Historically, the Family Court has been viewed as an impenetrable fortress of privacy, and given the sensitive issues that they deal with this is understandable, at least to a certain extent.
However, questions are frequently raised about the strict rules concerning what can and can’t be published; the impact these rules have on the ability of the press to report these sorts of proceedings; and on the principle of open justice more broadly.
There have been instances of reform over the years and it’s fair to say that we are worlds away from where we once were on this matter. A recent decision by the Family Division of the High Court is testament to this – though before readers get too excited, I should add that (for reasons I’ll explain later) that this judgment sets no formal precedent, and as such, makes no sweeping change to the current law.
The case in question concerned proceedings relating to M, a young girl made the subject of a permanent care order who was to be placed for adoption following removal from her mother’s care. M’s mother opposed the Order and was successful in her appeal to have it set aside. The issue was sent back to the High Court for reconsideration, by which time a number of journalists had become aware of the case.
However, the Local Authority decided to return the child to the care of her mother before the proceedings could resume in Court which, of course, made it very difficult for the interested media to report fully on the details of the case.
One of those interested journalists was Melanie Newman, who made an application for access to the Court file concerning the proceedings in its entirety. She argued that full access was necessary to enable her to carry out her journalistic research. This was unusual because journalists covering the Family Court are not normally permitted access to Court files in the same way that those covering other civil cases are. The application was opposed by the Local Authority and by M’s appointed guardian (not her mother, who gave her consent).
In considering this novel application Mrs. Justice Roberts denied what was termed Ms. Newman’s “request for wholesale disclosure” of the file but allowed her access to a limited selection of documents, citing the longstanding conflict between a need for transparency in the justice system generally, and the maintenance of confidentiality particularly in cases such as this where issues of the utmost sensitivity are to be discussed.
At first glance, this seems an exciting development, but there were some major caveats to the decision. Specifically, Roberts J stated that: “I am not deciding matters of general principle…This is a targeted and fact-specific exercise which has involved a careful balancing exercise of all the competing rights involved.”
In addition, the Judge also noted that although M’s mother had given her consent to disclosure, and that this was an important factor, it did not mean that “in every case where an aggrieved parent supports media access to material generated in children’s proceedings, journalists should be encouraged to make applications”.
Nevertheless, journalists seeking to gain access to Court files should take heart. After all, surely every application for Court documents is “a targeted and fact-specific exercise” which involves “a careful balancing exercise of all the competing rights involved”? Despite the Judge’s warning that her judgment did not open the floodgates, the message seems to be that the Courts will be willing to contemplate at least partial disclosure in the right kind of case.
Further, journalists can take heart from the judge’s ruling on costs. In determining the issue of costs arising from the application made by Ms. Newman, Roberts J held that she should pay the reasonable copying costs of the Local Authority in supplying those documents covered by the Order, but that any additional costs (i.e. those of redacting information not to be disclosed), should be borne by the Local Authority.
This is encouraging, as the costs associated with applications such as this are often the deciding factor in deciding whether or not to go to Court.
All in all, this is an interesting and welcome development from the Family Court, though sadly, it cannot be stressed too much – this is a one-off decision, and not one which sets a binding precedent for the future.