Back in August 2020 my colleague wrote a column (Access to Family Court documents for journalists) about an application by a journalist, Melanie Newman, for full disclosure of a court file in a family court case relating to the care of M, a child.
The child had been removed from her mother’s care by the local authority under a permanent care order, and the mother successfully challenged the Order, resulting in it being set aside. Journalists became interested in the case, but the local authority returned M to the care of her mother before the case returned to the High Court. This resulted in the proceedings ending and the interested journalists being unable to investigate the case further.
Last year, Ms. Newman made an application to access the court file in its entirety in order to carry out her journalistic research. The application was partially successful, as my colleague reported, because while Ms. Newman was denied “wholesale disclosure”, she was given access to a limited selection of documents.
My colleague highlighted that this was a positive step from the family court and that the costs order made in the case was also favourable, but cautioned that this was not a ruling which could automatically be applied to future cases as it was a fact-specific exercise.
Ms. Newman appealed the decision not to allow disclosure of the entire file to the Court of Appeal, and judgment was handed down recently. The Court of Appeal ruling was that the original Judge had not erred in the balancing exercise she had carried out between the child’s right to privacy and Ms. Newman’s right to freedom of expression, and in fact that exercise has been carried out with “meticulous care” by the original Judge.
Whilst Lady Justice King stressed that she was not criticising Ms. Newman’s “proper journalistic desire to hold the local authority to account”, there was no basis on which the Court of Appeal should interfere with the earlier decision. The decision stated that the material being requested by Ms. Newman went beyond that which existing guidance or authorities had in mind.
King LJ further said: “Ms Newman seeks to embark upon what has been referred to as an ‘archaeological dig’. She wishes to trawl through thousands of highly confidential documents, many of which refer in detail to the most intimate medical and psychological details of this child’s life, in order to see if something turns up…
“Ms Newman is not seeking to push the boundaries of transparency in the family courts by way of a better understanding of the court process, or of the hearings which took place… or even particularly to hold the judge or the family justice system to account.
“Ms Newman seeks to delve beyond the court proceedings themselves and to have access to documents such as social care and medical records in her capacity as an investigative journalist in order to track through the decision-making process which informed the decision to apply for a placement order.”
Whilst the Court of Appeal’s judgment was resounding, there was also a glimmer of hope for improved transparency in the family courts in the future. A transparency review of the family courts was launched in 2019 and Sir Andrew McFarlane, President of the Family Division of the High Court, is due to publish his report later this year. Lady Justice King suggested that the review should consider whether the current degree of openness in the family courts should be extended.
Openness in the Family Courts has undoubtedly improved in recent years, but we hope that Ms. Newman’s appeal has shone a light on the need for updated guidance which allows for greater journalistic scrutiny of family court cases, whilst also protecting the right to privacy of those concerned.
We won’t hold our breath for drastic changes, but will wait to read Sir Andrew McFarlane’s findings when they are finally published, and report back.