Section numbers from the book are used where relevant. The book should be read. Its content provides fuller explanations and context.
14.1.1 Background to transparency – a state of
The family justice system has long attracted criticism amid a reputation for secrecy, with some campaigners arguing judges are biased in favour of mothers, while others say the courts don’t do enough to protect mothers and children from violence, coercive and controlling behaviour at the hands of abusive husbands and fathers. Concerns have arisen that miscarriages of justice could occur when courts approve the removal of children from their parents, such as when there is disputed medical evidence of abuse. An increase in children involved in care proceedings has put the family justice system under great strain as regards workload.
The media has also faced criticism - some judges have complained that much coverage of family cases is based on partial accounts by aggrieved parents rather than a complete view of the case. But it has been difficult for the media to present a complete view of any story involving family law, because of a complex web of reporting restrictions intended to protect children and others involved in cases, and the serious risk of committing contempt by publishing certain information, particularly if it was given at a hearing in private.
The Labour Government began in 2009 to change the law to allow journalists to attend private hearings, with the idea of increasing transparency of the family courts amid concerns that public confidence in them has declined. But the reform was never completed, leaving the existing complex sets of reporting restrictions in place.
Against that background, President of the Family Division Sir Andrew McFarlane conducted a review of transparency in the family courts. In his October 2021 report, he concluded that the family justice system was suffering from ‘serious reputational damage’ because it either was, or was perceived to be, sitting ‘behind closed doors’. Sir Andrew recommended a number of reforms and said: ‘The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects.’ (Confidence and Confidentiality: Transparency in the Family Courts, October 2021 - https://www.judiciary.uk/wp-content/uploads/2021/10/Confidence-and-Confidentiality-Transparency-in-the-Family-Courts-final.pdf). In addition to this drive for greater openness, recent rulings have interpreted the law in a way which has tended to signal a shift towards transparency. The current rules, proposals for reform and recent developments, including case studies, are set out in more detail below.
14.2.1 Further detail on types of cases
Private law cases include:
- Matrimonial cases - proceedings for divorce, judicial separation, or nullity, or to end a civil partnership. Judicial separation is legal recognition that a couple will no longer cohabit, but are not divorced. Nullity proceedings are brought by someone wanting their marriage annulled (declared invalid) because, for example, their spouse turned out to be already married (bigamous). Civil partnerships were intended to be legally recognised relationships between gay people. But in June 2018, the Supreme Court ruled that restricting civil partnerships to gay people breached the European Convention on Human Rights because it discriminated against heterosexuals. Civil partnerships, like marriages, can be dissolved, or subject to judicial separation. Reporting restrictions in matrimonial cases are explained below. Cases concerning dissolution of marriages or civil partnerships may also involve what are called ‘ancillary proceedings’ or ‘financial remedy’, in which the courts decide financial and property disputes between estranged couples.
- Enforcement of financial arrangements between estranged couples, including unmarried couples. The Child Maintenance Service, which began work in 2013, replacing the Child Support Agency, is assuming a main role in securing maintenance for children, which usually involves a father paying money to the mother. But the courts still hear such cases.
- Other disputes between estranged parents about their children – for example, about which parent the children should live with, or an absent parent’s rights to contact with them, or any leading to the courts making orders under the Children Act 1989. The Children and Families Act 2014 amended the 1989 Act, abolishing ‘residence’ and ‘contact’ orders and replacing them with ‘child arrangement orders’. Note – the term ‘custody’ is no longer used for children’s residence arrangements.
- Applications for court orders to enforce the return of child abducted, for example, by one parent in defiance of the other parent’s rights.
- Paternity disputes.
- Applications in domestic violence cases for ‘non-molestation’ orders – for example, a court can ban someone from approaching an estranged spouse or partner or entering their home.
- Applications to protect a girl or woman from her family’s plans for her to have female genital mutilation, or a person from a ‘forced marriage’ see McNae’s 3 and 11.4 for reporting restrictions which bestow anonymity in such cases.
‘Public law’ cases include:
- Child protection applications, mainly made by local authorities, for court orders allowing social workers to intervene to protect a child – for example, if there is suspected neglect or abuse within a family. Such orders are made under the Children Act 1989, mainly by magistrates or district judges. They include assessment orders, to ensure parents co-operate with social workers assessing the family; supervision orders, to ensure that parents co-operate with a supervision regime; and care orders removing children from the family home to be cared for by foster parents or in a children’s home. A court can make an emergency protection order allowing police or social workers to remove a child from the parental home if there is immediate concern for their safety.
