity of prohibition, application and duration. It must contain the appropriate warnings (penal notice on front page). 6.19

Rule 37.9(1) FPR provides that:

‘a judgment or order to do or not do an act may not be enforced … unless there is prominently displayed, on the front of the copy of the judgment or order …, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.’ It follows that if an order is not sufficiently clear as to what must or must not be done, by whom and by when, it will in effect be unenforceable. 6.20 An applicant must prove knowledge of the order, preferably through personal service (FPR, r 37.6 service). FPR, r 37.8 permits the court to dispense with personal service if it is satisfied that the person has had notice by being present when the judgment or order was given or made, or by being notified of its terms by telephone, email or otherwise. 6.21 Unless an order is contra mundum, it will only be capable of being enforced as against the person(s) to whom it is specifically addressed. Where an order is contra mundum, it will still be necessary to prove knowledge of the existence and terms of the order. This may be more problematic where there is a chain or network of individuals publishing information on behalf of someone directly connected with the case, and where the applicant wishes to enforce 175

ENFORCEMENT against that third party. Such considerations will likely impact upon decisions as to who to enforce against and whether it is likely to be productive to bring an application at all. 6.22 However, para 13.2 of PD37A provides that ‘The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.’ In Re Newman: An Application By Gloucestershire County Council for the Committal to Prison of Newman [2014] EWHC 3136 (Fam) these requirements had not been complied with. The President said: ‘Although in this case I was prepared to waive these procedural defects, I cannot emphasise too strongly the need for meticulous compliance with all the requirements of Part 37 and PD37A.’ [para 5] 6.23 That was a case of a committal application arising from care proceedings, following which a father had been injuncted from seeking out the child’s placement, from harassing individuals employed by the local authority and was also instructed to delete published material on Facebook and Twitter. A prohibition on further publication of material relating to or identifying the child or local authority employees was also issued, but that part of the order was not in the standard RRO form and did not identify who was to be bound by it and, as such, failed as unenforceable. ‘An injunction should be set out complete in a single document so that, looking only at that one document, the party enjoined can see exactly what it is that he must do or not do.’ [para 20]

Rubrics 6.24 Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam), [2012] 1 FLR 466, paras 13–18 Munby LJ (as he then was) dealt with enforcement of breaches of a rubric placed on a published judgment, reasserting his view that although there is no penal notice and the usual formalities such as notice and personal service will not have been complied with, as for a RRO, a rubric is ‘binding on anyone who seeks to make use of a judgment to which it is attached. And anyone who disobeys it is, in principle, guilty of a contempt of court.’. 6.25 Where a rubric goes beyond the automatic ambit of s 12 (for example, where it re-imposes anonymity at the end of proceedings where s 97 has lapsed) it is unclear whether knowledge of the specific terms of the rubric must be proved (of the fact the court has tightened the automatic restraints in some respects as a condition of the permission to report the contents of the judgment itself). In Official Solicitor v News Group Newspapers Ltd [1994] 2 FLR 174; [1994] 2 FCR 552, it was said that all that was necessary was knowledge that proceedings were of a private nature, but it is unclear how that would apply in a context where a judgment arising from private proceedings had been published, and material is then wrongly published beyond the contents of the judgment. 176

ENFORCEMENT 6.26 It is also worth noting that the remarks made in RB (above) as to the operation and enforceability of the rubric were strictly obiter, since Munby LJ was there dealing with proceedings concerning an incapacitous adult and AJA 1960, s 12 did not apply. Further, as acknowledged by Munby LJ in RB before he proceeds to set out his obiter view, there seems to be no authority explaining the operation and effect of the rubric: ‘and on previous occasions when the matter has arisen there has been no need for me to explore the question: see Re B, X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, para [12], and Re B, X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460, para [12] (see also BBC v Coventry City Council and others (Care Proceedings: Costs: Identification of Local Authority) [2011] 1 FLR 977, para [16]). On each occasion I proceeded on the assumption, though as I emphasised without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.’ In the absence of this being put to the test some doubt must therefore remain as to the enforceability of a rubric (see also discussion in Chapter 4 at 4.38). 6.27 As a minimum it seems logical to assume that it will be necessary to prove knowledge of the terms of the rubric. In most cases this is likely to be straightforward because the alleged contemnor will have been present at handing down or has been provided with a copy of the rubric by their representative, but in the case of third parties different considerations may apply. For example, a third party with some knowledge of the family may have seen news reports quoting a judgment but not the judgment itself, and has added to that information in the public domain other information not within the judgment and that breaches the rubric.

Is it actually a breach? 6.28 Whilst some cases may be very clearly in breach of s 12, it may not be obvious in all instances that a particular publication in fact amounts to a contempt. It is to be hoped that where there is a RRO – assuming tight drafting – it will be less of an issue to establish that a publication is a breach of a specific prohibition, but evidence in support of an application should in any event specifically address (as appropriate): ●● The basis on which s 12 actually applies (for example in financial remedy or non-molestation proceedings involving a child). ●● The basis upon which it is said the publication is to the public at large or a section of the public (see Chapter 5 for a discussion of where this may be particularly problematic where publication is via certain social media platforms or forums). ●● Why the publication or communication does not fall within the ambit of a particular permission in the FPR (for example why it is said that a publication does not fall within r 12.75(1)(a) which permits confidential communication of 177

ENFORCEMENT information for the purposes of obtaining support, advice or assistance in the conduct of the proceedings). Note that the equivalent provisions in respect of Pt 14 proceedings are materially different – see r 14.14 and PD14E). ●● The information that is said to relate to the proceedings rather than merely referring to the child. 6.29 We have seen examples of RROs which do not match the suggested template wording in the practice note, for example which purport to bind ‘the media’ without definition of that term. Departure from the template wording or ambiguity in drafting may make it difficult to enforce. For example, in our example would an amateur blogger be bound by the order, even if aware of its terms? 6.30 Further, the standard RRO prohibits publication of information ‘IF, BUT ONLY IF, such publication is likely to lead to the identification of the [Defendant/ Child] as being X’: the question of whether a particular publication can properly be said to have been likely to do so may not always be straightforward. 6.31 Close attention to the specifics of what has actually been published, to whom and in what context is necessary. These matters are not self-proving and applicants are expected to file all supporting evidence at the outset. The process of analysing these matters is in any event a necessary prerequisite to sound decision making regarding the prospects of success of a committal application. 6.32 As noted above a breach of CA 1989, s 97 cannot be enforced by the Family Court unless it has first made a specific injunction prohibiting those matters covered by s 97 and there has subsequently been a breach (this has on occasion caused confusion see C v M [2005] EWCA Civ 1536 and Chapter 2 at 2.131).

Application process 6.33 An application must be made using the Pt 18 procedure (FPR, r 37.10). Any application should specify whether the alleged breach is of the terms of an order, a rubric or the mere fact that publication was prohibited at common law because of its private nature (as articulated in s 12). 6.34 The application must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts. It must be supported by affidavit evidence, which is all the evidence relied upon. The application must be served personally unless the court gives some other direction. 6.35 In the case of a breach of s 12 without an order, it must be shown that the publication does not fall into any of the permitted categories of communication of information set out in FPR, rr 12.73, 12.75 or PD12G/14G. It would be sensible to spell this out in any application. 6.36 FPR, r 37.13 deals with committal for interference with the due administration of justice (other than breaches of orders or undertakings), and 178

ENFORCEMENT specifies that such applications may only be made with permission and only to a judge of the division. Therefore, where the contempt alleged is a breach of s 12 in the absence of any RRO or undertaking the application will need to specify that r 37.14 applies and that permission is sought to bring the application (r 37.13(2)). Rule 37.15 sets out a detailed procedure for making such an application for permission which must be followed. See also PD37A, in particular paras 9 and 10.

Cases on enforcement 6.37 In Official Solicitor v News Group Newspapers Ltd [1994] 2 FLR 174; [1994] 2 FCR 552, a father had shown medical reports from section 8 residence order hearings to The Sun. Connell J held that it was clear that the prohibition in s 12(1) extended not only to the information given to the judge at the actual hearing but also to documents such as confidential medical reports. The mens rea required for a contempt under s 12(1) was made out on the facts. The newspaper had known that the information related to proceedings concerned with the upbringing of a child and that the proceedings were private proceedings. It was not necessary to prove that the respondents knew that publication was forbidden by law. In contempt proceedings under s 12, it was not necessary to find that a threat to or interference with the administration of justice (but see how this is differently articulated in Attorney General v Pelling [2005] EWHC 414 (Admin); [2006] 1 FLR 93 where a breach of AJA 1960, s 12 is an interference with the administration of justice). 6.38 Note that it was the journalist/editor who here were at risk of a committal in The Sun case, not the father. The public interest in publication or nature of the material published are not relevant for the purposes of determining whether or not a contempt has taken place, and the restriction on freedom of expression made by s 12(1) is lawful (per Connell J). Such matters might well be relevant at the mitigation stage and might bear on the proportionality of a sentence.1 6.39 Re G (A Child) (Contempt: Committal Order), [2003] EWCA Civ 489; [2003] 1 WLR 2051, is an example of a procedurally irregular committal which was set aside. There was no applicable order that the publication had breached, and the information published arguably did not amount to a breach of s 12 because although it enabled identification of the child it was not information about the proceedings.

Requirement of transparency in committal proceedings 6.40 All hearings in which a person is sought to be committed for contempt of court, irrespective of the court in which they are heard, must be listed and heard

1 See Z & Ors v News Group Newspapers Ltd & Ors (Judgment 1) [2013] EWHC 1150 (Fam), which, although it is not committal proceedings, gives an indication of the court’s approach to particularly intimate documents such as medical records, where Cobb J considered the nature of the material was relevant in weighing the competing Article 10 and Article 8 rights.

179

ENFORCEMENT in public: see Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195; [2015] 2 All ER 541.2 6.41 Detailed rules about how contempt proceedings should be listed are specified in these Practice Directions. Where advance notice is not possible, the listing should be updated as soon as possible both electronically and outside the court itself, and ‘notice should be given to the national print and broadcast media, via the Press Association’s Media Lawyer Injunctions Application Alert service, of the fact that the hearing is taking or is shortly due to take place.’ (Para 6). 6.42 In a supplemental document Practice Guidance: Committal for Contempt of Court – Open Court issued in June 2015 the Lord Chief Justice clarified certain issues,3 in particular that the press do not need to be notified of a committal hearing unless there is a possibility of it being held in private or where it has not been possible to list the matter in public the day prior to the hearing. 6.43 Although the June 2015 Guidance indicates that it will be subject to review in October 2015 it has not been updated or superseded at this time of writing (except in the Court of Protection where new rules came into force from 1 Dec 2017). 6.44 In Hashimi v Hashimi [2016] EWHC 3112 (Fam); [2017] 4 WLR 21, at [2] to [5], Holman J records his mortification at, and the urgent steps taken to remedy, a situation in which those rules were not properly followed when hearing an application by the mother for the committal of the father for contempt: ‘2. Throughout this morning I have indeed sat publicly in open court. I have been robed and both counsel have been robed. But it was only at lunchtime today that I checked the cause list myself and saw to my dismay that the published cause list listed this matter as ‘Application in court as in chambers’. I have since seen a copy of the actual notice that was pinned on the notice board outside this court room this morning, and that notice also refers to ‘Application in court as in chambers’. The published cause list does give the surname of the alleged contemnor as ‘Hashimi’. The notice outside the door of the court did not give any name at all, and only the case number of the underlying proceedings. 3. As a result of that serious defect, I took two steps during the lunch adjournment. First, I caused a fresh notice to be posted outside the door of the court, which now states ‘For hearing in open court, application for the committal to prison of Sayed Gulab Shah Hashimi for contempt of court’, and continues by giving the court number of these proceedings and repeating the surname Hashimi.

2 www.judiciary.gov.uk/wp-content/uploads/2015/03/practice-direction-committals-forcontempt.pdf. 3 www.judiciary.gov.uk/publications/practice-guidance-committal-for-contempt-of-court-opencourt/.

180

ENFORCEMENT 4. The second step was that I arranged for my clerk to notify the Press Association office here in the Royal Courts of Justice that I am indeed hearing an application for committal in open court today. As a result of that telephone call, a journalist was indeed present when this hearing resumed at about two o’clock this afternoon, although I note that the journalist has subsequently left. 5. I deeply regret that irregularity. I take personal responsibility for it. I have learned the lesson that a judge must personally always check the cause list for defects of that kind. I can only say in my defence, or in some mitigation, that neither counsel, both of whom are exceptionally experienced, noticed or drew my attention to the defect.’ 6.45 The defect was more than cured by the publication of the judgment on BAILII and the reporting of the case in the Weekly Law Reports; but the judge betrays a hint of disappointment that the Press Association reporter should not have stayed to hear the case out after all his efforts to remedy the want of prior notification. 6.46 Where the court is asked or minded to derogate from the standard rule and to hold a committal hearing in private, it must first notify the media, via the Media Lawyer Injunctions Alert service, when and where the hearing is taking place and the nature of the proposed derogation, and then, at the outset of the hearing, it must hear submissions on whether to impose its proposed derogation: see para 9 the Practice Direction. 6.47 The fact that the committal hearing is taking place in the Court of Protection or in proceedings relating to a child, or that the hearing may involve disclosure of material which ought not to be published, does not of itself justify hearing the matter in private, if publication can be restrained by an appropriate RRO (para 9). But where the court decides to exercise its discretion in favour of derogating from the open justice rule to hold the committal hearing in public, it must first give a reasoned judgment explaining why (Practice Direction, para 10). It cannot do so simply because the parties, for whatever reason, consent: para 12, citing JIH v News Group Newspapers Ltd [2011] EWCA Civ 42; [2011] WLR 1645 at [21]. 6.48 Moreover, even where the hearing may have been conducted in private, the court must, if it finds the contempt established, then sit in open court to give a judgment in which it must name the contemnor, describe the contempt found to have been committed by them, announce the punishment being imposed and provide these details to the national media, via the Press Association service, and to the Judicial Office for publication on the Judiciary website (para 13). However, the June 2015 Practice Guidance clarifies that this is only required where the sentence is one of committal or suspended committal. Other disposals or cases where a contempt is not proved are not (necessarily) to be pronounced in public. 6.49 There are examples of courts declining to name contemnors even where contempt is found proved and a sentence of imprisonment made. For example, in 181

ENFORCEMENT Middlesbrough Borough Council v M & Ors [2016] EWFC 71 where Cobb J published (on BAILII) a detailed anonymised judgment regarding the breaches of orders (in this case the breaches were not publication related, but related to orders restricting contact with the children and their carers). He said: ‘No application has been made for a reporting restriction order. I have nonetheless considered it appropriate to anonymise this judgment in the interests of the two girls; this means that unusually the two adult respondents are not named.’ 6.50 The court should also either produce a written judgment setting out its reasons or ensure that any oral judgment is transcribed, on an expedited basis, and copies supplied to the national media as above, and copies supplied both to the Judiciary and the BAILII websites (para 14). However, in practice judgments often seem to be published on the judiciary website without also being published on BAILII which, due to the limited search functionality on judiciary.gov.uk makes accessing such judgments somewhat cumbersome. 6.51 Whilst all judgments giving reasons for finding and punishing a contempt of court should be available for scrutiny on the Judiciary and BAILII websites, and the high-profile case of Mrs Kirk illustrates the anomalies. In a case reported on appeal in the Weekly Law Reports, a judge committed to prison Mrs Kirk, the elderly relative of a man lacking capacity who was the subject of welfare proceedings in the Court of Protection, following her refusal to comply with a court order to help repatriate him from a care home in Portugal to one in England. The Court of Appeal allowed Mrs Kirk’s appeal, in a case that was widely reported in the press, but the judgment never appeared on the Judiciary website. However, a later judgment in the same saga, given by Sir James Munby P sitting alone in the Court of Appeal, approving a consent order and not directly dealing with Mrs Kirk’s contempt, did appear on the Judiciary website: see Re MM (A Patient); Kirk v Devon County Council [2017] EWCA Civ 34. (see Case Study 17, Appendix 1) All the judgments in that case have, however, appeared on BAILII. 6.52 In May 2017, it was reported that Parker J had adopted a similar approach and imposed a reporting restriction in respect of the name of the mother who had been remanded in custody overnight pending determination of a committal application. We can locate no corresponding judgment on BAILII or judiciary.gov.uk. It is possible that the contempt was not found proved or that no sentence of imprisonment was imposed. (see: www.careappointments.co.uk/ care-news/england/item/41813-high-court-ban-on-journalists-naming-womanin-child-protection-case-criticised.)

Legal aid 6.53 Criminal legal aid is available to the defendant in committal proceedings in the family court. See Re Ramet (Application for the committal to prison) [2014] EWHC 56 (Fam) (22 January 2014). The practical difficulty often is finding a solicitor with a criminal legal aid franchise and a specialism in family matters. 182

ENFORCEMENT

CRIMINAL CONTEMPT 6.54 The distinction traditionally drawn between civil and criminal contempt is that the former involves disobedience of a court order or undertaking, but the latter is an act which threatens the administration of justice to the extent that that it requires punishment from the public point of view. The components of the offence are: ●● Intentional publication contrary to s 12(1)(a) (or where there is a RRO s 12(1)(e)), and ●● Knowledge that such publication was prohibited. 6.55 Attorney General v Pelling [2005] EWHC 414 (Admin); [2006] 1 FLR 93 describes a breach of s 12 as a species of contempt concerned with an interference with the course of justice, even if a specific trial or substantive outcome is not interfered with. The basis for privacy in children cases is the protection of the interests of the child, which is a function of the administration of justice. Protecting the former ipso facto protects the latter and an unauthorised violation of the rule of privacy is an affront to the administration of justice, just as interference with a trial would be, in a more conventional case.4 6.56 Pelling is a rare example of a prosecution brought by the Attorney General for a criminal contempt pursuant to AJA 1960, s 12. The defendant father Dr Pelling admitted that he had intentionally published the judgment from Children Act proceedings concerning his child online. He knew it was forbidden. Although there had been an interval between the report having been considered by the court and Dr Pelling putting it online, the child was still only 12, and the interests of justice still required the protection of the court under AJA 1960, s 12. The contempt was made out although the sentence passed is not recorded. 6.57 The judgment records that in 2000, Dr Pelling had himself unsuccessfully applied for permission to bring contempt proceedings under AJA 1960, s 12 against a judge and a number of civil servants, for passing court papers to the European Court of Human Rights. 6.58 At para 39 in Pelling, Laws LJ itemised three essential elements of criminal contempt at common law: intentional interference, the burden of proof

4

However, where an application is brought to commit for contempt in circumstances where the conduct in question has put the administration of justice at risk through jeopardising a particular trial, rather than flowing from a breach of s 12, it appears that at common law it is still necessary to show that there was a specific intention to interfere with the administration of justice – see Kelly (A Minor) v BBC [2001] Fam 59, [2001] 2 WLR 253.

183

ENFORCEMENT to the criminal standard lying on the Attorney General; and the need for certainty. As described by Lord Bingham in Attorney General v Newspaper Publishing Plc [1997] 1 WLR 926; [1997] 3 All ER 159, it is necessary to show some adverse and significant effect on the administration of justice. Conduct which is inconsistent with a court order in only a trivial or technical way should not expose a party to criminal conviction for contempt. 6.59 With regard to intent, Lord Bingham cited Donaldson MR in AttorneyGeneral v Newspaper Publishing Plc [1988] Ch 333 at 374: ‘the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intention need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire.’ 6.60 Although it is theoretically possible for the Attorney General to prosecute a contempt of court arising from a breach of AJA 1960, s 12 under the Contempt of Court Act 1981 strict liability rule, we can find no example of such a case. Given the criteria, it is unlikely in any event that such a charge would be available in many family cases, and the appropriateness of such a prosecution was clearly doubted in Pelling (at para 40). The Attorney General’s consent is required for such a prosecution (CCA 1981, s 7).

PRACTICE POINTS 6.61 ●● Make sure the order is enforceable. Check penal notices, service, specificity of language. ●● Has there actually been a breach? Is the publication actually prohibited by statute, the rules or an order or rubric? If there has would the court be likely to retrospectively approve publication as it did in Re J (A Child) [2013] EWHC 2694 (Fam)? (See Chapter 5). Might a better course be to apply for a limited RRO to allow some publication? ●● Hearings will be in public. Will the holding of an open court hearing touching upon matters relating to family proceedings be likely to assist in remedying the problem – or might it make things worse by drawing attention to them? ●● Committal is a blunt tool – consider alternative ways of managing the issue with wrongful publication of information, such as a managed release of information by the court through a judgment or press statement (see 3.117 et seq in Chapter 3).

184

ENFORCEMENT

REFERENCES 6.62 Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195; [2015] 2 All ER 541. Practice Guidance: Committal for Contempt of Court – Open Court, June 2015.

185

186

Chapter 7

OTHER COURTS

KEY ISSUES 7.01 ●● The approach in other courts to privacy, anonymisation and reporting restrictions 7.13–7.20, 7.46–7.48, 7.56–7.92, 7.99–7.105, 7.108–7.128, 7.130–7.134, 7.140–7.155 ●● Issues where family cases are associated with other systems of justice 7.22–7.23, 7.49–7.71 ●● Practical problems that arise when children are directly or indirectly involved in criminal justice 7.53–7.71 ●● Comparison with the Court of Protection 7.07–7.48 ●● The Article 6, Article 8 and Article 10 balance in other courts 7.60–7.64, 7.70, 7.81, 7.89, 7.131, 7.152

KEY RESOURCES 7.02 ●● Administration of Justice Act 1960, s 12. ●● The Court of Protection Rules 2017. ●● Practice Guidance (Transparency in the Court of Protection) [2014] 1 WLR 235 ●● Guide on Reporting Restrictions in the Criminal Courts at www.judiciary. gov.uk/publications/reporting-restrictions-in-the-criminal-courts-2/. ●● Just 4 Kids Law website.

187

OTHER COURTS

INTRODUCTION: REPORTING RESTRICTIONS IN OTHER COURTS 7.03 This chapter examines the approach toward private hearings, anonymisation and reporting restrictions in other courts and tribunals in England and Wales. It is not a comprehensive guide, but more in the nature of a survey of examples for the purposes of context and comparison. 7.04 The most relevant example is that of the Court of Protection, which shares many of the same courts and judiciary, including its President, with the Family Division, of which it is part. Transparency guidance in respect of the Court of Protection was issued by Sir James Munby at the same time as that in relation to the family courts, in 2014. Since then, the Court of Protection has been the subject of a Transparency Pilot Scheme, radically altering its approach to private hearings (in effect rendering all hearings open, but subject to very stringent reporting restrictions). We say more about this below. 7.05 This chapter also considers the position in relation to attendance and reporting restrictions in the criminal courts, mainly in relation to children and sexual offences; in relation to general civil law cases, notably in relation to matters of commercial confidentiality and personal privacy; and in some tribunals, notably in relation to immigration and asylum cases, employment cases and professional disciplinary tribunals where matters of a confidential or personal nature might be involved. 7.06 In some cases, there may be a conflict between two different jurisdictions. For example, a family case involving issues of child abuse or domestic violence will often have related criminal proceedings. Another common overlap occurs between the rules applying to private family law or Court of Protection proceedings involving children or adults lacking capacity, which are normally heard in private, and proceedings for committal for contempt of court, which by their nature are required to be heard and reported in public.

COURT OF PROTECTION 7.07 Developments in the Court of Protection regarding a move toward fewer private and more public hearings since 2016 are of particular interest because of some parallels with family justice.

Background and jurisdiction 7.08 The Court of Protection (CoP) exercises a distinct jurisdiction within the Family Division of the High Court, with whom it shares its President (currently Sir James Munby), though it has its own Deputy President (currently Mr Justice Charles). The jurisdiction of the court derives from the Mental Capacity Act 2005, 188

OTHER COURTS under which it was established in 2007. It was founded to adjudicate on matters relating to mental capacity, best interests, advance decisions on refusing treatment, and the use of lasting powers of attorney. 7.09 The court has a range of powers, including jurisdiction to make declarations regarding a person’s mental capacity and best interests; to make orders relating to their welfare or property and affairs; and to appoint a deputy to make decisions on their behalf. It deals with cases involving questions of capacity of adults and of young people aged 16 and 17. 7.10 As is self-evident from its name, the CoP has a protective function toward the people within its jurisdiction. This does not, however, deny them, as individuals, rights to participate in decisions made about them. They may have capacity to make decisions about some matters and not others, but even where someone does lack capacity, mechanisms are evolving to reflect the right to be heard and a ‘rule of personal presence’ in modern human rights and disability law. (L Series et al 2017.) 7.11 The origins of this protective function (and that of the Family Court) lie in the concept of parens patriae, as expressed by Lord Shaw of Dunfermline, early in the twentieth century, in Scott v Scott [1913] AC 417, 482–483: ‘The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings … these cases … depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriæ. 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.’ 7.12 As recast for the modern age, the CoP is making decisions that would be private and autonomous, were it not for the lack of legal capacity of the individual, as Lord Judge CJ explained in A v Independent News & Media Ltd [2010] EWCA Civ 343; [2010] 1 WLR 2262.

Hearings in private and reporting restrictions 7.13 Initially, most hearings in the CoP were in private and therefore subject to similar reporting restrictions as those in private family court hearings. The Administration of Justice Act (AJA) 1960, s 12, as amended, now states that the publication of information relating to proceedings before any court sitting in private is a contempt of court where the proceedings are brought under the Mental Capacity Act 2005 (MCA). 7.14 However, views as to the extent to which the Court of Protection should sit in private have changed over the years. To understand how we have reached 189

OTHER COURTS the current position, it is helpful to trace the history of the relevant court rules and the successive efforts that have been made to increase transparency. 7.15 Initially, under a consultation on the new court’s draft rules launched by the Department for Constitutional Affairs in 2006, it was proposed that: ‘hearings … should be in public but that a hearing, or any part of it, may be held in private if the court considers any of the circumstances set out [in the draft rules] are met’.1 7.16 Those circumstances included cases where publicity would defeat the object of the hearing; where confidential information (including information relating to personal financial matters) was involved and publication would damage that confidentiality; or privacy was necessary to protect the interests of the person involved. 7.17 The responses to the consultation on this point were ambivalent. Even among those who favoured a starting point of publicity, there was a general view that, in practice, most proceedings would need to be held in private. Among the reported reasons given for favouring privacy were that there was insufficient public interest to justify hearings in public; the relevant person’s interests of confidentiality and privacy were best served by private hearings; the process could be distressing for the person and their family, and if the person had some capacity they would not want their financial information to be in the public domain.2

The 2007 Rules 7.18 Following the consultation, the government changed its position and the Court of Protection Rules 2007 (SI 2007/1744) started from a presumption that hearings would be held in private, but with power to order that a hearing may be held in public. 7.19 Rule 90 provided the general rule that a hearing should be held in private. There were powers under r 91 to authorise the publication of information about those private proceedings, or to restrict the publication of any identifying information or other information. The CoP could make an order under r 92 for a hearing to be in public, but it could exclude from that hearing any person or class of person. When a hearing was in public, the automatic restrictions of AJA 1960, s  12 did not apply, but the CoP could make an order under r 92 imposing reporting restrictions. However, this presumption of a private hearing

1 2

Department for Constitutional Affairs, Draft Court Rules: Mental Capacity Act 2005 Court of Protection Rules (2005). Department for Constitutional Affairs, Draft Court Rules: Mental Capacity Act 2005 Court of Protection Rules: response to a consultation (2007) and L Series, P Fennell, J Doughty and L Clements Transparency and the Court of Protection (Cardiff University 2015) 76.

190

OTHER COURTS was reversed where the application related to serious medical treatment, where hearings would normally be held in public under r 92.2. 7.20 The position under the original rules was therefore that most hearings were held in private (so AJA 1960, s 12 applied) but hearings about serious medical treatment were usually held in open court (with specific reporting restriction orders (RROs) if necessary). This changed in early 2016.

Media coverage 7.21 Media coverage of the CoP has often been negative or ill-informed, commonly described by journalists as ‘secretive’ and ‘sinister’.3 7.22 Narratives have been constructed around the idea of individuals struggling against the monolith of health and social services. The so-called ‘Forced Caesarean case’ involved judgments in both the Family Division (relating to the care of the baby) and in the Court of Protection (relating to the temporarily incapacitous mother’s medical treatment) and it was as President of both courts that Sir James Munby duly issued his Transparency Guidance in January 2014 (See Re P (A Child) (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam); [2014] 2 FLR 410) and various citations, Case Study 11, Appendix 1). 7.23 Although CoP cases which have attracted media attention have often been at the instigation of a family member, such as Devon County Council v Kirk [2016] EWCA Civ 1221; [2017] 4 WLR 36 (see Case Study No 17, Appendix 1) who may feel (even if misguidedly) that they have their relative’s interests at heart, this is not always the case. Media interest can be unpredictable, as shown in the peculiarly sensational and widespread misreporting about ‘the woman who lost her sparkle’. As noted by Charles J in V v Associated Newspapers [2016] EWCOP 21 the behaviour of the press, with a Daily Mail journalist doorstepping the 15 year-old-daughter of a dying woman, did not augur well for the future of transparency.

The Transparency Guidance 2014 7.24 The transparency guidance applicable to the CoP mirrors that applicable to the family courts (see Chapter 4). Although it was issued as a separate document, and is reported as Practice Guidance (Court of Protection: Transparency) [2014] EWHC B2 (COP); [2014] 1 WLR 235, it makes clear in para 6 that they are to be treated as running in parallel: ‘My starting point is that so far as possible the same rules and principles should apply in both the family courts (in due course the Family Court) and the Court of Protection.’

3

Eg, C Booker ‘The most sinister court in Britain strikes yet again’ Telegraph 3 January 2015.

191

OTHER COURTS 7.25 Paragraph 7 contemplates changes to the Court of Protection Rules 2007 which may now, in retrospect, be read as foreshadowing the pilot scheme which followed two years later, as well as the re-issue of the Rules nearly three years later, in December 2017. 7.26 By para 14, the guidance applies to all judgments in the CoP delivered by the senior judge, nominated circuit judges and High Court judges. Although it is not directed at district judges, some do publish on BAILII – for example, District Judge Eldergill. However, the limitation to the more senior judges means that, although more judgments have been published than prior to February 2014, numbers are still relatively low. 7.27 As with the family courts version of the guidance, a distinction is drawn between judgments that the judge must ordinarily allow to be published (paras 16 and 17) and those that may be published (para 18). These criteria are discussed in detail in Chapter 4 (4.83–4.95) in relation to the family court version and apply mutatis mutandis to the CoP. The main difference lies in the scheduled list of types of proceeding to which para 17 applies, which in the CoP version deal with matters peculiar to that court, whereas in the family court version there are two schedules, one dealing with cases relating to children, the other those relating to incapacitated or vulnerable adults. The listed categories of case in the CoP are: (i)

any application for an order involving the giving or withholding of serious medical treatment and any other hearing held in public; (ii) any application for a declaration or order involving a deprivation or possible deprivation of liberty; (iii) any case where there is a dispute as to who should act as an attorney or a deputy; (iv) any case where the issues include whether a person should be restrained from acting as an attorney or a deputy or that an appointment should be revoked or his or her powers should be reduced; (v) any application for an order that an incapacitated adult (‘P’) be moved into or out of a residential establishment or other institution; (vi) any case where the sale of P’s home is in issue; (vii) any case where a property and affairs application relates to assets (including P’s home) of £1 million or more or to damages awarded by a court sitting in public; (viii) any application for a declaration as to capacity to marry or to consent to sexual relations; (ix) any application for an order involving a restraint on publication of information relating to the proceedings. 7.28 It is worth observing that even where it appears to be mandatory, the guidance is tempered by a fairly wide scope for non-publication in the same manner as the Family Court guidance. However, there has been a notable increase in the volume of CoP judgments appearing on BAILII, from less than 40 in 2013 to more than 80 in 2015.

192

OTHER COURTS

The transparency pilot scheme 7.29 The next major development in promoting transparency in the Court of Protection was the transparency pilot scheme, which began on 29  ­January 2016, some two years after the transparency guidance was issued. A background note4 explained: ‘The Court of Protection Rule Committee has formulated a practice direction for the operation of a pilot scheme which will test both the risks and benefits of relaxing the rules governing media and public attendance at hearings in the Court of Protection (CoP). Currently, the vast majority of hearings in the CoP are conducted in private, with only those directly involved in the case attending. The orders made under Rule 92 in accordance with the pilot will during its operation effectively change the default position to one where hearings are held in public, thereby allowing members of the media or public to attend, unless there is a court order prohibiting this (which would reflect the present position for serious medical treatment cases, which are an exception to the general rule of private hearings). The scheme will involve the court making, as standard (but with the possibility of making a different order if that is appropriate in a particular case), an order allowing for a public hearing but imposing restrictions on identifying in any report or other publication the person who is the subject of proceedings (known as ‘P’).’ 7.30 The scheme took effect by way of a Practice Direction supplementing Pt 13 of the Court of Protection Rules 2007, and made under r 9A1 of the 2007 Rules (as inserted by the Court of Protection (Amendment) Rules 2015 (SI 2015/548)). This provided by para 2.1 that: ‘Where the pilot scheme applies, the court will ordinarily— (a) make an order under rule 92(1)(a) that any attended hearing shall be in public; and (b) in the same order, impose restrictions under rule 92(2) in relation to the publication of information about the proceedings.’ 7.31 By para 2.3: ‘An order pursuant to paragraph 2.1 will ordinarily be in the terms of the standard order set out in the Annex to this Practice Direction.’ 7.32 The standard order5 was not only the order that mandated that the hearing should be conducted in public, but also contained, in fairly draconian

4 www.judiciary.gov.uk/wp-content/uploads/2016/01/transparency-pilot-background-noteupdated-20160728.pdf. 5 The full text of the standard order may be downloaded at www.judiciary.gov.uk/wp-content/ uploads/2017/06/transparency-pilot-standard-order-20170620.pdf).

193

OTHER COURTS terms, a warning of the applicable reporting restrictions and the consequence of any breach: ‘IMPORTANT If any person disobeys the order made by paragraphs (5) to (9) (the Injunction) they may be found guilty of contempt of court and may be sent to prison, fined or have their assets seized. They have the right to ask the court to vary or discharge the order.’ 7.33 The practical effect of the pilot scheme was thus that hearings which would previously have been in private would now routinely be accessible to media representatives (regardless of accreditation) and members of the public, subject to stringent conditions as to compliance with, inter alia, reporting restrictions. Those conditions could be quite daunting to casual visitors. They involved having to provide a name and address and signing a form, before being allowed into court, accepting notification of the reporting restrictions and the strongly worded warning of the risk of being committed for contempt of court in the event of any breach thereof. 7.34 Once inside the courtroom, they would then be asked orally to identify themselves and, in effect, state their reason for attending the hearing. In being required to do this they were not in fact being singled out for attention, since it is normal in a private hearing for everyone present in court to identify themselves and their roles. It helps reassure the parties and any family or friends in attendance. Nevertheless, it could feel daunting to anyone unfamiliar with the court and its procedures and might be thought to have a chilling effect on legitimate public inquiry or comment. 7.35 From the limited research conducted into the pilot scheme, it appears that the number of casual visitors to the CoP during the initial run of six months was extremely low, barely more than a handful of members of the public and a small number of academic researchers. Attendance by press reporters was also less frequent than might have been expected. Some family members and friends welcomed the prospect of attention and publicity to cases while others resented the intrusion. For legal representatives, the requirement to prepare position statements and other court documents in anonymised form was an unwelcome additional burden, all the more so given that so few cases were actually attended.6 7.36 The pilot scheme was initially expected to run for six months but was then extended for at least another year, before a decision appears

6

For an account of attending hearings during the early part of the pilot scheme, see Magrath, ‘Court of Protection pilot scheme: an experiment in greater transparency' (Transparency Project, 25 February 2016) and Doughty and Magrath, Opening up the courts: The Court of Protection transparency pilot (2016) 21(2) Comms Law 37.

194

OTHER COURTS to have been taken to establish the scheme on a permanent basis by incorporating it into a revised version of the Rules, which were published on 1 December 2017. 7.37 Although the pilot was set up on the basis that there would be an assessment of the changes, no information was published on any outcomes. An enquiry by The Transparency Project under the Freedom of Information Act 2000 in August 2017 elicited the response that there had been a meeting of stakeholders to obtain views in April 2016, but that the Ministry of Justice had not undertaken any other exercises in either data collection or soliciting feedback on the pilot.7 Turning the pilot into a permanent arrangement might therefore appear somewhat peremptory, in contrast with the tortuous path of family court reform. There may be a number of reasons for this: the lack of vocal opposition to change; the perception that people involved in CoP proceedings are less likely to be at risk of exposure on social media than children and parents in family proceedings; the relatively low level of interest from the mainstream media; and the different rule-making structures in the different courts. While the Family Procedure Rules are made by the Family Procedure Rule Committee (established by the Courts Act 2003, ss 75 and 76) the CoP rules are made by the President of the Family Division and of the Court of Protection, under powers conferred by the Mental Capacity Act 2005, s 51 and as the judicial office holder nominated by the Lord Chief Justice. An ad hoc Rules Committee was set up by Sir Nicholas Wall in December 2009 but unlike the position for Civil Procedure Rules and Family Procedure Rules, there is no standing rule committee for making CoP rules. The current President nominated an ad hoc committee (chaired by the Vice-President of the Court of Protection, and including judges, solicitor and barrister practitioners, representatives of local authorities, court staff and the Official Solicitor) to advise on the detail of amendments, which now appear in the 2017 Rules.

The 2017 Rules 7.38 The 2007 Rules and various amendments to them have now been superseded by the Court of Protection Rules 2017 (SI No 2017/1035). As well as consolidating the various amendments to the earlier rules, the 2017 Rules have now been arranged in Parts with separately numbered rules within each Part, following the model of the Civil Procedure Rules (CPR), Family Procedure Rules (FPR) and Criminal Procedure Rules (Crim PR). 7.39

Part 4 governs hearings and provides by r 4.1:

‘General rule – hearing to be held in private (1) The general rule is that a hearing is to be held in private.

7

See J Doughty, ‘The Court of Protection pilot – taking off before a flying test?’, The Transparency Project blog, 4 October 2017.

195

OTHER COURTS (2) A private hearing is a hearing which only the following persons are entitled to attend— (a) the parties; (b) P (whether or not a party); (c) any person acting in the proceedings as a litigation friend or rule 1.2 representative; (d) any legal representative of a person specified in any of subparagraphs (a) or (b); and (e) any court officer. (3) In relation to a private hearing, the court may make an order— (a) authorising any person, or class of persons, to attend the hearing or a part of it; or (b) excluding any person, or class of persons, from attending the hearing or a part of it. (4) The general rule in paragraph (1) does not apply to a hearing for a committal order or writ of sequestration (in respect of which rule 21.27 makes provision).’ Rule 4.1 therefore replaces the old r 90 in the 2007 Rules. 7.40 Rule 21.27 of the new rules (replacing r 188 of the old rules) makes specific provision for cases involving committal for contempt of court or for sequestration order to be heard in public, unless the court directs otherwise; and where a committal application is heard in private and results in the making of a committal order, for the court to state in public against whom it was made, the nature of the contempt and the length of the committal order made. 7.41 Rule 4.2 (replacing the old r 91) provides a general power to authorise publication of information about proceedings. 7.42 Rule 4.3 (replacing the old r 92) provides a power to order that a hearing or part of a hearing be held in public, and for the imposition of reporting restrictions. 7.43 Part 4 is supplemented by practice directions. Practice Direction 4A – Hearings (including reporting restrictions) deals with hearings in private and the reporting restrictions that apply (not just under AJA 1960, s 12 but also, for example, under the Human Rights Act 1998 to protect P’s Convention rights) and their relaxation by the court under r 4.2. Where new or additional reporting restrictions are contemplated, steps must be taken, either by the court or by the party making the application, to notify the media via the Press Association’s Injunctions Alert service. The practice direction also makes detailed provision, in Pt 3, for the communication of information relating to the proceedings heard in private by various persons to other persons for particular purposes. 196

OTHER COURTS 7.44 Practice Direction 4C – Transparency deals with the situation where the court will direct that a case be heard in public under r 4.3 and for the order so directing. It contemplates that such an order will ‘ordinarily’ be made (reversing the presumption in r 4.1 for hearings to be in private) where it is an ‘attended hearing’ but not a ‘dispute resolution’ hearing which can take place in property and affairs cases. This appears to enshrine the approach trialled in the Transparency Pilot Scheme (described above). A case heard in public under r 4.3 will not be a private hearing for the purposes of AJA 1960, s 12, so any reporting restrictions must be imposed by reference to the Convention rights of a party or under the court’s inherent jurisdiction to protect the subject matter of the litigation. 7.45 The new rules and practice directions appear to draw no distinction between the serious medical issue cases which were, as a matter of practice, always held in open court anyway, and the cases dealing with P’s welfare and financial matters which were previously always held in private. However, the position can be varied on the application or objection of a party, and in this respect Practice Direction 4A makes more detailed provision.

The impact of opening the CoP to the public 7.46 The opening up of the CoP to the public may well result in making some of its work more accessible, although hearings that have been received attention have, in any event, been those concerning serious medical treatment, such as that of Paul Briggs, who had suffered catastrophic head injuries (Briggs v Briggs [2017] EWCOP 53, see Case Study 16, Appendix 1). Blog posts about, and even live tweeting from, the Court in serious medical treatment cases, as can be found on the Coma and Disorders of Consciousness Research Centre website,8 seem to reflect a more open approach in general. 7.47 On the other hand, even an experienced researcher and advocate who spent a month attending hearings found the CoP daunting. Gillian Loomes has written that the procedures for public observation, particularly the formality of the Pilot Order and within the courtroom itself, create a situation where the observer feels they need to be invisible. This was problematic when she wanted to access documents relating to the hearings, as a key part of making sense of what was observed. The Pilot Order made allowance for observers attending hearings to request permission to access documents but there was no set procedure whereby an observer could do this. It was necessary to attempt to ask counsel to make the request of the judge. Loomes suggested that the wording of the Pilot Order could be simplified and made more accessible to members of the public and that a system could be introduced for observers to indicate that they want to access documents relating to the hearing, possibly at the point where they signed in to attend the hearing. It could then be possible for documents to be made available

8 http://cdoc.org.uk.

197

OTHER COURTS to the observer during the hearing, so that they actually assist the observer in understanding the court procedures they are observing.9 7.48 The need to anonymise all documents (resulting, anecdotally, in a sort of ‘alphabet soup’) and to notify the Injunctions Alert service of all RROs, when so few hearings are attended, may seem unduly time consuming and expensive. Given that the ‘P’, the person the case is about, is unlikely to be participating in decisions about publication, questions must arise about the fairness of their property being taken up in these extra administrative processes.

CRIMINAL COURTS 7.49 The accepted high level of public interest in publicising criminal trials can come into conflict with protective principles in family law proceedings. There are high risks of children who are subject to Children Act 1989 proceedings being able to be identified, despite anonymity under s 97, through jigsaw identification if their parents are involved in criminal investigations and trials (see H v A [2015] EWHC 2630 (Fam); [2016] 2 FLR 723, Chapter 2 (2.141)). 7.50 Other publicity problems can arise when there are associated child welfare and criminal proceedings. For example, in the Worthington and Butler cases (discussed in Chapter 3 and see Case Studies 7 and 9, Appendix 1), the findings in care proceedings could not be published because of the risk they would prejudice a criminal trial (See Chapter 2 (2.57, 2.142). 7.51 Perceptions of secrecy in high profile criminal cases can have unfortunate consequences. For example, the fact that Peter Connelly (‘Baby P’) had surviving siblings who were, on his death, subject to child protection intervention and one of whom had been a victim of sexual assault by one of those accused of Peter’s murder, meant that all the adults in the household had to remain unnamed in order to protect the children’s identity. As the media had no names or pictures of the accused, they focused on those adults who could be identified – local authority social workers and managers. Arguably, the level of blame and sensational reporting that attached to the professionals, and long-term damage done to the image of child protection services in general, was aggravated by the absence of any details the media could use about the actual perpetrators. 7.52 Although the reporting restriction regime in criminal justice is very different to child welfare cases, it may be helpful for family law practitioners to be aware of the basic framework, as outlined in this section.

9

G Loomes, ‘Flying under the Radar: Experiencing the Court of Protection Transparency Pilot as an academic researcher’, The Transparency Project blog, 22 October 2017. See also Doughty & Magrath, supra.

198

OTHER COURTS

Children concerned in criminal proceedings 7.53 Criminal trials are the proceedings most commonly reported in the mainstream media. Fair, accurate and contemporaneous coverage is encouraged by the Contempt of Court Act 1981, s 4. This Act established a strict liability offence of contempt, which will apply if information is published during active proceedings and creates a substantial risk of serious prejudice or impediment to justice. However, s 4(1) states: ‘… a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.’ 7.54 Given the public interest in open justice in criminal cases, the starting point will be that an ongoing trial may (and even should) be reported, provided this complies with s 4, and is fair and accurate. However, where children are concerned, the court must observe s 44 of the Children and Young Persons Act 1933 (C&YPA 1933) which states that every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to their welfare. (The 1933 Act defines a ‘young person’ as a 14 to 17-year-old, although more recently the term ‘young person’ has tended to be used more loosely for children of about 10 and older. Youth justice campaigners, however, are keen to remind practitioners that everyone under 18 is legally a child and owed duties of protection.) For this reason, there are some further restrictions, beyond the Contempt of Court Act 1981, s 4, about reporting on children. 7.55 Historically, child defendants have long been guaranteed a degree of separation from adult offenders in the magistrates’ courts. From the early twentieth century, children charged with criminal offences appeared in separate juvenile courts, along with children who were subject to care proceedings. The underlying assumptions are that children are more likely to ‘grow out of’ juvenile crime if they are treated more sensitively than adult offenders and are kept away from the influence of the latter. In 1991, the juvenile courts were split between the Youth Court for criminal justice and the Family Proceedings Court (now subsumed into the Family Court) for Children Act 1989 proceedings. There were separate sets of rules to protect the privacy of children; the original rules in the Family Proceedings Court have been superseded by the FPR 2010. Despite a raft of legislation in recent decades, the 1933 principles designed to afford children special consideration, remain. Although the media will invariably apply for lifting of anonymity in high profile cases, there is little justification for doing so (D Hart 2014).

Reporting restrictions in the Youth Court and the Crown Court 7.56 The C&YPA 1933 contains presumptions of privacy and anonymity in juvenile courts and discretion to anonymise children in adult courts. This distinction survives today. 199

OTHER COURTS 7.57 In the Youth Court, the public is excluded but ‘bona fide representatives of newspapers or news agencies’ are allowed to attend (C&YPA 1933, s  47). However, s 49 places a bar on publishing anything that might identify a child defendant, victim or witness in a youth court or on appeal from a youth court: ‘49(1) No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings.’ 7.58 ‘Publication’ under s 49(3) includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public. The information prohibited is the child’s name, address, school, workplace, or image. 7.59 These restrictions may be relaxed on application by the media. The section provides that magistrates should only lift them if this is in the public interest (s 49(4)) and after hearing representations from the parties. 7.60 Lord Bingham CJ (in an appeal to the High Court) held that the power to dispense with reporting restrictions in cases involving juvenile offenders should be exercised with great caution. The tension between the need to protect juvenile offenders against unnecessary and adverse publicity, in line with Article 8 ECHR, and the need to ensure freedom of expression, as guaranteed by Article10 could be resolved by dispensing with anonymity only where it was in the public interest to do so, and never as an additional punitive measure (McKerry v Teesdale and Wear Valley Justices (2000) 164 JP 355; [2001] EMLR 5). 7.61 In the Crown Court, the identities of child defendants, witnesses and victims could be protected by the judge making an order under C&YPA 1933, s  39. These orders were normally made at the beginning of a child’s trial, but could be lifted, for example on the conviction of Jon Thompson and Robert Venables (who had murdered the two-year-old James Bulger), then aged 11 (see Venables v News Group Newspapers Ltd; Thompson v News Group Newspapers Ltd [2001] Fam 430). Since April 2015, however, s 39 no longer applies in criminal cases. Instead, the Youth Justice and Criminal Evidence Act 1999 (YJ&CEA 1999), ss 45 and 45A were implemented and now take effect in the Crown Court (or appeal). The reason for the change is explained below. The judge may lift the s 45 order after it is made only where this is proportionate and in the public interest (R (on the application of Y) v Aylesbury Crown Court [2012] EWHC 1140 (Admin); [2012] EMLR 26). 7.62 The media will invariably apply in high profile cases, such as murder, for the YJCEA 1991, s 45 (previously C&YPA 1933, s 39) order to be lifted so they can name and picture the defendant, although it would only be at the conclusion of the case, when proceedings are no longer active, under the Contempt of Court Act 1981, that they could comment on their background and motives. Examples of cases where children were named include Thompson and Venables (on their 200

OTHER COURTS convictions in 1993); William Cornick (the first case in the UK where a child had killed a teacher in the classroom, on pleading guilty – R v Cornick (William) [2014] EWHC 3623 (QB); [2015] EMLR 9); and Markham and Edwards (who unsuccessfully appealed the trial judge’s decision in favour of the media and were named in July 2017 – R v Markham (Stan Lucas); R v Edwards (Kim Rose) [2017] EWCA Crim 739; [2017] 2 Cr App R (S) 30). 7.63 In contrast, a recent case where the judge resisted attempts by the media to have the children’s anonymity lifted was the murder of Angela Wrightson (R v F, also known as Re BBC [2016] EWCA Crim 12; [2016] 2 Cr App R 13). The main factors that differentiate the decision in the Wrightson case were that the judge found that the children showed remorse and were in a very fragile mental condition. In contrast, Cornick and Markham and Edwards were said, by the judges in their trials, not to demonstrate those characteristics. The judge lifted Cornick’s anonymity as a deterrent, whereas Haddon-Cave J and the Court of Appeal agreed with the media that the motives for the Edwards murder could not be understood by the public without knowing what relationship they had with their victims. These recent cases all concerned teenagers whose respective human rights were balanced with the media claim that not releasing their names was a disproportionate interference with Article 10. 7.64 In Surrey CC v ME [2014] EWHC 489 (Fam) a 14-year-old boy, JE, was charged together with his adult brother of the joint murder of their stepfather. The Crown Court’s s 39 order had been lifted, but the local authority, which was taking care of proceedings for JE and four siblings) sought RROs against identifying anyone in the family (apart from JE’s co-accused), because of the impact on the children. This was refused by Keehan J in respect of JE, his mother and the father of JE and the oldest siblings. The media did not intend to name the four youngest children. Keehan J held that granting an Article 8 claim over the reporting of criminal proceedings is highly exceptional and can only be made when necessary.

Restrictions after the child turns 18 7.65 Anonymity for defendants expires when they reach the age of 18. In exceptional cases such as Thompson and Venables and Mary Bell (all of whom have new names), the High Court granted injunctions to protect their new identities with lifelong anonymity. Bell had been convicted of the manslaughter of two young children in 1968, when she was aged 11. She had been named at her trial but on release was (like Thomson and Venables) given a new name, She and her daughter have been granted lifelong injunctions against identification because of the interference with their private and family life which follows whenever their whereabouts is discovered and on consideration of evidence that Bell herself, while mentally fragile, was leading a settled family life. Thompson and Venables are still the subject of media attention and need protection from vigilante attacks if their Article 2 and 3 rights to life and freedom from ill-treatment are to be maintained. 201

OTHER COURTS 7.66 In less extreme cases, it might have been thought that s 39 protection could be extended beyond 18 where necessary, but it was confirmed in R (on the application of JC) v Central Criminal Court [2014] EWHC 1041 (Admin); [2014] 1 WLR 3697 that the C&YPA 1933 could apply only to children until they reached 18. In JC, Leveson LJ was very critical of the legislative position that while a vulnerable adult witness could be granted anonymity under YJ&CEA 1999, s 46, there were no similar provisions for child witnesses and victims in force. He noted that reform was long overdue and that YJ&CEA 1999, s 45 (which had been sitting on the statute books but not enacted) had been drafted to replace s 39 in criminal proceedings but that even that provision did not offer long-term protection to a young person who was aged under 18 at the date of trial. 7.67 Following the anomalies identified in JC, YJ&CEA 1999, s 45 was brought into force in April 2015. It is generally accepted that previous s 39 case law still applies in principle. In view of the Court of Appeal highlighting that an adult witness could enjoy lifelong anonymity, while one aged 18 court not, a new s 45A was enacted which does give the court discretion to grant long term anonymity to a witness or victim if this is necessary. A defendant would however, still need to make a human rights application, as they do not come within s 45A. 7.68 It should also be noted that there is a loophole in legislation that allows a young person accused of an offence to be named in the interval between arrest and appearance in court, that is, before the s 45 order can be made. The current edition of the IPSO Editors’ Code (See Chapter 4, 4.195) states that editors should generally avoid naming children under the age of 18 after arrest for a criminal offence but before they appear in a youth court unless they can show that the individual’s name is already in the public domain, or with consent (Clause 9 (iii)).

Criminal proceedings involving a child who is not a victim, witness or defendant 7.69 Agencies or family members may wish to protect the identity of a child who is indirectly involved in criminal proceedings but not ‘concerned’ in them as a victim, witness or defendant, where they can be granted anonymity by an order under s 45 (previously C&YPA 1933, s 39). For example, in Re S  (A  Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, attempts were made on behalf of a surviving sibling to restrict reporting so as to anonymise the family, arguing that he could be identified if his mother’s identity was included in news coverage. This had not been possible through a s 39 order because the child was not ‘concerned’ in the criminal case; he had not witnessed nor been a physical victim of the crime. As noted in Chapter 1, the House of Lords applied human rights principles to arrive at the conclusion that it was proportionate for the media to agree not to identify the child by name or images, but that reports on his mother’s trial should otherwise have no extra restrictions placed on them. Lord Steyn’s analysis came down firmly on the side of media freedom to report fully on criminal proceedings. 202

OTHER COURTS 7.70 However, Re S has been applied with a different outcome in a small number of reported fact-specific judgments. In Z v News Group Newspapers (No 1) [2013] EWHC 1150 (Fam), Cobb J placed restrictions on identifying a mother who was charged with benefits fraud, because the evidence in the criminal proceedings included details of the children’s medical records. This personal information was at the heart of the case and added weight to their Article 8 claim. However, he invited the media to apply again when the verdict was due and, at that stage, lifted the restrictions to allow her to be identified (although the children were still themselves not named) Z v News Group Newspapers (No 2) [2013] EWHC 1371 (Fam). 7.71

RROs relating to parents were, unusually, made in the following cases:

●● Re W (Children: Identification; Restrictions on Publication) [2005] EWHC 1564 (Fam) – Sir Mark Potter. The mother was facing trial for having knowingly infected the father with the HIV virus. The LA sought RROs to protect the children by restricting identification of the parents. It was not yet known if the children carried the virus but they lived in a small community where the stigma of AIDS would affect future placements and their acceptance in their community. ●● A Council v M [2012] EWHC 2038 (Fam) – Peter Jackson J. A RRO was made in respect of the entire family, where media interest was high because of the extreme behaviour of the mother in abusing her three adopted children. This had included artificially inseminating one daughter between the ages of 13 and 16. There were factors in the criminal evidence that would make the daughter and her baby likely to be identifiable. The RRO was made to take effect until the daughter’s baby was 18. ●● Swansea CC v XZ & others [2014] EWHC 212 (Fam) – Moor J. This was said to be a wholly exceptional case. The mother had suffered psychosis and killed one of her children. The LA had applied to extend a RRO until the youngest surviving child was 18; the mother was having contact with the surviving children and her care of them was now exemplary. If she was identified, this would inevitably lead to identification of these children and serious harm to them, The LA would have had to uproot them from their home area and rehouse them at a distance. The judgment specified which facts could be reported and which not.

CIVIL COURTS 7.72 Hearings in civil litigation may sometimes be conducted in private, and judgments issued in redacted form, or not at all, though this is much rarer than in cases from the family courts or Court of Protection. The general rule, following Scott v Scott [1913] AC 417, is that all cases should be heard in public and judgment in them published in unredacted form, unless there are compelling reasons to the contrary.

203

OTHER COURTS 7.73 This is reflected in what is now r 39.2 of the Civil Procedure Rules (CPR), which provides: ‘(1) The general rule is that a hearing is to be in public. (2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public. (3) A hearing, or any part of it, may be in private if– (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or [protected party]; (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; (f)

it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers this to be necessary, in the interests of justice. (4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.’ 7.74 In R v Legal Aid Board, Ex parte Kaim Todner [1999] QB 966 the Court of Appeal affirmed the decision of the High Court, in judicial review proceedings, not to make an order preventing disclosure of the identity of the applicants, which they had sought on the ground that they would suffer damage to their professional reputation from publicity about the proceedings. Lord Woolf MR in his judgment, at pp 976–977, drew attention to the danger of a court simply acceding to the parties’ wish for privacy, citing a comment of Sir Christopher Staughton in Ex parte P, The Times, 31 March 1998, that ‘When both sides agreed that information should be kept from the public that was when the court had to be most vigilant.’ Lord Woolf had derived from Scott v Scott the conclusion that an exception to the open justice principle ‘can only be justified if it is necessary in the interests of the proper administration of justice’. 7.75 More recently, Moore-Bick LJ explained the position in R (Willford) v Financial Services Authority (No 2) [2013] EWCA Civ 674; [2013] CP Rep 43, at para 5: ‘5. In my view, the starting point is the principle of open justice, that is, the principle that proceedings are to be conducted and determined in public. One aspect of that principle is that judgments should be published in full without concealing the identity of the parties or 204

OTHER COURTS others involved, whether by anonymisation or redaction. However, the principle is not absolute and must give way to the requirements of justice and other countervailing considerations of public interest. For example, judgments in criminal proceedings are frequently anonymised in order to protect the identities of children. In civil cases between adult parties, however, the public interest in open justice will usually outweigh other considerations, except where publication would significantly undermine the effectiveness of any relief the court might grant.’ 7.76 The public reputation of a person claiming that they are being blackmailed, and seeking an order protecting their anonymity pending trial, as was the case in NNN v Ryan [2013] EWHC 637 (QB), would also justify hearing the application in private, under CPR, r 39.2(3)(a), (c) and (g). In that case the order protecting the claimant’s anonymity was continued by way of a permanent injunction, following summary judgment, with a short public judgment being given by Judge Moloney QC in anonymised form as NNN v D1 [2014] EWHC B14 (QB). 7.77 Industrial secrets, legitimately protected, and commercial information which is either price-sensitive or has competition implications, are among the other factors justifying either hearing a case in private or redacting any judgment thereafter published. 7.78 The position of commercial litigants was discussed recently in a patents case, Unwired Planet International Ltd v Huawei Technologies Co Ltd [2017] EWHC 3083 (Pat); [2017] WLR (D) 802 in which Birss J explained his reasons for deciding to redact commercially sensitive information relating to licence and royalty rates in his earlier judgment in a case concerning patent infringement which also had competition law implications. He said (paras 23–24) that in principle all parts of a judgment should be publicly available, since ‘unless the public can see and understand a judge’s reasons they cannot hold the courts to account’. Any redactions should be rare, and required powerful reasons supported by cogent evidence. While certain kinds of proceedings might regularly involve redactions due to the nature of the proceeding and the material involved, such redactions must be kept to the bare minimum. 7.79

Birss J listed a number of relevant factors of general application:

‘(i) the nature of the information itself, for example, cases in which some redaction may more readily be accepted could include technical trade secrets and private information about family life. (ii) The effect of the publication of the information. If publication was truly against the public interest then no doubt the information should be redacted. If publication would destroy the subject matter of the proceedings, such as a technical trade secret, then redaction may be justified. The effect on competition and competitiveness could be a factor but would need to examined critically. 205

OTHER COURTS (iii) The nature of the proceedings, for example, privacy injunctions and competition law claims may require some redaction while an intellectual property damages claim may not. The point was not that different kinds of case demanded a different approach, it was that the balance of factors would change in different cases (eg the need to encourage leniency applications in competition law). (iv) The relationship between the information in issue and the judgment (as well as the proceedings as a whole). Obviously judges do not deliberately insert irrelevant information into judgments but not every word of a judgment is as important as every other word. It may be that some sensitive information could be redacted without seriously undermining the public’s understanding of the reasons. (v) The relationship between the person seeking to restrain publication of the information and the proceedings themselves (including the judgment). For example, a patentee seeking damages for patent infringement on a lost profit basis knows that they will have to disclose their profit margin in the proceedings and that those proceedings are public. A third party whose only relationship with the case is that they are a party to a contract disclosed by one of the parties to the litigation is in a different position.’ 7.80 The judgment set out his reasons for having issued, when giving the substantive decision in the litigation, two versions of his judgment, one with the neutral citation [2017] EWHC 705 (Pat) setting out the reasoning in full by reference to material which one or other of the parties had claimed should not be made public (and therefore not published other than to the parties and their advisers), and another, with the neutral citation [2017] EWHC 711 (Pat), in redacted form but ‘fairly setting out the reasoning in a manner which the public could comprehend’ while taking a generous view of the claims to confidentiality. The latter duly appeared on both the BAILII and the Judiciary databases. 7.81 The position of children being anonymised in a civil case involving a claim for damages by their parents against the local authority was considered in Williams v Hackney London Borough Council [2015] EWHC 2629 (QB); [2017] EWCA Civ 26. The claim arose out of the local authority’s actions in authorising the removal by the police of the claimants’ eight children and their subsequent placement in temporary foster care with the parents’ consent under the Children Act 1989, s 20 without informing the parents of their right to request the children’s return, in breach their Convention right to private and family life under Article 8 and various common law and statutory duties. On being asked to make a ruling under CPR, r 39.2 for the names of the eight children to be anonymised in any report of the case, Sir Robert Francis QC sitting as a deputy High Court judge, said at para 1: ‘In this case it was submitted ... that the issues in the case involved reference to sensitive matters from their early childhood life and that public association of their identities with these matters would not only be embarrassing but 206

OTHER COURTS could risk causing damage to them. I agree, and would add that they are not parties to these proceedings, and that the legitimate public interest in the case does not extend to knowledge of the children’s identities. The disclosure of their identities would be counter to the protective purpose of the legislation under which the defendant purported to take the various actions which I have to consider in this case. Accordingly, I made an order that the names of the children referred to in these proceedings shall be kept private and not disclosed.’ 7.82 For the same reasons he also ordered, under CPR, r 32.13, that ‘no part of any witness statement or other document which might otherwise be open for inspection which disclosed the names of the children will be open for that inspection’. 7.83 Having carefully listed the ages of each of the eight children, the Court of Appeal noted ([2017] EWCA Civ 26, [2017] 3 WLR 59 at para 3) that ‘their identities are protected by order of the court’. Given that their parents’ names were already identified in full, it is questionable how effective this anonymisation could have been.

Arbitration appeals 7.84 One of the reasons parties in a contractual dispute undertake or agree to go to arbitration is that the process is confidential and not subject to any rules or expectations of open justice: see Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184; [2008] Bus LR 1361. 7.85 However, under the Arbitration Act 1996, a party dissatisfied with the conduct of the arbitral tribunal or its award may apply to the High Court for relief, eg on the ground of serious irregularity, or on a point of law. Even in the High Court, the starting point is that the case should be heard in private, unless it involves a point of law: CPR, r 62.10(2) displaces the normal presumption, under the common law, and reflected in CPR, Pt 39, that hearings in the High Court should be public. 7.86 By r 62.10(1) ‘The court may order than an arbitration claim be heard either in public or in private’ but, subject to that, by r 62.10(3)(a) the determination of a preliminary point of law under s 45 of the 1996 Act or an appeal on a question of law under s 69 ‘will be heard in public’ and (b) ‘all other arbitration claims will be heard in private’. 7.87 The fact that a case under the Arbitration Act 1996 has been heard in private under r 62.10 does not necessarily mean the judgment will remain private. The factors in favour of publicity are stronger in the case of judgments, and courts should generally incline toward publishing them, even if the hearing has been in private, if necessary in a form that avoids disclosing confidential information (see Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314; [2005] QB 207). 207

OTHER COURTS 7.88 In that case, the Court of Appeal considered the question whether the High Court’s judgment on a challenge to an arbitration award on the grounds of serious irregularity under the Arbitration Act 1996, s 68 should be published. The hearing had been conducted in private but the judgment when given did not indicate that it was intended to be private, and a copy of it was obtained by a legal publisher, Lawtel, who produced a brief summary on their website. Having heard the parties’ submissions on whether the judgment should be made public, the judge decided that it should not, and refused to permit one of the successful parties to publicise its success by distributing the Lawtel summary to third parties. On appeal, the Court of Appeal affirmed the judge’s decision suppressing publication of the main judgment but varied his order in relation to the Lawtel summary, permitting its further publication (subject to copyright restrictions) on the grounds that it did not contain any sensitive or confidential information. 7.89 An important factor in the Court of Appeal’s reasoning was that the Arbitration Act 1996 had set out ‘to encourage and facilitate a reformed and more independent, as well as private and confidential, system of consensual dispute resolution, with only limited possibilities of court involvement where necessary in the interests of the public and of basic fairness’. That intention was in turn reflected in CPR, r 62.10. Nevertheless, as Lord Justice Mance (as he then was) pointed out at paras 38–39: ‘38 … In every case, while it will be appropriate to start the hearing in private as contemplated by rule 62.10, the court should be ready to hear representations from one or other party that the hearing should be continued in public, and should anyway if appropriate raise this possibility with the parties, as Lord Woolf MR stressed in Ex p Kaim Todner [1999] QB 966. 39. Further, even though the hearing may have been in private, the court should, when preparing and giving judgment, bear in mind that any judgment should be given in public, where this can be done without disclosing significant confidential information. The public interest in ensuring appropriate standards of fairness in the conduct of arbitrations militates in favour of a public judgment in respect of judgments given on applications under section 68. The desirability of public scrutiny as a means by which confidence in the courts can be maintained and the administration of justice made transparent applies here as in other areas of court activity under the principles of Scott v Scott [1913] AC 417 and article 6 [of the European Convention on Human Rights]. Arbitration is an important feature of international, commercial and financial life, and there is legitimate interest in its operation and practice. The desirability of a public judgment is particularly present in any case where a judgment involves points of law or practice which may offer future guidance to lawyers or practitioners.’ 7.90 Mance LJ went on, at para 40, to describe the relevant factors as occupying a spectrum, at one end of which was the arbitration (held in private); at the other, a reasoned judgment on a claim under s 68: 208

OTHER COURTS ‘A reasoned judgment under section 68 will in likelihood disclose very much less about the subject matter of the arbitration than will have been covered during the section 68 hearing itself. Moreover, judges framing judgments are accustomed to concentrate on essentials, to avoid where possible unnecessary disclosure of sensitive material and in some cases to anonymise.’ 7.91

He continued, at para 41:

‘When weighing the factors, a judge has to consider primarily the interests of the parties in the litigation before him or in other pending or imminent proceedings. That was the prime focus of attention of Scott v Scott [1913] AC 417 and, I would add, also of section 4(2) of the Contempt of Court Act 1981. The concerns or fears of other parties cannot be a dominant consideration. Nor can there be any serious risk of their being deterred from arbitrating in England, if the court weighs the relevant factors appropriately. If, in the absence of other good reason for publication, the court withholds publication where a party before it would suffer some real prejudice from publication or where the publication would disclose matters by the confidentiality of which one or both parties have set significant store, but publishes its judgments in other cases, businessmen can be confident that their privacy and confidentiality in arbitration will, where appropriate, be preserved. The limited but necessary interface between arbitration and the public court system means that more cannot be expected. There can be no question of withholding publication of reasoned judgments on a blanket basis out of a generalised, and in my view unfounded, concern that their publication would upset the confidence of the business community in English arbitration.’ Similar factors applied to the question of whether the judgment should be anonymised: see Symbion Power LLC v Venco Imtiaz Construction Co [2017] EWHC 348 (TCC) at [86], per Jefford J.

In the Court of Appeal and Supreme Court 7.92 Even where a redaction, anonymisation or even a hearing in private has been ordered by the judge, the Court of Appeal when hearing an appeal in such a case will not necessarily continue the same restriction; on the contrary, the default position is that appeals should be heard in public. The same is true in the Supreme Court. (For a more detailed discussion of this, see Chapter 2 at 2.159.)

TRIBUNALS 7.93 The tribunal system is divided into two tiers, the First-tier Tribunal (FTT or FtT) and the Upper Tribunal (UT). Each sits in a range of different ‘chambers’. This arrangement was set up under the Tribunals, Courts and Enforcement Act 2007 209

OTHER COURTS (TCEA) to harmonise what had previously been a number of different jurisdictions, dealing with land registration, immigration, tax assessments, health, education, pensions and welfare, each with their own tribunals or commissioners. The TCEA also established the Tribunals Judiciary with its own unified hierarchy under the Senior President of Tribunals (currently Sir Ernest Ryder).10 7.94 The Upper Tribunal, like the Employment Appeal Tribunal and the Competition Appeal Tribunal established under earlier legislation, is a superior court of record of equivalent status to the High Court of England and Wales. (Some judicial reviews from the First-tier Tribunal, if they fall outside the jurisdiction of the Upper Tribunal, may be heard by the Administrative Court in the Queen’s Bench Division.) The Upper Tribunal (Immigration and Asylum Chamber) replaced both the Immigration Appeals Tribunal (IAT) and the Asylum and Immigration Tribunal (AIT) from 2010 onwards. 7.95 However, the jurisdiction of the tribunal system extends across the entire UK, so appeals from the Upper Tribunal (on a point of law) may go to the Court of Appeal of England and Wales, the Court of Session in Scotland, or the Court of Appeal of Northern Ireland. 7.96 The Upper Tribunal is governed by the same procedural rules regardless of the four different jurisdictional chambers in which it sits, namely the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698). But each of the seven First-tier Tribunals has its own set of rules. The area we have chosen to focus on in the context of transparency and anonymisation is that of immigration and asylum. Although issues of anonymity, secrecy or redaction of information may also occur in other tribunals, the principles which apply are broadly similar.

Immigration and Asylum Chamber 7.97 The First Tier Tribunal (Immigration and Asylum Chamber) hears appeals from decisions by the Home Office on matters of immigration, deportation, asylum and nationality, as well as human rights claims. (Note that asylum support claims are dealt with as a branch of welfare claim by the Social Entitlement Chamber of the FtT while decisions to exclude, deport, deprive of citizenship etc on grounds of national security are dealt with under a separate procedure by the Special Immigration Appeals Commission, or SIAC.) 7.98 Procedure is governed by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604), made by the Tribunal Procedure Committee and allowed by the Lord Chancellor pursuant to the TCEA 2007, s 22.

10 See Senior President of Tribunals – Annual Report 2017, www.judiciary.gov.uk/publications/ senior-president-of-tribunals-annual-report-2017/.

210

OTHER COURTS

Anonymisation and non-disclosure orders 7.99

By r 13 of the 2014 Rules:

‘(1) The Tribunal may make an order prohibiting the disclosure or publication of— (a) specified documents or information relating to the proceedings; or (b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified. (2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if— (a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and (b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction. (3) If a party (‘the first party’) considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party (‘the second party’), the first party must— (a) exclude the relevant document or information from any documents to be provided to the second party; and (b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2). (4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2). (5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that— (a) disclosure to the representative would be in the interests of the party; and (b) the representative will act in accordance with paragraph (6). (6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal’s consent. (7) The Tribunal may, on the application of a party or on its own initiative, give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose 211

OTHER COURTS such documents or information to other persons, or specified other persons. (8) A party making an application for a direction under paragraph (7) may withhold the relevant documents or information from other parties until the Tribunal has granted or refused the application. (9) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security. (10) The Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2), (5) or (7) or the duty imposed by paragraph (9).’ 7.100 This rule is routinely used to anonymise the appellant in all appeals raising asylum or other international protection claims: the appellant is identified by initial and country unless and until a judge decides that anonymity is not necessary. The same procedure is followed if and when the case is appealed to the Upper Tribunal: see Guidance Note 2013 No 1: Anonymity Orders, issued by Blake J, President of the Upper Tribunal Immigration and Asylum Chamber in September 2013.11 7.101 However, r 13 has also been held to permit, on ‘serious harm’ grounds, the concealment of material even from the appellant himself, in what effectively amounted to a closed material procedure of the type usually only reserved for cases involving risks to national security: see R (Immigration Law Practitioners’ Association) v Tribunal Procedure Committee [2016] EWHC 218 (Admin); [2016] 1 WLR 3519, though the judge in that case, Blake J, was clearly troubled by the breadth of the power under r 13. In fact, the closed material procedure is not one that appears to be used other than extremely rarely. In para 22 the judge records that ‘Inquiries made of 81 tribunal judges (with the consent of the Senior President of Tribunals) and the Home Office did not reveal that any direction had yet been made.’ The judge concluded that the rule was not inherently unfair and was within the power of s 22 of the TCEA to make. The challenge in that case was to material being concealed from the appellant, which would be exceptional. It did not concern non-disclosure to third parties, such as the media, or the anonymisation of a witness for their own protection, both of which would be far more likely uses of the rule. 7.102 A successful challenge against an anonymity order under r 13 was made in a case, reported in The Independent, in which Miriam ‘Harley’ Miller, an Australian NHS therapist, won her appeal against a deportation order made on the expiry of her spousal visa. The FtT made what the newspaper described as

11 www.judiciary.gov.uk/publications/guidance-note-2013-no-1-anonymity-orders/.

212

OTHER COURTS a ‘gagging order’ preventing any reporting of the case, apparently ‘to protect the identities of vulnerable young former patients who had given evidence about Ms Miller’s professional skills’. But neither Miller nor the Home Office had asked for such an order. It appears that, to remove the order, an application was made under r 32 of the Rules to set aside that part of the decision that imposed reporting restrictions, after which the newspaper was able to publicise the case.12

Hearings in public 7.103 By r 27 of the 2014 Rules, all hearings of the FTT(IAC) are in public, subject to some exceptions: (1) Subject to the following paragraphs and to s 108 of the 2002 Act, all hearings must be held in public. (2) The Tribunal may give a direction that a hearing, or part of it, is to be held in private. (3) Where a hearing, or part of it, is to be held in private, the Tribunal may determine who is permitted to attend the hearing or part of it. (4) The Tribunal may give a direction excluding from any hearing, or part of it: (a) any person whose conduct the Tribunal considers is disrupting or is likely to disrupt the hearing; (b) any person whose presence the Tribunal considers is likely to prevent another person from giving evidence or making submissions freely; (c) any person who the Tribunal considers should be excluded in order to give effect to a direction under r 13(2) (withholding a document or information likely to cause serious harm); or (d) any person where the purpose of the hearing would be defeated by the attendance of that person. (5) The Tribunal may give a direction excluding a witness from a hearing until that witness gives evidence.13 7.104 Rule 29 of the 2014 Rules provides that the tribunal’s decisions may be given orally, but that written reasons must be given in certain cases, and may

12 See C Yeo, ‘Unwanted anonymity and gagging orders’ (Free Movement, 17 December 2014) at www.freemovement.org.uk/unwanted-anonymity-and-gagging-orders/; and H Miller, ‘I feel like I’ve been let out of prison. It was like I was under house arrest’, The Independent, 22 December 2017 www.independent.co.uk/news/people/harley-miller-i-feel-like-i-ve-been-let-out-of-prison-itwas-like-i-was-under-house-arrest-10019228.html. 13 The 2002 Act is the Nationality, Immigration and Asylum Act 2002, and s 108 provides for proceedings to be held in private in the national interest to protect information relating to the detection of alleged forgery of documents.

213

OTHER COURTS be in others, including where the parties apply for them; and also provides for notification of the decision. Rule 31 provides for correction of clerical errors and slips in any decision or other document issued by the tribunal. This ‘slip rule’ cannot be used to reverse the effect of a decision: Katsonga v Secretary of State for the Home Department [2016] UKUT 228 (IAC). 7.105 Decisions of the Immigration and Asylum Chamber of the First-tier Tribunal are recorded but not published, unlike those of some other chambers of the First-tier Tribunal.

The Upper Tribunal: procedure 7.106 The rules governing the procedure of the Upper Tribunal make no distinction as to which of the four chambers they apply to. Nevertheless, the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), made pursuant to TCEA 2007, include similar rules to those applying to the First-tier Tribunal in relation to immigration and asylum matters. 7.107 Thus r 14 is in almost identical terms to r 13 of the First-tier Tribunal (IAC) Rules, in providing for anonymisation and non-disclosure orders; r 37 for cases to be heard in public unless otherwise directed by the tribunal; r 40 for decisions to be given in writing in specified cases; and r 42 for correction of decisions under the slip rule.