- Applications for a court to order that a child should be taken into local authority care if their behaviour is beyond parental control – for example, it is criminal and/or putting the child or the public at risk.
- Adoption cases - a court can sanction permanent adoption by non-relatives – for example, an approved couple adopting a child removed from their birth parents by a local authority. In other circumstances adoption cases may formalise existing relationships, such as a stepfather becoming the adoptive father.
A case beginning as a private law dispute between parents may become a public law case if, for example, a mother makes allegations of child abuse against the father when arguing that he should not be allowed to have contact with the child.
[ Glossary: CAFCASS]
- Staff employed by the Children and Family Court Advisory and Support Service (CAFCASS) assist the courts in family cases. They can advise adults involved and ensure that a child has their own lawyer if necessary, or that the court appoints a Children’s Guardian (someone experienced in social work) to prepare an independent report on a child. It is unusual for children themselves to attend family cases, but sometimes a judge speaks to children (usually older children) directly to assess their wishes and feelings regarding a case.
14.3.2 Rules and proposed reforms
A complex set of rules, as set out more fully in McNae’s ch.14 and below, operate in family law proceedings. The main element of the current statutory regime is section 12 of the Administration of Justice Act 1960. Section 12 applies to proceedings sitting in private, as most family court cases are [The Family Procedure Rules 2010 (FPR), r27.10 provides that proceedings to which the FPR apply (all Family proceedings) ‘will be held in private’, except where the rules provide otherwise or where the court directs].
In his October 2021 report, Sir Andrew described section 12 as a ‘somewhat opaque provision’ which has had a ‘chilling effect’ on reporting of family courts, due to the fear of breaching it and the costs involved in litigation. He concluded that, 60 years after its enactment, the Act now had the ‘contrary effect’ to its intention to protect and support the administration of justice and was instead ‘undermining confidence in the administration of family justice to a marked degree’. Sir Andrew said that any changes to the legislation are a matter for Parliament. However, he said the Family Procedure Rules Committee can put in place rules which ‘mitigate the effect’ of s 12 and that the presumption should be reversed to one which allows reporting. Sir Andrew said it will always remain at the judge’s discretion as to whether non-parties should be excluded from the court in a particular case, and that reporting must always be subject to ensuring that the anonymity of children and their family is maintained. He also said any proposed rule changes or practice directions will be subject to Government ministerial approval.
In order to implement the reforms, Sir Andrew has set up a Transparency Implementation Group (TIG) and a number of sub-groups tasked with considering different areas of the reform including engagement with the media and publication of judgments. There will also be a pilot scheme to assess how the proposed rules would work in practice. More information on the TIG can be found here: https://www.judiciary.uk/publications/transparency-in-the-family-courts-2/
In addition to Section 12 of the 1960 Act, family proceedings are subject to anonymity provisions in section 97 of the Children Act 1989. Courts may also consider the balance between Article 8 of the European Convention on Human Rights (ECHR), which protects the right to a private family life, and Article 10 which protects freedom of expression. In Re S (A Child) (Identification: Restrictions on Publication)  UKHL 47, the House of Lords considered that the scope of the court’s ‘inherent jurisdiction’ to impose restrictions in some cases derives from Article 8 without the need for previous case law. This case is therefore cited in many decisions where the court has to undertake a balancing test between Article 8 and Article 10. Other restrictions may arise in certain cases, as set out in more detail below.
Journalists’ rights under rules to attend family cases
Changes in 2009 to procedural rules – consolidated in 2010 as Part 27 of the Family Procedure Rules – gave journalists a presumptive right to attend family cases. But, as explained below, the rules also give courts a variety of reasons for excluding journalists from all or part of a hearing.
The presumption in the rules is that journalists should only be excluded in exceptional circumstances, not as a matter of routine. A journalist arguing against exclusion can, in addition to making points about the particular case, use general arguments about the societal benefits of open justice – see 15.1.1 in McNae’s – as regards any relevant to a family case.