Publication and Reporting of Upper Tribunal Decisions 7.108 The main difference from practice in the First-tier Tribunal is that judgments (decisions or written reasons) of the Upper Tribunal (Immigration and Asylum Chamber) may be published. Not all of them are, and those that are may or may not be anonymised. The practice seems to be governed, not by the rules themselves, but by a series of practice directions and statements. 7.109 The decision whether to report a judgment is that of the tribunal, and is ‘not perceived to be an issue in which the parties to the appeal have an interest’ according to para 11.2 of the Practice Statements: Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, issued by Sir Jeremy Sullivan as Senior President of Tribunals in November 2014.14 7.110

That 2014 Practice Statement continues:

‘A determination is reportable only if it follows a hearing or other consideration where the jurisdiction of the Tribunal was exercised by the Senior President, the Chamber President or an Upper Tribunal judge who is not a Deputy

14 See www.judiciary.gov.uk/wp-content/uploads/2014/11/revised-ps-iac-13112014.pdf.

214

OTHER COURTS judge (whether or not sitting alone and, in the case of an Upper Tribunal judge, whether sitting as such or as a First-tier judge). 11.4 A final determination which is not reported will be anonymised (where appropriate), treated as an unreported determination for the purposes of the Tribunal’s website and entered as such on that website. 11.5 The Tribunal’s website is the only official source of the determinations of the Tribunal.’ 7.111 A decision that has not been ‘reported’ in the sense of being identified by the tribunal as being capable of being cited in later tribunal cases, may nevertheless be published in the sense of being publicly available, categorised as an ‘unreported’ case. These judgments are available both on the official Tribunal section of the Judiciary site and on BAILII. 7.112 ‘Reported’ decisions or written reasons receive a neutral citation number issued by the Upper Tribunal Office in a form determined by another Practice Statement entitled ‘Form of decisions and Neutral Citation – First-tier Tribunal and Upper Tribunal on or after 3 November 2008’ (reported as Practice Statement (First-tier and Upper Tribunals: Neutral Citations) [2009] 1 WLR 871; [2009] PTSR 545). 7.113 An ‘unreported determination’ may not be cited in proceedings before the Tribunal except (a) by the appellant in that earlier determination or a member of the same family or (b) with the Tribunal’s permission: see para 11.1 of Practice Directions: Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (2010), issued by Lord Justice Carnwath as Senior President of Tribunals in February 2010.15 7.114 The 2010 Practice Direction goes on to describe the procedure for obtaining the Tribunal’s permission and states: ‘11.3 Permission under paragraph 11.1 will be given only where the Tribunal considers that it would be materially assisted by citation of the determination, as distinct from the adoption in argument of the reasoning to be found in the determination. Such instances are likely to be rare; …’ 7.115 Para 12 provides for ‘Starred and Country Guidance Decisions’. A starred decision is a reported case which provides guidance on a particular matter and ‘shall be treated by the Tribunal as authoritative in respect of the matter to which the ‘starring’ relates, unless inconsistent with other authority that is binding on the Tribunal.’ (Para 12.1)

15 www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Practice+Directions/Tribunals/IAC_ UT_FtT_PracticeDirection.pdf.

215

OTHER COURTS 7.116 One of the matters to which reporting (but not necessarily also starring) relates is Country Guidance, citation of which presumably saves the Tribunal from having to make fresh findings of fact each time about conditions in a particular receiving country. They are in effect factual precedents, which can only be overturned or superseded by a later decision recording different or updated findings of fact. By para 12.2: ‘A reported determination of the Tribunal, the AIT or the IAT bearing the letters ‘CG’ shall be treated as an authoritative finding on the country guidance issue identified in the determination …’ 7.117

Moreover, by para 12.4:

‘any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.’ 7.118 Downloadable lists of Starred and Country Guidance cases are available via links on the ‘Tribunals decisions’ section of the Judiciary website, but the judgments themselves are accessed from a separate Tribunals decisions page hosted as part of the Gov.uk family of government websites and prominently described as ‘Beta’. (It would be less confusing to keep all this information within the Judiciary website.) 7.119 There is also a list of Starred and Country Guidance cases conveniently collected and listed by country on BAILII, but by virtue of para 11.5 of the 2014 Practice Statement (quoted above), such decisions may only be cited to the Tribunal from the Tribunal’s official website. BAILII also collects ‘unreported’ decisions. These are cited by number rather than name, and the neutral citation applied by BAILII is not the one supplied by the court but its own version.

Anonymity directions 7.120 Most reported decisions and all unreported determinations of the Upper Tribunal are published in anonymised form, bearing a notice to that effect immediately underneath the appellant’s name or initials in the title. This simply states, in parentheses, ‘Anonymity direction made’ or ‘not made’ or similar. In the case of the former, there should then be a paragraph in the judgment itself stating that an anonymity direction has been made, eg: ‘Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008’ following which there will be a statement explaining what cannot be reported or disclosed. For example: ‘Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly 216

OTHER COURTS identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.’ 7.121 In one unreported case JO v Secretary of State for the Home Department (Appeal number AA002912016) (cited on BAILII as [2017] UKAITUR AA002912016), it appears that no anonymity direction was made initially, but the judgment was later amended, to anonymise the name. The title now reads: ‘Between [J O] (ANONYMITY DIRECTION NOT MADE)) and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT’ but in the judgment itself it still says, at the end, ‘No anonymity direction is made.’ 7.122 The Tribunal’s general approach to anonymity orders is governed by Guidance Note 2013 No 1: Anonymity Orders (cited above), which provides by paras 6–7: ‘6. The starting point for consideration of anonymity orders in UTIAC, as in all courts and tribunals, is open justice. This principle promotes the rule of law and public confidence in the legal system. UTIAC sits in open court with the public and press able to attend and nothing should be done to discourage the publication to the wider public of fair and accurate reports of proceedings that have taken place. 7.

Given the importance of open justice, the general principle is that an anonymity order should only be made by UTIAC to the extent that the law requires it or it is found necessary to do so.’

7.123 The guidance goes on to identify situations where the law requires anonymity, such as in respect of sexual offences, or cases involving children. It  then describes circumstances where, under r 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, it would be appropriate to make an anonymity order, such as (at para 9): ‘where such an order is necessary to protect human rights, whether (for example) the private life of a party subject to the jurisdiction or the life, liberty and bodily integrity of a witness or a person referred to in proceedings. The Tribunal may also make such an order where it is necessary in the interests of the welfare of a child or the interests of justice would otherwise be frustrated.’ 7.124

Para 11 points out that:

‘A decision to make an anonymity order where not required by law may require the weighing of the competing interests of an individual and their rights (for example, under Articles 3 or 8 of the ECHR or their ability to present their case in full without hindrance) against the need for open justice.’ 217

OTHER COURTS 7.125 Cases involving asylum or other international protection claims are routinely anonymised, in the same way as in the First-tier Tribunal (see above), unless and until a judge of the Tribunal decides it is no longer necessary (para 13). 7.126 Children, and the relationship with cases in other jurisdictions, including the family courts, are dealt with under paras 18–20 of the guidance: ‘18. The identity of children whether they are appellants or the children of an appellant (or otherwise concerned with the proceedings), will not normally be disclosed nor will their school, the names of their teacher or any social worker or health professional with whom they are concerned, unless there are good reasons in the interests of justice to do so. Such good reasons will normally exist if a criminal court has directed that the identity of a child offender be disclosed. 19. Where the identity of a child is not to be revealed the name and address of a parent other than the appellant may also need to be withheld to preserve the anonymity of a child. 20. In other cases, UTIAC may need to make an order to protect the identity of a child or vulnerable person where there is good reason to do so. It will be necessary to do so where information about the child or family proceedings concerning a child has been supplied by the Family Court under the terms of the Joint Protocol between the President Family Division and the Senior President of Tribunals dated 19 July 2013.’ 7.127 The guidance goes on to discuss the practice to be followed when making an anonymity order, including the descriptions applied to judgments (see above), and providing for the removal of restrictions where a party contends that they should not have been imposed (at para 26): ‘Where an anonymity order has been made but any party contends that the order should not have been made, an application can be made to the Office of the Chamber President giving reasons why the order should be set aside in whole or in part.’

First Tier Tribunal: Mental Health 7.128 Mental health review tribunals are held in private, although the detainee may apply for a public hearing, as Ian Brady did in 2013. Unusually, the reasons for the decision in that case are published on the Judiciary website. The Tribunal itself does not normally publish any information about decisions, but they are monitored by the Care Quality Commission, that publishes regular overviews of applications and outcomes (Monitoring the Mental Health Act reports, available on the CQC website).

218

OTHER COURTS

Employment Tribunals 7.129 Employment tribunals operate at the same level as the First-tier Tribunal and the Employment Appeal Tribunal at the same level as the Upper Tribunal but the employment tribunals (originally called industrial tribunals) were established under earlier legislation and remain a separate jurisdiction. They operate in both Scotland and in England and Wales, applying laws appropriate to the jurisdiction in which they sit. In Northern Ireland, the equivalent jurisdiction is administered by Fair Employment Tribunals.

Private hearings and reporting restrictions 7.130 Under what is now r 50 of the Employment Tribunal Rules of Procedure (as scheduled to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), an employment tribunal may, by order, conduct the whole or part of a hearing in private and redact information or anonymise parties or witnesses in its judgment. The order making the decision must specify, among other matters, whose identity is to be protected and the duration of the prohibition. Interested parties must be given an opportunity to make representations. 7.131 Reporting restrictions may be justified, for example, to protect a party’s right to privacy under Article 8 of the European Convention on Human Rights: see F v G [2012] ICR 246 and EF v AB (2015) UKEAT/0525/13/DM, published on BAILII under the citation [2015] UKEAT 0525_13_2503. 7.132 A restricted reporting order can be made under r 50 to take effect after the conclusion or settlement of a claim: Fallows v News Group Newspapers Ltd [2016] ICR 801, EAT. Moreover, the tribunal retained the power to amend or revoke such an order on the application of someone, such as a media publisher, with a legitimate interest who had not had an opportunity of challenging the imposition of the order at the time (ibid). 7.133 Under r 94, in cases involving a Crown employee in which issues of national security are involved, at the request of the relevant Minister, hearings may conducted wholly or partially in private or witnesses’ identities may be concealed or anonymised and documents redacted or kept confidential. 7.134 Subject to rr 50 and 94, the presumption is that, while preliminary hearings may generally be conducted in private (under r 54), all final hearings should be conducted in public (r 59). 7.135 Judgment of employment tribunals have been routinely published on the Gov.uk site since February 2017. There is a slightly more comprehensive collection on BAILII, which includes some earlier decisions going back to 2011. A small number of key decisions, selected for their guidance value, is also available under the Tribunal decisions section of the Judiciary website. 219

OTHER COURTS 7.136 Many of the decisions published are of little value since they merely record the result of the case and may say no more than that oral reasons were given at the hearing. Unless a party requests the reasons in writing, they are not transcribed or published. This largely negates the value of publication for the purposes of either transparency or legal research.

The Employment Appeal Tribunal 7.137 As a superior court of record, the EAT’s decisions are frequently reported as precedents, and in any event widely published. Since December 2015 they have been published on the Gov.uk site, while older cases (including those up to March 2017) are available on the EAT’s own website. All decisions are also available on BAILII. 7.138 Judgments are not routinely written or transcribed. Where judgment is reserved, it will be handed down in written form. Where reasons are given orally, a transcript will be provided if one of the parties was absent at the time and may be requested by one or more of the parties within 14 days or provided at the tribunal’s own request if it involves a point of law of general interest: see Practice Direction (Employment Appeal Tribunal – Procedure) 2013, para 21.16 7.139 Published judgments of the EAT helpfully include a brief summary of the points of law decided. Though not a headnote, it does assist the reader quickly to see what the case is about and thus promotes transparency.

Disciplinary Tribunals 7.140 The open justice principle applies to professional disciplinary tribunals such as the Solicitors Disciplinary Tribunal (SDT) and disciplinary tribunals of the Bar Standards Board (BSB), which means that hearings are held in public and may be reported.

Solicitors Disciplinary Tribunal 7.141 As to hearings, the general rule under Solicitors (Disciplinary Proceedings) Rules 2007 (SI 2007/3588), r 11(5) is that ‘Any hearing under this rule shall be held in public unless rr 12(4) or (5) apply.’ 7.142

Rule 12 (4) and (5) provide:

‘(4) Any party to an application and any person who claims to be affected by it may seek an order from the Tribunal that the hearing or part of it

16 www.judiciary.gov.uk/publications/employment-appeal-tribunal-guidance/.

220

OTHER COURTS be conducted in private on the grounds of—(a) exceptional hardship; or (b) exceptional prejudice, to a party, a witness or any person affected by the application. (5) If it is satisfied that those grounds are met, the Tribunal shall conduct the hearing or part of it in private and make such order as shall appear to it to be just and proper.’ 7.143 But there is also a further power for the tribunal to sit in private under r 12(6) (whose omission from r 11(5) may simply be an oversight): ‘(6) The Tribunal may, before or during a hearing, direct that the hearing or part of it be held in private if—(a) the Tribunal is satisfied that it would have granted an application under paragraph (4) had one been made; or (b) in the Tribunal’s view a hearing in public would prejudice the interests of justice.’ 7.144 The SDT publishes its own decisions, but retains a discretion to anonymise the name of a solicitor against whom no allegations are found proved, though ‘each case must be decided on its own facts and merits’: Solicitors Disciplinary Tribunal – Judgment Publication Policy (April 2016). 7.145 However (as the latest edition of the policy acknowledges), the scope for the exercise of that discretion seems in doubt following the decision of the Queen’s Bench Divisional Court in Solicitors Regulation Authority v Spector [2016] EWHC 37 (Admin); [2016] 4 WLR 16. In that case, after a hearing conducted in public, a solicitor had been found guilty of one minor technical matter, for which no sanction was imposed, and acquitted of six other matters. The tribunal acceded to his request for an order that his name should not be disclosed on inquiry to anyone not already aware of the proceedings and should be anonymised in the published findings and case report. On the SRA’s appeal the court held that no departure from the principle of open justice was justified, and quashed the anonymity order. The judgment of Nicol J makes clear, at paras 19 to 21, that the fundamental common law principle of open justice means not only that hearings should be held in public but also that they should be freely reportable, which ‘includes being able to identify the persons involved, whether as parties or witnesses’ (citing Lord Rodger of Earlsferry in Re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 63). 7.146 In Andersons Solicitors v Solicitors Regulation Authority [2012] EWHC 3659 (Admin) Walker J held that the open justice principle also permitted the SRA to publish allegations against a solicitor as soon as the tribunal had certified a case to answer, well in advance of any substantive hearing. 7.147 However, in Ballard v Solicitors Regulation Authority [2017] EWHC 164 (Admin), the Queen’s Bench Divisional Court, in which Nicol J was sitting with Beatson LJ, held that ‘The anonymising of parties in the tribunal’s judgment reflects standard practice’ – but the party in question was actually a client, referred to as Mr DE, whom the solicitor was supposed to have acted for in criminal proceedings, 221

OTHER COURTS so the practice no doubt referred to clients whose matters were relevant to the disciplinary proceedings but who were not necessarily involved as witnesses or parties.

Bar Standards Board 7.148 Likewise, the Bar Standards Board’s Disciplinary Tribunals Regulations 2017 (which form part of the BSB Handbook) provides by rE156 that ‘The hearing before a Disciplinary Tribunal must be in public, unless it has been directed that all or part of the hearing is not to be held in public, and that direction has not been over-ruled by the Disciplinary Tribunal’ and by rE243 and rE243A for publication of the findings, sanction and the report of the decision of the tribunal on its website, subject to anonymisation where allegations are not proved. (These replace similar provisions in earlier editions of the regulations.) 7.149 In Bar Standards Board v Howd [2017] EWHC 210 (Admin); [2017] 4 WLR 54, the tribunal when hearing a complaint against a barrister whose conduct at a chambers office party was alleged to have been socially and sexually inappropriate towards female colleagues and staff, the complainants’ names were anonymised at the hearing, as A, B, C, and D. Although the respondent was found guilty by the tribunal, his appeal to the High Court was allowed on grounds including the fact that he had a medical condition which at the time had affected his behaviour, which therefore lacked the reprehensible moral culpability necessary to reduce public trust and confidence in him as a barrister. The medical condition is not revealed in the judgment of Lang J in the High Court: it is said to be described in a confidential annex to the judgment. Subject to that, the decision of the High Court (after what was presumably a public hearing) has been published on BAILII and reported by ICLR in the Weekly Law Reports.

Health Care and Professions Council (HCPC) 7.150 The HCPC holds hearings through the independent HCP Tribunals Service (HCPTS). 7.151 It generally hears matters in public but has a power to take part of its hearings in private or to anonymise individual names. (In Wales, the profession is regulated by Social Care Wales, which operates similar processes. Details are on its website, https://socialcare.wales/). 7.152 The comprehensive Health and Care Professions Tribunal Service Practice Note – Conducting Hearings in Private (22 Mar 17), says that: ‘Most fitness to practise hearings are held in public, but Panels have the discretion to exclude the press or public from all or part of a hearing in appropriate cases.

222

OTHER COURTS Whether all or part of a hearing is held in private is a decision for the Panel concerned and must be consistent with Article 6(1) of the European Convention on Human Rights (ECHR), which provides limited exceptions to the requirement for hearings to be held in public.’ The Practice Note also notes that ‘it will rarely be appropriate for Panels to require a child to be identified or participate in public proceedings.’17 7.153

The tribunal’s rules provide that:

‘At any hearing ... the proceedings shall be held in public unless the [Panel] is satisfied that, in the interests of justice or for the protection of the private life of the registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing;..’18 7.154 The Practice Note correctly refers to the open justice principle, ECHR rights and proportionality, reminding the panel that: ‘In determining whether to hear a case in private, a Panel should also consider whether other, more proportionate, steps could be taken to achieve their aim, for example: $$ anonymising information; $$ redacting exhibited documents; $$ concealing the identity of complainants, witnesses or service users (e.g. by referring to them as ‘Person A’, or ‘Service User B’, etc.).’ A Fitness to Practice Panel has no power to permit the media to attend but to impose reporting restrictions. 7.155 At a HCPC hearing in 2017 the panel permitted (after some deliberation and the imposition of special measures) a journalist to attend and live tweet the evidence. In connection with disciplinary proceedings against a social worker arising from A and B (Children) [2016] EWFC B115 and A and B (Findings against a social worker) (Rev 1) [2016] EWFC 68.19

17 Practice Note: www.hcpts-uk.org/assets/documents/10005356ConductingHearingsinPrivate.pdf. 18 10.1 HCPC (Conduct and Competence) (Procedure) Rules 2003 and HCPC (Health Committee) (Procedure) Rules 2003; Rule 8(1) of the HCPC (Investigating Committee) (Procedure) Rules 2003. 19 See www.theguardian.com/uk-news/2017/oct/31/social-worker-could-be-struck-off-bristoldisciplinary-child-foster-case.

223

OTHER COURTS

PRACTICE POINTS 7.156 ●● Issues relating to anonymisation and reporting restrictions can arise in all courts and are by no means confined to family cases. ●● There is a substantial overlap in the guidance and practice of transparency between the Court of Protection and the Family Courts. ●● There can be cases in both criminal and family courts involving the same families or children. ●● Cases in the civil courts or tribunals which by default sit in open court can raise issues of anonymisation and reporting restrictions where children are involved or affected, or in relation to Convention rights involving privacy and family life, or discrimination.

REFERENCES 7.157 Department for Constitutional Affairs, Draft Court Rules: Mental Capacity Act 2005 Court of Protection Rules (2005). Department for Constitutional Affairs, Draft Court Rules: Mental Capacity Act 2005 Court of Protection Rules: response to a consultation (2007). J Doughty, ‘The Court of Protection pilot – taking off before a flying test?’, The Transparency Project, 4 October 2017. J Doughty and P Magrath, Opening up the courts: The Court of Protection transparency pilot (2016) 21(2) Comms Law 37. D Hart, What’s in a name? The identification of children in trouble with the law (Standing Committee on Youth Justice, 2014). G Loomes, ‘Flying under the Radar: Experiencing the Court of Protection Transparency Pilot as an academic researcher’, The Transparency Project, 22 October 2017. P Magrath, ‘Court of Protection pilot scheme: an experiment in greater transparency’, The Transparency Project, 25 February 2016. L Series, P Fennell and J Doughty, The participation of P in welfare cases in the court of protection. (Cardiff University, 2017).

224

OTHER COURTS Senior President of Tribunals – Annual Report 2017 www.judiciary.gov.uk/ publications/senior-president-of-tribunals-annual-report-2017/. Transparency Pilot: Court of Protection www.judiciary.gov.uk/publications/ transparency-pilot-court-of-protection/. C Yeo, ‘Unwanted anonymity and gagging orders’, Free Movement, 17 December 2014.

225

226

Chapter 8

LOOKING AHEAD

KEY ISSUES 8.01 ●● The Transparency Guidance: further development 8.03–8.23 ●● The Court of Protection transparency pilot 8.24–8.27 ●● HMCTS Reform 8.28–8.61 ●● Media Regulation 8.62–8.66 ●● GDPR and DP Bill: implications for privacy, media regulation, social media and court reporting 8.67–8.72 ●● Children in today’s family courts 8.73–8.75

KEY RESOURCES 8.02 ●● Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam), [2014] 1 WLR 230 (The 2014 Guidance). ●● ‘Transparency – the Next Steps’ [2014] Fam Law 1331. In this final chapter, we consider current or potential developments which may have some impact on transparency, open justice and the reporting of cases in the family courts.

227

LOOKING AHEAD

THE TRANSPARENCY GUIDANCE: FURTHER DEVELOPMENT 8.03 When the President launched his transparency guidance in January 2014, he said he proposed to adopt an ‘incremental approach’ and indicated that he envisaged ‘more formal practice directions and changes to the Rules’ in due course. (See The 2014 Guidance, para 7). He also mentioned that the existing guidance might be extended to other judges, in addition to those identified in para 14 of the guidance. 8.04 At the time of writing, no steps have yet been taken either to extend the guidance to other judges, or to formalise it into a Practice Direction or make it part of the Family Procedure Rules (FPR). However, since the guidance was promulgated, the President has discussed its possible further development on a number of occasions, initially through the ‘Next Steps’ consultation of 2014 (below), and latterly by way of indications that there might be yet a further consultation.

Next steps consultation 8.05 In August 2014, the President issued a consultation entitled ‘Transparency – the Next Steps’ [2014] Fam Law 1331 in which he invited comments and discussion on four topics, the first of which was ‘the impact and the working to date of the Practice Guidance’ and ways in which it could be improved and, perhaps, extended. He said: ‘Like all reforms, this one will take time to settle down. Plainly, increasing the number of judgments being published will have consequences, some of which are foreseeable, others not. I am keen to have as wide a debate as possible about the impact of these changes, and accordingly I invite views on any aspect of this change, especially views based on particular cases or specific experiences. Without in any way seeking to confine the debate, amongst the issues on which I shall especially welcome views are:  (1) 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. (2) The impact on local authorities and other professionals. (3) Any change in the level and quality of news and reporting about the family justice system.’ 8.06

The Next Steps consultation also dealt with the questions of:

●● More informative listing of cases to assist the press in covering the family courts. 228

LOOKING AHEAD ●● Further guidance on disclosure of documents in suitably anonymised form to assist accredited media representatives in following cases. ●● Possible hearing in public of certain types of family case. 8.07 The last appears with the benefit of hindsight to have foreshadowed the transparency pilot scheme in the Court of Protection and is covered in more detail in the next section. (We explain in Chapter 7 that there are quite different structures for amending the rules between the CoP and the Family Court.) Although the consultation was widely reported and responded to, at the time of going to press no next steps have been announced as a result. The President has said that the responses to his consultation were polarised.1

Guidance on anonymisation 8.08 In his address at the annual dinner of the Family Law Bar Association in Middle Temple Hall on 26 February 2016, the President acknowledged two specific pieces of research, both funded by the Nuffield Foundation, into aspects of his transparency guidance, based on which he proposed to issued draft guidance on anonymisation of judgments published on BAILII.2 ‘In relation to Transparency, Dr Julia Brophy of Oxford University, together with NYAS and, very importantly and most revealingly, a group of young people, have produced a valuable research report analysing some of the effects of the Guidance I issued in January 2014. That work is now being supplemented with a further short research project by Dr Brophy. At the same time, Dr Julie Doughty of Cardiff University is undertaking some parallel and equally important research. I hope to be able, within the next few months, to issue for consultation draft Guidance on how better to anonymise judgments so as to minimise the risk of ‘jig-saw’ identification.’ 8.09 He mentioned them both again in July 2016, in his judgment in Re X (A Child) (No 2) [2016] EWHC 1668 (Fam); [2016] 4 WLR 116 at para 31 (quoted in Chapter 4, 4.93). 8.10 As noted in Chapter 1, the Brophy research eventually led to a report, published in August 2016 by the Association of Lawyers for Children, and available on the ALC website.3

1 2

3

See L Reed, ‘Transparency Consultation – Responses Gathered’ (The Transparency Project, 1 January 2015), which gathers a number of those responses in one place. Address of the President Sir James Munby at the annual dinner of the Family Law Bar Association in Middle Temple Hall on 26 February 2016, www.judiciary.gov.uk/wp-content/uploads/2016/02/ pfd-speech-family-law-bar-assoc-2016.pdf. J Brophy, ‘Transparency in the Family Courts: Publication of Judgments: Practice Guidance’ (Association of Lawyers for Children, July 2016).

229

LOOKING AHEAD 8.11 In a subsequent article explaining the draft guidance, ‘Judicial guidance, the internet and meeting the challenges of anonymisation of children judgments’ [2016] Fam Law 1261 at 1266, Dr Brophy explained that: ‘The Guidance is under consideration by the President of the Family Division with a view to deciding the form of any Guidance he issued; it is understood he will consult on his proposals before finally issuing any formal Guidance to judges.’ 8.12 Nevertheless, the publication seems to have led to some confusion, and on 18 October 2016 the President himself issued a brief statement on the Judiciary website: ‘This is a valuable piece of academic research and analysis, funded by the Nuffield Foundation, whose publication and wide dissemination I fully supported. However, it is important to appreciate that it is only that. It has no official status. It has not been approved or issued as Guidance by me or the judges. It is therefore not judicial guidance in the sense in which many would understand that phrase.’4 8.13 He added ‘I am currently considering Dr Brophy’s work with a view to deciding the form any Guidance which I may issue should take. My intention is to consult on my proposals before I issue any formal Guidance.’5 However, although both pieces of research have now been received, no such consultation has been issued. 8.14 The Cardiff research report (Doughty, Twaite and Magrath 2017), identified a number of problems regarding effective anonymisation, and patchy implementation of the 2014 Guidance, which we discussed in Chapter 4 (4.110).6

Recommendations made in the report on the evaluation of the Guidance 8.15 A number of short term and longer-term recommendations were made in the Cardiff report. One short term recommendation was that the Case Management Order template in care proceedings be amended to record when a decision was made about sending a judgment to BAILII, as this is required by para 17 of the Guidance if a care order is made. This would make the exercise of the Articles 8 and 10 balancing exercise more explicit. In the longer term, having surveyed the possible options, the report recommended that instead of the current position of publication by chance, a system of a manageable number of representative judgments across England and Wales be considered. 4 Transparency in the Family Courts: Guidance by the President of the Family Division (announcement on Judiciary website), www.judiciary.gov.uk/announcements/transparency-in-thefamily-courts-guidance-by-the-president-of-the-family-division/. 5 For other judicial comment on this guidance see Ch 1 (1.68). 6 J Doughty, A Twaite and P Magrath, ‘Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people’ (Cardiff University, March 2017).

230

LOOKING AHEAD 8.16 Meanwhile, at its meeting in April 2017 the Family Justice Council noted the publication of the Cardiff research report, adding: ‘The report suggested that adherence to the 2014 guidance was inconsistent and made a number of recommendations. The chair [Sir James Munby] indicated that would be a consultation on a draft Practice Direction to which the Council may wish to respond.’ 8.17 From this we infer that the next step is intended to be a consultation on the further development of the 2014 guidance to take account of issues including the anonymisation process and consistency of publication highlighted in the research. At the time of writing recruitment is underway for Sir James Munby’s successor as President of the Family Division (the Judicial Appointments Commission indicates responses are expected in late April 2018), and it remains to be seen what impact any change of leadership may have on the transparency agenda.

Amendment of the Family Procedure Rules 2010 8.18 The Family Procedure Rule Committee is considering proposals by The Transparency Project to amend FPR, rr 27.11(2) and 27.11(8)–(10) in order to permit responsible legal bloggers to attend private hearings in the same way as accredited news media reporters. Developments are awaited (see minutes of the Committee, December 2017 at www.gov.uk/government/uploads/system/ uploads/attachment_data/file/683871/fprc-minutes-4-dec-2017.pdf). 8.19 Another possibility open to the Rule Committee would be to amend the rules or the accompanying practice directions to formalise, extend or revise the existing transparency guidance in the light of the developments described above (as suggested as one of the possible options by the Cardiff research team). From the published minutes of that committee there is no sign of that being in progress. 8.20 However, the political difficulties associated with government attempts to reform the law in this area – as epitomised by the disastrous Children Schools and Families Act 2010 (See Chapter 1) – form a difficult backdrop for any attempts to make radical reforms by way of secondary legislation. Indeed, it may be this backdrop which led the President to move forward on reforms in the Court of Protection in the first instance rather than in the Family Court (see below). As noted in 7.29 of Chapter 7, there is a limited public evidence base as to the success or otherwise of the Court of Protection Pilot, which may be a barrier to its easy transposition over to the Family Court.

Financial remedy transparency 8.21 In his Eighteenth View from the President’s Chambers [2018] Fam Law 156, Sir James Munby set out his vision for improvements to the procedure and substantive decision-making in financial remedies cases, mainly by the establishment 231

LOOKING AHEAD of a national system of Financial Remedies Courts and the appointment of a cadre of specialist judges to sit in them. However, he also said: ‘The delivery of substantive justice will be improved by an improved programme of judicial training; by the reporting of judgments in small and medium cases by the judges of the FRC to promote transparency and consistency; and by ensuring that sufficient time is allowed for the preparation and conduct of final hearings. An increase in transparency will result in increased predictability of outcome, which in turn should lead to a higher rate of settlement or, for those cases that do not settle, a reduced rate of appeals.’ 8.22 The reference to ‘reporting of judgments’ and ‘increase in transparency’ suggest the purpose may be to include in the existing Transparency Guidance cases (or more cases) concerning financial remedies, perhaps with a view to making available information (through publication on BAILII) about ‘normal’ everyday financial remedy cases and not merely the celebrity and ‘big money’ cases on which the mainstream media tends to focus. However, at the time of writing no revised guidance has been issued, nor has this proposed reform been set out in any consultation (see para 8.17 above). Under the existing guidance few ‘ordinary’ financial remedy cases are published because they tend to be heard at District Judge level, to which the mandatory provisions of the 2014 Guidance (paragraphs 16 and 17) do not apply. 8.23 On the other hand, the reference to ‘increased predictability of outcome’ suggests a different kind of reporting, more akin to statistical recording and analysis, perhaps using some of the techniques of ‘big data’ analysis. Since this might involve the use of standardised criteria and anonymised data, any ‘transparency and consistency’ would result from the production of comparative research, rather than the disclosure of personal details from particular cases. At the time of writing, no further detail has been supplied, but it is an indication, at least, of the direction in which the President sees any further development of transparency as going.

EXTENSION OF THE CoP TRANSPARENCY PILOT SCHEME TO THE FAMILY COURTS 8.24 When the President gave his speech to the Society of Editors in November 2013, ‘Opening Up the Family Courts – Transparency in the Family Court and the Court of Protection’ (see Chapter 1) he said: ‘One striking difference in the rules relates to the media’s ability to attend hearings. In the family courts the starting point, since the reforms introduced in April 2009, is that accredited journalists have a right to attend most family court hearings (including hearings of cases dealing with what in the Court of Protection would be called personal welfare) unless proper grounds for excluding them can be established on narrowly defined grounds. In the 232

LOOKING AHEAD Court of Protection, in contrast, the effect of the rules is that the media always require the permission of the court to be present. Why? I have to say that I am inclined to think that the arguments in favour of aligning practice on this point in the Court of Protection with the practice of the family courts are compelling.’ 8.25 Two years later, he announced the Court of Protection Transparency Pilot Scheme under which hearings in the Court of Protection which would otherwise have been conducted in private were open to the public, not just to accredited media representatives as in the family courts. (See Chapter 7, paras 7.29–7.32). That has taken transparency a step further in the Court of Protection; moreover, the pilot has now been crystallised or enshrined into the new edition of the Court of Protection Rules issued in December 2017. So, the CoP has gone further than merely aligning itself with the family courts, because that would only have involved permitting accredited media representatives to attend, not members of the public as well. 8.26 True ‘alignment’ of the two jurisdictions, in accordance with the President’s original intentions, would therefore require a further opening up of the family courts to enable hearings of nearly all cases in public, subject to the same fairly stringent conditions as the CoP pilot scheme. That may be what was envisaged in the Next Steps consultation of October 2014 (see above). At that time, he said: ‘My purpose now is to canvass preliminary views in order the better to be in a position to decide whether and if so how it might be appropriate to proceed. I am likely to propose that if the matter proceeds at all, it will initially be by way of a pilot.’ 8.27 However, while a pilot scheme was implemented in the Court of Protection in 2016, no further steps have been taken in relation to the family courts.7 None the less, a pilot scheme of some sort being implemented in the Family Court remains a possibility and should not be ruled out.

HMCTS REFORM 8.28 In July 2016, the final report of the Civil Courts Structure Review chaired by Lord Justice Briggs (the Briggs Review) recommended a number of reforms of the civil justice system, including an Online Court and other digital developments.8 Following on from that, in September 2016 the Ministry of Justice launched a

7

8

Suggestions in the press in December 2006 that the family courts were about to open hearings up to the public appear to have been without foundation, see S Laville: ‘Certain family court hearings to take place in public in radical trial’, Guardian, 23 December 2016: www.theguardian.com/ law/2016/dec/23/family-court-public-james-munby-trial. Briggs LJ, Final Report of the Civil Courts Structure Review (‘Briggs Review’), July 2016 (judiciary. gov.uk).

233

LOOKING AHEAD consultation, ‘Transforming our justice system’, in which it announced that the government had now set aside around £1 billion to invest in the modernisation of the civil courts and tribunals and the criminal justice system. What has become known as the HMCTS Reform programme involves a number of strands developing over a six-year period, with the whole process being completed by 2022.9 8.29 The following is an outline of the key strands, with a focus on those aspects which have potential to impinge directly or indirectly on transparency in family justice.

Court buildings 8.30 There is an ongoing programme of reducing and consolidation of the court estate through the selling off of many court buildings. The overall aim, according to HMCTS, is to have ‘fewer, better court buildings for those cases that need to be heard in person’. 8.31 The justification for reducing the overall number of court buildings is two-fold. First, there is the fact that an increasing number of cases will be decided using non-physical court hearings, either by way of virtual hearings, or entirely online. Secondly, for those hearings that remain to be determined in a physical environment, the use of modernised, adaptable court rooms can be maximised by flexible operating hours. These developments are discussed in more detail below. 8.32 However, the closure of some courts will mean people having to travel further to reach their nearest court. This of course has implications for access to justice for litigants, but may also impact on openness and transparency, given the difficult economics of justifying sending a media reporter to a more distant court.

Digital filing and case management 8.33 Until recently, court proceedings were almost exclusively paper based. Although digital case management has already been happening in the criminal justice system, the Business and Property Courts and, to a more limited extent in certain locations within the Family Court, the reform programme is pushing this forward. Some courts are developing electronic bundling and filing systems, often in conjunction with local authorities, but at present there is limited coordination or consistency. 8.34 Petitions for divorce and applications for probate can now be completed online (although rather quaintly they still have to be printed out and posted.

9

Ministry of Justice: Transforming our justice system: summary of reforms and consultation, September 2016 https://consult.justice.gov.uk/digital-communications/transforming-our-courtsand-tribunals/supporting_documents/consultationpaper.pdf.

234

LOOKING AHEAD 8.35 It is said that the next phase of this aspect of the reform project will include an end-to-end document management and digital evidence storage and presentation system that can be used both for public law family cases (including care and adoption cases) involving local authorities, practitioners, agencies and represented parties. It is also being suggested for private law family cases and other types of civil claim, although this may assume a level of digital literacy amongst litigants in person. 8.36 The use of electronic bundles in courtroom scenarios does reduce the practical difficulties with distributing copies of documents to those attending, including the media (providing they have a wifi enabled device upon which to receive it) but does not have the advantage of court staff being able easily to recover copies at the end of the hearing. However, in practice, judges are only likely to permit the inspection of documents in this way to accredited media representatives upon the giving of an appropriate undertaking of some sort regarding their further use.

Virtual hearings 8.37 Judges already conduct some pre-trial and case management hearings by telephone or video-link, but the intention is that this will be extended to cover a much wider range of business, including even substantive contested hearings. In respect of family matters, whilst the President of the Family Division is an enthusiastic supporter of virtual hearings, he has also confirmed that such hearings will not be suitable in every case. In the criminal field there is concern that the quality of justice is hampered by the lack of physical presence of a key party. The charity Transform Justice, among others, has been particularly vigilant in relation to the risks of poor quality video-link hearings and the risk of prejudice to defendants in criminal trials. Such risks may carry over to litigants in family cases, albeit that they may play out in different ways. 8.38 Technology would enable a virtual hearing to be recorded or streamed for the purpose of transparency where appropriate, ie cases heard in open court where the public would historically have been able to attend and observe. This is something about which both the government and those managing the Reform programme have been a little vague, but it is a matter of critical importance in the context of the subject matter of this book. 8.39 The suggestion has been made that virtual hearings could be viewed by members of the public or media representatives at ‘viewing terminals’ located in physical court buildings or other public spaces. These would be supervised by court staff, who would be responsible for ensuring that viewers did not abuse the system, eg by making illicit recordings or broadcasting on social media. New offences would presumably have to be introduced to prohibit the recording of these proceedings or recording someone participating from outside the courtroom. 8.40 Whilst we don’t suggest this would be appropriate in many family cases, these are issues that the wider ‘open court’ justice system really ought to be 235

LOOKING AHEAD grappling with, and we would hope that would enable such a system to be used in the rare family case where the public interest demanded it and where the privacy issues could be managed. 8.41 However, all this would require legislation – which was catered for in the draft Prisons and Courts Bill 2016/17. However, that Bill was lost in the ‘wash-up’ when Parliament was prorogued for the ‘snap’ election held in May 2017 and has not (at the time of writing) been replaced by any published new draft legislation, though a Courts Bill ‘to modernise the courts system’ (inter alia) was promised in the Queen’s Speech in June 2017.10

Online Dispute Resolution: the Online Court 8.42 This is probably the most high profile element of the Reform programme, and has received extensive coverage and comment. Nevertheless, there remains some uncertainty about what it entails and how far it is intended to go in replacing traditional physical court hearings. 8.43 According to Joshua Rozenberg (The Online Court: will IT work? (Kindle editions, 2016)) ‘By the year 2022, most civil disputes in England and Wales will be resolved through an online court.’ This makes sense if one thinks of civil cases as covering small damages claims in contract or tort, uncontested divorces, and FDR determinations of the sort that would have been decided mainly on the papers, but it seems harder to accept in relation to complex commercial litigation or public law cases involving points of law – except in so far as it relates to online filing and case management (as discussed above). Moreover, although some low level criminal matters have been piloted online, its application to criminal justice, particularly where there is any dispute over facts and evidence, remains highly controversial. 8.44 In fact, HMCTS has made clear that criminal trials, with witnesses and physical evidence examined before a jury, will still need to be held in traditional court rooms (albeit with some witness evidence being delivered via video-link). What has been piloted so far involves more straightforward procedures such as accepting a guilty plea online for low-level offences such as fare evasion and traffic offences. It is now possible to make a plea online for such offences, and the case can be dealt with under the Single Justice Procedure introduced by way of an amendment to the Magistrates’ Courts Act 1980 by Pt 3 of the Criminal Justice and Courts Act 2015. An announcement by the Ministry of Justice in November 2017 stated that a new ‘paperless’ process was in operation at Lavender Hill Magistrates Court, using a system developed by HMCTS in partnership with Transport for London (TfL).

10 The Queen’s Speech 2017: www.gov.uk/government/uploads/system/uploads/attachment_data/file/620838/Queens_ speech_2017_background_notes.pdf.

236

LOOKING AHEAD 8.45 Concerns have been raised, though, that being able to plead guilty ‘at the touch of a button’ using a smartphone may not convey to defendants the full significance of their action, and the likely consequences for their reputation.11 8.46 In terms of civil justice, what is envisaged is, in the words of the Briggs Report (p 36), ‘a new, more investigative, court designed for navigation without lawyers’. Instead, the system would provide an online ‘decision tree’ questionnaire to enable the user to classify and formulate the legal and factual issues in dispute. This could be done on a desktop or laptop, tablet or smartphone, using downloaded software or a dedicated app. The online procedure could also provide basic legal guidance, and indicate sources of free or affordable advice. 8.47 That would constitute the first level of engagement, in order to identify the issues and classify the claim. At the second level, a legally qualified (but not judicial) case worker would assist the resolution process, essentially by way of a process of online mediation. If that did not work, the matter would escalate to a third level, in which a judge would become involved in deciding how to resolve the dispute. 8.48 How would this apply to family justice? At present ambition in this area appears to be limited to areas that are usually straightforward and can easily be dealt with administratively ie uncontested divorce, but online mediation is an innovation that is gathering pace and could conceivably be developed and used in family matters in the future. But more complex matters to do with the child arrangements and care, or points of law arising out of property and cross-border issues, would most often still need to be tried in a physical court environment, even if case management type hearings could be conducted remotely. Such hearings would still benefit from the efficiency of online filing and digital case management. Whilst, as we have noted, there may be barriers to access for the media arising from hearings conducted in this way, the truth of the matter is that the media are present at only a tiny minority of hearings.

Listing and results 8.49 ‘Listing’ refers to two both the scheduling of case hearings, and the provision of advance information about forthcoming hearings, in the form of cause lists, court notices and online lists. Both processes are under review as part of HMCTS Reform. 8.50 In relation to the first aspect, HMCTS has made clear that ‘Listing and the deployment of judges are, and will remain, judicial functions’. According to a recent handout at an HMCTS Reform Roadshow held at the Royal Courts of Justice in London, the project is not looking at changing policies, so much as making the

11 See, eg, Penelope Gibbs, ‘Click here to plead guilty – the latest on online courts’ (Transform Justice blog, 11 November 2017) www.transformjustice.org.uk/click-here-to-plead-guilty-the-latest-on-online-courts/.

237

LOOKING AHEAD system more responsive and allowing ‘better, data-supported decisions on how heavily to list to avoid wasting the time either of judges, or of those coming to court.’ 8.51 The improvement of listing systems represents an opportunity to make family justice more transparent by means of more informative court listing information, to enable media organisations and journalists to make decisions about whether to attend court or not. As noted by Sir James Munby in the Next Steps consultation and elsewhere, opaque court lists do nothing to facilitate the press in performing their watchdog role. 8.52 In its response to the original Transforming our justice system consultation (February 2017) the MoJ said: ‘In relation to transparency, we are currently developing a solution which will ensure that the principle of open justice is maintained as we move to digital channels. We will ensure that all interested parties, including victims, witnesses, the public and the press, will have access to case listings and outcomes where appropriate.’12 8.53 HMCTS is currently consulting stakeholders about this, but it is not clear whether the net of consultation is going wide enough, for example to include public interest groups and academic researchers, as well as the media and lawyers’ representatives. Some of those consulted have, however, raised concerns about privacy, particularly in relation to children and vulnerable adults; while on the other hand the press routinely complain that published listings are too sparse of information, failing to say much, if anything, about the cases listed to help reporters decide which courts to spend time to covering. 8.54 Whilst it might be thought desirable to rationalise the practice across all jurisdictions and make it consistent, there are issues around anonymisation and privacy which may need to be dealt with by the individual courts responsible. HMCTS also recognises the need to prevent wholesale download or collection of listings information, which could be misused. (There is a risk, for example, of ‘blacklists’ being compiled naming people who may at one time have appeared in court.) 8.55 There is greater justification for wider or more permanent publication of the results of cases, where findings of guilt or liability, determinations of rights or awards of damages have been made. Again, the current practice varies among different courts and jurisdictions, and might be thought ripe for harmonisation.

12 Ministry of Justice, Transforming our justice system: assisted digital strategy, automatic online conviction and statutory standard penalty, and panel composition in tribunals Government response, February 2017: www.gov.uk/government/uploads/system/uploads/attachment_data/file/590391/transformingour-justice-system-government-response.pdf.

238

LOOKING AHEAD 8.56 Of course, ‘results’ can include a variety of material, not just the bare decision made. They include things like sentencing remarks and judgments. We have got used to judgments being made available on BAILII and elsewhere, but there are questions about how the online court or virtual hearings will publish their decisions. Routine, blanket publication online seems an obvious solution, again subject to the same protections, on a court by court and case by case basis, as for listings.

Flexible hours pilot 8.57 HMCTS is also consulting on a proposed flexible hours pilot. It remains to be seen what comes of this, but (as with court closures) flexible hours may potentially present a barrier to media attendance at court in an already difficult economic environment for the mainstream media.

Looking ahead: Reform and Transparency 8.58 A very obvious conclusion from the above survey is that the HMCTS Reform programme provides a unique opportunity to rethink the whole process of transparency. If cases are being filed and managed online, if they are being listed and the hearings conducted online, then there is no reason why transparency should stop at the publication of judgments. The entire case docket or end-to-end documentation could be, subject to appropriate access restrictions and content redactions, visible online. A joined-up process would make it very easy for both the media and the public to see how justice was being done. 8.59 There are obvious dangers in this. Data protection and privacy can already be compromised by joining up the dots in disparate content found online, to build up a more complete and therefore potentially intrusive or fraud-friendly picture. What needs to be visible and transparent is not the people caught up in the justice system, but the system itself. So whatever steps are taken to make the justice system accountable and to enable the public to see what is being done in their name and learn how and why it is being done, they should not threaten or compromise the respect for the privacy of individuals. 8.60 This is a major issue and one which needs to be resolved before the massive Reform programme is too far advanced to prevent the implementation of appropriate mechanisms of transparency and accountability. The issue goes further than viewing booths and online court lists. It involves a fundamental examination of the relationship between the courts, their users, and the public. 8.61 There has been a lot of user feedback to help the agile development process, and consultation of ‘stakeholders’, including the media, legal representative bodies, and some public interest organisations; but there has not, since the original Ministry of Justice system, been any broad systematic public consultation of the sort that these issues demand, and it is unclear how much parliamentary scrutiny has been applied either. It is something on which we need to remain extremely vigilant. 239

LOOKING AHEAD

MEDIA REGULATION 8.62 In November 2016 a consultation was launched by the Secretary of State for Culture Media and Sport, Karen Bradley MP, to consider: (a) whether the Crime and Courts Act 2013, s 40 should be implemented, which would have the effect of protecting any publishers signed up to an approved regulator from a requirement to fund the costs of defamation claimants even if they successfully defend the claim; (b) whether to proceed with Pt 2 of the Leveson Inquiry, which ‘was intended to examine wrongdoing in the press and the police, including the failure of the first police investigations, corporate governance issues and implications for police and press relations’.13 8.63 The consultation closed on 10 January 2017, having received over 170,000 responses. In addition, two public petitions added a further 200,000 signatures in favour of continuing with Pt 2 of the Leveson Inquiry. It was one of the largest responses to any government consultation. 8.64 In October 2017, the Press Recognition Panel (PRP) successfully defended its decision to approve the regulator IMPRESS, in judicial proceedings brought against it by the News Media Association: see R (News Media Association) v Press Recognition Panel  [2017] EWHC 2527 (Admin). With IMPRESS being recognised by the PRP, that meant that one of the conditions necessary for s 40 to be implemented had been met: by subs (6) of s 40, ‘This section does not apply until such time as a body is first recognised as an approved regulator’. 8.65 The other condition would be for the section to be brought into effect by a commencement order, but that depended on the secretary of state’s response to the consultation. If s 40 were to be implemented, that would likely result in the expansion of IMPRESS as a regulator, which could alter the balance of influence between it and IPSO, and might encourage IPSO to take a firmer line with some of its more unruly members, with the potential to improve the quality and accuracy of reporting of family courts and other areas. 8.66 However, on 1 March 2018, the government announced that it had decided not to proceed with Pt 2 of the Leveson Inquiry, and to find a legislative vehicle to repeal the Crime and Courts Act 2013, s 40. In so deciding, the government rejected the recommendation of Sir Brian Leveson himself that Pt 2 of the Inquiry should proceed, in accordance with the ‘legitimate expectation’ of the phone-hacking victims and others. The reasons given by Matt Hancock MP, the successor to Karen Bradley as Secretary of State for Digital, Culture, Media and Sport, were that ‘press self-regulation has changed significantly in recent years with the establishment of IPSO’, that s 40 could have a ‘chilling effect on

13 www.gov.uk/government/uploads/system/uploads/attachment_data/file/564508/Consultation_ on_the_Leveson_Inquiry_and_its_implementation.pdf.

240

LOOKING AHEAD investigative journalism’ and that ‘the media landscape has also changed’ with the threat to traditional news journalism now coming from ‘the rise of clickbait and fake news’ and ‘unregulated social media’.14 In view of this decision, and subject to the government’s ability to pass legislation repealing s 40 of the 2013 Act, it seems that the original impetus for better newspaper regulation that resulted in the setting up of the Leveson Inquiry is now a spent force, and we should not expect significant further developments in this area.15

GDPR AND DP BILL: IMPLICATIONS FOR PRIVACY, MEDIA REGULATION, SOCIAL MEDIA AND COURT REPORTING 8.67 The purpose of the Data Protection Bill published on 14 September 2017 is to overhaul the UK’s data protection regime, replacing the Data Protection Act 1998, as well as supplementing the GDPR (whose provisions will be retained in UK law by virtue of the European Union (Withdrawal) Bill from March 2019). 8.68 The DP Bill as it is known has been debated in the House of Lords, where a number of the proposed amendments related to exemptions for the special purposes of journalistic, artistic, academic or literary expression. There are various provisions in relation to the processing of data in relation to legal proceedings. 8.69

By clause 115 of the Bill:

‘115 Competence in relation to courts etc Nothing in this Act permits or requires the Commissioner to exercise functions in relation to the processing of personal data by—(a) an individual acting in a judicial capacity, or (b) a court or tribunal acting in its judicial capacity … (and see also Article 55(3) of the GDPR).’ 8.70 There are also exemptions, provided under para 5 of Schedule 2 to the Bill, for ‘Information required to be disclosed by law etc or in connection with legal proceedings’ and, under para 12, for ‘Judicial appointments, judicial independence and judicial proceedings’. 8.71 The General Data Protection Regulation (GDPR) overhauls and updates European law on data protection and introduces, among other things, a ‘right of erasure’ which is similar to but not the same as the ‘right to be forgotten’ derived

14 Government response to the Consultation on the Leveson Inquiry and its Implementation (1 March 2018) www.gov.uk/government/uploads/system/uploads/attachment_data/file/684678/ GOVERNMENT_RESPONSE_TO_THE_CONSULTATION_ON_THE_LEVESON_INQUIRY_AND_ITS_ IMPLEMENTATION_.pdf. 15 See also: P Magrath, Press regulation: the end of the road for Leveson reforms (Transparency Project, 4 March 2018) www.transparencyproject.org.uk/press-regulation-the-end-of-the-road-for-leveson-reforms/.

241

LOOKING AHEAD from earlier European legislation, and a ‘right to rectification’ of personal data which is inaccurate or incomplete. However, one of the key exemptions to the GDPR relates to ‘the protection of judicial independence and proceedings’. 8.72 A detailed discussion of the implications of the Bill and the Regulation is outside the scope of this book, but it seems unlikely at present that it will materially affect the publication, retention and retrieval of judgments containing personal data, provided it is otherwise in compliance with data subjects’ convention rights. However, they may affect the content of media and social media reports of such judgments and related internet search results where additional material in the report falls outside the judicial exemption and may be subject to the exercise of rights of rectification or erasure. More information can be obtained from the Information Commissioner’s Office website.

THE CHILDREN IN TODAY’S FAMILY COURTS 8.73 An irony of the current patchwork of rules in this field is that a child who, as a young adult, wishes to find out about the life-changing decisions made on her behalf, may only be able to access that information via BAILII, unless they were a party to proceedings. A transcript is as likely to lie on the (Cafcass, Court or local authority) file of a child who was a party to proceedings as a result of its preparation for the purposes of publication as it is to have been prepared for the particular benefit of the adult to be (if indeed that file has not been lost or destroyed).16 8.74 Family courts have traditionally been private because of their protective function, a perception that parties were not rights-bearing litigants so much as unwilling victims of the system, and the smooth administration of justice being assisted by full and candid evidence. In the twenty-first century, most children’s family and social relationships are far more exposed through social media and interaction with the internet than could have been envisaged when the central legislation, still in force, was passed. A child born in 2018 may have their whole life on digital record – if we as a society fail to protect them from abuse by their family or by the state, those experiences will not have all become completely internalised when they reach adulthood and ask: Why? Much of what happened to them will have been played out in a public or semi-public arena, but outside their control. A family justice system that truly makes a child’s welfare paramount is a system that will strive to explain, not conceal, why adults made the decisions they did about the child’s care. 8.75 We suggest that greater transparency of family justice is critical, not just to public confidence in the Family Justice System, but also because through robust 16 See Ch 2 (2.35), where we describe the limitations for non-subject children upon accessing their files later in life.

242

LOOKING AHEAD but healthy challenge of the way we do things, it represents an opportunity to see things from a fresh perspective and to innovate for the benefit of the families and children we serve. Whilst scrutiny and challenge can be uncomfortable or irritating for professionals who consider themselves to be experts in their field, there is always more to learn. Debate about why we do things the way we do can only be positive: either by validating existing practice and methodology as appropriate, or by enabling us to see that doing things the way we’ve always done them because they seem to be good enough, is not necessarily the best way to work towards family justice.

REFERENCES 8.76 Briggs LJ, Final Report of the Civil Courts Structure Review (‘Briggs Review’), July 2016 (judiciary.gov.uk). J Brophy, ‘Transparency in the Family Courts: Publication of Judgments: Practice Guidance’, (Association of Lawyers for Children, July 2016). J Doughty, A Twaite and P Magrath, ‘Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people’ (Cardiff University, March 2017). Ministry of Justice: Transforming our justice system: assisted digital strategy, automatic online conviction and statutory standard penalty, and panel composition in tribunals Government response, February 2017. Ministry of Justice: Transforming our justice system: summary of reforms and consultation, September 2016 https://consult.justice.gov.uk/digitalcommunications/transforming-our-courts-and-tribunals/supporting_documents/ consultationpaper.pdf. Munby (Sir J), ‘Opening Up the Family Courts – Transparency in the Family Court and the Court of Protection’ (speech to the Society of Editors in November 2013, www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/pfdspeech-society-editors-11112013.pdf). Munby (Sir J), President’s Address at the annual dinner of the Family Law Bar Association in Middle Temple Hall on 26 February 2016, www.judiciary.gov.uk/ wp-content/uploads/2016/02/pfd-speech-family-law-bar-assoc-2016.pdf. L Reed, ‘Transparency Consultation – Responses Gathered’ (The Transparency Project, 1 January 2015). J Rozenberg, The Online Court: will IT work? (Kindle editions, 2016). 243

244

Appendix 1

CASE STUDIES

Here we have gathered together cases which we have found ourselves repeatedly referring to for illustrative purposes elsewhere, or which will otherwise provide food for thought. For each case, we provide citations to relevant judgments, an explanation of the factual background of the case and the context in which the judgments arose, and links to contemporaneous or other useful reports by the mainstream media or legal blogging community (many of which provide links to further contemporaneous news coverage or legal discussion). We have included some Court of Protection (CoP) cases, where there are many parallels. References to The Transparency Project website can be located at www.transparencyproject. org.uk. 1. Doncaster MBC v Vicky Haigh & Elizabeth Watson 2. ‘The missing mum’ – Roger Williams v Rebecca Minnock v Ethan Williams (& ors). 3. Re Webster (A Child). 4. Re H (A Child). 5. ‘The Whistleblower kids’ – P and Q (Children: Care Proceedings: Fact Finding). 6. Samantha Baldwin. 7. Siblings of Poppi Worthington – Cumbria County Council v M. 8. Effie Stillwell – Buckinghamshire County Council v Andrew. 9. Sibling of Ellie Butler – LB Sutton v Gray v Butler. 10. London Borough of Hillingdon v Neary.  11. ‘The Italian C-Section Case’ – Re P (Paccieri). 12. Westminster City Council v Sykes. 13. Redbridge London Borough Council v G. 14. ‘The woman who sparkled’ – King’s College Hospital NHS Foundation Trust v C. 15. The Tower Hamlets ‘Muslim Foster Carer Case’. 16. Re Briggs (Incapacitated Person). 17. The jailed grandmother – Devon County Council v Kirk. 245

APPENDIX 1 18. Charlie Gard. 19. London Borough of Haringey v Musa.

1. Doncaster MBC v Vicky Haigh & Elizabeth Watson Judgments: ●● Doncaster Metropolitan Borough Council v Haigh: $$ [2010] EWCC 62 (Fam) (22 November 2010) (original findings); $$ [2011] EWHC B16 (Fam) (22 August 2011) (dealing with mother’s publications). ●● R v H (V) [2012] EWCA Crim 1738. ●● Doncaster MBC v Watson (Doncaster Metropolitan Borough Council v Watson: $$ [2011] EWHC B15 (Fam) (22 August 2011) (committal of Ms Watson); $$ [2011] EWHC 2376 (Fam) (01 September 2011) (purging of contempt); $$ [2011] EWHC 2498 (Fam) (6 October 2011) (correction of an error of law).

About the case A mother (Vicky Haigh) made allegations within private law proceedings that X’s father had sexually abused her. Judges had repeatedly held that the allegations were without foundation. Ms Haigh and her supporters would not accept those findings, and determinedly published information via wide email distribution and online identifying both mother and child. In 2011 the mother spoke at a public meeting about her case and subsequently MP John Hemming raised the case in Parliament under cover of parliamentary privilege, alleging that the case was the subject of a super injunction. Whilst the speaker of the House considered the matter sub judice, Mr Hemming was not stopped before naming the mother. Ms Watson, the mother’s Mckenzie friend, published information in breach of a reporting restriction order (RRO) by communicating through e-mails with a large number of third parties, and by giving material to an internet provider based abroad, resulting in publication of untrue allegations and which put the identity of the child (and father) into the public domain. Ms Watson was sentenced to nine months imprisonment (later purged on the basis that Ms Watson had used best endeavours to remove all material from circulation, but she had failed to persuade a third party, Sabine McNeill, who was resident abroad, to remove the material). However, it appears that the mother was not sentenced for her own part in the campaign. She had served sentences 246

APPENDIX 1 for breaches of other orders prohibiting contact with the child. (See also the ‘Whistleblower Kids’ Case Study 5 below where similar names crop up). In response to the widespread distribution and publication of the untrue, the court acceded to the application made by the Local Authority and child to publish information that would ordinarily have been kept confidential. In April 2011 Vicky Haigh was reported to have fled to Ireland to deliver her baby in order to avoid care proceedings being instituted (see ‘Judge Wall, the secrecy rules, and another stinging attack; The most senior judge in the Family Division, Lord Justice Wall, takes an unprecedented step’, C Booker, The Telegraph, 27 August 2011). However, she was subsequently sentenced to three years imprisonment for aggravated breaches of the non-molestation order made to protect X. That sentence was reduced on appeal to two years and three months in July 2012. The judgment setting out the full gravity and extent of the breaches is not on BAILII. Press reports significantly minimise them.

Further reading ●● C Gardner, ‘John Hemming, sub judice and the public interest: “no abuse of parliamentary procedure”?’, Head of Legal blog, 27 April 2011, www. headoflegal.com/2011/04/27/john-hemming-sub-judice-and-the-publicinterest-no-abuse-of-parliamentary-procedure/. ●● C Gardner, ‘John Hemming MP, Vicky Haigh, and her supporters’, Head of Legal blog, 25 August 2011, www.headoflegal.com/2011/08/25/johnhemming-mp-vicky-haigh-and-her-supporters/. ●● C Gardner, ‘John Hemming’s extraordinary defence’, Head of Legal blog, 1 September 2011, www.headoflegal.com/2011/09/01/john-hemmingsextraordinary-defence/. ●● C Gardner, ‘A cautionary lesson: the Vicky Haigh and Liz Watson judgments’, Head of Legal blog, 6 September 2011, www.headoflegal.com/2011/09/06/acautionary-lesson-the-vicky-haigh-and-liz-watson-judgments/.

2. ‘The missing mum’: Roger Williams v Rebecca Minnock & Ethan Williams (& others) Judgments All eight judgments in the case, delivered on various dates between May and June 2015 can be found on the judiciary website at: www.judiciary.gov.uk/judgments/roger-williams-v-rebecca-minnock-and-ethanfreeman-williams-2-judgments/. There is no neutral citation but the case number is VS13P00027. 247

APPENDIX 1

About the case In May 2015 Rebecca Minnock disappeared with her 3-year-old son and went into hiding. The family court had just concluded in private law proceedings that he should go and live with his father following ‘heavily contested litigation’ spanning some two years. The mother did not attend the hearing. The District Judge found that the mother had made false allegations against the father and had obstructed his contact with Ethan. The judge dealing with the case following the abduction, HHJ Wildblood QC, said that ‘There have been concerted campaigns in the area where Ethan was living; firstly by the father in an attempt to retrieve Ethan. Secondly, by the mother’s family to spread their opinion that the mother has been treated unjustly, that she should retain the primary care of Ethan and that the allegations against the father are sound.’ This included a Facebook campaign started by the mother’s brother, who purported to know where she was (although he appears to have later denied this), and a petition and Facebook group started by the mother’s sister. The background facts can be read in the judgment of HHJ Wildblood QC dated 8 June 2015. That judgment makes clear that there had been a RRO in place even before the disappearance of the mother, which had been varied in order to facilitate a search for Ethan via the local and national print and broadcast media. In due course, several members of the maternal family were arrested and brought to court under tipstaff orders, and a committal hearing took place, whereby a maternal uncle was found to be in contempt of court for not providing information about the whereabouts of the child. Ultimately the uncle was sentenced to 28 days imprisonment as he had lied under oath at court, whilst the maternal grandmother was sentenced to 10 days. In his judgment delivered on 12 Jun 2015 the judge praised the press and the part they had played in this case: ‘The press are the eyes and ears of our society and have a vital role to play within it; the quality of press reporting has been very high, in my opinion and I would ask that the same effective relationship between the court, the press and the police should continue in the best interests of Ethan.’ In that judgment he also sent a message of reassurance to the mother about the efforts that the court would make to keep both parents involved in his life once Ethan had been returned. By this stage the mother had made contact with the press and given an interview in which she had expressed her fears for her future relationship with Ethan if she does come out of hiding. By 15 Jun 2015 Ethan and his mother had been found. HHJ Wildblood QC held a hearing today in open court and subsequently continued the hearing in private. He released two judgments as a result of those hearings, explaining that the court 248

APPENDIX 1 had postponed deciding what to do next until a private hearing on 26 June, by which time there would be a decision on whether anybody wishes to ask the court to punish Rebecca Minnock for contempt of court by breaching the orders for Ethan to be handed over to his dad (the father ultimately decided against pressing for this). The judge was critical of Rebecca Minnock for her ‘publicity stunt’ but has said that the focus would now be on working out what arrangements should be made for Ethan to have a relationship with both parents – he made clear that supervised or very restricted contact is not automatically  the outcome. The judge also said he would have to decide how much other information should be released into the public given the public interest in finding out what led to the events of the last few weeks and in what happens to Ethan in the future (for example the District Judge’s judgment or any future decision on contact). In the event no further information was made public. All eight of HHJ Wildblood QC’s judgments appear on the Judiciary website (see: www.judiciary.gov.uk/judgments/roger-williams-v-rebecca-minnock-and-ethanfreeman-williams-2-judgments/) but none have ever been published on BAILII.

Further reading ●● L Reed, ‘The missing mum case’, The Transparency Project, 11 Jun 2015. ●● L Reed, ‘When journalists ignore source material it is public debate which pays the price’, The Transparency Project, 23 June 2015.

3.

Re Webster (A Child)

Judgments ●● Norfolk CC v Webster [2006] EWHC 2733 (Fam); [2007] EMLR 7; [2007] 1 FLR 1146; [2008] 1 FCR 440; [2007] HRLR 3; [2007] Fam Law 399 – this is the judgment about media attendance and publication. ●● Re Webster (A Child) [2006] EWHC 2898 (Fam); [2007] 2 FLR 415; [2008] 1 FCR 483; [2007] Fam Law 907. ●● Re W (Children) [2009] EWCA Civ 59; [2009] 2 All ER 1156; [2009] 1 FLR 1378; [2009] 1 FCR 673; [2009] Fam Law 381; (2009) 159 N.L.J. 280; (2009) 153(7) S.J.L.B. 31.

About the case This judgment is unusual in dealing with media attendance (before the rule change allowing this in 2009), media reporting from care proceedings, and the naming of the child.

249

APPENDIX 1 Three children of Mr and Mrs Webster had been made subject to care orders and adopted against the parents’ wishes, following a finding that injuries to one child were non-accidental. When they were expecting their fourth child, they fled to Ireland, where they instigated a number of UK media interviews, including with John Sweeney of the BBC, in which they protested their innocence and their fears that the local authority, Norfolk County Council, would apply to take the baby into care. Eventually, they were persuaded to return home. They claimed to be victims of a miscarriage of justice and wanted the media coverage (which was sympathetic to them) to continue but, once the baby was born and proceedings began, the automatic reporting restrictions took effect. The child remained with the parents undergoing residential assessment while interim care orders were in force. The judge in the county court had supplemented the standard s 12 and s 97 reporting restrictions with a contra mundum order prohibiting the publication of ‘any ... information relating to’ the child and the soliciting from the parents of ‘any information relating to [the baby] or his parents’. The Websters, jointly with the BBC and the Daily Mail, sought to vary that order to allow the media to attend the care hearings and report fairly on what ensued. They argued under Article 6 and 10 ECHR that the reporting restrictions were disproportionate and that they needed publicity for the truth to be known, to get a fair hearing and to enhance public confidence in the judicial process. The child was only five months old, so interference with his Article 8 rights was minimal and in any event here had already been considerable media coverage. Two arguments opposing the application were put forward by the Cafcass guardian in support of the child’s Article 8 interests: that the Websters’ focus should be exclusively on their caring duties toward the child, so that the assessment could be effective and, secondly, that it was in the public interest to preserve the belief amongst those who gave evidence that such information would remain confidential. The local authority supported the release of anonymised judgments to correct the record, the media coverage having been one-sided to date. Munby J (as he then was) spoke at length about the principle of open justice applying to family justice, but tempered by the child’s need for confidentiality. The court had power both to relax and to increase the automatic restrictions and the Children Act 1989, s 97(4) could not be restrictively construed; it had to be construed in such a way as to permit the court to lift the prohibition in s 97(2) where the Convention required it. In deciding whether to relax or enhance reporting restrictions, the court had to undertake the Re S balancing exercise. The Family Proceedings Rules 1991 were designed to secure privacy as a ‘default provision’ and was not to be construed as indicating a heavy presumption in favour of privacy. He concluded that the reporting restrictions that had been imposed were too wide, taking into account four factors: (1) that the case was alleged to involve a miscarriage of justice; (2) that the Websters themselves wanted publicity; (3) that the case had already been extensively publicised, and (4) there was a need for the full facts to emerge in a way that would command public confidence in the judicial system. 250

APPENDIX 1 Munby J concluded that any greater degree of restraint than that proposed by the applicants would be a significant and heavily disproportionate interference with their rights. (Restrictions were made on certain aspects of the assessment and on identifying details of the older children.) Until that point, the Websters had been using a pseudonym. In the care proceedings, the Websters were able to adduce evidence in support of their argument that the earlier care orders had been based on flawed medical evidence and a care order was not made in respect of their fourth child. They then went on to, unsuccessfully, challenge the adoption orders that had been made in respect of the older children. While acknowledging that the later case indicated that there may have been a miscarriage of justice, the Court of Appeal conclude that for policy reasons, the adoptions could not be set aside. The media coverage continued to some extent during these developments. The exceptional amount of publicity that the Websters had received and the public interest at the time in cases where children had been removed on the basis of one factor only – expert medical evidence – means these judgments that may well have contributed to public legal education. Trying to close discussion at a stage where the parents had received so much support in the media would have been very much shutting the stable door after the horse had bolted, and the adoption challenge was also important. However, although Munby J concluded that the guardian’s concerns about risk were speculative, not likely, had Mr and Mrs Webster failed to keep the baby, it might have been difficult to find a permanent placement for a child who had already been identified. The perception of Munby J in this case, that a five-month-old has little sense of privacy fails to factor in how the child will feel when he is older and becomes aware how many people were reading about him. See also Chapter 2.

Further reading Comment on Webster (from May 2006 and ongoing until 2016) can be found by newspaper and BBC searches against Nicky and Mark Webster.

4.

Re H (A Child)

Judgments ●● Re H (A Child), (Interim Care Order: fact finding) [2017] EWHC 518 (Fam) (16 March 2017).  ●● Westminster City Council v H [2017] EWHC 1221 (Fam) (19 May 2017). 

251

APPENDIX 1

About the case Hayden J dealt with the case of a 15-year-old boy, H. H had been a patient at St  Mary’s Hospital as a result of apparently complex physical needs. At a factfinding hearing in March 2017 Hayden J had concluded that H’s parents had misreported and exaggerated H’s medical symptoms, which had led to his physical and emotional harm, with the consequence that he was exposed to protracted harm over many years, and significant harm which included a risk to his life. The mother had presented H to the world as dying and inculcated in him a view that he was. All this led to prolonged hospitalisation and a denial of the opportunity for education and socialisation. At the conclusion of the fact-finding hearing Hayden J was critical of the local authority’s interim care planning and its position in the proceedings. He proposed that ‘H’s parents be distanced from any involvement in his medical care, physiotherapy or therapeutic support in order that H may be afforded the opportunity to assert his most basic of rights, his own personal autonomy’ in spite of the fact that H wished ‘more than anything else, to be able to leave institutional care. He would very much like to go home to live with his parents.’ In April 2017 Hayden J authorised H’s move from St Mary’s to a residential unit. In May 2017 Hayden J handed down a second judgment providing information about H’s move, which had been achieved voluntarily, and updating information concerning H’s good progress since. A journalist, Sue Reid, had visited H at the unit using a pseudonym, without identifying herself as a journalist, and without obtaining the permission of the hospital, local authority or the court. Hayden J considered (without determining) that this may well be a breach of the Editor’s Code (the reference document to which the regulatory body, the Independent Press Standards Organisation (IPSO) work), and stated that the Guardian had a ‘responsibility’ to take the matter up with IPSO. No article was ever published by Ms Reid. The mother was said to have ‘enthusiastically contrived with Ms Reid to have facilitated the interview. The matter was reported to IPSO by the child’s Guardian, who accepted that an immediate investigation was appropriate, focusing on possible breaches of the Editors’ Code Articles 2 (privacy), 6 (children), and 8 (hospitals). Following IPSO’s intervention, the newspaper offered to write a private letter to the child, apologising for the journalist’s actions. The complainant (the Guardian) said that this would be a satisfactory resolution to the child’s complaint. As the complaint was successfully resolved, with the agreement of the Guardian, the Complaints Committee did not make a determination as to whether there had been any breach of the Code (see: Resolution Statement 16362-17 Jeary (a court appointed guardian) v Daily Mail, at www.ipso.co.uk). The case was reported by The Telegraph, as a case involving a highly gifted but physically unwell boy, who had been forcibly taken to a psychiatric unit, against his wishes, on the basis of a technicality requiring him to be placed prior to his

252

APPENDIX 1 (imminent) sixteenth birthday. Coverage suggested that the child had been, in effect, held in solitary confinement, without access to a lawyer and away from his loving parents. No reference was made to the findings. Following complaints made to IPSO by The Transparency Project (in which the authors were involved), some corrections were made and a link to the judgment was included in the offending article (see references below for details).

Further reading ●● C Booker, ‘A gifted child in a psychiatric unit is madness’, The Telegraph, 20 May 2017. ●● L Reed, ‘Seriously inaccurate reporting by omission of facts’, The Transparency Project, 23 May 2017. ●● J Doughty, ‘Judge flags complaint on behalf of child against journalist who sneaked into hospital’, The Transparency Project, 25 May 2017. ●● L Reed, ‘Complaint to The Telegraph (another one)’, The Transparency Project, 13 June 2017. ●● L Reed, ‘Correction Requests Update’, The Transparency Project, 18 June 2017. ●● L Reed, ‘Transparency News: Reporting Watch Update’, [2017] Fam Law 90.

5. ‘The Whistleblower kids’ – P and Q (Children: Care Proceedings: Fact Finding) Judgments P and Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26 (19 March 2015). 

About the case In this case Pauffley J tried allegations made by Ella Draper, the mother of two children, that her children had been the subject of satanic ritual abuse by a cult, of which their father, Ricky Dearman, was said to be the leader. Pauffley J found those allegations without foundation, having heard extensive evidence in the absence of the mother, who declined to engage, preferring to pursue her case by way of internet campaign. The mother had relied upon video footage of the children making ‘disclosures’ of abuse in the presence of the mother and her partner Abraham Christie, following inappropriate questioning. The children had been pressurised and the video footage was not reliable.

253

APPENDIX 1 At the commencement of her judgment Pauffley J said: ‘[…] 2.

The subject children have been named repeatedly on the internet. Their photographs and film clips in which they feature have been published and re-published widely. Filmed police interviews of the children have been uploaded on to publicly accessible websites; so, too, intensely personal information relating to both children. As at 10 March 2015, more than 4 million people worldwide had viewed online material relating to this case.

3.

It is inevitable that a large proportion of those have a sexual interest in children. Any rational adult who uploads film clips to YouTube featuring children speaking about sexual activity must be assumed to realise that fact. 

4.

I considered but ultimately rejected the suggestion that the children’s names should appear within the judgment. My priority is to protect them from further harm of whatever kind. Those who have posted material identifying the children have done so with flagrant disregard for their welfare interests. I see no good reason for adding to the damage already done. Only those with prurient or unhealthy curiosity will take steps to identify the children. My faith in humanity indicates that the overwhelming majority of individuals will do nothing because they, like me, have no interest in inflicting further harm. 

5.

In the period before 13 January 2015, there had been some relatively limited online publication of court and other relevant material. It had been my hope that after discussion with the mother and her McKenzie Friend on 13 January, there would have been withdrawal of material from the internet. Since about 26 January the volume posted in a variety of formats on different sites has increased markedly; and the claims made against the father, the children’s former head teacher, other teachers, professionals and a very large number of parents at the children’s former school have proliferated.’

Even subsequent to the publication of this judgment various documents from the court proceedings were published and seen by the authors. At the time of publication, the video footage remains accessible on YouTube. Whole websites are dedicated to the promotion of the theories about satanic ritual abuse in Hampstead or (variously) to debunking those theories and criticising those who promote them. The authors can find no published judgments relating to the committal to prison of the mother or those responsible for publication, such as Sabine McNeill who is mentioned in the judgment (see Watson/Haigh case study above where the same name crops up). It appears that the injunctions in place were ineffective, either because a pragmatic decision was taken not to enforce them (it is known that one of the publishers was at one-time resident abroad), or because committal applications failed (and did not fall to be published).

254

APPENDIX 1

Further reading We do not think it is appropriate to provide links to online material in this instance.

6.

Samantha Baldwin

Judgments None reported, or on the BAILII or judiciary websites, but see The Transparency Project 10 April 2017 which publishes the statement of the judge delivered in open court on that date.

About the case In March 2017 a mother went missing with her two children, shortly following an adverse decision in private law proceedings (the court had determined that the mother’s allegations that the father had abused the children had been unfounded, albeit genuinely believed by the mother, and had ordered a change of residence). In furtherance of the search for the children the case was widely reported in the mainstream media, and the children were named and photographs published, with the consent of the court (pursuant to CA 1989, s 97(4)). Samantha and her children were found safe and well a few days later. Reporting restriction orders (presumably prohibiting publication of the details of the case) were made alongside the permissive orders that had been necessary to allow the search to progress. The photographs of mother and children were circulated widely to facilitate their location. Whilst the children remained missing a loud hashtag campaign in support of Samantha Baldwin began, the thrust of which was that she was fleeing from a secretive and biased judge to protect her children. Many re-published details of the alleged abuse the children had suffered at the hands of their father (which the court had found to be untrue). A number of those involved in this campaign published details of the alleged abuse and evidence, and at one point a copy of the confidential part of a reporting restriction order (from the author’s own contemporaneous observations). Much of the substantial amount of press coverage included comments or interviews from the mother’s friends or those supportive of her. At this stage, very little was known or publishable about why the court had decided to take the children away from an apparently loving mother. Following the safe location of the children a judgment was delivered in open court, explaining more fully the basis for the court’s decision to change residence (including her causing the children to ingest drugs in order to achieve a positive test result hoped to implicate the father). Oddly it was then not published by the court on the judiciary or BAILII website, but is republished in full on The Transparency

255

APPENDIX 1 Project website (see 10 April post below). The father, who had kept a dignified silence whilst the children were missing, published a statement on their return which the national press did not fully report, having lost interest in the story. That statement is also published on The Transparency Project website (post 10 April).

Further reading ●● L Reed, ‘Police hunt for mother who has abducted her own children – what on earth is going on?’, The Transparency Project, 3 April 2017. ●● L Reed, ‘Samantha Baldwin – another side to a very sad story’, The Transparency Project, 10 April 2017.

7. Siblings of Poppi Worthington – Cumbria County Council v M Judgments ●● Cumbria County Council v M & Ors [2014] EWHC 4486 (Fam) (11 July 2014).  ●● Cumbria County Council v M & Ors [2014] EWHC 4485 (Fam) (18 December 2014).  ●● Cumbria County Council v M & Ors [2015] EWHC 918 (Fam) (30 March 2015).  ●● Cumbria County Council v M and F (Application for Rehearing) [2015] EWFC 35 (24 April 2015).  ●● F v Cumbria County Council & Anor (No 6) (Publicity) [2015] EWHC 3228 (Fam) (06 November 2015).  ●● F v Cumbria County Council and M (Fact-Finding No. 2) [2016] EWHC 14 (Fam) (19 January 2016).  ●● W (Children) [2016] EWCA Civ 113; [2016] 3 FCR 63; [2016] 4 WLR 39.