A general rule in Part 27.10 states that family proceedings involving children will be held in private, except where the 2010 rules or other law provide otherwise, or the court directs otherwise. The definition of ‘private’, set out in Part 27.11, is that the public cannot attend but ‘duly accredited representatives of news gathering and reporting organisations’ can attend, as can any other person the court allows. A journalist is ‘accredited’ if they have a press card from the scheme operated by the UK Press Card Authority. See Useful Websites, below, for Part 27 in full and about the scheme. A journalist without such a card could be admitted at the court’s discretion, if, for example, they had some other form of identification, such as a letter on a news organisation’s headed stationery.
Part 27.11 states that at any stage of the proceedings the court can decide to exclude the media
- if satisfied this is necessary –
- in the interests of any child concerned in, or connected with, the proceedings;
- or the safety or protection of a party, a witness, or a person connected with a party or witness; or
- or for the orderly conduct of the proceedings;
- or if it is satisfied that justice will be impeded or prejudiced if the media attend.
Part 27.11 adds that, at any stage of a case, the following people may make representations to the court to object to the media attending a private hearing: a party; any witness; a Children’s Guardian; an officer of CAFCASS or a Welsh family proceedings officer, on behalf of the child who is the subject of proceedings; the child, if of ‘sufficient age and understanding’. The court must give the journalist(s) ‘an opportunity to make representations’.
The court can decide to exclude the journalist(s), on a ground set out in Part 27.11, even if there has been no objection to media attendance. These rules were described in 2009 by the then Justice Secretary as helping ‘to make family proceedings more open and transparent’. But these rules – compared to those which existed before 2009 - increased the specific grounds on which courts can exclude journalists. The media cannot attend any private hearing at which the court tries to resolve a case by assisting in ‘conciliation or negotiation’.
There are separate rules on access to court hearings on a spouse’s right to occupy their home after marital breakdown or involving applications for ‘non-molestation’ orders after allegations of domestic violence. See too the heading below: Other rules on private hearings.
Practice Direction 27B guides courts on how to interpret Part 27.11 of the rules on journalists attending family cases. See also Useful Websites, below, for the Direction. It says that a court, when considering whether a ground in Part 27.11 justifies a journalist being excluded, should consider whether the ‘risk’ – for example, to a child’s interests, or to the safety of a party or witness – is already avoided because of reporting or disclosure restrictions.
As this advice anticipates, a reporter arguing to be allowed to attend such a hearing can point to the protective effect, for those involved in it, of reporting restrictions which apply – for example, anonymity under the Children Act 1989 – unless they are also arguing for these restrictions to be lifted.
The Practice Direction indicates that if a witness says they will not give evidence in front of journalists, ‘credible reasons’ must be given for this to be sufficient reason to exclude them.
It also requires a court to state ‘brief reasons’ for deciding to exclude journalists. The Direction says what notice should be given to the media that argument will be made to exclude journalists.
These Part 27.11 rules only apply to hearings from which the public has been or will be excluded. They provide no grounds for excluding the media from cases which the public is permitted to attend. Again, a journalist opposing exclusion from a court can argue for the societal benefits of open justice – see 15.1.1 in McNae’s.
In 2018 the Family Rules Procedure Committee agreed to a pilot scheme to permit ‘duly authorised lawyers attending for journalistic, research or public legal educational purposes’ to attend family cases held in private under Part 27.11 of the rules, and to blog about these hearings. The normal reporting restrictions will apply unless lifted in particular cases by the court.
Access to case documents?
Journalists covering family case hearings are likely to need to read case documents in order to report the case coherently. The magistrates or judge, parties, lawyers and officials will have read the papers beforehand, so few details may be read aloud in the proceedings. The documents may well refer to very private matters, and parties may object to them being shown to journalists.
Practice Direction 27B says that Part 27 of the Family Procedure Rules does not automatically permit a journalist, if allowed to attend a hearing, ‘to receive or peruse court documents referred to in the course of evidence, submissions’ or the ‘written reasons’ for decisions made or the judgment. The Direction says journalists should only be given access to such documents if the court allows, or ‘otherwise in accordance’ with rules relating to disclosure to ‘third parties’.
The then President of the Family Division, Sir Mark Potter, said in guidance issued in 2009 that when a journalist applied to be shown court documents, the court should ask the parties for their consent for the journalist (subject to appropriate conditions as to anonymity and restrictions on ‘onward disclosure’) to see ‘summaries, position statements and other documents as appear reasonably necessary to a broad understanding of the issues in the case’. If any party demonstrated ‘reasonably arguable grounds’ for resisting such disclosure, a county court or magistrates court should transfer the proceedings to the High Court for determination of the issue. See Useful Websites, below, for the Direction and guidance.