About the case Poppi died in 2012, aged one. Her parents were arrested and care proceedings commenced concerning the surviving siblings. A fact-finding hearing to establish whether the circumstances surrounding Poppi’s death crossed the threshold in respect of the other children, was held in March 2014 (shortly after the publication of the 2014 Guidance on Publication of judgments). Peter Jackson J (as he then was) concluded that, on balance of probabilities, Poppi’s father had seriously sexually assaulted her shortly before her death (July 2014 judgment). As explained in a subsequent judgment, that initial judgment was not published at the time

256

APPENDIX 1 because of the risk of prejudicing any ongoing criminal investigation, as a decision on whether to prosecute had yet to be taken. Reporting restrictions were imposed, although in narrower terms than initially proposed by the local authority. In the course of dealing with that application, which was opposed by the press, Peter Jackson J gave the media access to the judgment in order to properly respond to the RRO application, but on terms that it was not to be published. Subsequently the coroner adopted the findings of Peter Jackson J. At the conclusion of 2014, in light of the interest generated by the Coroner’s verdict, the reporting restrictions were adjusted to focus on the privacy and protection of the surviving children and the mother, in whose care they were, and there was no prohibition on the naming of Poppi or her father. At the same time Peter Jackson J issued a press statement explaining why the judgment could not be published yet. Subsequently the CPS decided not to prosecute, but although this meant that there was now no need to withhold the judgment to avoid prejudicing any possible criminal proceedings it was by this stage known that the father would seek a rehearing in light of new evidence. Accordingly, pending that re-hearing Peter Jackson J declined to publish the first fact finding judgment on both fairness and welfare grounds. The father’s application for rehearing was granted (April 2015) and the High Court had ruled there should be a new inquest. The judge decided that the main part of the 2014 judgment would be published at the outset of the further hearing. The published sections would include a narrative of  the events surrounding Poppi’s death, an account of the concerns expressed about the investigations that followed, and a summary of the medical evidence that was then available. The only part of the judgment that was not to be published was the section containing the court’s findings, which would be published following the further hearing. The judge directed that the re-hearing would take place in private but that, subject to any directions given during the course of the hearing, there could be daily news reporting. The judgment at the end of the further hearing would be given in public. This is thought to be the first time that tweeting of family proceedings as they unfold (albeit only at the end of each day once matters had been reviewed) has been permitted. It was acknowledged by Peter Jackson J to be a very unusual case with a very unusual ‘package of arrangements’ for the hearing and were not intended to set any precedent. Peter Jackson J was very complimentary about the conduct of the journalists during this trial, which must have been very difficult for all to manage. On appeal to the Court of Appeal his approach was largely upheld, and the judgment was duly published. The court reaffirmed its original findings following the rehearing. Following the publication of both of Peter Jackson J’s fact-finding judgments, in which he was critical of the police, the CPS reconsidered the matter and later reconfirmed that they would not prosecute Paul Worthington in connection with her assault or death. The second inquest finally took place in December 2017 and at the time of writing the Coroner is considering his conclusions. Mr Worthington is reported to have attended the inquest but declined to answer questions 257

APPENDIX 1 (Duncan Leatherdale, ‘Poppi Worthington inquest: What the coroner heard’, BBC, 14 December 2017, BBC website). See also Chapter 2.

Further reading ●● L Reed, ‘Poppi Worthington’, The Transparency Project, 2 November 2014.  ●● L Reed, ‘Poppi Worthington’, The Transparency Project, 22 January 2016.

8. Effie Stillwell – Buckinghamshire County Council v Andrew Judgments Buckinghamshire County Council v Andrew & Ors [2017] EWFC B19 (26 April 2017).

About the case Effie Stillwell was a 5-month-old baby who suffered a collapse and was presented to hospital by her parents. She was suspected by medical professionals to have sustained inflicted injuries. Through care proceedings it was discovered that Effie suffered from a particular type of Ehlers Danloss Syndrome, which most of the experts agreed could possibly have explained her injuries. There were no other signs of abusive care. At the conclusion of the evidence the local authority did not press for findings and none were made. Permission to withdraw proceedings was given. The parents, who had been separated from their baby for many months through no fault of their own wished to be able to identify themselves and Effie to raise awareness of the risks that parents of children suffering from this condition may be wrongly suspected of abuse. The parents were permitted to identify themselves and gave a number of interviews to the press. Some coverage of the case was inaccurate, such as reports suggesting that a message in a photo album had persuaded the judge not to make the findings (see, for example, ‘Loving note tucked away in a photo album proved parents accused of almost killing their baby did NOT violently shake her’, a Daily Mail headline which was subsequently amended – see 6 May 2017 post below).

258

APPENDIX 1

Further reading ●● L Reed, ‘Baby removed from parents over ‘abuse’ is found to have rare bruising condition’, The Transparency Project, 27 April 2017. ●● L Reed, ‘Plea to wait before blaming parents over baby injuries’, The Transparency Project, 3 May 2017. ●● L Reed, ‘Can a love note prove your innocence?’, The Transparency Project, 6 May 2017.

9. Sibling of Ellie Butler – LB Sutton v Gray v Butler Judgments ●● Sutton LBC v Gray v Butler [2012] EWHC 2604 (Fam); [2013] 1 FLR 833, (Hogg J, exonerating father on fact finding). ●● Sutton LBC v Gray v Butler [2012] EWHC 2763 (Fam); [2013] 1 FLR 914, (Hogg J, finalising proceedings following exoneration). ●● Henderson v R, [2010] EWCA Crim 1269; [2010] 2 Cr App Rep 24; (2010) 115 BMLR 139 (quashing of conviction for head injury – conjoined with other appeals). ●● Sutton LBC v Gray & Butler [Redacted] [2014] EWHC 15 (Fam) (King J fact finding regarding Ellie’s death). ●● C (A Child) [2016] EWCA Civ 798; [2016] WLR 5204 (Court of Appeal ruling re publication of 2014 judgment). ●● R v Ben Butler (Sentencing Remarks of Mr Justice Wilkie) 21 June 2016 (sentencing remarks in respect of both parents) www.judiciary.gov.uk/wp-content/ uploads/2016/06/r-v-butler-gray-sentencing.pdf.

About the case Ben Butler was convicted of having caused head injuries to his daughter Ellie, and the Family Court adopted the same position. But in 2010 the father successfully appealed his conviction on the basis of new medical evidence. This led (eventually) to an application being made to the Family Court to look again at the findings made that the injuries had been caused by Ben Butler. The evidence was reheard and this time Hogg J concluded that Ben Butler was NOT responsible for those injuries. She subsequently authorised Ellie’s return home, having obtained expert evidence from a team of independent social workers. In 2013, less than a year after her return home, Ellie was murdered by her father. By the time of her death in October, Ellie was not under any public law orders, and no child protection plan was in place. The independent social workers continued to work with the family 259

APPENDIX 1 until April, although they were by this stage reporting to social services rather than the court, since the court case had ended in December 2012.  As a result of Ellie’s death, care proceedings commenced in respect of Ellie’s younger sibling. In the course of those proceedings King J (as she then was) conducted a fact-finding hearing into the circumstances of Ellie’s death. She did not retry the original head injury matter but concluded that, on balance of probabilities, Ellie’s father was responsible for her death and the mother had colluded. She had also concluded that there was significant domestic abuse in the relationship. That judgment makes clear that some of the information before the criminal court in 2016 had not been available to Hogg J when she exonerated the father. The fact-finding judgment of King J delivered in 2014 (concerning Ellie’s death rather than the earlier head injury) was withheld from publication in order to avoid prejudicing the criminal trial. Ellie’s parents were convicted in June 2016 for their part in her death following a trial which received significant media coverage. In July of that year the Court of Appeal allowed an appeal against Pauffley J’s refusal to permit the publication of the 2014 judgment of King J dealing with the findings in respect of Ellie’s death. Seven media organisations had sought publication, whilst Ellie’s father opposed it. The Court of Appeal held that there was only a negligible risk of prejudice to any retrial in respect of the criminal convictions of the parents and it was far outweighed by the profound public interest in reporting the story of Ellie’s death, in particular, the history of care proceedings concerning her sibling. King J’s judgment was published simultaneously with that of the Court of Appeal, marked with Burnett LJ’s manuscript redactions, which relate to the privacy of the sibling. The original judgment refusing permission to publish does not appear to have made it on to BAILII. The Serious Case review was also published shortly after the verdict. Chair of the Serious Case Review was critical of the judiciary for not cooperating with the review by submitting an Independent Management Review like other agencies. Subsequently the President of the Family Division issued renewed guidance to judges regarding cooperation with Serious Case Reviews, making clear that judges should provide ‘every assistance to SCRs which is compatible with judicial independence. It is, however, necessary to be aware that key constitutional principles of judicial independence, the separation of powers and the rule of law can be raised by SCRs.’ (See: President’s guidance: Judicial Cooperation with Serious Case Reviews, 2 May 2017). The inquest into Ellie’s death commenced in August 2017. The inquest was a full ‘Article 2’ inquest, considering the role of the state in Ellie’s death. At the time of writing, the inquest has not concluded. The mother’s appeal against conviction was rejected in February 2018.

260

APPENDIX 1 The judgments of Hogg J were originally published in the Family Law Reports with the full names of all family members unanonymised – because the parents had been fully exonerated and were permitted to say so. Following Ellie’s death these judgments were removed from BAILII, but it was very difficult to establish whether or not any reporting restriction order had been imposed preventing publication of the details in those judgments (in particular information relating to Ellie’s sibling), leaving a risk of inadvertent identification of that sibling or breach of an order. To date the Hogg J judgments have not been republished on BAILII and nor is there any published judgment explaining why this is, but they remain available to subscribers to the Family Law Reports. Particularly around the time of the convictions, there was a significant amount of confusion and poor reporting about the sequence of events, what exactly had gone wrong in Ellie’s case and who was to blame, compounded by a failure at times to check what the judgments actually said about the history, and a failure to link to those judgments. Reporting and debate was not assisted by the lack of any detailed information about the contents of the assessment carried out by the independent social workers instructed to assess the situation as Ellie was rehabilitated to the care of her parents. When in October 2016 Ellie’s case was debated in the House of Lords in the context of reforms to Serious Case Reviews errors and hypotheses that had crept into reporting were repeated as fact by various peers (see The Transparency Project below, 26 October 2016).

Further reading We cannot list all possible resources here but see in particular the 4 October 2016 post below which links to a list of resources, including published statements on the case by various agencies and public bodies. ●● L Reed, ‘What price transparency?’, Pink Tape blog, 25 June 2016. ●● L Reed, ‘Ellie Butler murder – some of the things the press haven’t told you’, Pink Tape blog, 26 June 2016. ●● L Reed, ‘Ellie Butler – drawing together some strands and discussion’, The Transparency Project, 30 June 2016. ●● L Reed, ‘Ellie Butler – some useful resources’, The Transparency Project, 3 July 2016. ●● L Reed, ‘Ellie Butler – the missing judgment about her sibling’, The Transparency Project, 29 July 2016. ●● S Phillimore, ‘Lessons from the Ellie Butler case’, The Transparency Project, 4 October 2016. ●● L Reed, ‘Ellie Butler case debated in House of Lords’, The Transparency Project, 26 October 2016. ●● L Reed, ‘The Inquest into Ellie Butler’s death’, The Transparency Project, 12 December 2016. 261

APPENDIX 1 ●● The Serious Case Review ‘Overview Report’ concerning ‘Child D’ (Ellie), Sutton Local Safeguarding Children Board, April 2016, https://drive.google.com/ file/d/0B5ILmebheQx3YmhvbjVYOHlpN2M/view.

10.

London Borough of Hillingdon v Neary 

Judgments: ●● London Borough of Hillingdon v Neary [2011] EWHC 413 (COP) and [2011] EWHC 1377 (COP); [2011] 3 FCR 448.

About the case Steven Neary is a young man with autism and learning disabilities. His father, Mark Neary, is his carer and in 2009 had arranged for Steven to have a few days in respite care because he (Mark) was unwell. The body responsible for the care, London Borough of Hillingdon, refused to let Steven return. He was very unhappy about living away from home. Mark Neary did not know of a legal remedy and began an internet campaign – ‘Get Steven home’. This came to the attention of the press and broadcast media. A year after Steven had left home, Mostyn J terminated the deprivation of liberty in the CoP, and Steven has lived with his father ever since. In February 2011, Peter Jackson J heard applications by five national media organisations to attend and report on proceedings, and to identify Steven and Mark Neary. The matter at issue was whether Hillingdon had acted unlawfully. The judge J considered rules 90–92 of the 2007 Rules, concluding that the case raised matters of public interest, details were already in the public domain, there was no evidence that publicity would cause detriment or distress to Steven, and that irresponsible journalistic practices were unlikely. In June 2011, Peter Jackson J held that Hillingdon had acted unlawfully. The story was featured in most national newspapers and several local papers (across the UK). Typical headlines paid tribute to the strength of Mark Neary’s determination to be reunited with Steven and ‘save’ him from institutional care, but Mark Neary thanked the court and the press. For example, in a Times article headlined ‘Press interest saved Steven’: ‘Speaking after yesterday’s ruling, Mark Neary said: “We would not be here today if it had not been for the press involvement.” He added that he had first decided to go public “out of desperation” while trying to find legal representation, but said: “Hillingdon’s plan was to move Steven under section to a hospital in Essex. If the press hadn’t got involved, he’d be there now.”’ Mark Neary has since been featured in both mainstream and social media to help raise public awareness of the DoLS and the role of the CoP in providing a review. 262

APPENDIX 1

Further reading ●● B Kenber, ‘Press interest saved Steven’ The Times 10 June 2011. ●● J Taylor, M Neary and R Cannetti, ‘Opening closed doors of justice’ (2012) British Journalism Review 23, 42. ●● Mark Neary’s blog – https://markneary1dotcom1.wordpress.com/.

11.

‘The Italian C-Section Case’ – Re P (Paccieri)

Judgments ●● Re AA (Compulsorily Detained Patient: Elective Caesarean) [2012] EWHC 4378 (COP); [2014] 2 FLR 237. ●● Re P (A Child) (Care and Placement: Child’s Welfare) County Court (Chelmsford) [2013] EWCC B14 (Fam); [2014] 1 FCR 636; [2014] Fam Law 283. ●● Re P (A Child) (Enforced Caesarean: Adoption) (sub nom Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam); [2014] 2 FLR 410. ●● Re P (A Child) [2014] EWHC 1146 (Fam) (15 April 2014). 

About the case In August 2012, Mostyn J heard an application in the Court of Protection by a NHS Trust for an order that it would be in the best interests of a seriously mentally incapacitated pregnant woman to have her baby delivered by caesarean section. The mother was an Italian national visiting the UK, who had been detained under the Mental Health Act 1983. After the birth, the local authority where she had been staying applied for a care order in the family courts regarding the baby, who was made subject to a care order and placement for adoption in February 2013 (the mother had returned to Italy and none of the extended family was able to care for the child). Neither judgment was publicly available at the time but were both later published in December 2013, following a story in The Telegraph newspaper, which falsely stated that social workers had themselves arranged the operation in order to remove the baby: C Booker, ‘Operate on this mother so that we can take her baby’, Daily Telegraph 30 November 2013 (NB this has been amended since original publication). This sensational Telegraph story rapidly spread world-wide in the four days between the date it was published and the date the judgments were published on the Judiciary website. Essex County Council applied for a reporting restriction order to protect the child, which was heard by the President on 13 December. In his judgment, Sir James Munby described much of the press reporting as strident and inaccurate.

263

APPENDIX 1 The President went on to observe that when the story first ‘broke’, none of the relevant information was in the public domain. He therefore questioned whether the family justice system could blame the media for its inaccurate reporting. He added P (A Child) [2013] EWHC 4048 (Fam) at [45]: ‘This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.’ Within a few weeks, the President had issued his practice guidance to that effect (‘Transparency in the Family Courts’, January 2014). Not everyone was as forgiving of the questionable standard of the press reporting about the case. There was no sign that The Telegraph had made any attempt to check the facts, and the delay before the judgments emerged was frustrating for legal commentators (and no doubt others) who know that local authorities have no such authority with regard to medical treatment. The adoption order was made in 2014 without opposition from the mother.

Further reading ●● L Reed, ‘Never let the facts get in the way of a good story eh?’, Pink Tape blog, 2 Dec 2013, www.pinktape.co.uk/cases/never-let-the-facts-get-in-the-way-ofa-good-story-eh/. ●● Judicial Media Release Re Reporting Restrictions, 4 December 2013, www. judiciary.gov.uk/announcements/judicial-statement-re-p-child/. ●● C Gardner, ‘Booker, Hemming and the “forced caesarean” case: a masterclass in Flat Earth news’, Head of Legal Blog, 4 December 2013 www.headoflegal. com/2013/12/04/booker-hemming-and-the-forced-caesarian-case-amasterclass-in-flat-earth-news/. ●● P Magrath, ‘The Curious Case of The Court, The Commentators, The Woman, and Her Baby’, ICLR blog, www.iclr.co.uk/commentary/curious-case-courtcommentators-woman-baby/. ●● L Reed, ‘Update on the Essex C-Section case’, Pink Tape blog, 4 December 2013, www.pinktape.co.uk/cases/update-on-the-essex-c-section-case/. ●● A Pack, ‘The judgment from court of protection in the caesarean section case’, Suesspicious Minds blog, 4 Dec 2013, https://suesspiciousminds.com/2013/12/ 04/the-judgment-from-court-of-protection-in-the-caesarean-section-case/. ●● L Reed, ‘Now it’s a trilogy …’, Pink Tape blog, 12 December 2013, www. pinktape.co.uk/legal-news/now-its-a-trilogy/. 264

APPENDIX 1 ●● A Pack, ‘Italian C-section case – the final chapter’, Suesspicious Minds Blog, 15 April 2014, https://suesspiciousminds.com/2014/04/15/italian-c-sectioncase-the-final-chapter/.

12.

Westminster City Council v Sykes

Judgments Westminster City Council v Sykes [2014] EWCOP B9; (2014) 17 CCW Rep 139.

About the case Manuela Sykes was a political activist who developed dementia and was moved to a care home under a Deprivation of Liberty Safeguards (DoLS) authorisation by Westminster City Council. She said she was miserable there and that she could be cared for at home. Westminster therefore applied for a review under the DoLS. District Judge Eldergill heard the application in private but released a judgment naming Ms Sykes, with restrictions in place regarding the identity of her family and carers. This case was listed only a few weeks after the January 2014 practice guidance was issued by the President; the Press Association had been given prior notification by the Court and attended to apply for permission to publish on what they claimed was a matter of public interest. The judge agreed and noted that Ms Sykes had expressed a wish to be named (through her litigation friend who knew her well). DJ Eldergill examined the publicity aspect at length but said: ‘MS’s personality is a very critical consideration. Some people are very private; she is very public. She has always been a campaigner and a fighter. She has a strong will to change the world, to influence others and to draw their attention to the plight of people, including those with dementia, that she believes need and deserve more care. She would wish her life to end with a bang rather than a whimper … She has never lacked courage or a willingness to place herself at the centre of public debate and attention.’ [40] Clarifying that Ms Sykes, the local authority and the expert witness could all be identified, he added: ‘The press, parties and public are of course free to criticise and discuss the court’s judgment and the approach taken by it.’ [43] There were balanced reports in many national newspapers, explaining that there were no concerns about the quality of care, just that Ms Sykes preferred to be at home, and that Westminster had genuine concerns about how she would cope. However, despite the judge’s open approach, a front-page article in The Independent was headlined: ‘89-year-old suffering from dementia wins the rare right to have her identity reported in a case in the secrecy-shrouded Court of

265

APPENDIX 1 Protection; Manuela Sykes wins right to move out of care home and return to her home of 60 years.’

Further reading ●● E Dugan, ‘89-year-old suffering from dementia wins the rare right to have her identity reported in a case in the secrecy-shrouded Court of Protection; Manuela Sykes wins right to move out of care home and return to her home of 60 years’ The Independent, 25 February 2014.

13.

Redbridge London Borough Council v G

Judgments ●● Redbridge London Borough Council v G [2014] EWHC 485 (COP); [2014] EWHC 959 (COP); [2014] EWCOP 1361; and [2014] EWCOP 17. ●● Re G (An Adult) (Costs) [2015] EWCA Civ 446.

About the case This series of cases included applications by newspapers for access to interview Mrs  G, who was 94 years of age and frail. She lived in her own home with the second and third defendants (C and F), who had recently moved in. The local authority was trying to investigate numerous reports that she was being manipulated and intimidated by C and F. The issue for the court was whether G lacked capacity to make decisions about C and F living in her home and, if she did, whether that was because of mental impairment under the MCA, or whether she was a vulnerable adult who had been deprived of capacity by constraint, coercion or undue influence and was therefore entitled to the protection of the court under its inherent jurisdiction. In February 2014, Russell J stated that, from the history of the case and the repeated complaints, Redbridge Council had had no alternative but to try to see G alone; anything else would have been a dereliction of its duty to her. She concluded that Mrs G did lack capacity and that investigation into her best interests was required by Redbridge. An article in The Telegraph (C Booker, ‘Will this OAP be robbed of her house and her money?’ Telegraph 15 February 2014) was drawn to the judge’s attention; this accused Redbridge of trying to take Mrs G’s money and evict her and ‘her niece’ from their home. The proceedings were held in open court, with members of the public and the media present throughout. The judge restricted the publication of the names of the parties. Because Mrs G had repeatedly complained of the proceedings intruding into her life, the judge held that future hearings should be held in private. 266

APPENDIX 1 Members of the press were allowed to attend the subsequent private hearings. Cobb J held that, pending a medical assessment, it was not in Mrs G’s best interests to engage with the media because she had expressed ambivalent feelings about this. The Daily Mail published a story about this being a gagging order that might lead to Mrs G herself being imprisoned (S Reid, ‘94-year-old is gagged by secret court: Draconian order silences pensioner in row with council social workers’ Daily Mail 28 April 2014). This was misleading; the CoP has previously refused to hold parties who lacked litigation capacity in contempt of court for breaching reporting restrictions: see Re RGS [2012] EWHC 4162 (COP). At the final welfare hearing, when the full medical assessment was available, Russell J concluded that Mrs G lacked mental capacity with regard to C and F although she was frightened of them, and ordered that it was not in her best interests to live with them; that she remain in her home, with support from Redbridge, and be re-integrated into her local church. From the judgments, the newspapers emerge as having been far readier to accept C and F’s version of events than undertake a rational assessment of the roles of the CoP and the council.

Further reading L Series, P Fennell, J Doughty and L Clements Transparency in the Court of Protection: report on a roundtable (Cardiff University 2015) pp 60–63.

14. ‘The woman who sparkled’ – King’s College Hospital NHS Foundation Trust v C Judgments ●● King’s College Hospital NHS Foundation Trust v C [2015] EWCOP 80. ●● V v Associated Newspapers and the Press Association [2015] EWCOP 83 and [2016] EWCOP 21.

About the case The tone of media coverage about ‘the woman who sparkled’ might have given pause to advocates of the pilot, which had recently been announced when her case was heard in November 2015. Indeed, in the recently published judgment (in April 2016) on extending anonymity for C subsequent to her death, Mr Justice Charles, a champion of the pilot, is highly critical of the behaviour of some journalists (See J Doughty below). The issue for the court was whether C had the capacity to decide whether or not to consent to the life-saving treatment of kidney dialysis that her doctors wished to

267

APPENDIX 1 give her following her attempted suicide. C had refused the treatment, a decision her daughters believed she could make. Macdonald J observed: ‘C is, as all who know her and C herself appears to agree, a person who seeks to live life entirely, and unapologetically on her own terms; that life revolving largely around her looks, men, material possessions and “living the high life” … it is clear that during her life C has placed a significant premium on youth and beauty and on living a life that, in C’s words, “sparkles”.’ [8] He concluded that C had the requisite mental capacity to refuse the treatment, however illogical this might appear to someone who did not know her. He set out evidence of C’s entitlement to make her own decision, based ‘her own personality and system of values and without conforming to society’s expectation of what constitutes the “normal” decision …’, thereby upholding C’s autonomy but with (no doubt unforeseen) grossly negative ensuing publicity. C was portrayed throughout the press as a vain and selfish gold digger, with suggestions that this was the judge’s view of her (See Z Williams, below). Although it seems C was not a public figure, there was pressure from the media to name her, and photographs were published which may well have made her identifiable, although her face was pixilated. This being a serious medical treatment case, it had been held in open court with the usual reporting restriction made against C being identified. C died at the end of November 2015 and the Daily Mail applied to have the order lifted. The judge hearing that application, Theis J, noted that C’s family might not have been as candid in their evidence, had they known the publicity the case would receive, and that C’s youngest daughter, only 15, would be vulnerable if she was identified. The reporting restriction was extended. The most recent judgment, by Charles J, contained a rigorous but succinct analysis of the competing Article 8 and 10 interests and rejected the contention on behalf of the press that there was public interest in naming C. Sadly, the judgment describes relentless harassment of the family by some journalists. Complaints made by practitioners about the media reporting of Macdonald J’s judgment case included widespread inaccurate references to the case being about ‘a right to die’. An overview of the debates around the case might well assist with public legal education. However, Charles J criticised the applicants for being ‘prurient’ and ignoring the serious issues.

Further reading ●● L Series ‘The Stories We Tell’, The Small Places, https://thesmallplaces.wordpress. com/2015/12/04/the-stories-we-tell/. ●● C Young and CJ McKinney ‘The Court of Protection, explained’, Full Fact, https://fullfact.org/law/court-protection-explained/. ●● Z Williams, ‘A slur on the woman who lost her sparkle’ The Guardian, 12 December 2015.

268

APPENDIX 1 ●● J Doughty, ‘The prurient press and a Court of Protection decision that had a profound effect on a family’, The Transparency Project, 3 May 2016.

15.

The Tower Hamlets ‘Muslim Foster Carer Case’

Judgment ●● AB (A Child) (Case Management Order) (Case No: ZE17C00153) Unreported, 29 August 2017).

About the case This story broke on 28 August 2017 with a stark headline that spoke of religious intolerance and child cruelty: ‘Christian child forced into Muslim foster care’. Both the headline and the tone of the story seemed unusual for The Times. The story was accompanied by a rather sinister-looking photograph, showing a little blonde girl being led away by a woman shrouded in a black hijab. The story aired a number of allegations which went further than simply suggesting that the placement (the first of two with Muslim carers) was culturally inappropriate. It reported that a five-year-old ‘white Christian child’ had been taken from her family and ‘forced’ to live with a ‘niqab wearing foster carer’ where she was allegedly encouraged to learn Arabic. It said she was forced to remove a necklace with a Christian cross, had not been allowed to eat a meal she had brought home containing pork, and had been told that Christmas and Easter were ‘stupid’ and that ‘European women are stupid and alcoholic’. However, perhaps inconsistently, the report also claimed she’d told social workers that her carers ‘don’t speak English’. The story was written by Andrew Norfolk, the paper’s widely respected Chief Investigative Reporter, who had won the Paul Foot and Orwell prizes for journalism for his work in exposing the Rotherham child sex scandal. He later said he wasn’t responsible for the headline but defended the content of the story (in an interview broadcast on the BBC Asian Network’s Big Debate programme on 30 August 2017). The Times report was widely criticised both for what was perceived as a provocative anti-Muslim slant and for its selective treatment of the facts, more of which emerged subsequently. Norfolk said he was motivated by concern for the welfare of the child, and that the target of the story was the local authority, the London Borough of Tower Hamlets, which had been criticised in an Ofsted report for serious failures in children’s services. Nevertheless, the slant in the story seemed more characteristic of the Daily Mail, which duly obliged by running a front-page story headlined ‘MPs’ anger as Christian girl forced into Muslim foster care’.

269

APPENDIX 1 On 29 August 2017, the day after the story broke, there was a hearing at East London Family Court, at which the placement in foster care was ended and the girl was placed, instead, in the care of her maternal grandmother, as previously requested by the girl’s family. HHJ Sapnara made it clear that the hearing had been scheduled to take place anyway, and that nothing in her order had been influenced by the media coverage. The approval of the grandmother had simply been awaiting completion of assessments as to her suitability. Two things were notable about the hearing. First, Andrew Norfolk was initially refused entry to the hearing by court staff, despite the provisions of FPR, r 27.11 and PD27C, no order having been made to exclude him or any other accredited media representatives. That was remedied following intervention by the judiciary, who had been notified about what had happened by email. Second, after the hearing, the judge released an anonymised copy of her case management order. That was an unusual step and certainly not one required under the President’s ‘Transparency in the Family Courts’ Guidance of 2014, given that it was not technically a judgment. However, it was beneficial in a number of ways. In its long recital of background facts, it clarified a number of the misreported issues in the case. The Times’ claim in the following day’s edition to have been ‘praised’ by Judge Sapnara for highlighting the issues in Norfolk’s original report, was treated with some scepticism by other commentators, given that the judge specifically made the point in her order that: ‘For the avoidance of doubt, the Court makes it clear that the decision to approve the new care arrangements for the child to live with the grandmother under an interim care order is as a result of the application of the relevant law to the evidence now available to the court and not as a result of any influence arising out of media reports.’ The recital set out a clear timeline within what it described as the ‘complex history and background to this case’, including the following facts: ●● the child had been taken into care as an emergency following police intervention; her first foster placement had thus been an emergency one and she had had a further foster placement over the summer to allow the first carer to go on holiday; ●● the child had been subject to an interim care order since 10 March 2017; ●● there was lack of clarity as to the identity and whereabouts of the child’s father; ●● her mother was not viewed as safe to have unsupervised contact with her, owing to concerns about the mother’s use of drugs and alcohol;

270

APPENDIX 1 ●● the mother had raised concern about the foster placement and wanted the child placed with the maternal grandmother, but at no time had the mother made any application to the court to seek a change of foster placement; ●● the Local authority proposed a change of care plan on 15 August 2017 to move the child to her grandmother’s; ●● the maternal grandmother had been assessed as a safe and suitable carer and the child would be moved to her care; ●● the child’s Guardian had undertaken enquiries and visited the child in the current foster carer’s home and spoken to the child alone; ●● the Guardian had no concerns as to the child’s welfare and reported that the child was settled and well cared for by the foster carer; ●● documents including the assessment of the maternal grandparents stated that they were of a Muslim background but were non practising, but the child’s mother said they were of Christian heritage. The exclusion of the reporter was a serious but far from isolated incident; it is not uncommon for court staff to be unaware of the rules about who can attend and whether, for example, they can take notes. (We discuss this in more detail in Chapter 4.) The following day Her Majesty’s Courts and Tribunals Service issued a memo to all court managers in London telling them that journalists must not be banned from buildings ‘under any circumstances’, and pointing out that: ‘The media plays a vital role in how government communicates with the public on a day-to-day basis. It both informs and shapes the public’s perception of government policies and services, including those provided by the courts and tribunals.’ This was duly reported in The Times (30 August 2017), amongst its other coverage of the case. The permission given in the judge’s order to report its contents involved a relaxation of the Administration of Justice Act 1960, s 12, and the judge’s promotion of transparency in this case was certainly praiseworthy. The subsequent coverage of the case raised questions about wider transparency, for example by the local authority, as well as about the limitation on access to private hearings in cases of public interest to accredited media journalists and not also, say, academic researchers or legal bloggers. In respect of the local authority, a further instance of beneficial transparency was the release, by way of a tweet from the Mayor John Biggs on 30 August 2017, of a statement explaining its approach to foster placements generally and noting that: ‘In relation to this specific case, it is clear that some of the facts were distorted and the way it was reported was deeply unhelpful and carried a sensationalist tone. Despite reports to the contrary, the child was in fact fostered by an English speaking family of mixed race in this temporary placement.

271

APPENDIX 1 For months the council have worked to return the child to a safe environment with members of her family. That is what our care plan proposed and what the judge agreed to yesterday.’ Despite this transparency there were depressing instances of poor reporting. On the day of the hearing The Times ran three pieces on the case; the following day it reported the order under the headline ‘Judge rules child must leave Muslim foster home – The Times praised for exposing council’s failure’, which as noted above did not appear to be supported by the judge’s words. The day after that, The Times’s sister paper The Sun ran a tendentious comment piece by Trevor Phillips under the headline ‘The decision to put a five-year-old Christian girl into Muslim foster care is like child abuse and the council must pay’ (The Sun, 31 August 2017), which appeared to be based on a skim read of the original Times article without comparing it to the recital of facts in the judge’s order, despite commenting ‘Thank heavens for the Muslim woman judge, Khatun Sapnara, who briskly dismissed the council’s objections and ordered them to take the child back to her grandmother’. On the same day, rather more mildly, a Press Association article by Brian Farmer, which appeared in Care Appointments, quoted John Hemming, a former MP described as a ‘campaigner’ for family justice, saying that ‘The East London Family Court must be the most secret court in the country.’ But there was also criticism of Norfolk and The Times, in some quarters, which went further than was justified. What this shows is that even when the facts are released, in the form of a court order containing a recital setting out the history of the case, they can still be misunderstood or misinterpreted. The statement at preamble 16, that ‘Documents including the assessment of the maternal grandparents state that they are of a Muslim background but are non practising. The child’s mother says they are of Christian heritage’ was interpreted as proving, not only that ‘the child is herself from a Muslim heritage’, but also that any assertion that she was a ‘Christian child’ must be a ‘lie’. Yet it is obvious from the recital that there was a simple conflict of evidence, which the hearing at that stage had not sought to resolve. Much of the criticism overlooked the fact that there had been two foster placements, and by conflating the two, applied findings relating to the later placement to the earlier, without clarifying to which of them some of the reported complaints of the girl or her mother related. The case returned to court for an issues resolution hearing on 2 October 2017, at which there were more reporters than previously, and the story was generally well covered in the press, including The Guardian and the BBC. The court was given a report from an internal investigation by Tower Hamlets LBC, which the judge permitted to be published in redacted form. A report of the hearing in The Times repeated the submission by its own barrister that ‘all the concerns reported by the newspaper were put to the council before they were published. The local authority

272

APPENDIX 1 had declined to respond.’ The Daily Mail report, which repeating many of the original allegations against the foster carers, then reported the judge as saying the council’s own report ‘makes very interesting reading’ and ‘provides the alternative narrative’, while making no findings at that stage (The Daily Mail, 2 October 2017: ‘White Christian girl, five, taken away from her Muslim foster family after it was claimed they “spoke Arabic and took away her crucifix necklace” now “misses them and wants to go back”’). When the Tower Hamlets version of events was eventually published, on 1 November 2017, it reported that the mother’s complaints about the foster carer, upon which The Times appeared to have relied in their original (much criticised) reporting, were not substantiated and in many instances were demonstrated to be just wrong. The case has not as yet resulted in a published judgment, but it demonstrates both the need for, and the risks of, transparency. The judge’s release of an order, suitably anonymised, containing a detailed recital of the facts, served many of the purposes for which the President urged judges to release judgments from private hearings to BAILII. It was able to put the true (or at any rate known) facts into the public domain and allowed a large degree of public scrutiny into the workings of the court. But the real scrutiny was targeted at Tower Hamlets LBC, and the story demonstrated the need for local authorities, if not social worker teams, to try to be more open with the public and the media. It was arguably a lack of early engagement with the press on the part of Tower Hamlets which enabled or even forced the initial reports of the case to depend so heavily on a one-sided view of events, aligned apparently to the mother’s perspective, without contradiction from the professionals or the local authority involved. Whether that argument is fair on LBC is likely to remain obscure unless and until a full judgment is published, and even then the judgment may not address such issues.

Further reading ●● S Phillimore, ‘Religious and cultural identity in foster care’, The Transparency Project, 28 August 2017. ●● L Reed ‘The most secretive court in all of Christendom’, The Transparency Project, 31 August 2017. ●● P Magrath, Lawyer 2B, ‘The “Muslim foster care” story and transparency in the family courts’, 15 September 2017, https://l2b.thelawyer.com/muslimfoster-care-family-courts/. ●● L Reed, ‘Misreporting the misreporting – that foster care case again’, The Transparency Project, 5 September 2017. ●● L Reed, ‘The Muslim foster carer case again – what else has emerged?’, The Transparency Project, 2 October 2017.

273

APPENDIX 1

16.

Re Briggs (Incapacitated Person)

Judgments ●● Re Briggs (Incapacitated Person) [2016] EWCOP 48; [2017] Fam 207 (Charles J), reversed [2017] EWCA Civ 1169, CA. ●● Re Briggs (Incapacitated Person) (No 2) [2016] EWCOP 53; [2017] 4 WLR 37 (Charles J).

About the case Paul Briggs was a police officer who suffered severe brain damage in a motor accident in July 2015 and was in a minimally conscious state. His wife applied to the Court of Protection for a declaration that it was in his best interests for life-prolonging treatment in the form of clinically assisted nutrition and hydration (CANH) to be withdrawn. The case was heard in open court, in accordance with the ordinary practice of the CoP for cases involving serious medical treatment issues (under what was then Practice Direction 9E of the Court of Protection Rules 2007). Unusually, however, the patient’s name was made public and permission was given for two academics, Professor Jenny Kitzinger, Cardiff University and Professor Celia Kitzinger, University of York, to live-tweet the hearing from the court room. The case was significant because, unlike patients in a permanent vegetative state (PVS), who by definition have no awareness of themselves or their environment, Paul Briggs was diagnosed as ‘minimally conscious’, meaning that he had some degree of consciousness. There was no dispute about his diagnosis. Its ethical and legal significance lay in the fact that, according to the evidence of one expert, he might with appropriate rehabilitation have some positive experiences. Arguments in court hinged, in part, on the question of how to balance Paul Briggs’ past wishes (which would have been not to be kept alive with profound disabilities) with his possible future wishes (if rehabilitation were successful). Many profoundly brain-injured patients, the expert said, lack insight into how limited their lives have become and are ‘happy’ with the restricted lives they now live. The case therefore illustrated the dilemma that can arise for families, doctors and the court when people have not made ‘advance decisions’, as provided for under the Mental Capacity Act 2005, to refuse treatment in the event of loss of capacity. The dispute in this case lay in the fact that Paul Briggs’ clinician believed he should be given the opportunity to make a recovery, whereas his wife and family disagreed, believing that even the best possible outcome projected by the independent expert would, for him, not provide a quality of life that he would consider worthwhile (according to his previously expressed wishes). She said he would regard being subject to life-prolonging treatment in these circumstances as ‘torture’. 274

APPENDIX 1 The case was heard by Charles J, sitting in the Court of Protection in Manchester ([2016] EWCOP 53; [2017] 4 WLR 37). Applying the classic ‘best interests’ test, and having regard in particular the ‘great weight to be attached to what Mr Briggs as an individual would have decided himself if he had the capacity and so was able to do so’ (at para 128) he granted the wife’s application to stop life-prolonging treatment and move Paul Briggs to a hospice. This aspect of the case was fairly straightforward. The more legally contentious issue, on which the judge was reversed on appeal, was a preliminary issue as to whether the proceedings had been properly brought under the Mental Capacity Act 2005, s 21A as amended, so as to entitle the wife to non means tested legal aid funding for representation in respect of that best interests issue, by virtue of the exemption in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, r 5(1)(g). The Court of Appeal held that s 21A was concerned with whether the deprivation of person’s liberty was in their best interests, not with the treatment they might receive when so deprived. That meant, in effect, that Mrs Briggs should have been means tested before getting legal aid for the hearing, as opposed to be entitled to it as of right. The case, with its medical technicalities, provided ample scope for misrepresentation of the nuanced differences of condition and diagnosis. Reporters mistakenly referred to Paul Briggs’s minimal consciousness as being ‘brain-dead’ or ‘in a coma’ or, as the Daily Mail described him, in a ‘vegetative’ state. The Mail refers in the same article to the relevant legislation as ‘Labour’s 2005 Mental Capacity Act’, a somewhat nonsensical attempt to politicise what was the product of an extensive consultation by the Law Commission. The same canard is repeated in a later article in which the Mail provided an error-strewn ‘explainer’ about the Court of Protection, with references to disputes being ‘veiled’ in ‘secrecy’ and the like. The permission given for live tweeting in this case enabled the Kitzingers and the Coma and Disorders of Consciousness Research Centre from whose account they tweeted not only to correct inaccuracies in the media but more importantly to publicise the agonies of (in)decision faced by families of those who failed to make advance decisions. They needed permission because they were not ‘representative of the media or a legal commentator’ for the purpose of para 10 of Practice Guidance (Court Proceedings: Live Text-based Communications) (No 2) [2012] 1 WLR 12, but rather members of the public under para 9. Having received permission they were able to provide a running commentary on the case from within the court and afterwards wrote it up in the Journal of Medical Ethics. The case raised, they said in a guest post on the Transparency Project, ‘fundamental ethical issues of “sanctity of life: vs “self-determination”, and the weight to be given to a person’s own wishes in best interests decisions about them’. It provides a good example of how academic researchers can do more and better inform the public about what happens in a court than the traditional media, and supports the argument that transparency is about more than just access and publication; it should also support the role of specialist commentators and academic bloggers. 275

APPENDIX 1

Further reading ●● Kitzinger, Kitzinger, Cowley, ‘When “Sanctity of Life” and “Self-Determination” clash: Briggs versus Briggs [2016] EWCOP 53 – implications for policy and practice’ (2016) 43 (7) BMJ Journal of Medical Ethics http://dx.doi.org/10.1136/ medethics-2016-104118. ●● B Rich, ‘The Daily Mail’s Court of Protection explainer: “What is the Court of Protection?”’, The Transparency Project, 31 January 2017. ●● Kitzinger and Kitzinger, ‘How (and why) to tweet from the “secret” and “shadowy” Court of Protection’, The Transparency Project, 3 July 2017.