In his transparency report, Sir Andrew McFarlane said there is a ‘difficult issue’ as to which documents journalists and bloggers should be allowed to see and that it would need further consideration, but that his ‘preliminary view’ was those attending family proceedings should be allowed to read position statements and witness statements but not official medical reports. He said in all cases the judge will have a discretion to withhold documentation ‘if that is necessary on the facts of the case’.
220.127.116.11 Adoption and Children Act 2002
Section 123 of the Adoption and Children Act 2002 makes it an offence – punishable by up to three months in jail and/or a fine – for anyone other than an officially recognised adoption agency, or someone acting on its behalf, to publish information, or an advertisement, that a child is available for adoption. It also bans publication of information about how to arrange an adoption without legal authority.
18.104.22.168 Wards of court and other ‘parens
A child who has been made a ward of court by the High Court, or who is subject to proceedings seeking to make them a ward, or who is involved in any other form of ‘parens patriae’ case, is automatically protected by section 97 anonymity while the case is ongoing (Kelly v British Broadcasting Corporation  Fam 59). A child may be made a ward if, for example, their parents are dead or deemed to be unfit to raise them. The High Court has an inherent jurisdiction at common law to act in a parental capacity to approve important decisions about the child – for example, about education or medical treatment. These powers are based on centuries-old case law originally derived from the role of the monarch, who was regarded as the ‘parent’ of the whole nation (in Latin, parens patriae). A child can also be made a ward at the request of their family, for example, if they runs away or is abducted. Wardship means the High Court can order anyone to tell it of the child’s whereabouts – disobedience is punishable as contempt of court. Punishment could be a jail term – see ch.19 in McNae’s.
Case study: In 2001 Bobby Kelly, aged 16, ran away from home and joined the ‘Jesus Christians’ cult. His worried family made him a ward of court. After a BBC reporter traced him, Mr Justice Munby ruled in the High Court that the media did not require the leave of the court to interview a ward of court or to publish the interview. But he warned that the media should take care to avoid any breach of reporting restrictions (Kelly v British Broadcasting Corporation  Fam 59). For example, anonymity might apply, and a published interview should not breach contempt law in respect of matter heard by a court in private. The BBC was allowed to identify Bobby. He said he was homesick but ‘it says in the Bible that you have to give everything up to work for God.’ See Useful Websites, below, for the Bobby Kelly story.
14.5.1 Anonymised judgments – further
In July 2016, Sir James Munby made clear the importance of the rubric which generally appears at the top of judgments being published by the Family Court or the Family Division of the High Court, and the Court of Protection – see In the Matter of X (A Child) (No 2) ( EWHC 1668 (Fam)). The rubric, he said, was generally in two parts – each of which served a distinct function. The first part, saying that the judge gave leave for the judgment to be reported, had the effect of disapplying section 12 of the Administration of Justice Act 1960 to a certain extent, and so protecting the publisher or reporter from proceedings for contempt. But the second part, saying that the judgment was ‘being distributed on the strict understanding that...’ made that permission conditional. A person publishing or reporting the judgment could not take advantage of the judicial permission in the first part of the rubric and would not be protected from the penal consequences of section 12 of 1960 Act unless he complied with the requirements of the second part of the rubric. So, someone who published or reported such a judgment in a way that did not comply with the second part of the rubric would, in principle, be guilty of a contempt of court in accordance with section 12.
In his transparency report, Sir Andrew McFarlane said that, in spite of Sir James’ practice directions on publication of anonymised judgments, introduced in 2014, which required publication of anonymised judgments in certain categories of case and encouraged publication in others, was ‘unfortunately, not being followed in many cases’ (the number of published judgments fell from 222 in 2015 to 87 in 2019). He said he accepted this was largely due to the increased burden that proof-reading and anonymisation places on ‘already very hard-pressed judges’. One of the sub-groups of the TIG is considering issues relating to publication of judgments – including anonymisation.
Sir Andrew issued practice guidance in 2018 setting out what issues judges should consider when anonymising judgments, such as geographical locations and risk of ‘jigsaw identification’ (see here: https://www.judiciary.uk/wp-content/uploads/2018/12/anonymisation-guidance-1-1.pdf).
14.7.1 Disclosure restrictions – proposed
As set out in McNae’s, part 12.73 of the Family Procedure Rules (FPR), reflecting section 12 of the 1960 Act, says no information ‘relating to’ court proceedings concerning children and held in private, whether or not the information is in documents filed with the court, may be communicated to the public, or to anyone other than lawyers, officials or other specified categories of people, without the court’s permission. Part 14.14 contains a similar ban for adoption cases. At present, a contempt can be committed by communicating such information, even when it is not published. The disclosure ban relates to what is said in the proceedings or information from documents prepared for the proceedings. It does not stop a parent telling in general terms how they feel about the court case or of the wider experience of, for example, a child being removed from them – though any anonymity applying under the Children Act 1989 must be preserved in any report. Even if the case has been heard in public, common law contempt can apply to unauthorised disclosure of documents.
Sir Andrew’s proposals include adding accredited journalists and legal bloggers to the list of those to whom a party may communicate information relating to children’s proceedings under FPR, 12.75(1), Practice Direction 12G and Practice Direction 14E. The purpose of the communication would be limited to discussion of the case and informing the journalist/blogger of details of the proceedings. The information given would be subject to a ban on publication but knowing about a case in advance would enable a journalist/blogger to decide whether to attend and report on any hearings.
Case study: A judgment issued in 2015 can serve as a useful model for court orders to lift disclosure restrictions in rules and those in section 12 of the 1960 Act in family cases involving children. The judgment by Mr Justice Bodey approved a draft order produced in detailed negotiations involving journalist Louise Tickle, her barrister Lucy Reed and North Tyneside council about what could be published about care proceedings. The judgment enabled Ms Tickle to research and publish a 5,000 word in-depth report on a mother’s experience of the family court system, without Ms Tickle or the mother incurring the risk of committing a contempt of court when making references to case material or to what was said in the private, court hearings. The judgment preserved anonymity for the children and mother involved - Ms Tickle did not want the report to identify them. The mother, who blogs on family court matters, wanted to help Ms Tickle publish it. The judgment meant she could disclose information about the care proceedings to Ms Tickle. It permitted Ms Tickle to be shown case documents to inform the report, provided she did not publish them in full or distribute them. Mr Justice Bodey said that the mother’s life had been blighted by serious mental health problems which at times had made it unsafe for her to care for her children, and she and her children had come into and through the care system on a number of occasions. ‘Happily those times appear to be behind her’, he said. The mother had shared this experience in ‘balanced and reasonable’ articles on social media, including references to her own failings and in particular how she fought for her youngest child (who had been removed from her at birth) and how she eventually succeeded in having that child live with her, the judge said. He added that the mother’s articles were in some respects critical of some professionals in the care system but ‘over-archingly’ are written to help others in the system by ‘sensible, practical and sensitive advice’. The judge said a reading of what the mother had written did not support an assertion by the council that they constituted ‘complete criticism’ of the council. He said that Ms Tickle was an experienced freelance journalist who had written responsible articles and made sensible 'concessions' about how she would prepare her report of the mother’s experiences – for example, to preserve anonymisation and as to how Ms Tickle would deal with the ages of the children to avoid ‘jigsaw identification’. He had ‘no hesitation’ in approving the order, which lifted the disclosure and section 12 restrictions as agreed between the parties. He said it appropriately balanced the public interest in the media being able to report care proceedings as against the interest of the privacy of those whose lives are intimately involved (Tickle v the Council of the Borough of North Tyneside, G (a mother) and H, I and J (children, by the Children’s Guardian)  EWHC 2991 (Fam)).
14.8.1 - Domestic and Appellate Proceedings (Restriction
of Publicity) Act 1968
Some types of family case – for example, about not paying maintenance, or for declarations about parentage, legitimacy or marital status – are covered by automatic reporting restrictions under section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 in any court which hears such a case or an appeal. The section lists the types of cases it covers. The Act applies the restrictions set out in section 1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act 1926 – see below – with the same liability in the event of breach. These restrictions limit the reporting of evidence to what the magistrate or judge says, and any accompanying observations made, in giving the court’s decision. In relevant cases ‘the particulars of the declaration sought’ can be published, instead of a ‘concise statement of charges, defences, and counter-charges in support of which evidence has been given’.
Remember! If any current case involves use or potential use of powers under the Children Act 1989, the anonymity provisions of that Act apply.