17. The jailed grandmother – Devon County Council v Kirk Judgments ●● Re M; Devon County Council v Kirk: $$ [2016] EWCOP 42 (Newton J); $$ [2016] EWCOP 45 (Baker J); $$ [2016] EWCA Civ 1221; [2017] 4 WLR 36 (CA); $$ [2017] EWCA Civ 34 (Munby P).

About the case M was an 80-year-old man, originally born in Madeira, who had been living in the South West of England for more than 50 years. He developed dementia and lacked capacity to make decisions about his residence and care. Proceedings concerning M began in the Court of Protection in 2014, after Mrs Teresa Kirk, a family friend, removed him from his home to hers in Sussex. A report from an independent social worker recommended that it was in M’s best interests to live in a care home in the South West, where he had previously lived, rather than in Sussex. Following that report, it became apparent that M had, instead, been removed from the jurisdiction and taken to Portugal in April 2015. A series of orders were made by different judges in the CoP in London, requiring M to be returned to the jurisdiction, but this did not happen. It appeared instead that he was placed in a care home by Mrs Kirk in Portugal from September 2015, after he had been shortly hospitalised the previous month. After a further hearing by Baker J in June 2016, the court again determined that it was in M’s best interests to live in a residential care home in the South West of England. The court then made an order dated 20 June 2016, to which was attached a penal notice against Mrs Kirk, reciting that she had hitherto refused to 276

APPENDIX 1 cooperate with the court or sign the necessary authority to remove M from the care home in Portugal, and expressly warning: ‘Take notice that if you disobey paragraphs 7 or 8 of this order you may be held to be in contempt and may be imprisoned, fined or have your assets seized. You should seek legal advice in relation to this order and the availability of legal aid should committal proceedings be applied for.’ The order recorded that the court informed Mrs Kirk that, if she wished to appeal to the Court of Appeal against any of the orders made, she had 21 days to file a notice of appeal but, unless and until those orders were stayed by the Court of Appeal, they remained in force and should be obeyed in full. Mrs Kirk had been present in court at the time the order was made and was served with a copy of it by email thereafter. But she did not comply with it, and although she applied for permission to appeal, she did not seek a stay of the order, which remained in force. The local authority then commenced committal proceedings against her for contempt. At a hearing in open court in August 2016 Newton J took into account the fact that Mrs Kirk was a retired lady of 71 with limited means and of previous good character and that her conduct stemmed from sincerely held beliefs about M’s best interests and genuine concern for his welfare. Nevertheless, she remained defiant in the face of the court. He said, at para 27: ‘I have reluctantly concluded that there now being no other way, it seems to me, of enforcing the court order; that I am left with no alternative but to pass a sentence of imprisonment, however much I have made it perfectly clear that I do not wish to do so.’ He imposed a sentence of six months’ imprisonment, which he suspended for seven days to permit Mrs Kirk one last chance to comply with the court’s order. She did not and was duly sent to prison. The judgment was published on BAILII in mid-October. The case was then reported in the press, in some cases inaccurately. In The Sunday Telegraph, Christopher Booker’s column appeared under the headline ‘The terrifying tale of how Britain’s most secret court imprisoned a grandmother’ and in another article in the same paper reported that: ‘her only offence was to have refused to sign a letter she regarded as “quite improper”, authorising British social workers to remove an 81-year-old man from Portugal, his native country, to bring him back to England against his wishes’. To describe Portugal as his native country is less than accurate, and the Court had already determined that he lacked capacity to express his wishes. Meanwhile The Daily Mail, under the headline ‘Thrown in jail at 71 …’, reported that: ‘Teresa Kirk was given six months in prison by a judge in the secret Court of Protection, it emerged yesterday … . The facts of the case remain surrounded by secrecy ordered by the Court of Protection.  277

APPENDIX 1 In fact, the committal order had been made after a hearing in open court (as required for committal applications (See Chapter 7) and the judgment was published on BAILII (though not, it seems, the Judiciary website – which is supposed to publish all committal decisions). The press reporting had the effect of drawing attention to the case (despite all that shadowy secrecy) and a barrister, Colin Challenger, came to Mrs Kirk’s rescue, as it were, appearing initially pro bono in an appeal to the Court of Appeal. The court noted [2017] 4 WLR 36 at [21] ‘Mr Challenger, whose normal area of practice is commercial and property law, was commendably persistent’ and, at [22] ‘worthy of significant praise’. The court expressed its concern over the imprisonment of Mrs Kirk in the circumstances and at a time when she had a pending appeal against the underlying order. It also pointed out that she should be entitled to criminal legal aid to defend herself against the risk of imprisonment. The court then set aside the committal order, and adjourned the main appeal, indicating at p 33] that: ‘Mrs Kirk may have an arguable appeal is in relation to the order that followed on from the overall welfare determination in so far as it made her subject to mandatory orders to sign documents which were backed up by a penal notice and an express warning of potential committal proceedings. It is certainly possible to argue that any determination of MM’s welfare should have included consideration of how any move from Portugal to Devon could be achieved.’ The case was ultimately compromised, the Official Solicitor in effect throwing in the towel and agreeing that there was, in the absence of cooperation from Mrs Kirk, no realistic prospect of returning M to the jurisdiction or securing the welfare solution the court had ordered for him. In a short judgment delivered on the papers, Munby P said [2017] EWCA Civ 34 at [14], when approving the consent order, ‘there are limits to how far the court can go in seeking to coerce the obdurate’. The Teresa Kirk saga demonstrates how, by virtue of the transparency already inhering in committal proceedings, even exaggerated and inaccurate media coverage, which may not do much to inform the public, can nevertheless help promote the interests of justice. It is a matter of concern, though, that although the contempt hearing was in public and could have been attended by the media, the case only came to public attention when the judgment was published on BAILII, after a delay of nearly two months, and never appeared on the Judiciary website (although the President’s later judgment approving the consent order did). The delay in obtaining a transcript from the original decision of Baker J (now also published on BAILII) was even longer, some five months, as the President noted with some asperity in his contribution to the main CA judgment. The Transparency Project secured amendments to The Telegraph’s coverage of this case through the IPSO process (see below 30 July 2017 and IPSO Resolution Statement 06777-17 Transparency Project v The Sunday Telegraph). 278

APPENDIX 1

Further reading ●● The Daily Mail, ‘Thrown in jail at 71: The disturbing story of a grandmother who refused to bow to social service orders and move an OAP from the care home he loves’ (14 October 2016). ●● J Doughty, ‘The Court of Protection’s not so secret any more, but the press don’t seem to have noticed’ The Transparency Project, 15 October 2016. ●● L Reed, ‘The terrifying tale of how Britain’s most secret court imprisoned a grandmother (AKA Court enforces its own orders and publishes judgment for the world to see)’, The Transparency Project, 21 October 2016. ●● B Rich, ‘Enemies of Transparency: Newspaper Stories & The Court of Protection’, The Transparency Project, 13 November 2016. ●● L Reed, ‘Why the Court of Appeal released a grandmother imprisoned for disobeying orders of the Court of Protection’, The Transparency Project, 7 December 2016. ●● ‘Judges criticise Court of Protection over jailing of woman for contempt’, 14 December 2016, Local Government Lawyer, www.localgovernmentlawyer. co.uk. ●● L Reed, ‘Coercing the obdurate (and other exercises in futility)’, The Transparency Project, 31 January 2017. ●● B Rich, ‘Teresa Kirk and the Court of Protection – the end of an “astonishing story”’, The Transparency Project, 20 February 2017. ●● B Rich, ‘Christopher Booker’s St George’s Day Myth’, The Transparency Project, 23 April 2017. ●● L Reed, ‘Fact checking across the universe … .’, The Transparency Project, 4 May 2017. ●● L Reed, Achievement Unlocked: Our experience of the IPSO Process, The Transparency Project, 30 July 2017.

18.

Charlie Gard

Judgments ●● Great Ormond Street Hospital v Yates & Ors [2017] EWHC 972 (Fam). ●● Yates & Anor v Great Ormond Street Hospital For Children NHS Foundation Trust & Anor (Rev 1) [2017] EWCA Civ 410. ●● Re Gard (A Child) [2017] EWHC 1909 (Fam). ●● Gard and Others v the UK – 39793/17 [2017] ECHR 559 (13 June 2017).  ●● Gard and Others v the United Kingdom – 39793/17 (Decision [2017] ECHR 605 (27 June 2017).  279

APPENDIX 1

About the case Charlie Gard was a terminally ill baby whose parents were in dispute with the medical professionals about his care and whether anything further could or should be done for him. His case hit the news in April 2017 when Mostyn J published a press statement summarising his reasons for refusing the parents permission to travel abroad with Charlie to undertake a new treatment. Prior to this the parents had begun a fundraising campaign to secure the funds for Charlie’s travel, care and treatment, so his name and photograph was in any event in the public domain along with their own. Throughout the case the only reporting restrictions were a prohibition on identification of treating and proposed treating clinicians. There were vast amounts of media coverage and public debate at all stages right up to and after Charlie’s death, following each stage of the proceedings from the High Court, to the Court of Appeal and the Supreme Court and on to the European Court of Human Rights. A hashtag campaign by ‘Charlie’s Army’ gained significant traction on twitter, alongside various Facebook pages. As each subsequent court refused the parents’ appeals, discussion on the pages and hashtags became very heated, and staff at the hospital reported having received death threats from members of the public. The parents issued various statements condemning the threats, clarifying their position, who was and was not their spokesperson and what their position was. Charlie Gard died on 28 July some three and a half months after his case hit the headlines. Charlie’s case generated significant interest in and discussion of the way courts and medical professionals deal with medical treatment of children, and whether and when decisions should be made by doctors or courts rather than professionals. Later that year the Family Justice Council debate focused on the issues raised in such cases. In the midst of the media storm around Charlie’s treatment Baker J delivered an extempore judgment in the matter of NHS Hospital Trust v GM & Ors [2017] EWHC 1710 (Fam) (30 June 2017), indicating that notwithstanding the fact that the hearing had been an urgent late night telephone hearing it was important that proactive efforts were made to facilitate the attendance by phone of at least one member of the press, as such matter were generally dealt with in open court and this applied as much to telephone hearings as any other. See Chapter 2 at 2.26.

Further reading ●● ‘Decision and short reasons to be released to the media in the case of Charlie Gard’, Mostyn J, 11 April 2017, www.judiciary.gov.uk/wp-content/uploads/ 2017/04/gard-press-summary-20170411.pdf. ●● The Permission to appeal hearing can be viewed on the Supreme Court website, along with a video judgment summary. ●● Several press releases and judgments from the European Court of Human Rights can be found at: https://hudoc.echr.coe.int/. ●● E Nottingham, ‘Great Ormond Street Hospital for Children -v- Gard’, The Transparency Project, 22 April and 27 May 2017. 280

APPENDIX 1 ●● E Nottingham, ‘Great Ormond Street Hospital for Children -v- Gard – update’, The Transparency Project, 11 June 2017. ●● A Norman, ‘The Supreme Court Is Wrong on Charlie Gard and Withdrawal of Treatment’, The Transparency Project, 12 June 2017. ●● E Nottingham, ‘Great Ormond Street Hospital for Children -v- Gard – further update’, The Transparency Project, 13 June 2017. ●● A Norman, ‘Charlie Gard – the case for interim measures to preserve life’ The Transparency Project, 19 June 2017. ●● L Reed, ‘Charlie Gard Update’, The Transparency Project, 2 July 2017. ●● A Norman, ‘Charlie Gard – What Did The European Court Actually Say and Why?’, The Transparency Project, 5 July 2017. ●● L Reed, ‘What is happening now on the case of terminally ill baby Charlie Gard?’, The Transparency Project, 18 July 2017. ●● B Rich, ‘Update on Charlie Gard case – The last stage of the litigation: facts and sources’, The Transparency Project, 1 August 2017. ●● L Reed, ‘Are there other cases like Charlie’s?’, The Transparency Project, 1 August 2017. ●● L Reed, ‘10 cases like Charlie’s? Actually we’re not sure …’, The Transparency Project, 1 August 2017. ●● B Rich, ‘Public and private, the limits of transparency in Charlie Gard’s case – an update’, The Transparency Project, 6 August 2017. ●● Family Justice Council 11th Annual Debate: ‘Parental autonomy and a child’s best interests: Should the courts have the final say?’, 21 November 2017, transcript available at www.judiciary.gov.uk, Family Justice Council pages. ●● A Twaite, ‘The court’s role in sanctioning medical treatment and the withdrawal of medical treatment of children: “Parental autonomy and a child’s best interests: Should the courts have the final say?”’, The Transparency Project, 22 November 2017.

19.

London Borough of Haringey v Musa

Judgments ●● [2014] EWHC 962 (Fam) (19 March 2014) (Holman J). ●● [2014] EWHC 1200 (Fam) (11 April 2014) (Holman J). ●● [2014] EWHC 1341 (Fam) (16 March 2014) (Holman J). ●● [2014] EWHC 2883 (Fam) (3 July 2014) (Newton J).

281

APPENDIX 1

About the case In the case of London Borough of Haringey v Musa [2014] EWHC 1200 (Fam) (11 April 2014), London Borough of Haringey v Musa [2014] EWHC 962 (Fam) seven children had been removed from Nigerian parents, and two made the subject of placement orders. The parents were subject to criminal proceedings, meaning a delay in publication of some judgments, but were subsequently convicted. Notwithstanding RROS, there was a campaign to secure their return and allow the family to return to Nigeria, and the case had been reported in the press in Nigeria and even discussed in the Nigerian Parliament. Holman J dealt with later hearings regarding contact and change of name (the local authority contended that such was the notoriety that the children should all have new names). The Nigerian High Commission attended the hearings. Thus, said Holman J (who sat in public throughout): ‘there is already notoriety surrounding these children and this case. That notoriety will not go away. Few things stoke notoriety, “campaigns” and conspiracy type theories more than courts operating in private and behind a wall of apparent secrecy. It merely fans suspicion and the sense that things have been done by, and in, the courts which are wrong and which must be barred from public scrutiny.’ (pa 12, Haringey v Musa [2014] EWHC 1200 (Fam) (11 April 2014)) When the Local Authority queried his decision to place his judgments on BAILII without anonymising the family name Musa, he said: ‘It seemed to me, and seems to me, that when a case, and the family the subject of a case, are already the subject of public notoriety and debate, it is important in the interests of open and public justice that the public should be aware, if they are interested, that some further judgment does indeed relate to that family. Frankly, there is probably enough information inevitably contained within the judgment that an informed reader might guess that it related to this family even if the title had said the London Borough of X and referred to the family as Y. But, to my mind, it runs counter to openness and transparency in family proceedings to conceal or disguise the family to which a judgment relates in circumstances such as this. So it was my very deliberate decision that the words Musa and the London Borough of Haringey should appear in the title to the judgment.’ Holman J was unimpressed that the local authority had taken steps behind his back to remove the judgment from BAILII pending a decision, and directed its reinstatement. Ultimately three judgments delivered by Holman J were published between March and April 2014, and Holman J made a point of cross referencing them so that interested parties could read the set. In July 2014 Newton J also sat in public. Having dealt with an application to recuse himself due to a conflict said to arise from an erroneous assumption that he was married to a judge of the same name, the judge went on to sit in open court. 282

APPENDIX 1 The judgment describes an ‘agitated throng’ outside court, distributing leaflets, and Newton J says: ‘Although I cannot be sure, it appears that the details of the children, indeed photographs, appear, as far as I can see, on the internet. It would not be difficult with little application to marry what has taken place within these proceedings with the previous ones. It is because of that, that despite my considerable and overriding anxieties about these innocent children, this judgment is given in public. I make no order about publicity. It seems to me that the judgment can be described by the family’s name, Musa, which appears on the other judgments as they have already been identified. It seems to me, as I have already said, that it is rather like shutting the stable door well after the horse has bolted. This is a situation which very regrettably demonstrates how very careful the court must be in making sure that the pieces of the jigsaw, particularly where there is intense public scrutiny in a case, are not such that their own security, that of the children, is placed in danger. Very sadly in this case, that is exactly what appears to have happened or may happen.’ In a judgment in which he was critical of the local authority for acting preemptively regarding the renaming (Holman J had also criticised them for a similar approach in respect of the cessation of contact and the removal of his judgment) Mr Justice Newton accepted that very sadly and unusually that as a result of the notoriety and threats to abduct the children by third parties associated with the campaign, which had necessitated a change in placement, the children required a new identity. Material concerning the Musa case remains online at the time of writing.

283

284

Appendix 2

PUBLICATION OF FAMILY COURT JUDGMENTS – A GUIDANCE NOTE FOR FAMILIES AND PROFESSIONALS

This guidance note is reproduced here with kind permission of The Transparency Project. Preliminary note from The Transparency Project: This guide was designed to assist those involved in family court cases to think through issues around publication of judgments in those cases. Nothing written here should be treated as legal advice on individual cases or circumstances. The Transparency Project does not give legal advice. This guidance note has been made possible through grant funding from The Legal Education Foundation. The Transparency Project July 2017 www.transparencyproject.org.uk

Contents INTRODUCTION 286 ●● What is this guide about and who is it for?  286 ●● Aims of the guide  287 ●● Context  287 ●● Format  289 285

APPENDIX 2 ●● Sources  289 ●● Updates & amendments  289 ●● When should I start thinking about publication?  289 1.

PART 1 – SHOULD THE JUDGMENT IN MY CASE BE PUBLISHED?  290

1.1.

Possible down sides of publication  290

1.2.

Possible reasons to publish  291

1.3.

Reporting restrictions and rubrics  292

1.4.

What if anonymisation goes wrong?  293

1.5.

What does the law say about publishing family judgments?  294 1.5.1. The open justice principle  294 1.5.2. Public interest  294 1.5.3. Balancing relevant rights  295 1.5.4. The individual child’s best interests  296 1.5.5. Anonymisation and naming decisions  296 1.5.6. Naming experts and professionals  296 1.5.7. Risk of identification (even of children) is no automatic bar to publication  297

1.6.

What the Judges’ Guidance says about publishing judgments  297

1.7.

What actually happens in practice?  298

1.8.

What if I don’t want the judgment published?  299

1.9.

What if I do want the judgment published?  300

1.10. Who pays for the costs of a transcript of judgment?  301 1.11. Other things to think about  301 2.

PART 2 – THE ANONYMISATION CHECKLIST  302

Part 1 – Introduction What is this guide about and who is it for? This guide is for use by anyone involved with a family court case, to help them think through the pros and cons of publication and the practicalities of how that might be best achieved. The guide might be used by parents or older children, or by legal or social work professionals, separately or in discussion together. For  example, it might be something that a lawyer or client would use to help 286

APPENDIX 2 them frame a discussion or think of questions to ask in order to give or obtain instructions. It won’t tell you whether or not publication is a “good idea” in the case you are involved in. Every case is different. This guidance note gives those making decisions some structure to help people make informed choices and to be a part of decision making around publication. We’ve tried to use language which is not too technical because this is meant to be a practical document to help people make good decisions, not a legal textbook. We’ve tried to keep legal language to a minimum, but this document probably wouldn’t be accessible for parents with literacy or cognitive difficulties or for older children who may want to have a say about publication, and who are entitled to instruct their lawyer about this. In these cases, we would expect the lawyer representing the child or adult to support them in understanding the contents of this document.

Aims of this guide The guide aims to: (1) Help people do anonymisation better. We’ve made a checklist tool for people who are involved in anonymising a judgment or checking a draft before publication; (2) Help the parents and (older) children involved in family cases to think about and talk through publication issues with their lawyers or those supporting them; (3) Help reassure those whose lives may be described in judgments, by promoting good anonymisation; (4) Minimise the risk of unintended identification of children and families through publication of judgments (5) Enable judgments to be published where possible and appropriate The guide mainly applies to judgments in children cases, but may be of use in financial remedy and other family cases in which children are mentioned, or regarding vulnerable adults.

Context From February 2014, guidance issued by the President of the Family Division has required judges to permit and send certain specified types of family court judgments for publication on BAILII1, unless there are compelling reasons in the individual

1

British and Irish Legal Information Institute, www.bailii.org (A repository of published judgments maintained by a small charity).

287

APPENDIX 2 case why that shouldn’t happen: see Practice Guidance: Transparency in the Family Courts: Publication of Judgments (“the Judges’ Guidance”) at paragraphs 16–172. The types of judgment that the Judges’ Guidance applies to are listed in a schedule at the end of that Guidance (“the Schedules”). The Judges' guidance also said that these judgments should normally be anonymised in respect of the children and families involved, while experts should normally be identified by name (see paragraph 20). In July 2016, Dr Julia Brophy, on behalf of the Association of Lawyers for Children, published proposals for the judiciary called the Anonymisation and Avoidance of the Identification of Children and the Treatment of explicit descriptions of the sexual abuse of children in judgments intended for the public arena – Judicial Guidance (“the ALC research”), which the President is considering.3 In July and October 20164 the President confirmed he would issue draft guidance for consultation on anonymising judgments and the process of sending judgments to www.bailii.org or removing them, once he had considered relevant research. In March 2017, the findings from research led by Dr Julie Doughty of Cardiff University were published in a research report entitled Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people (“the Cardiff research”)5. The researchers analysed two years’ worth of judgments from decisions about children published under the Judges’ Guidance, to evaluate the effects and impact. Though not a primary aim, some data was gathered about anonymisation practice, including examples of effective judicial practice. Judges’ own views about their anonymisation and publication strategies were also harnessed via a survey. Those research findings, together with the practice experience and research of members of The Transparency Project, form the basis of this guide.

2

Transparency in the Family Courts: Publication of Judgments: Practice Guidance (The Judges’ Guidance): https://www.judiciary.gov.uk/publications/transparency-in-the-family-courts/. 3 http://www.nuffieldfoundation.org/sites/default/files/files/Draft_Guidance_-_Anonymisation_and_ avoidance_of_the_identification_of_children_and_treatment_of_descriptions_of_sexual_abuse_of_ children_in_judgments_intended_for_the_public_arena.pdf. 4 Re X (A Child) (No 2) [2016] EWHC 1668 (Fam) (Para 32) and Transparency in the Family Courts: Guidance by the President of the Family Division. Court and Tribunals Announcements 18 October 2016 https://www.judiciary.gov.uk/announcements/transparencyin-the-family-courts-guidance-by-the-president-of-the-family-division/. 5 J Doughty, A Twaite and P Magrath Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people (the Cardiff research) http:// orca.cf.ac.uk/99141/ A summary is published here http://www.nuffieldfoundation.org/news/ family-court-transparency-plans-fall-short-judges-struggle-find-time-publish-judgments-safely.

288

APPENDIX 2

Format This guide is divided into two parts to make it easier to read: Part One – SHOULD THE JUDGMENT IN MY CASE BE PUBLISHED? Practical tips around whether, when and how to request or oppose publication of a family court judgment Part Two – Anonymisation Checklist In real life you can’t always decide whether to publish a judgment until you’ve thought about how you could go about doing it. In particular it is often helpful to ask the question: “If this judgment was published, how would we go about anonymising it to make sure that the family weren’t identified?” Sometimes that will lead to the conclusion that the judgment actually shouldn’t be published at all, because anonymisation wouldn’t protect the family, but in other cases it might actually turn out to be possible to both publish and protect. Put legally, the balance between (1) a right to privacy or a need for protection, and (2) the right to freedom of speech, may tip in favour of publication if a suitable anonymisation strategy is in place (or there are other steps taken to manage publication, such as timing).

Sources We’ve included references and links in endnotes. The Checklist is largely drawn from examples of existing judicial good practice in published judgments and suggestions from individual judges, as identified by the Cardiff research6.

Updates and amendments As always, we welcome constructive feedback and will consider amending or updating this guide accordingly. We are aware that the President’s guidance is under review and may be revised, and will amend this guidance note as and when that happens.

When should I start thinking about publication? The short answer: whenever you know there is a judgment coming soon that somebody in the case is likely to think is important. The longer answer is that it probably depends on the nature of the case and the judgment in question. However, thinking about publication and possible

6

The Cardiff research (as above).

289

APPENDIX 2 anonymisation at an early stage may help encourage greater transparency and save time and public funds. It can be unhelpful to some family members for these issues to be raised without prior warning after the delivery of a judgment, with time then being required to take instructions and marshall arguments, when their focus is likely to be on the substance of the decision. Older children are entitled to have these matters explained to them and to give instructions, and may need time to process what can be a complicated set of decisions, involving both “principled” and “practical” issues. Parents and older children may need time to properly think through the issues raised in this guidance note and to think about how they apply in their case., so that they can give informed instructions or views if and when the time comes. Lawyers and guardians may wish to have early, general discussions about the possibility of publication with them in preparation. If those involved have thought about publication in advance, they can ask the judge to deliver judgment in an already anonymised form. Judgments which are delivered in a form which is already anonymised (and which omits obvious identifying geographical and other markers) are less likely to need editing after the event, which is more efficient and less stressful for families, and probably reduces the risk of inadvertent error. The checklist is intentionally very general – it is a tool, not a set of answers.

Part 1 – Should the judgment in my case be published? Here we help you think through the possible “pros” and “cons”.

1.1  Possible down sides of publication ●● The child or other family members might be identified if anonymisation is not carried out properly (particularly if the case is reported in the local press where the readers of a news report will be able to piece things together more easily). For a child, this could potentially lead to placement breakdown or targeting of an abused child who has gone into care for abuse or exploitation. For adults sometimes this can make it very difficult to remain in the local community, for example if there are reprisals, or unkindness, bullying or harassment; ●● The child or other family members might be identified if a family member links them self on social media as being the parent or other person mentioned in the judgment (“this is my case”); ●● The press may approach a family member for interview (usually via their solicitors); 290

APPENDIX 2 ●● The press may report the case from a particular angle which is inaccurate or upsetting or critical of someone involved in the case; ●● Press interest could be intrusive – but this is unlikely because the press will probably be banned from publishing pictures or names (so won’t be tempted to trawl Facebook / social media accounts), and because the IPSO Editors’ Code of Conduct7 regulates the way in which journalists can interact with or write about children or vulnerable persons; ●● Members of the public may be critical or unkind about someone involved in the case on social media; ●● There could be a risk that any future criminal trial around the same issues could be prejudiced (but in reality if there is any possibility of a criminal trial the court will almost certainly NOT publish a judgment until after the trial or a decision not to proceed); ●● If the judgment identifies someone as a perpetrator of abuse or harm to a child or another adult in the case (this rarely happens but the Judges’ Guidance does refer to it, so it is possible) then it will obviously make life difficult of them to be identified in their community; ●● Risk of a particular child or adult being inhibited from sharing important information such as about abuse; ●● There might be evidence that a particularly vulnerable child or adult may be placed at risk of harm by anxiety or worry about publication (whether identified or not).

1.2  Possible reasons to publish ●● Because justice should, so far as possible, “not only be done but be seen to be done”, with the public able to see what is done in their name; ●● A parent (or more rarely a child) will be able to tell their story (although if a parent wants to talk about some part of the hearing that is not detailed in the judgment they may still need the permission of the court) However, a parent who tells their story may not have very much control over how others tell it on their behalf; ●● Someone who has been accused of abuse or harmful behaviour but who has been found not to have done it may benefit from it being known that they are innocent, to counter gossip and misinformation (although in many cases the person exonerated will be anonymised to protect the identity of the child, so this will only work indirectly if people who know the family join the dots);

7

IPSO is the Independent Press Standards Organisation, which regulates most national and local newspapers by reference to its Editors’ Code of Practice, https://www.ipso.co.uk/ editors-code-of-practice/).

291

APPENDIX 2 ●● Other families will feel reassured or will be alerted to issues that might be relevant in their case – it is important to many parents that what has gone wrong in their case doesn’t happen again, and that other parents (including those without a lawyer) are aware of their experience and how it got resolved; ●● A parent will be able to campaign on a question of public importance (for example to raise awareness about a rare medical issue); ●● To highlight serious failures of a judge, a professional or some agency; ●● To enable the accurate reporting of family cases and research by the press; ●● To help the public understand how family courts work and how they deal with cases of a particular sort; ●● To rebalance or correct information in the public domain where there has been unauthorised or distorted publication of information on social media or in the press. It is perhaps easy to see from these two lists that things may look very different before a judgment is delivered to afterwards, particularly if the view taken by the judge is unexpectedly negative / favourable. Someone who has had findings made against them or who the judge has said was abusive, incompetent or dishonest will be less likely to be enthusiastic about publication. So, whilst it is a good idea to think about publication in advance, further thought may be required once the substance of the decision is known.

1.3  Reporting restrictions and rubrics This guide doesn’t set out the law about restrictions on what can be published – our Media Guide8 gives an overview, and signposts to more detailed guidance. It is important to understand that when the question of publication of a judgment is raised, it may also lead to the court considering what reporting restrictions should be put in place – sometimes a court is prepared to publish a judgment (or another party will be prepared to agree to publication) on the basis that there is a reporting restriction put in place to make sure that additional information which might identify a family or place a child at risk does not slip out when a judgment is talked about. In very rough outline, the stuff that goes on in court, and which is contained in court documents in a case about children, cannot be talked about in public unless it is contained in a published judgment or the court says it’s ok. Rules about identification of a child are slightly different – and if a judgment is to be published after a court case has finished, the court may wish to re-impose a restriction on

8

Media Guide: Attending and reporting family law cases, March 2017, http://www.transparencyproject. org.uk/media.

292

APPENDIX 2 identification through the rubric or, perhaps where the details of what needs to remain private are more complex, through a reporting restriction order (RRO). A rubric is a warning placed at the top of a judgment, which explains what can and cannot be published about a case. Where a judgment is published, it will typically permit publication of anything in the judgment but not of any information which might identify the child (usually this includes the parents).9 Sometimes when the question of publication is raised, or there is media interest in a case, somebody will apply for a reporting restriction order (or the judge may raise the issue herself). It is important to understand that, where this happens, the press have to be told what is happening, so that they can argue against a restriction on what they can report if they wish. This can generate media interest in a case, which the press had not previously noticed and might well have left alone. That said, the media will often make sensible concessions about details that should not be reported in order that they can still report the story they want to report.

1.4  What if anonymisation goes wrong? There have been examples of failures in anonymisation, most often where a name has been left in by mistake. Clearly those failures are very worrying for the families concerned and for families more generally, because they do create a risk of identification of a child or family, with potential knock-on effects. A study carried out by the ALC research team on a sample of judgments concluded that a number of them contained potentially identifying information, but the children were not in fact identified, and there was no evidence of anything actually happening as a result. But it is important to recognise that: ●● there is very limited evidence about what the impact of inadvertent anonymization errors actual are, and ●● no evidence of direct harm in any individual case. Many of the judgments that The Transparency Project and the Cardiff Research team identified as containing anonymisation errors had been published unnoticed on the bailii.org website for many months. The greatest risk of identification is probably from family members publishing material on social media, rather than from the judgment itself. However, it is far better to reduce any risk of identification by thorough anonymisation / redaction than to rely on nobody picking up on a judgment or name – and this guide aims to empower the parties to make sure that their judgments are dealt with thoroughly and safely and that they are properly involved in the process.

9

Re X (A Child) (No 2) [2016] EWHC 1668 (Fam) explains what the rubric is, when it is or is not required, and what it’s for.

293

APPENDIX 2 Worries about anonymization errors should not be a reason not to publish a judgment. They are a reason to take more care with the process before publication. In general terms, the risk of anonymization error can be minimised by the following: ●● build in a double check: ensure that more than one person has checked the draft. Different people will spot different things. Don’t assume someone else has checked it so it’s okay. ●● Don’t rely exclusively on search and find functions in word – if there is a spelling error you may miss something. Print and perform a visual check. ●● Ensure someone with local knowledge and the family are involved in the anonymization process so that locally identifying details are picked up and screened out.

1.5  What does the law say about publishing family judgments? This is a very condensed summary only, meant to give an overview for non-lawyers and a reminder to lawyers.

1.5.1  Open justice principle There is a general rule that justice must be seen to be done. This means that family cases, which are often heard in private, are an exception to the rule. This doesn’t mean that the open justice principle doesn’t apply to family cases. On the contrary, family cases can only be dealt with differently to other sorts of cases when it is justified. Often it is easily justified – but not always. This means that judges and those involved in cases ought to be asking themselves: “Can this be done more openly than it is and, if so, how?”

1.5.2  Public interest People’s privacy is one side of the equation. Public interest is the other. It isn’t always obvious what “public interest” actually means though. Public interest is not the same as things the public are interested in (it’s not just celebrity separations and paparazzi): public interest is about the reasons that a member of the public (or others such as the press, campaigners, researchers or charities) might legitimately want to know what is going on in a court case. Some of these reasons might be: ●● So they can be confident that the justice system is working, and would work for them if they had to go to court, ●● So that they can know if the justice system isn’t working, so that they can do something about it or can campaign for change,

294

APPENDIX 2 ●● So that they can contribute to public debate about how it might be made better, ●● So that they can understand how the law and the courts treat a particular group or category of people, ●● So that they can identify a particular problem or a rogue individual or agency or systemic patterns (for example a corrupt or inept professional or expert), ●● To inform their decisions or actions in a case which they are (or might be) personally involved in, ●● To help them understand if their own experience is typical or not, ●● To inform their decisions or actions as a member of society in the knowledge of what the consequences might be. So, on one level, every case holds some public interest, but it’s also easy to see that some cases hold far more public interest than others. In family cases, knowing when, why and how the State will step in and take away people’s children – potentially your children – is a really important thing for the public to understand. Knowing how the courts will approach disputes between parents and when, why and how the courts will order or prevent people from seeing their children, or how courts will protect you from abuse, false allegations or poor practice are also really important matters. Similarly, knowing how the courts will approach financial disputes between separated couples, or disagreements between family members and medics about life saving or life ending treatment is also really important. The public don’t necessarily need to know the names or full details of individual cases to understand all of those things, but they do have a claim to know what happens in individual cases. Because family cases involve people’s private lives and often involve vulnerable children, there is usually a need for some sort of restriction on the open justice principle in those cases. So the law does put in place some automatic restrictions on what can and can’t be said publicly about these cases. Those automatic restrictions can be relaxed or tightened depending on the individual case. In most family cases, judgments must not be published without the permission of the judge.

1.5.3  Balancing relevant rights It is up to the judge to decide whether to publish a particular judgment. This usually happens at the end of the hearing when the judgment is delivered. The law requires a judge to balance the public interest in open justice and the private rights of individuals to private and family life, and to consider and balance relevant human rights: ●● Respect for private and family life (Article 8) ●● Right to freedom of expression (Article 10) 295

APPENDIX 2 ●● Right to a fair hearing (including in other connected court cases, for example a criminal trial) (Article 6) The judge has to look hard at each of the competing rights, how they apply and how important each of them is in the individual case (caselaw describes this as an “intense focus”).10 Neither freedom of expression nor the right to privacy automatically take priority in that balancing exercise – it all depends on the facts in each case. In these cases, the rights to freedom of expression and to privacy are in direct conflict, so something has to give. Any decision the court makes will interfere with one or other right to some extent. The law says that any interference has to be proportionate, which means that the judge must make a decision, which interferes with the right to freedom of expression or right to private and family life as little as possible. In practical terms, this intense focus may involve thinking hard about what could be done to allow publication in a way that does not interfere with a child’s privacy – again it is easy to see that creative thinking about anonymisation, perhaps in combination with reporting restrictions on certain sensitive or identifying matters, may have an impact on where the balance falls, and how both sets of rights can be respected with as little interference as possible.

1.5.4  The individual child’s best interests The law says the court must have regard to the best interests of any child who is the subject of the case, but the child’s welfare is not “paramount” – it is one of a number of factors when considering publication.

1.5.5  Anonymisation and naming decisions In most cases, the starting point will be that children and family members will be anonymised to protect their privacy (See paragraph 20 of the Judges’ Guidance), but there may be cases where this is not necessary, or where anonymisation would frustrate the purpose behind publication (for example, to clear someone’s name, to allow a parent to campaign about a medical issue, to correct the public record on a matter where the identity of the parties is already known).

1.5.6  Naming experts and professionals The open justice principle includes not just the idea that the proceedings should be open to scrutiny but that the names of the people involved in the hearing should be public knowledge. The idea is that those who offer expert evidence to

10 R (C) v The Secretary State for Justice [2016] UKSC 2; (citing Re S (a child) (identification: restrictions on publication [2005] 1 AC 593); Re: J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam); [2014] 1 FLR 523, Re W (Children) [2016] EWCA Civ 113; [2016] 4 WLR 39.

296

APPENDIX 2 courts should do so with the expectation that their conclusions and analysis are likely be held up to public scrutiny, particularly in the family court where decisions affected by those opinions are of such life-changing importance to children and families.

1.5.7  Risk of identification (even of children) is no automatic bar to publication Publication is not necessarily harmful even if it does lead to identification – although in many cases involving children it may be easy to show that it would be. The court will need to balance the level of risk associated with publication (of identification or of increased media interest) and how serious the consequences might be if identification actually happened.

1.6  What the judges’ guidance says about publishing judgments As mentioned at the beginning of this guide, the President of the Family Division published guidance on this topic in January 2014, encouraging the publication of more judgments in certain cases, where appropriate. The guidance is under revision. If and when it is revised we will consider whether we need to update this note. The guidance was aimed at ensuring more frequent publication of certain family court judgments. It did not change the law, but is more of a prompt of the existing law about the need to respect freedom of expression as well as privacy. It makes explicit the great weight of public interest in open justice, against which rights to privacy must be balanced. It makes publication in the public interest the starting point for certain types of case. The guidance only applies to family court judgments given at circuit judge level or above. It doesn’t apply to decisions of magistrates or district judges (but this doesn’t prevent such judges from publishing a judgment if appropriate). (Publication from appeal and committal applications is subject to separate guidance). The guidance applies only to certain categories of case / judgment. The guidance does not tie the judge’s hands in an individual case if they think that the public interest in publication is outweighed by some other compelling reason. The guidance only applies where there is already a written judgment or where there is going to be a transcript anyway. The categories of judgment to which the guidance particularly applies are judgments from: (1) serious fact finding decisions in either public (care) or private law cases (for example findings about injuries to a child or domestic violence) – but not where

297

APPENDIX 2 things are agreed or unopposed;(2) final orders on care and supervision order applications (or discharge) – but not where things are agreed or unopposed; (3) final orders in placement and adoption applications (including revocation) – but not where things are agreed or unopposed; (4) secure accommodation order applications (5) serious medical treatment order applications (6) all applications for reporting restrictions but other cases may still be published on application or if the judge considers there is a public interest in doing so.

1.7  What actually happens in practice? What happens in practice will probably depend on: $$ whether the judge regularly publishes in accordance with the Judges’ Guidance; $$ whether the judge thinks the public interest requires publication in the case; $$ whether the case falls in the list of cases the guidance says should normally be published; $$ whether anyone raises publication / formally applies for publication; $$ whether there is a written version, either because the judge prepares a typed judgment or orders a transcript for some other reason (see below); Whatever the guidance says, the Cardiff research has confirmed that there are big variations between judges and different courts about whether they routinely send judgments for publication. Judges who intend publication will generally prepare their own written judgments or order transcripts of judgments. Other judges may routinely give oral judgments and may not address the issue unless asked. Often no party has any interest in publication, no one wants to incur the costs of a transcript of an oral judgment and no one will raise the issue of publication at all. But sometimes someone does want a written judgment prepared for some reason, and then the issue of publication is more likely to come up. For example: $$ Local authority children’s services or CAFCASS11 may want a transcript of judgment for their records if relevant to a future assessment, for example, of a baby due to be born; $$ Children’s services or CAFCASS might want a judgment to provide information to intended new permanent carers of the child, to keep for the child to read

11 Child and Family Court Advisory and Support Service (CAFCASS or CAFCASS Cymru in Wales), www.cafcass.gov.uk.

298

APPENDIX 2 when they are an adult; or to share with external agencies subject to certain rules; etc; $$ A family member may want publication to tell their story; show they have been vindicated; or as a record or for use in an application to appeal; etc $$ A judgment may be released to the police for a criminal investigation or to other bodies for the purposes of making a complaint of some sort about someone involved in the case; $$ A judgment from a fact finding hearing may be needed for a family member to reflect on or to inform an expert assessing what should happen next; $$ The Police may wish to have sight of a judgment to help them decide whether they should prosecute any possible criminal offence (they are entitled to a copy of any judgment automatically under court rules). As someone else might raise this issue, it’s a good idea to have thought about what your answer might be if you were suddenly asked what you think about publication and what anonymisation might be required.

1.8  What if I don’t want the judgment published? ●● It may be best to say nothing, whilst also being ready to tell the judge and parties you are opposed to publication, with reasons if anyone suggests it; ●● You can ask to approve any anonymised judgment for publication before it is sent for publishing and you can use the Checklist in Part 2 of this guide to help you make any arguments for any further detail to be taken out if it poses an unacceptable risk of you or someone else in the case being identified and / or harmed; ●● It is ok to say, “I would agree to publication if this or that detail were removed from the judgment”; ●● So, first think about how the anonymisation can be made safe and sufficient. If you still think it can’t be, you will need to be ready to show in your particular situation exactly how the balance between public interest in open justice and privacy falls against publication, even if well anonymised. If your judgment is one of the types of judgment listed in the Schedules you will need “compelling” (really good) reasons to avoid publication (assuming that someone else has raised the topic – sometimes it passes unmentioned); ●● You might be able to point to specific harm or difficulty that you are worried about such as: $$ The risk that you or a member of your family might become identifiable locally and that you or a family member would be harassed, bullied or disadvantaged, $$ The risk that your location or that of a family member might be discovered by someone who is a risk to you or a family member (for example a violent ex partner), 299

APPENDIX 2 $$ You are worried about press harassment or intrusion (for example doorstepping or using material on your Facebook or social media profile), $$ You are worried that you might be the subject of criticism in the press or on social media, $$ Publication might lead to worry about a child’s placement (for example because their location may become known), meaning they have to change placement or move home, $$ The details are so upsetting that they should not be published either because they are distressing for an involved adult to read, inappropriate for public consumption (for example because of their graphic nature*) or because they might be found by a child in an unplanned way; ●● You can see that most of these arguments could be dealt with in most cases by really good anonymisation or removal of unnecessary detail*; ●● It is your right to have your arguments heard and to be given reasons for any decision to refuse this. If you need to prepare arguments or research the law you could ask the judge to adjourn the decision to a hearing specifically on this. For example, if there are complex legal or factual arguments or the situation has arisen unexpectedly with parties unprepared; ●● The judge is entitled to decide to publish a judgment even if you object. It is important that IF the judge agrees to publish the judgment you let them know what anonymisation you think is appropriate; ●● If the decision doesn’t go your way it may be possible to appeal the decision to publish. However this guidance note does not cover appeals. A decision about publication is likely to be classed as a “case management decision” which has a time limit for appeal of 7 days, so urgent legal advice and action is important. *Different people hold different views about what amounts to “unnecessary detail” and whether something is too graphic for public consumption.

1.9  What if I do want the judgment published? ●● The judge will need to be satisfied that publication is in the public interest or that your case falls within the schedules to the guidance that means it should ordinarily be published. ●● In any event, the judge will need to be satisfied that there is a written judgment already or that the costs of ordering one should be incurred. ●● Unless the judge or another party is already raising the question of publication, then it is a good idea to raise it yourself as early as possible (or at any rate once you reach a point where you aren’t likely to change your mind). If your case falls within the schedules to the guidance you can politely point out that you are raising it so that others can raise any compelling reasons why publication is not justified in this particular case – as the starting point is in favour of publication. 300

APPENDIX 2 ●● The same things apply as in the paragraph above about your right to be heard, to be given reasons and to seek permission to appeal.

1.10  Who pays for the costs of a transcript of judgment The Judges’ Guidance says if the judge permits publication in the public interest then the costs should be met by the courts. By contrast, the costs of judgments that fall within Schedules to the Judges’ Guidance should be shared between the parties. Where the judgment is published on the application of the press or a party (i.e. those cases which aren’t in the Schedules and which the judge didn’t decide of their own volition it was in the public interest to publish, and where someone asks them to publish anyway) then the costs are the responsibility of the person who asks. However, we aren’t sure that this is always how it works in practice. In care cases the parties will usually have legal aid. But there have reportedly been difficulties getting the Legal Aid Agency to agree to pay for the costs of a transcript in some cases where they think that cost is not justified for some reason, or that someone else could / should pay. And of course in some cases there IS no legal aid – so the court will have to decide whether one or more of the parties should pay for the costs of a transcript from their own pockets.

1.11  Other things to think about ●● It can be very useful to have a judgment as a record. (Many people think that all parties – including the children for later life understanding- should receive one free, as of right, within a reasonable period after delivery of judgment). However it’s important to be aware that under the Judges’ Guidance,12 asking for and obtaining a transcript of judgment may bring your case under the criteria for publication of that judgment in a way that it was not before the transcript was obtained. ●● Bailii.org is a small charitable website which the public are largely unaware of, and has historically been mainly used by legal reporters, lawyers, researchers and academics. However, the Judges’ Guidance has led to an increase in the number of ‘ordinary’ judgments published, (when we say ‘ordinary’ we mean cases that don’t change the law but are good examples of how things typically work). Journalists are increasingly using bailii.org to find and write stories about family courts that the public will be interested in.

12 Paragraph 18 of the Judges’ Guidance.

301

APPENDIX 2 ●● Many newspapers try to publish only accurate reports with reasonable balance, while holding the strong opinions, which they are entitled to hold. But the regulatory code most newspaper publishers sign up to and the way it is interpreted in practice by their external ‘regulator’ (IPSO – under the Editors’ Code) doesn’t currently prevent some newspapers from publishing stories that ‘cherry pick’ isolated aspects of judgments for scandalous or controversial headlines that will sell papers, while ignoring the rest. They are not required to link to the judgment nor offer a genuinely balanced presentation. And once information is out, it may remain forever ‘out there’ on the web even after the passage of time. ●● You can ask your legal representative to ensure you have the chance to give your full instructions about how any judgment is anonymised before being sent for publication and to check the final version. If you are not legally represented, you can ask to do this directly yourself. See Part 2 Checklist for guidance on some things to consider. Put your requests about anonymisation in writing or have your legal representative do so. Significant disagreements can be referred to the judge.

Part 2 – The Anonymisation Checklist This checklist is intended to help you think about what should be anonymised or redacted, so you can think about whether or not a judgment can or should be published, and so that you can make sure that if it is published it is done safely for all. It is also intended to help those to whom the task of anonymisation or checking may be delegated (usually lawyers acting for the parties) and to help those who are giving them instructions to think through what steps they want taken on their behalf BEFORE publication, in order to avoid a scramble after publication when something slips through the net or someone realises that they should have asked for removal of an identifying detail after all. What needs to be done to a judgment will depend on a number of things. For example: ●● Some judgments may come ready anonymised (some judges type their own judgments and habitually use initials anyway) and may need little work ●● Some families have unusual characteristics such as uncommon ethnicity for the locality, or an unusual number / configuration of sibling group; or an unusual medical or other characteristic; ●● Or the particular facts relating to their situation are already in the public domain or likely to be such as through reporting of criminal trial, ●● The subject matter of some judgments may be particularly likely to attract media or community interest and attention or may contain graphic details which may be humiliating or distressing or render a victim vulnerable if published in full (for example sexual abuse cases). 302

APPENDIX 2 For pragmatic reasons lawyers to whom this task are delegated may tend to err on the side of caution, removing more detail than is strictly necessary. There is a risk that such an approach could defeat the purpose of publication, that is to properly inform the public about what is done in their name. There is no point in publishing a judgment that says nothing once redacted – if a judgment seems pointless we suggest that either the anonymization strategy has probably been too enthusiastic or, if not, that the judgment should probably not be published at all. ISSUE

PRACTICE TO CONSIDER

RUBRIC

It is important to make sure that any rubric (a notice at the head of the judgment, warning of reporting restrictions) is appropriate to the circumstances of the case and that it makes clear whether the court sat in private or public. Ensure the deemed standard rubric or an amended version13 is clearly on the face of the order. Good idea to identify if any additional reporting restrictions are in place within the rubric. Standard rubric (see paragraph 21 President’s Guidance): This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All person, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court

NAMES

●● Consider using fictitious initials for children and/ or generalised terms where possible e.g.: ‘PJ’ or ‘XJ’ or ‘the child’, ‘child 1’, ‘the Father’, ‘the family friend’ where possible

13 Several High Court Judges use their own personalised versions of the standard rubric. The following is a hybrid of them: This judgment is being handed down [in private] on [DATE]. It consists of [x number] paragraphs/pages and has been signed and dated by the judge. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the children and the adult members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the child will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. [A reporting restriction order is / is not also in force]. [Applies also to law reports].

303

APPENDIX 2 ISSUE

PRACTICE TO CONSIDER ●● But note that instead of an initial (which is a bit dehumanising), some people prefer use of a pseudonym (substitute name) which matches the gender and cultural background of a child, possibly with the same initial e.g. Hassan for Hamza or Cody for Christopher. If a pseudonym is used the judgment should say so. ●● Terms like ‘the mother or ‘the father’s cousin’ or ‘the father of X’ are much easier for the reader to follow than initials such as ‘AB’ or ‘XY’, but in complex families such labels may themselves be inappropriate / difficult to apply or follow. ●● Where initials are used it can be helpful to include a schedule of anonymisation at the outset to which the reader can quickly cross-refer back to. ●● Pay particular attention to names of wider family and friends and names within quotes from expert reports / written evidence which are easy to miss. Take particular care if relying on transcription services to anonymise. Many anonymization errors seem to be connected with quotes from reports or documents or of oral evidence. ●● Where fictitious initials or names are used to replace actual names in a judgment that is being converted for publication it is important not to be over reliant on electronic “find+replace” commands, which can lead to errors and accidentally allow the real name to slip through. ●● Ensure that all variants of a name are checked for and removed, including misspellings (David, Dave, Davod) ●● Print revised document and check manually. ●● Do not rely on someone else having checked the document.

DATES OF BIRTH

Redact dates of birth to the month and year of birth where possible: ‘Child A born in March 2017’ or ‘early 2017’ Combining the ages and number of members of a sibling group can lead to identification locally, particularly where one or more child has identifying features such as a disability

304

APPENDIX 2 ISSUE

PRACTICE TO CONSIDER

LOCATION OR PRESENT WHEREABOUTS

●● Generalise current villages, towns and even cities to wider area e.g.: ‘a small village in Lincolnshire’; ‘a town/city in the South West of England’ ●● As well as current schools, nurseries, colleges, workplaces, refuges, hospitals where in-patient, places of worship, etc.

e.g. consider identifying tier of school and year group without identifying the school itself, in smaller communities where there is only one school of a particular type / tier particular care may be needed

●● Or Contact Centres; Family Centres, local Assessment Centres or treatment projects; details of A&E or paramedics; INDIRECT IDENTIFIFCATION

Ensure details about type or characteristics of current schools, colleges etc don’t effectively identify location by being the only one of its type in an area e.g. a mosque or a specialist school

‘JIGSAW IDENTIFICATION’

Think about the cumulative impact of the information that will be contained in a judgment set alongside with other information that is already in the public domain (jigsaw identification) Consider in particular whether there is already any information on social media about the case, media coverage of related criminal proceedings, or even other judgments from the same proceedings / concerning the same parties.

(i) Ethnicity, religion, citizenship etc.

Consider whether details of someone’s ethnicity, religion or citizenship are relevant, necessary and proportionate to the increased risk of ‘jigsaw’ identification from specifying an identifiable minority group within a much wider community

(ii) Details of some unusual disabilities, illnesses, conditions or other characteristics

Consider generalising rare characteristics or conditions, which may be identifying.

(iii) Criminal convictions

●● Redacting the date, court and judge dealing with criminal proceedings, to a suitable generalised summary may be sensible if identification is a worry – the date and location of a conviction can make it very easy to identify a family through search engines;

E.g. ‘a rare, genetic disorder’ rather than the specific genetic disorder particularly if in a small rural borough, or if so rare as to be identifying in itself

305

APPENDIX 2 ISSUE

PRACTICE TO CONSIDER ●● Consider redaction of identifying detail of incidents (see below) ●● the judge could be asked to publish a short note acknowledging the existence of a qualifying judgment withheld temporarily from publication to avoid prejudicing a criminal trial with date of next review

(iv) Future criminal trial likely or intended

It will often be inappropriate to publish anything whilst criminal investigations / proceedings are pending. This does not always mean that no publication will ever be possible, so it is worth thinking about what mechanism will be used to ensure the question is reconsidered at the appropriate point (when the criminal matters have finished).

(v) Social media postings

Consider whether there are any feasible steps to avoid unnecessary risk of jigsaw identification through a published judgment being linked with known or likely social media postings identifying the child. In some cases it may be possible to minimise likelihood of ‘linking’ by avoiding certain unnecessary detail in the judgment

(v) Unnecessary detail including graphic sexual abuse

Draft and check for redundant detail that can be generalised or left out if it unnecessarily increases risk of children or families being unintentionally identified In particular consider asking for the redaction of graphic sexual details to a summary, perhaps identifying for future reference where any fuller detail is to be found. Where this sort of detail is redacted it is a good idea to use square brackets or similar to show that something has been taken out

WHO TO NAME Naming local or treating practitioners / professionals

Naming of GPs, dentists, health visitors, teachers, school staff, ambulance workers, paramedics, A&E staff, contact workers, foster carers, local CAMHS staff or any other local, treating professionals or their practices may add little by way of useful information, but may increase the risk of identification of a family or individual children within their local community or school. In some cases there may be relevance to naming an individual, for example if there have been professional failings. If professionals are anonymised a judgment should use initials to distinguish clearly between individual professional witnesses.

306

APPENDIX 2 ISSUE

PRACTICE TO CONSIDER Occasionally a judge will anonymise the names of the lawyers involved in a case for added protection, but this is not normally needed or justified.

Naming non-local, non-treating, court appointed experts

Professionals not working directly in the family’s local community, such as court appointed Independent Social Workers, consultants, psychologists, assessment centres, guardians etc. can usually be named without a particular risk of jigsaw identification

Naming the local authority (LA)

The LA can normally be named without a particular risk of jigsaw identification – but in some cases there may be a risk of identification of a family by the local community through combination of family details in a judgment and geography (e.g. if a LA is very small), particularly if picked up by local press.

Naming the If the judge criticises poor practice consider: social workers, $$ What level of practitioner should be named e.g. Independent managers or heads of service / Directors or individual Reviewing practitioners?14 Officers, CAFCASS Guardians / $$ whether good practice is also adequately publicised in officers) the relevant area; $$ the full range of options for accountability and reform.

14 Recent caselaw shows a pattern of judges declining to name individual frontline social workers where it is clear that the root of a problem lies with management.

307

308

Appendix 3

KEY LEGISLATION AND RULES

All legislation reproduced here is as amended as at the date of publication. The Appendix is ordered as follows: ●● Extracts from the European Convention on Human Rights and Fundamental Freedoms 1951. ●● Domestic primary legislation: $$ Human Rights Act 1998 (Section 12); $$ Judicial Proceedings (Regulation of Reports) Act 1926; $$ Administration of Justice Act 1960 (Section 12); $$ Children Act 1989 (Section 97); $$ Criminal Justice Act 1925 (Section 41); $$ Contempt of Court Act 1981 (Section 9). ●● Family Procedure Rules: $$ 12.73; $$ 12.75; $$ 27.11; $$ 29.12. ●● CAFCASS Practice Note (Reporting Restriction Orders) 2005 (Amended 2015). For reasons of space we have not included all the relevant Practice Directions referred to in this book, but they are readily available to practitioners elsewhere. We have included the Cafcass Practice Note as updated in 2015 because some sources still show the old un-amended version and the 2005 FLR citation itself may take those with digital subscription services to the un-amended version.

309

APPENDIX 3

European Convention on Human Rights and Fundamental Freedoms 1951 Article 6 – Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 8 – Right to respect for private and family life 1

Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

310

APPENDIX 3

Article 10 – Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Human Rights Act 1998 Section 12 Freedom of expression (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) 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 notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to— (a) the extent to which— (i)

the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code. 311

APPENDIX 3 (5) In this section—

“court” includes a tribunal; and



“relief” includes any remedy or order (other than in criminal proceedings).

Judicial Proceedings (Regulation of Reports) Act 1926 1.— Restriction on publication of reports of judicial proceedings. (1) It shall not be lawful to print or publish, or cause or procure to be printed or published— (a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matters or details the publication of which would be calculated to injure public morals; (b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, [or for the dissolution or annulment of a civil partnership or for the separation of civil partners], any particulars other than the following, that is to say:— (i)

the names, addresses and occupations of the parties and witnesses;

(ii) a concise statement of the charges, defences and counter-charges in support of which evidence has been given; (iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment:

Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.

(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding level 5 on the standard scale, or to both such imprisonment and fine: Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act. (3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General. (4) Nothing in this section shall apply to the printing of any pleading, transcript or evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of 312

APPENDIX 3 any matter in any separate volume or part of any bonâ fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bonâ fide intended for circulation among members of the legal or medical professions.

Administration of Justice Act 1960 Section 12 Publication of information relating to proceedings in private (1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say— (a) where the proceedings— (i)

relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor; (b) where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the county court; (c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published; (d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings; (e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published. (2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication. (3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers.

313

APPENDIX 3 (4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).

Children Act 1989 97  Privacy for children involved in certain proceedings (1) … (2) No person shall publish [to the public at large or any section of the public] any material which is intended, or likely, to identify— (a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or (b) an address or school as being that of a child involved in any such proceedings. (3) In any proceedings for an offence under this section it shall be a defence for the accused to prove that he did not know, and had no reason to suspect, that the published material was intended, or likely, to identify the child. (4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it and, in the case of the Lord Chancellor, if the Lord Chief Justice agrees, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order. (5) For the purposes of this section— “publish” includes— (a) include a programme service (within the meaning of the Broadcasting Act 1990); or (b) cause to be published; and “material” includes any picture or representation. (6) Any person who contravenes this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale. (6A) It is not a contravention of this section to— (a) enter material in the Adoption and Children Act Register (established under section 125 of the Adoption and Children Act 2002), or (b) permit persons to search and inspect that register pursuant to regulations made under section 128A of that Act.] (7) … 314

APPENDIX 3 (8) … (9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4)of the Constitutional Reform Act 2005) to exercise his functions under subsection (4).

Criminal Justice Act 1925 Section 41 – Prohibition on taking photographs, etc, in court (1) No person shall— (a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or (b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof; and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding level 3 on the standard scale. (1A) See section 32 of the Crime and Courts Act 2013 for power to provide for exceptions. (2) For the purposes of this section— (a) the expression “court” means any court of justice (including the court of a coroner), apart from the Supreme Court: (b) the expression “judge” includes registrar, magistrate, justice and coroner: (c) a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court-room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court-room or any such building or precincts as aforesaid.

Contempt of Court Act 1981 Section 9 – Use of tape recorders (1) Subject to subsection (4) below, it is a contempt of court— (a) to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court; 315

APPENDIX 3 (b) to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication; (c) to use any such recording in contravention of any conditions of leave granted under paragraph (a); (d) to publish or dispose of any recording in contravention of any conditions of leave granted under subsection (1A). (1A) In the case of a recording of Supreme Court proceedings, subsection (1)(b) does not apply to its publication or disposal with the leave of the Court. (2) Leave under paragraph (a) of subsection (1), or under subsection (1A), may be granted or refused at the discretion of the court, and if granted— (a) may, in the case of leave under subsection (1)(a), be granted subject to such conditions as the court thinks proper with respect to the use of any recording made pursuant to the leave; and (b) may, in the case of leave under subsection (1A), be granted subject to such conditions as the Supreme Court thinks proper with respect to publication or disposal of any recording to which the leave relates; and where leave has been granted the court may at the like discretion withdraw or amend it either generally or in relation to any particular part of the proceedings. (3) Without prejudice to any other power to deal with an act of contempt under paragraph (a) of subsection (1), the court may order the instrument, or any recording made with it, or both, to be forfeited; and any object so forfeited shall (unless the court otherwise determines on application by a person appearing to be the owner) be sold or otherwise disposed of in such manner as the court may direct. (4) This section does not apply to the making or use of sound recordings for purposes of official transcripts of proceedings. (5) See section 32 of the Crime and Courts Act 2013 for power to provide for further exceptions.

Family Procedure Rules 2010 12.73  Communication of information: general (1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated— (a) where the communication is to— (i)

a party;

(ii) the legal representative of a party; 316

APPENDIX 3 (iii) a professional legal adviser; (iv) an officer of the service or a Welsh family proceedings officer; (v) the welfare officer; (vi) the Director of Legal Aid Casework (within the meaning of section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012); (vii) an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings; (viii) a professional acting in furtherance of the protection of children; (ix) an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies; (b) where the court gives permission; or (c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G. (2) Nothing in this Chapter permits the communication to the public at large, or any section of the public, of any information relating to the proceedings. (3) Nothing in rule 12.75 and Practice Direction 12G permits the disclosure of an unapproved draft judgment handed down by any court.

12.75  Communication of information for purposes connected with the proceedings (1) A party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party— (a) by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings; (b) to attend a mediation information and assessment meeting, or to engage in mediation or other forms of non-court dispute resolution; (c) to make and pursue a complaint against a person or body concerned in the proceedings; or (d) to make and pursue a complaint regarding the law, policy or procedure relating to a category of proceedings to which this Part applies. (2) Where information is communicated to any person in accordance with paragraph (1)(a) of this rule, no further communication by that person is permitted.

317

APPENDIX 3 (3) When information relating to the proceedings is communicated to any person in accordance with paragraphs (1)(b),(c) or (d) of this rule— (a) the recipient may communicate that information to a further recipient, provided that— (i)

the party who initially communicated the information consents to that further communication; and

(ii) the further communication is made only for the purpose or purposes for which the party made the initial communication; and (b) the information may be successively communicated to and by further recipients on as many occasions as may be necessary to fulfil the purpose for which the information was initially communicated, provided that on each such occasion the conditions in sub-paragraph (a) are met.

27.11  Attendance at private hearings (1) This rule applies when proceedings are held in private, except in relation to— (a) hearings conducted for the purpose of judicially assisted conciliation or negotiation; (b) proceedings to which the following provisions apply— (i)

Part 13 (proceedings under section 54 of the Human Fertilisation and Embryology Act 2008);

(ii) Part 14 (procedure for applications in adoption, placement and related proceedings); and (iii) any proceedings identified in a practice direction as being excepted from this rule. (2) When this rule applies, no person shall be present during any hearing other than— (a) an officer of the court; (b) a party to the proceedings; (c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf; (d) an officer of the service or Welsh family proceedings officer; (e) a witness; (f) duly accredited representatives of news gathering and reporting organisations; and (g) any other person whom the court permits to be present.

318

APPENDIX 3 (3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) shall not attend the proceedings or any part of them, where satisfied that— (a) this is necessary— (i)

in the interests of any child concerned in, or connected with, the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or (iii) for the orderly conduct of the proceedings; or (b) justice will otherwise be impeded or prejudiced. (4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the persons listed in paragraph (5), and in either case having given to any person within paragraph (2)(f) who is in attendance an opportunity to make representations. (5) At any stage of the proceedings, the following persons may make representations to the court regarding restricting the attendance of persons within paragraph (2)(f) in accordance with paragraph (3)— (a) a party to the proceedings; (b) any witness in the proceedings; (c) where appointed, any children’s guardian; (d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings; (e) the child, if of sufficient age and understanding. (6) This rule does not affect any power of the court to direct that witnesses shall be excluded until they are called for examination. (7) In this rule “duly accredited” refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor.

29.12  Access to and inspection of documents retained in court (1) Except as provided by this rule or by any other rule or Practice Direction, no document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without such permission. (2) A copy of an order made in open court will be issued to any person who requests it.

319

APPENDIX 3 (3) Subject to rules 14.24 and 29.1(2) and to any direction given by the court, a party to any family proceedings, or the legal representative, children’s guardian or litigation friend for a party in any family proceedings, may have a search made for, and may inspect, and obtain a copy of, any document or copy of a document filed or lodged in the court office in those proceedings. (4) Any person who intends to make an application in relation to a child under the 1980 Hague Convention in a Contracting State (as defined in rule 12.44) other than the United Kingdom shall, if the court is satisfied that that person intends to make such an application, be entitled to obtain a copy bearing the seal of the court of any order made in relation to the child under the 1989 Act or under the inherent jurisdiction, whether or not that person was a party to the proceedings in which the order was made. (5) For the purposes of this rule, “document” and “copy” have the meanings given in rule 21.1(3).

CAFCASS Practice Note 18 March 2005 Citations: [2005] 2 FLR 111 (amended 25 March 2015)

Applications for Reporting Restriction Orders 1 Introduction This Note sets out recommended practice in relation to any application in the Family Division founded on Convention rights for an order which restricts freedom of expression and is subject to decisions of the courts.

2  Statutory provisions An application founded on Convention rights need only be made where statutory provisions cannot provide adequate protection. Relevant provisions are Administration of Justice Act 1960, s 12(1); Children and Young Persons Act 1933, s 39; Contempt of Court Act 1981, s 11; Children Act 1989, s 8 (prohibited steps order preventing disclosure of information by parental figure) and s 97(2). While the President’s Practice Direction is not aimed at applications under these provisions, s 12(2) of the Human Rights Act 1998 applies to any application for relief which might affect the exercise of the Convention right to freedom of expression and the procedures set out in this Note, including the arrangements for advance notification, can be used to secure compliance with this section in relation to any such application under these provisions. 320

APPENDIX 3 An order founded on Convention rights may be required, for example, because: ●● the need for protection is not linked to particular court proceedings ●● the statutory provisions do not prevent publication of all kinds of information ●● an injunction is needed to prevent approaches to family, doctors or carers.

3  Application and evidence The application may be a freestanding claim brought under the Part 8 procedure in the Civil Procedure Rules 1998 or it may be made within existing proceedings to which either the CPR or Family Proceedings Rules 1991 apply. It may be appropriate to seek a direction under CPR 39.2(4), where it applies, that the identity of a party or witness should not be disclosed, and for documents to be drafted identifying individuals by initials. The applicant should prepare (a) the application/claim form (b) a witness statement justifying the need for an order (c) any legal submissions (d) a draft order and (e) an explanatory note. Model Forms of Order and an example of an explanatory note are attached to this Practice Note. In the rare event that it is not possible to draft such documentation in the time available before the hearing, the court is likely to require the applicant to file a statement at the earliest opportunity, setting out the information placed orally before the Court. Subject to any contrary direction of the court, this material should be made available on request to any person who is affected by the order. See W v H (Family Division: Without Notice Orders) [2001] 2 WLR 253; [2001] 2 FLR 927.

4  Service of application As required by the Practice Direction, advance notice should normally be given to the national media via the Press Association’s CopyDirect service. CopyDirect will be responsible for notifying the individual media organisations who participate in the service. The website: http://www.medialawyer.press.net/courtapplications gives details of the organisations represented and instructions for service of the application and sets out the President’ Practice Direction on Applications for Reporting Restrictions Orders of 18 March 2005. Unless there is a particular reason not to do so, copies of all the documents referred to above should be served. If there is a reason for not serving some or all of the documents (or parts of them), the applicant should ensure sufficient detail is given to enable the media to make an informed decision as to whether it wishes to attend or be legally represented.

321

APPENDIX 3 The CopyDirect service does not extend to local or regional media or magazines. If service of the application on any specific organisation or person not covered is required it should be effected directly.

5  The hearing Any application invoking Convention rights will involve a balancing of rights under Article 8 (right to respect for private and family life) and Article 10 (freedom of expression). There is no automatic precedence as between these Articles, and both are subject to qualification where (among other considerations) the rights of others are engaged. Section 12(4) of the Act requires the court to have particular regard to the importance of freedom of expression. It must also have regard to the extent to which material has or is about to become available to the public, the extent of the public interest in such material being published and the terms of any relevant privacy code or regulation.

6  Scope of order Persons protected The aim should be to protect the child or incapacitated adult, rather than to confer anonymity on other individuals or organisations. However, the order may include restrictions on identifying or approaching specified family members, carers, doctors or organisations in cases where the absence of such restriction is likely to prejudice their ability to care for the child or patient, or where identification of such persons might lead to identification of the child or patient and defeat the purpose of the order. In cases where the court receives expert evidence the identity of the experts (as opposed to treating clinicians) is not normally subject to restriction.

Identifying persons protected Once an order has been made, the details of those protected by the order should normally be contained in the Schedule. In exceptional cases (for example Leeds NHS Trust-v-A & B [2003] 1 FLR 1091) where it is not appropriate for details to be given, a description by reference to the facts of the case should be contained in the Schedule to enable those reading the order to identify whether a person is likely to be the subject of the order.

Information already in the public domain Orders will not usually prohibit publication of material which is already in the public domain, other than in exceptional cases such as Venables and Thompsonv-News Group Newspapers Ltd [2001] Fam 430.

322

APPENDIX 3 Duration of order Orders should last for no longer than is necessary to achieve the purpose for which they are made. The maximum extent of an order in a child case will usually be the child’s 18th birthday. In some cases a later date may be necessary, to protect safety or welfare, or the anonymity of other children who are named in the order and who are still under age, or to maintain the anonymity of doctors or carers after the death of a patient. See for example: Re C (Adult Patient: Publicity [1996] 2 FLR 251; Venables and Thompson-v-News Group Newspapers Ltd [2001] Fam 430; X (formerly known as Mary Bell)-v-Y and others [2003] EWHC 1101 (QB).

7  Service of orders Service of orders should be effected in the usual way, in accordance with the Rules. Contact details for the national press and broadcasters can be found at http:// www.medialawyer.press.net/courtapplications.

8  Undertakings in damages The court will consider whether it is appropriate to require an applicant to give such an undertaking in an individual case, particularly when an order is made without notice, and will bear in mind the applicant’s capacity to fulfil any such undertaking.

9  Explanatory notes It is helpful if applications and orders are accompanied by an explanatory note, from which persons served can readily understand the nature of the case. In any case where notice of an application has not been given, the explanatory note should explain why it cannot be provided. The order should also include a schedule of the names and addresses of those who are covered by the order. (1) Model Order IN THE HIGH COURT OF JUSTICE Case Number: FAMILY DIVISION [PRINCIPAL REGISTRY] BEFORE [JUDGE] IN PRIVATE IN THE MATTER OF THE COURT’S INHERENT JURISDICTION 323

APPENDIX 3 BETWEEN [] and [] REPORTING RESTRICTION ORDER IMPORTANT If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge the order. EXPLANATION A

On [date] the Court considered an application for a reporting restriction order.

B

The following persons and/or organisations were represented before the Court: [describe parties and their advocates]

C

The Court read the following documents: [list the documents] and/or The Court directed the [Applicant/Claimant] to file a statement no later than [date] setting out the information presented to the court at the hearing. and/or The Court directed that copies of the attached Explanatory Note and [list any other documents] be made available by the [Applicant/ Claimant] to any person affected by this Order.

[D

In a case where an undertaking in damages is required by the Court: The Applicant gave an undertaking that if the Court later finds that this Order was obtained as a result of any deliberate or careless misrepresentation by the Applicant, and that this has caused loss to any person served with the Order, and that that person should be compensated, the Applicant will comply with any order the Court may make.]

E

In the case of an order made without notice: This order was made without notice to those affected by it, the Court having considered section 12(2) Human Rights Act 1998 and being satisfied (i) that the [Applicant/Claimant] has taken all practicable steps 324

APPENDIX 3 to notify persons affected and/or (ii) that there are compelling reasons for notice not being given, namely: [set out the Court’s reasons for making the order without notice] [F

In the case of an application by a local authority: The Court granted permission to the Applicant to apply for the exercise of the Court’s inherent jurisdiction]

ORDER 1 Duration Subject to any different order made in the meantime, this order shall have effect [in the case of an adult] during the lifetime of the [Defendant], whose details are set out in Schedule 1 to this order. [in the case of a child] until [date], the 18th birthday of the child whose details are set out in Schedule 1 to this order (‘the Child’). 2 Who is bound This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made. 3 Publishing restrictions This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of: (a) the name and address of (i)

the [Defendant/Child];

(ii) [in the case of a child] the Child’s parents (‘the parents’), whose details are set out in Schedule 2 to this order; (iii) any individual having day-to-day care of or medical responsibility for the [Defendant/Child] (‘a carer’), whose details are set out in Schedule 3 to this Order; (iv) any residential home or hospital, or other establishment in which the [Defendant/Child] is residing or being treated (‘an establishment’); (b) any picture being or including a picture of either the [Defendant/ Child], a carer or an establishment; (c) any other particulars or information relating to the [Defendant/Child]; 325

APPENDIX 3 IF, BUT ONLY IF, such publication is likely to lead to the identification of the [Defendant/Child] as being [set out the feature of the situation which has led to the granting of the order]. 4 No publication of the text or a summary of this order (except for service of the order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above. [5 Restriction on seeking information This Order prohibits any person from seeking any information relating to the [Defendant/Child] [or the parents] or a carer from any of the following: (a) the [Defendant/Child]; [(b) the parents]; (c) a carer; (d) the staff or residents of an establishment.] 6 What is not restricted by this Order Nothing in this Order shall prevent any person from: (a) publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public and did not itself make any order restricting publication. (b) seeking or publishing information which is not restricted by Paragraph 3 above. (c) inquiring whether a person or place falls within paragraph 3(a) above. (d) seeking information relating to the [Defendant/Child] while acting in a manner authorised by statute or by any court in England and Wales. (e) seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 4 to this order. (f)

seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).

(g) publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales. 326

APPENDIX 3 7 Service Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the [Applicant/Claimant] (and may be served by any other party to the proceedings) (a) by service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or (b) on such other persons as the parties may think fit, by personal service. 8 Further applications about this Order The parties and any person affected by any of the restrictions in paragraphs  3–5 above may make application to vary or discharge it to a Judge of the High Court on not less than [48 hours] notice to the parties.

SCHEDULE 1 [The [Defendant/Child]’s Full Name: Born: Address:] or [Information enabling those affected by order to identify the Defendant/Child]

SCHEDULE 2 [Similar details of parents]

SCHEDULE 3 [Similar details of carers or other persons protected]

327

APPENDIX 3

SCHEDULE 4 [Contact details of responsible solicitor and/or press officer] Date of Order: [ ]

(2)  Example of Explanatory Note NHS TRUST X v AB Application for a Reporting Restriction Order

DRAFT EXPLANATORY NOTE 1 AB is a child who suffers from a degenerative disease. An application has been made by the NHS Hospital Trust responsible for his care for the Court’s approval of the withdrawal of ventilation. This course is opposed by AB’s family. 2

On [date] the application will be heard by the President of the Family Division, who will give judgment in open court.

3

A Reporting Restriction Order has been [made/applied for] to protect AB’s right to confidentiality in respect of his medical treatment. This does not restrict publication of information or discussion about the treatment of patients with similar conditions, provided that such publication is not likely to lead to the identification of AB, those caring for him, the NHS Trust concerned or the establishment at which he is being cared for.