All civil courts have discretion to make an order under section 39 of the Children and Young Persons Act 1933 to prevent media reports of a case identifying a child aged under 18. But there must be a good reason to make a section 39 order, and the child must be ‘concerned in the proceedings’, as explained in 10.5 and 16.10.1 in McNae’s.
Any child or adult alleged to be the victim of a sexual offence has lifetime anonymity under the Sexual Offences (Amendment) Act 1992 in respect of that allegation - see ch.11 in McNae’s.
NB: Domestic violence proceedings under Part IV of the Family Law Act 1996, including applications for non-molestation orders and occupation orders, are not covered by any automatic reporting restrictions. But if the proceedings are held in private, they will be covered by the restrictions in section 12 of the Administration of Justice Act 1960.
Other rules on private hearings
Parts 8.11 and 8.27 of the Family Procedure Rules provide for some, but not all, types of hearing about maintenance and financial provision to be heard in private.
Part 10.5 says an application under Part 4 of the Family Law Act 1996 for an occupation order or a non-molestation order will be heard in private unless the court directs otherwise. These types of hearing involve the right of spouse or partner to occupy a matrimonial or civil partnership home, or application by one person for another – for example, an estranged partner - to be ordered to desist from harassment or other ‘molestation’ when domestic violence has occurred or is alleged.
For these Part 8 and Part 10 rules the default position is that when the hearing is private neither members of the public nor journalists can attend.
Different rules cover divorce, nullity, judicial separation and civil partnership cases – see below.
Section 101 of the Adoption and Children Act 2002 gives courts discretion to hear adoption cases in private.
General rule – committal hearings to be in public
Part 37.25(5) of the Family Procedure Rules says that if the High Court is considering jailing someone for contempt of court the hearing will be heard in public, but may be in private for cases involving children or mental patients. There is similar provision in rule 6 of the Rules of the Supreme Court Order 52 for a private hearing in these circumstances. See Useful Websites, below for the Family Procedure Rules. In March 2015 the Lord Chief Justice, Lord Thomas, issued a Practice Direction making clear that all committals, in any court, must be heard in public, and, whenever possible, be properly listed in advance of the hearing. Any court considering holding a committal hearing in private is also required to notify the national media through the Press Association’s Injunctions Alerts Service (see below). In all cases, whether heard in public or in private, a court which finds that someone has committed a contempt of court, must, at the end of the hearing sit in public and state the person’s name, the nature of the contempt – in general terms – for which they are being committed to jail, or being given a suspended committal order, and any other punishment being imposed. See Useful Websites at the end of this chapter.
The higher courts
The Court of Appeal and the Supreme Court almost invariably hear appeals in family cases in open court, but may impose reporting restrictions. In financial remedy cases, appellate courts may identify parties who have been anonymised in lower courts.
14.9.1 – Examples of reporting restrictions being lifted/varied and challenges by journalists
Case study: Ruler of Dubai Sheikh Mohammed bin Rashid Al Maktoum’s sixth wife, Princess Haya Bint Al Hussein, fled the United Arab Emirates (UAE) in April 2019 having become ‘terrified’ of her husband. He then applied for the summary return to Dubai of their two children, while Princess Haya, the half-sister of King Abdullah II of Jordan, applied for the children to be made wards of court, as well as applying for a forced marriage protection order in relation to their daughter and a non-molestation order for her own protection. She asked the High Court to make a series of findings of fact about Sheikh Mohammed, in particular in relation to the kidnap and forcible detention of two of his adult daughters from another marriage almost two decades apart and a ‘campaign of fear and intimidation’ waged against her.
A series of judgments from the High Court and Court of Appeal were published in March 2020, after the Supreme Court rejected a bid by Sheikh Mohammed to keep them secret. They included a fact-finding judgment in which Sir Andrew McFarlane found that Sheikh Mohammed had ‘ordered and orchestrated’ the abduction and forced return to Dubai of his daughter Sheikha Shamsa, then 19, in August 2000 and of her sister Sheikha Latifa twice, in 2002 and again in 2018. The judge found that Shamsa was abducted from the streets of Cambridge and ‘has been deprived of her liberty for much if not all of the past two decades’. He also concluded Sheikh Mohammed was responsible for the campaign against his ex-wife. The judge ruled that reporters could identify the children by name, age and gender, but no photographs of them or details of their school could be published. (Al M (Publicity)  EWHC 122 (Fam)). A series of further judgments were published including one in October 2021, which found that Sheikh Mohammed had authorised the hacking of Princess Haya’s phone, in December 2021, when it was made public that he was ordered to pay £550 million to his ex-wife and their children and in March 2022, when Sir Andrew considered that a ruling on the children’s welfare should be published (Mohammed bin Rashid al-Maktoum v Princess Haya  EWFC 16). Journalists from a number of media organisations had been attending all of the hearings, making representations regarding publicity along the way, and had to wait until appeal routes had been exhausted/publicity issues had been determined before being able to report the various judgments, which were released under an embargo to assist with accurate reporting.