328

INDEX [all references are to paragraph number] Access to documents privacy civil proceedings, 2.42 court orders, 2.44–2.46 dissolution of civil partnerships, 2.38–2.40 divorce, 2.38–2.40 Family Law Act 1996 proceedings, 2.42 financial remedy proceedings, 2.41 generally, 2.35–2.37 journalists, 2.56–2.57 judgments, 2.43 police, 2.53–2.55 prosecuting authorities, 2.53–2.55 regulatory authorities, 2.53–2.55 release by court, 2.47–2.52 use in criminal proceedings, 2.53–2.55 publication of court judgments, 4.184–4.188 Alternative dispute resolution (ADR) privacy, 2.171 Anonymisation Court of Protection, 7.48 criminal courts, 7.49 errors, 4.124 further development, 8.08–8.14 Immigration and Asylum Chamber, 7.99–7.102 process, 4.114–4.123 Upper Tribunal, 7.120–7.127 Appellate proceedings privacy Court of Appeal, 2.167–2.170 Family Court, 2.165–2.166 High Court, 2.165–2.166 legislative framework, 2.159–2.164 Arbitration appeals generally, 7.84–7.92 Archived material Internet and social media, 5.69–5.72 Association of Lawyers for Children (ALC) reports (2014–2016), 1.57–1.60 Attendance at hearings privacy, 2.15–2.25

Attendance at hearings – contd publication of court judgments, 4.172–4.173 Balancing exercise reporting restrictions orders generally, 3.25–3.29 identification of experts, professionals and local authority, 3.30–3.38 Bar Standards Board disciplinary tribunals, 7.148–7.149 Biographical information Internet and social media, 5.22 Blogs Internet and social media, 5.39–5.42 Breach of instructions or rules enforcement, 6.24–6.27 British and Irish Legal Information Institute (BAILII) generally, 4.29–4.37 Transparency Guidance 2014, under, 4.80–4.131 withdrawal of judgment, 4.163–4.164 Broadcasting complaints, and, 4.217–4.219 Cached material Internet and social media, 5.69 Campaigns Internet and social media generally, 5.44–5.49 petitions, 5.50–5.52 Case management reform of HMCTS, 8.33–8.36 Child Protection Resource Internet and social media, 5.40 Children reporting restrictions civil courts, 7.81–7.83 criminal courts, 7.53–7.55 rights, 1.27 Children cases Administration of Justice Act 1960, s 12 discussion of proceedings by child, 2.100–2.104 duration of restriction, 2.115 effect, 2.137–2.140 foreign publication, 2.92–2.93

329

INDEX Children cases – contd Administration of Justice Act 1960, s 12 – contd generally, 2.82–2.86 ‘information’, 2.94–2.99 international abduction, 2.144 prohibited information, 2.94–2.99 ‘publication’, 2.87–2.91 sharing information in child protection, 2.105–2.114 Children Act 1989, s 97 dispensing with restriction, 2.122–2.124 effect, 2.137–2.140 generally, 2.116–2.117 identifying child after proceedings ended, 2.125–2.134 jigsaw identification risk, 2.142–2.143 prosecutions, 2.135–2.136 ‘publishing’, 2.118–2.121 generally, 1.33 international abduction, 2.144 Sexual Offences (Amendment) Act 1992, 2.141 Citation of cases law reports, 4.47–4.52 linking to judgment, 4.67–4.68 news reports, 4.59–4.66 obtaining copy of transcript, 4.72–4.79 publication by parties, 4.69–4.71 transcripts, 4.53–4.58 Civil courts children, 7.81–7.83 commercial information, 7.77–7.80 contempt proceedings applications, 6.33–6.36 breach of instructions or rules, 6.24–6.27 case law, 6.37–6.39 elements, 6.12 evidence of breach, 6.28–6.32 generally, 6.11–6.12 intentional publication, 6.12 introduction, 6.03 knowledge of prohibited publication, 6.13–6.17 legal aid, 6.53 process, 6.33–6.36 proof of specific breach, 6.18–6.23 rubrics, 6.24–6.27 transparency requirement, 6.40–6.52 exceptions to rule, 7.73 general rule, 7.72–7.83 industrial secrets, 7.77

Civil courts – contd reporting restrictions orders children, 7.81–7.83 commercial information, 7.77–7.80 exceptions to rule, 7.73 general rule, 7.72–7.83 industrial secrets, 7.77 reputation, 7.76 reputation, 7.76 Civil proceedings privacy, 2.42 Commercial information reporting restrictions in the civil courts, 7.77–7.80 Committal breach of instructions or rules, 6.24–6.27 civil contempt, for applications, 6.33–6.36 breach of instructions or rules, 6.24–6.27 case law, 6.37–6.39 elements, 6.12 evidence of breach, 6.28–6.32 generally, 6.11–6.12 intentional publication, 6.12 introduction, 6.03 knowledge of prohibited publication, 6.13–6.17 legal aid, 6.53 process, 6.33–6.36 proof of specific breach, 6.18–6.23 rubrics, 6.24–6.27 transparency requirement, 6.40–6.52 criminal contempt, for, 6.54–6.60 introduction, 6.03 practice points, 6.61 privacy, 2.11–2.14 reporting restrictions orders, and evidence of breach, 6.28–6.32 introduction, 6.03 proof of breach, 6.18–6.23 suitability, 6.04–6.10 Complaints broadcasting, about, 4.217–4.219 media reports, about exceptions from scope, 4.199–4.202 introduction, 4.189–4.193 media regulator, to, 4.203–4.206 publisher, to, 4.194–4.202 remedies, 4.215–4.216 third party, by, 4.207–4.214 Court buildings reform of HMCTS, 8.30–8.32

330

INDEX Court judgments See Judgments Court listing information reform of HMCTS, 8.51–8.54 Court of Appeal arbitration appeals, 7.92 Court of Protection anonymisation, 7.48 background, 7.08–7.12 Court of Protection Rules 2007, 7.18–7.20 Court of Protection Rules 2017, 7.38–7.46 effect of opening to public, 7.46–7.48 function, 7.10–7.11 hearings, 7.13–7.17 introduction, 7.07 jurisdiction, 7.08–7.12 media coverage, 7.21–7.23 powers, 7.09 President’s Transparency Guidance (2014) extension to family court, 8.24–8.27 generally, 7.24–7.28 reporting restrictions, 7.13–7.17 Transparency pilot scheme, 7.29–7.38 Court orders privacy, 2.44–2.46 Court websites publication of court judgments, 4.29–4.37 Criminal courts anonymisation, 7.49 child ‘related’ to persons involved, 7.69–7.70 children, 7.53–7.55 committal for contempt, 6.54–6.60 generally, 7.49–7.52 indirectly involved persons, 7.69–7.71 lifelong reporting restrictions, 7.65–7.68 persons indirectly involved, 7.69–7.71 reporting restrictions, 7.56–7.64 Criminal Justice Act 1925, s 41 privacy, 2.09–2.10 Criminal proceedings privacy, 2.53–2.55 Data protection General Data Protection Regulation, 8.71 legislative developments, 8.67–8.72 Digital filing reform of HMCTS, 8.33–8.36 Disciplinary tribunals barristers, 7.148–7.149 health professionals, 7.150–7.155

Disciplinary tribunals – contd introduction, 7.140 solicitors, 7.141–7.147 Discussion forums Internet and social media, 5.39–5.42 Dissolution of civil partnerships access to court documents, 2.38–2.40 generally, 2.58–2.64 Divorce access to court documents, 2.38–2.40 generally, 2.58–2.64 Employment Appeals Tribunal generally, 7.137–7.139 Employment tribunals appeals, 7.137–7.139 generally, 7.129 private hearings, 7.130 public hearings, 7.134 publication of decisions, 7.135–7.136 reporting of decisions, 7.135–7.136 reporting restrictions, 7.131–7.133 Enforcement breach of instructions or rules, 6.24–6.27 civil contempt proceedings, by applications, 6.33–6.36 breach of instructions or rules, 6.24–6.27 case law, 6.37–6.39 elements, 6.12 evidence of breach, 6.28–6.32 generally, 6.11–6.12 intentional publication, 6.12 introduction, 6.03 knowledge of prohibited publication, 6.13–6.17 legal aid, 6.53 process, 6.33–6.36 proof of specific breach, 6.18–6.23 rubrics, 6.24–6.27 transparency requirement, 6.40–6.52 committal civil contempt, for, 6.11–6.53 criminal contempt, for, 6.54–6.60 introduction, 6.03 suitability, 6.04–6.10 criminal contempt proceedings, by, 6.54–6.60 criminal prosecution, 6.03 introduction, 6.01–6.02 practice points, 6.61 reporting restrictions orders, of evidence of breach, 6.28–6.32 introduction, 6.03 proof of breach, 6.18–6.23

331

INDEX Enforcement – contd rubrics, 6.24–6.27 types, 6.03 Facebook generally, 5.24–5.34 removal of material, 5.67–5.68 Families Need Fathers Internet and social media, 5.40 Family Courts Information Pilot (2011) generally, 1.56 Family Law Act 1996 proceedings access to court documents, 2.42 anonymity, 2.156–2.158 children involved, 2.152–2.153 full financial disclosure, 2.150–2.151 generally, 2.148–2.149 judgments, 2.155 privacy approach in family courts, 2.04–2.57 introduction, 2.01–2.03 practice points, 2.172 specific cases, 2.58–2.171 reporting restrictions orders, 3.94–3.99 sexual offences alleged, 2.154 Family proceedings Administration of Justice Act 1960, 1.32 Children Act 1989, 1.33 Family Procedure Rules 2010 background, 1.40–1.43 generally, 1.34 Judicial Proceedings (Regulation of Reports) Act 1926, 1.31 legislative framework, 1.28–1.35 Scott v Scott exceptions, 1.28 Financial remedy proceedings privacy access to court documents, 2.41 generally, 2.65–2.81 publishing, 2.65–2.81 reporting restrictions orders applications, 3.91–3.93 generally, 3.86–3.90 Transparency Guidance, 8.21–8.23 First-tier Tribunal generally, 7.94 mental health, 7.128 Flexible hours reform of HMCTS, 8.57 Foreign internet providers Internet and social media, 5.73–5.75 Foreign publication reporting restrictions orders, 3.52–3.54

Foreign respondent reporting restrictions orders, 3.50–3.51 Forums Internet and social media, 5.39–5.42 Freedom of expression generally, 1.20–1.22 interaction with privacy, 1.23–1.26 General Data Protection Regulation generally, 8.71 Health Care and Professions Council disciplinary tribunals, 7.150–7.155 HM Courts and Tribunals Service reforms case management, 8.33–8.36 court buildings, 8.30–8.32 court listing information, 8.51–8.54 digital filing, 8.33–8.36 flexible hours, 8.57 future developments, 8.58–8.61 generally, 8.28–8.29 listing, 8.49–8.54 online dispute resolution, 8.42–8.48 results, 8.55–8.56 scheduling court hearings, 8.50 virtual hearings, 8.37–8.41 Human rights Transparency Guidance, 4.100–4.109 Immigration and Asylum Chamber anonymisation, 7.99–7.102 generally, 7.97–7.98 non-disclosure orders, 7.99–7.102 public hearings, 7.103–7.105 IMPRESS complaints to media regulator, 4.203 complaints to publisher, 4.197–4.198 media regulation, 8.64–8.65 Independent Press Standards Organisation (IPSO) complaints by third party, 4.207–4.214 complaints to media regulator, 4.203–4.206 complaints to publisher, 4.195–4.198 media regulation, 8.65 remedies, 4.215–4.216 restrictions after child turns 18, 7.68 Industrial secrets reporting restrictions in the civil courts, 7.77 Injunctions Application Alert Service See Media Lawyer Injunctions Application Alert Service

332

INDEX Interim relief reporting restrictions orders, 3.44–3.49 International abduction cases privacy, 2.144 Internet archived material, 5.69–5.72 biographical information, 5.22 blogs, 5.39–5.42 cached material, 5.69 campaigns generally, 5.44–5.49 petitions, 5.50–5.52 Child Protection Resource, 5.40 daily life, in, 5.03 discussion forums, 5.39–5.42 evidential matters, 5.76 Facebook generally, 5.24–5.34 removal of material, 5.67–5.68 failure to enforce orders, 5.15 Families Need Fathers, 5.40 foreign internet providers, 5.73–5.75 forums, 5.39–5.42 ‘go viral’ generally, 5.57–5.58 introduction, 5.14 information published online, 5.22 introduction, 5.01–5.02 legal advisers’ role, 5.04–5.12 messages Facebook, 5.30–5.31 permitted publication, and, 5.55 Twitter, 5.35 monitoring, 5.59–5.63 Mumsnet, 5.40 ‘name and shame’ websites, 5.40 permitted publication, 5.53–5.56 petitions, 5.50–5.52 platforms blogs, 5.39–5.42 Child Protection Resource, 5.40 Facebook, 5.24–5.34 Families Need Fathers, 5.40 introduction, 5.23 Mumsnet, 5.40 public discussion forums, 5.39–5.42 Twitter, 5.35–5.38 websites, 5.39–5.42 Wikivorce, 5.40 YouTube, 5.43 practice points evidential matters, 5.76 proactive responses, 5.77

Internet – contd private messages Facebook, 5.30–5.31 permitted publication, and, 5.55 Twitter, 5.35 proactive responses to media attention, 5.77 public discussion forums, 5.39–5.42 removal of material Facebook, 5.67–5.68 generally, 5.63 Twitter, 5.64–5.66 reporting restriction orders, and, 5.13 requests by parents for advice, help or support, 5.19–5.21 restraining publication of material, 5.13–5.18 ‘right to be forgotten’, 5.69–5.72 ‘screen grabs’ Facebook, 5.31 permitted publication, and, 5.55 Twitter, 5.38 search engines, 5.69–5.72 spontaneous venting, 5.22 ‘Streisand effect’, 5.14 surveillance, 5.59–5.63 ‘tagging’, 5.25 Twitter generally, 5.35–5.38 removal of material, 5.64–5.66 types of information published, 5.22 unlawful use, 5.65 ‘viral’ information generally, 5.57–5.58 introduction, 5.14 websites, 5.39–5.42 Wikivorce, 5.40 YouTube, 5.43 IPSO See Independent Press Standards Organisation Jigsaw identification amending a judgment after publication post-judgment redaction, 4.150 anonymisation, 4.119 appellate proceedings, 2.163 Brophy/ALC reports, 1.58 Children Act 1989, s 97, and avoiding risks, 2.142–2.143 ‘publishing’, 2.120 complaints to the publisher exceptions from scope, 4.202

333

INDEX Jigsaw identification – contd criminal courts, 7.49 internet and social media ‘name and shame’ websites, 5.40 role of legal advisers, 5.07 introduction, 1.36 linking to a judgment, 4.68 ‘name and shame’ websites, 5.40 post-judgment redaction, 4.150 publication by court linking to a judgment, 4.68 rulings, orders and recitals, 4.21 publication on BAILII anonymisation, 4.119 reporting restriction orders justification, 3.20 response to application, 3.80 role of legal advisers, 5.07 rulings, orders and recitals, 4.21 Joinder of child reporting restrictions orders, 3.55–3.56 Journalists privacy, 2.56–2.57 Judgments privacy, 2.43 Judgments adapted or designed for transparency for the media, 4.135–4.141 for the parties, 4.125–4.134 Judicial Proceedings (Regulation of Reports) Act 1926 generally, 1.31 Judgments adapted or designed for transparency for the media, 4.135–4.141 for the parties, 4.125–4.134 amendment after publication authorised judgment, 4.143–4.146 introduction, 4.142 redaction, 4.150–4.158 ‘slip rule’, 4.147–4.149 anonymisation errors, 4.124 process, 4.114–4.123 publication See also Publication of judgments amendment of judgment after, 4.142–4.158 citation of cases, 4.47–4.79 court, by, 4.19–4.28 court websites, to, 4.29–4.37 introduction, 4.01–4.02 keeping a public record, 4.13–4.14 law reports, 4.41–4.45

Judgments – contd publication – contd legal publishers, to, 4.38–4.40 postponement, 4.159–4.162 practice points, 4.223 published judgments, 4.03–4.06 purpose, 4.07–4.18 transcripts, 4.46 Transparency guidance, 4.80–4.141 withdrawal, 4.163–4.171 working with media, journalists and researchers, 4.172–4.222 Transparency guidance 2014 anonymisation errors, 4.124 anonymisation process, 4.114–4.123 compliance by judges, 4.110–4.113 generally, 4.80–4.82 human rights, and, 4.100–4.109 judgments adapted or designed for transparency, 4.125–4.131 status in law, 4.96–4.99 summary of effect, 4.83–4.95 Judicial separation access to court documents, 2.38–2.40 generally, 2.58–2.64 Law reports citation of cases, 4.47–4.52 generally, 4.41–4.45 Legal aid committal for contempt, 6.53 Legal publishers publication of court judgments, 4.38–4.40 Leveson Inquiry generally, 8.66 Link identification reporting restrictions orders, 3.74–3.75 Listing reform of HMCTS, 8.49–8.54 Media Lawyer Injunctions Application Alert Service checklist, 3.57 Court of Protection, 7.43 draft orders, 3.60, 3.85 interim relief, 3.47–3.48 introduction, 4.66 operation, 3.48 overview, 2.31 service on legal bloggers, 3.119 transparency in committal proceedings, 6.41, 6.46 website, 3.02 Media regulation generally, 8.62–8.66

334

INDEX Media regulation – contd IMPRESS complaints to media regulator, 4.203 complaints to publisher, 4.197–4.198 generally, 8.64–8.65 IPSO complaints by third party, 4.207–4.214 complaints to media regulator, 4.203–4.206 complaints to publisher, 4.195–4.198 generally, 8.65 remedies, 4.215–4.216 restrictions after child turns 18, 7.68 Leveson Inquiry, 8.66 Media reports complaints exceptions from scope, 4.199–4.202 introduction, 4.189–4.193 media regulator, to, 4.203–4.206 publisher, to, 4.194–4.202 remedies, 4.215–4.216 third party, by, 4.207–4.214 Court of Protection, 7.21–7.23 Messaging Facebook, 5.30–5.31 permitted publication, and, 5.55 Twitter, 5.35 Mumsnet Internet and social media, 5.40 ‘Name and shame’ Internet and social media, 5.40 News reports citation of cases, 4.59–4.66 Nullity access to court documents, 2.38–2.40 generally, 2.58–2.64 Online dispute resolution reform of HMCTS, 8.42–8.48 Open justice generally, 1.08–1.15 Orders as to reporting proceedings applications, 3.40–3.42 balancing exercise generally, 3.25–3.29 identification of experts, professionals and local authority, 3.30–3.38 consequential enforcement, 3.82–3.85 draft form, 3.60 drafting issues generally, 3.82–3.85 practice points, 3.120–3.124 Family Law Act 1996 proceedings, 3.94–3.99

Orders as to reporting proceedings – contd financial remedy proceedings applications, 3.91–3.93 generally, 3.86–3.90 foreign-based respondent, 3.50–3.51 foreign publication, 3.52–3.54 interim relief, 3.44–3.49 introduction, 3.01–3.04 joinder of child, 3.55–3.56 jurisdiction, 3.05–3.09 justification, 3.20–3.24 link identification, 3.74–3.75 no copy approval, 3.118 notice, 3.43 practice points drafting, 3.120–3.124 no copy approval, 3.118 representations from journalists, 3.117 service on legal bloggers, 3.119 proactive engagement with media interest, 3.101–3.116 procedure applications, 3.40–3.42 checklist, 3.57 draft form, 3.60 foreign-based respondent, 3.50–3.51 foreign publication, 3.52–3.54 interim relief, 3.44–3.49 introduction, 3.39 joinder of child, 3.55–3.56 notice, 3.43 response to applications, 3.79–3.81 service, 3.61 supporting material, 3.58–3.59 publication of judgments as to applications, 3.100 realistic options, 3.15–3.19 relaxation of restraints applicants, 3.62–3.66 effect, 3.67–3.73 link identification, 3.74–3.75 procedure, 3.76–3.78 response to applications, 3.79–3.81 representations from journalists, 3.117 restricted proceedings, 3.10–3.19 service generally, 3.61 bloggers, on, 3.119 supporting material, 3.58–3.59 Petitions Internet and social media, 5.50–5.52 Photography in court privacy, 2.09

335

INDEX Pilot schemes Court of Protection, 7.29–7.38 Police privacy, 2.53–2.55 Precedent publication of court judgments, 4.15–4.18 President of the Family Court guidance (2014) amendment of Family Procedure Rules 2010, 8.18–8.20 anonymisation errors, 4.124 further development, 8.08–8.14 process, 4.114–4.123 Cardiff University evaluation, 1.61–1.62 compliance by judges, 4.110–4.113 Court of Protection, in extension to family court, 8.24–8.27 generally, 7.24–7.28 financial remedy proceedings, 8.21–8.23 further development, 8.03–8.04 generally, 1.50–1.51 human rights, and, 4.100–4.109 judgments adapted or designed for transparency, 4.125–4.131 ‘Next Steps’ consultation, 8.05–8.07 publication of court judgments anonymisation, 4.114–4.124 compliance by judges, 4.110–4.113 generally, 4.80–4.82 human rights, and, 4.100–4.109 judgments adapted or designed for transparency, 4.125–4.131 status in law, 4.96–4.99 summary of effect, 4.83–4.95 recommendations in report on evaluation, 8.15–8.17 status in law, 4.96–4.99 summary of effect, 4.83–4.95 transparency pilot scheme, 8.24–8.27 Press Association See also Media Lawyer Injunctions Application Alert Service generally, 4.65 Principles children, and, 1.27 freedom of expression generally, 1.20–1.22 interaction with privacy, 1.23–1.26 open justice, 1.08–1.15

Principles – contd privacy generally, 1.16–1.19 interaction with freedom of expression, 1.23–1.26 transparency, 1.15 Privacy access to court documents civil proceedings, 2.42 court orders, 2.44–2.46 dissolution of civil partnerships, 2.38–2.40 divorce, 2.38–2.40 Family Law Act 1996 proceedings, 2.42 financial remedy proceedings, 2.41 generally, 2.35–2.37 journalists, 2.56–2.57 judgments, 2.43 police, 2.53–2.55 prosecuting authorities, 2.53–2.55 regulatory authorities, 2.53–2.55 release by court, 2.47–2.52 use in criminal proceedings, 2.53–2.55 alternative dispute resolution, 2.171 appellate proceedings Court of Appeal, 2.167–2.170 Family Court, 2.165–2.166 High Court, 2.165–2.166 legislative framework, 2.159–2.164 approach in family courts access to court documents by media and others, 2.35–2.57 attendance at private hearings, 2.15–2.25 Contempt of Court Act 1981, s 9, 2.11–2.14 Criminal Justice Act 1925, s 41, 2.09–2.10 exclusion of media, 2.26–2.31 introduction, 2.04–2.08 specific proceedings, 2.58–2.171 status of hearing attended by media, 2.32–2.34 attendance at private hearings, 2.15–2.25 children cases Administration of Justice Act 1960, s 12, 2.82–2.115 Children Act 1989, s 97, 2.116–2.143 international abduction, 2.144 Sexual Offences (Amendment) Act 1992, 2.141

336

INDEX Privacy – contd children cases (AJA 1960, s 12) discussion of proceedings by child, 2.100–2.104 duration of restriction, 2.115 effect, 2.137–2.140 foreign publication, 2.92–2.93 generally, 2.82–2.86 ‘information’, 2.94–2.99 international abduction, 2.144 prohibited information, 2.94–2.99 ‘publication’, 2.87–2.91 sharing information in child protection, 2.105–2.114 children cases (CA 1989, s.97) dispensing with restriction, 2.122–2.124 effect, 2.137–2.140 generally, 2.116–2.117 identifying child after proceedings ended, 2.125–2.134 jigsaw identification risk, 2.142–2.143 prosecutions, 2.135–2.136 ‘publishing’, 2.118–2.121 civil proceedings, 2.42 Contempt of Court Act 1981, s 9, 2.11–2.14 court orders, 2.44–2.46 Criminal Justice Act 1925, s 41, 2.09–2.10 criminal proceedings, 2.53–2.55 dissolution of civil partnerships access to court documents, 2.38–2.40 generally, 2.58–2.64 divorce access to court documents, 2.38–2.40 generally, 2.58–2.64 exclusion of media, 2.26–2.31 extent in family proceedings approach in family courts, 2.04–2.57 introduction, 2.01–2.03 practice points, 2.172 specific cases, 2.58–2.171 Family Law Act 1996 proceedings access to court documents, 2.42 anonymity, 2.156–2.158 children involved, 2.152–2.153 full financial disclosure, 2.150–2.151 generally, 2.148–2.149 judgments, 2.155 sexual offences alleged, 2.154 financial remedy proceedings access to court documents, 2.41 generally, 2.65–2.81 generally, 1.16–1.19

Privacy – contd interaction with freedom of expression, 1.23–1.26 international abduction cases, 2.144 jigsaw identification risk, 2.142–2.143 journalists, 2.56–2.57 judgments, 2.43 judicial separation access to court documents, 2.38–2.40 generally, 2.58–2.64 nullity access to court documents, 2.38–2.40 generally, 2.58–2.64 photography in court, 2.09 police, 2.53–2.55 prosecuting authorities, 2.53–2.55 regulatory authorities, 2.53–2.55 release by court, 2.47–2.52 sound recordings of hearings, 2.11–2.14 status of hearing attended by media, 2.32–2.34 Trusts of Land and Appointment of Trustees Act 1996 proceedings, 2.145–2.147 video recording in court, 2.10–2.14 Private messaging Facebook, 5.30–5.31 permitted publication, and, 5.55 Twitter, 5.35 Prosecuting authorities privacy, 2.53–2.55 Public discussion forums Internet and social media, 5.39–5.42 Public record publication of court judgments, 4.13–4.14 Publication of court judgments access to documents, 4.184–4.188 amendment of judgment after publication authorised judgment, 4.143–4.146 introduction, 4.142 redaction, 4.150–4.158 ‘slip rule’, 4.147–4.149 anonymisation errors, 4.124 process, 4.114–4.123 attendance at hearings, 4.172–4.173 British and Irish Legal Information Institute (BAILII), on generally, 4.29–4.37 Transparency Guidance 2014, under, 4.80–4.131

337

INDEX Publication of court judgments – contd citation of cases law reports, 4.47–4.52 linking to judgment, 4.67–4.68 news reports, 4.59–4.66 obtaining copy of transcript, 4.72–4.79 publication by parties, 4.69–4.71 transcripts, 4.53–4.58 complaints about broadcasting, 4.217–4.219 complaints about media reports exceptions from scope, 4.199–4.202 introduction, 4.189–4.193 media regulator, to, 4.203–4.206 publisher, to, 4.194–4.202 remedies, 4.215–4.216 third party, by, 4.207–4.214 court, by generally, 4.19 guidance, 4.27–4.28 orders, 4.20 reasons, 4.22–4.26 recitals, 4.21 results, 4.22–4.26 rulings, 4.20 court websites, to, 4.29–4.37 informing the parties, 4.07–4.09 informing the public, 4.10–4.12 introduction, 4.01–4.02 judgments adapted or designed for transparency for the media, 4.135–4.141 for the parties, 4.125–4.134 keeping a public record, 4.13–4.14 law reports citation of cases, 4.47–4.52 generally, 4.41–4.45 legal publishers, to, 4.38–4.40 linking to judgment, 4.67–4.68 news reports, 4.59–4.66 obtaining copy of transcript, 4.72–4.79 obtaining information about cases, 4.174–4.177 parties, by, 4.69–4.71 postponement, 4.159–4.162 practice points, 4.223 President of Family Division’s Transparency guidance 2014 anonymisation errors, 4.124 anonymisation process, 4.114–4.123 compliance by judges, 4.110–4.113 generally, 4.80–4.82 human rights, and, 4.100–4.109

Publication of court judgments – contd President of Family Division’s Transparency guidance 2014 – contd judgments adapted or designed for transparency, 4.125–4.131 status in law, 4.96–4.99 summary of effect, 4.83–4.95 published judgments, 4.03–4.06 purpose, 4.07–4.18 recording a precedent, 4.15–4.18 reporting hearing by media, 4.178–4.183 transcripts citation of cases, 4.53–4.58 generally, 4.46 withdrawal from BAILII, 4.163–4.164 withdrawal of judgment altogether, 4.165–4.171 working with media and journalists access to documents, 4.184–4.188 attendance at hearings, 4.172–4.173 complaint about report, 4.189–4.219 information about cases, 4.174–4.177 reporting hearing, 4.178–4.183 working with researchers, 4.220–4.222 Regulation of media generally, 8.62–8.66 IMPRESS, 8.64–8.65 IPSO, 8.65 Leveson Inquiry, 8.66 Regulatory authorities privacy, 2.53–2.55 Reporting restrictions orders applications, 3.40–3.42 balancing exercise generally, 3.25–3.29 identification of experts, professionals and local authority, 3.30–3.38 civil courts, and children, 7.81–7.83 commercial information, 7.77–7.80 exceptions to rule, 7.73 general rule, 7.72–7.83 industrial secrets, 7.77 reputation, 7.76 committal proceedings, and evidence of breach, 6.28–6.32 introduction, 6.03 proof of breach, 6.18–6.23 consequential enforcement, 3.82–3.85 Court of Protection, and, 7.13–7.17

338

INDEX Reporting restrictions orders – contd criminal courts, and anonymisation, 7.49 child ‘related’ to persons involved, 7.69–7.70 children, 7.53–7.55 generally, 7.49–7.52 indirectly involved persons, 7.69–7.71 lifelong reporting restrictions, 7.65–7.68 persons indirectly involved, 7.69–7.71 type of restrictions, 7.56–7.64 draft form, 3.60 drafting issues generally, 3.82–3.85 practice points, 3.120–3.124 employment tribunals, 7.131–7.133 Family Law Act 1996 proceedings, 3.94–3.99 financial remedy proceedings applications, 3.91–3.93 generally, 3.86–3.90 foreign-based respondent, 3.50–3.51 foreign publication, 3.52–3.54 interim relief, 3.44–3.49 Internet and social media, and, 5.13 introduction, 3.01–3.04 joinder of child, 3.55–3.56 jurisdiction, 3.05–3.09 justification, 3.20–3.24 link identification, 3.74–3.75 no copy approval, 3.118 notice, 3.43 practice points drafting, 3.120–3.124 no copy approval, 3.118 representations from journalists, 3.117 service on legal bloggers, 3.119 proactive engagement with media interest, 3.101–3.116 procedure applications, 3.40–3.42 checklist, 3.57 draft form, 3.60 foreign-based respondent, 3.50–3.51 foreign publication, 3.52–3.54 interim relief, 3.44–3.49 introduction, 3.39 joinder of child, 3.55–3.56 notice, 3.43 response to applications, 3.79–3.81 service, 3.61 supporting material, 3.58–3.59 publication of judgments as to applications, 3.100

Reporting restrictions orders – contd realistic options, 3.15–3.19 relaxation of restraints applicants, 3.62–3.66 effect, 3.67–3.73 link identification, 3.74–3.75 procedure, 3.76–3.78 response to applications, 3.79–3.81 representations from journalists, 3.117 restricted proceedings, 3.10–3.19 service generally, 3.61 bloggers, on, 3.119 supporting material, 3.58–3.59 Reputation reporting restrictions in the civil courts, 7.76 Research studies and reports ALC/NYAS reports (2014–2016),1.57–1.60 Cardiff University evaluation of President’s guidance, 1.61–1.62 Family Courts Information Pilot (2011), 1.56 introduction, 1.52 University of Oxford briefing papers (2009), 1.53–1.54 Views of Children and Young People Regarding Media Access to Family Courts (2010), 1.55 Restraining publication of material Internet and social media, 5.13–5.18 Review of Access to and Reporting of Family Proceedings (1993) generally, 1.38–1.39 ‘Right to be forgotten’ Internet and social media, 5.69–5.72 Rubrics enforcement of breach, 6.24–6.27 Scheduling court hearings reform of HMCTS, 8.50 Scott v Scott exceptions generally, 1.28 ‘Screen grabs’ Facebook, 5.31 permitted publication, and, 5.55 Twitter, 5.38 Search engines Internet and social media, 5.69–5.72 Service reporting restrictions orders generally, 3.61 bloggers, on, 3.119 ‘Slip rule’ publication of court judgments, and, 4.147–4.149

339

INDEX Social media archived material, biographical information, blogs, cached material, campaigns generally, petitions, Child Protection Resource, daily life, in, discussion forums, evidential matters, Facebook generally, removal of material, failure to enforce orders, Families Need Fathers, foreign internet providers, forums, ‘go viral’ generally, introduction, information published online, introduction, legal advisers’ role, messages Facebook, permitted publication, and, Twitter, monitoring, Mumsnet, ‘name and shame’ websites, permitted publication, petitions, platforms blogs, Child Protection Resource, Facebook, Families Need Fathers, introduction, Mumsnet, public discussion forums, Twitter, websites, Wikivorce, YouTube, practice points evidential matters, proactive responses, private messages Facebook, permitted publication, and, Twitter,

5.69–5.72 5.22 5.39–5.42 5.69 5.44–5.49 5.50–5.52 5.40 5.03 5.39–5.42 5.76 5.24–5.34 5.67–5.68 5.15 5.40 5.73–5.75 5.39–5.42 5.57–5.58 5.14 5.22 5.01–5.02 5.04–5.12 5.30–5.31 5.55 5.35 5.59–5.63 5.40 5.40 5.53–5.56 5.50–5.52 5.39–5.42 5.40 5.24–5.34 5.40 5.23 5.40 5.39–5.42 5.35–5.38 5.39–5.42 5.40 5.43 5.76 5.77 5.30–5.31 5.55 5.35

Social media – contd proactive responses to media attention, 5.77 public discussion forums, 5.39–5.42 removal of material Facebook, 5.67–5.68 generally, 5.63 Twitter, 5.64–5.66 reporting restriction orders, and, 5.13 requests by parents for advice, help or support, 5.19–5.21 restraining publication of material, 5.13–5.18 ‘right to be forgotten’, 5.69–5.72 ‘screen grabs’ Facebook, 5.31 permitted publication, and, 5.55 Twitter, 5.38 search engines, 5.69–5.72 spontaneous venting, 5.22 ‘Streisand effect’, 5.14 surveillance, 5.59–5.63 ‘tagging’, 5.25 Twitter generally, 5.35–5.38 removal of material, 5.64–5.66 types of information published, 5.22 unlawful use, 5.65 ‘viral’ information generally, 5.57–5.58 introduction, 5.14 websites, 5.39–5.42 Wikivorce, 5.40 YouTube, 5.43 Solicitors Disciplinary Tribunal generally, 7.141–7.147 Sound recordings of hearings privacy, 2.11–2.14 ‘Streisand effect’ Internet and social media, 5.14 Supreme Court arbitration appeals, 7.92 ‘Tagging’ Internet and social media, 5.25 Transcripts citation of cases, 4.53–4.58 generally, 4.46 obtaining copy, 4.72–4.79 Transparency See also Transparency guidance ALC/NYAS reports (2014–2016), 1.57–1.60

340

INDEX Transparency – contd background consultation paper, 1.38–1.39 government consultations, 1.44–1.49 guidance, 1.50–1.51 introduction, 1.36–1.37 procedure rules, 1.40–1.43 Family Courts Information Pilot (2011), 1.56 Family Procedure Rules, 1.40–1.43 generally, 1.15 government consultations, 1.44–1.49 Information Pilot (2011), 1.5 Lord Chancellor’s Department consultation paper (1993), 1.38–1.39 President of the Family Court guidance (2014) evaluation, 1.61–1.62 generally, 1.50–1.51 research studies and reports ALC/NYAS reports, 1.57–1.60 briefing papers, 1.53–1.54 Cardiff University evaluation of President’s guidance, 1.61–1.62 Family Courts Information Pilot, 1.56 introduction, 1.52 Review of Access to and Reporting of Family Proceedings (1993), 1.38–1.39 University of Oxford briefing papers (2009), 1.53–1.54 Views of Children and Young People Regarding Media Access to Family Courts (2010), 1.55 Transparency guidance (2014) amendment of Family Procedure Rules 2010, 8.18–8.20 anonymisation errors, 4.124 further development, 8.08–8.14 process, 4.114–4.123 Cardiff University evaluation, 1.61–1.62 compliance by judges, 4.110–4.113 Court of Protection, in extension to family court, 8.24–8.27 generally, 7.24–7.28 financial remedy proceedings, 8.21–8.23 further development, 8.03–8.04 generally, 1.50–1.51 human rights, and, 4.100–4.109 judgments adapted or designed for transparency, 4.125–4.131 ‘Next Steps’ consultation, 8.05–8.07 pilot scheme, 8.24–8.27

Transparency guidance (2014) – contd publication of court judgments anonymisation, 4.114–4.124 compliance by judges, 4.110–4.113 generally, 4.80–4.82 human rights, and, 4.100–4.109 judgments adapted or designed for transparency, 4.125–4.131 status in law, 4.96–4.99 summary of effect, 4.83–4.95 recommendations in report on evaluation, 8.15–8.17 status in law, 4.96–4.99 summary of effect, 4.83–4.95 Transparency Project, The complaints by third party to IPSO, 4.208 Court of Protection, 7.37 Family Procedure Rules, 8.18 jigsaw identification, 2.143 publication of judgments, 4.02 recording meetings, 5.09 reporting restrictions, 3.02 transcription services, 4.79 Tribunals Bar Standards Board, 7.148–7.149 chambers, 7.93 disciplinary tribunals barristers, 7.148–7.149 health professionals, 7.150–7.155 introduction, 7.140 solicitors, 7.141–7.147 Employment Appeals Tribunal, 7.137–7.139 employment tribunals appeals, 7.137–7.139 generally, 7.129 private hearings, 7.130 public hearings, 7.134 publication of decisions, 7.135–7.136 reporting of decisions, 7.135–7.136 reporting restrictions, 7.131–7.133 First-tier Tribunal generally, 7.94 mental health, 7.128 generally, 7.93–7.96 Health Care and Professions Council, 7.150–7.155 Immigration and Asylum Chamber anonymisation, 7.99–7.102 generally, 7.97–7.98 non-disclosure orders, 7.99–7.102 public hearings, 7.103–7.105

341

INDEX Tribunals – contd judiciary, 7.93 jurisdiction, 7.95 practice points, 7.156 Solicitors Disciplinary Tribunal, 7.141–7.147 structure, 7.93 types, 7.93 Upper Tribunal anonymity directions, 7.120–7.127 generally, 7.94–7.96 procedural rules, 7.98 procedure, 7.106–7.107 publication of decisions, 7.108 reporting of decisions, 7.109–7.119 status, 7.94 Trusts of Land and Appointment of Trustees Act 1996 proceedings privacy, 2.145–2.147 Twitter generally, 5.35–5.38 removal of material, 5.64–5.66 UN Convention on the Rights of the Child generally, 1.27 University of Oxford briefing papers (2009) generally, 1.53–1.54

Upper Tribunal anonymity directions, 7.120–7.127 generally, 7.94–7.96 procedural rules, 7.98 procedure, 7.106–7.107 publication of decisions, 7.108 reporting of decisions, 7.109–7.119 status, 7.94 Video recording in court privacy, 2.10–2.14 ‘Views of Children and Young People Regarding Media Access to Family Courts’ (2010) generally, 1.55 ‘Viral’ information generally, 5.57–5.58 introduction, 5.14 Virtual hearings reform of HMCTS, 8.37–8.41 Websites Internet and social media, 5.39–5.42 Wikivorce, Internet and social media 5.40 Withdrawal of judgment publication of court judgments, 4.165–4.171 YouTube Internet and social media, 5.43

342