Case study: In December 2021 it was revealed that former Conservative minister Andrew Griffith had been found by a family court judge in a ruling on a private law dispute over contact with his child that he had raped the child’s mother, Conservative MP Kate Griffiths. It took two journalists, freelancer Louise Tickle and PA Media’s Brian Farmer, more than a year to be able to report the story. They applied to the High Court for publication of the fact-finding judgment given at Derby Family Court on 27 November 2020, arguing it was a case of considerable public interest involving, as it did, very serious findings of domestic abuse against the father. The mother was supportive of the application and content to waive her anonymity in relation to the sexual abuse allegations. Mrs Justice Lieven granted the application (Tickle v Griffiths  EWHC 3365 (Fam)). Mr Griffiths then challenged that decision at the Court of Appeal, where it was upheld. The Court concluded that the various factors which tipped the balance in favour of identification included: the father’s decision not to invoke any Article 8 rights of his own but to rely exclusively on the rights of the child; the very young age of the child; the professional assessment of the child’s guardian, in favour of publication; the mother’s support for publication and the extent and nature of the information about the father that was already in the public domain (Griffiths v Tickle  EWCA Civ 1882). See Useful websites for more detail on the Griffiths rulings and the documents used in the High Court and Court of Appeal.
The ruling was cited favourably by Lieven J in three linked cases which involved a sperm donor with a genetic disorder called Fragile X syndrome, who hadn’t disclosed his condition to women who had used his sperm to conceive. The judge observed: ‘The usual approach of anonymity in the Family Courts should not be used as a way for parents to behave in an unacceptable manner and then hide behind the cloak of anonymity. The provisions and practice in respect of anonymity in family law are there to protect the children and not the parents.’ (McDougall v Children’s Guardian  EWFC 50).
Case study: In 2006 Mr Justice Munby let the media identify Nicola and Mark Webster and their baby son Brandon, despite ongoing care proceedings and objections by Norfolk County Council and a lawyer representing Brandon. See Useful Websites, below, for media coverage of this case. In 2004 the council had removed the couple’s three older children, who were later adopted by other families, after one was found to have suffered several fractured bones. The Websters denied that this was caused by physical abuse. Mr Justice Munby said he was not in a position to assess whether the Websters ‘may not be the martyrs they claim to be’, but that was not a reason to deny them the right to speak to and be identified by the media. ‘It is, after all, the underdog who is often most in need of the help afforded by a fearless, questioning and sceptical press.’ He made clear that, apart from his acknowledgement of the rights of the Websters and the media under the European Convention’s Article 10, he authorised publicity about the case because, after the Websters alleged that they had suffered a miscarriage of justice, there was a pressing need for public confidence in the courts system to be restored by a ‘public and convincing demonstration’ either that no such miscarriage had occurred or by acknowledgement that it had (Re Brandon Webster, Norfolk County Council v Webster  EWHC 2733 (Fam) and  EWHC 2898 (Fam)). Norfolk County Council later withdrew the care proceedings concerning Brandon, saying it was satisfied that the Websters were ‘fit and able’ to care for him. It was argued for the Websters that the child, who in 2004 had been diagnosed as having bone fractures, had suffered them because of scurvy and/or iron deficiency, and not from any abuse. But the Court of Appeal ruled in 2009 that it was too late to consider returning the older children from the adoptive parents (Nicola and Mark Webster v Norfolk County Council  EWCA Civ 59).
Local authorities – identification
Case study: In May 2020 two journalists, freelance Louise Tickle, and PA reporter Brian Farmer, succeeded in challenging a decision by Mr Justice Hayden to allow a local authority to remain anonymous in a judgment in which he had strongly criticised the behaviour of its social workers in their dealings with a family with a disabled child. The children’s mother had become embroiled in a relationship with a convicted paedophile, and the case resulted in the child being removed from her care. The local authority had sought anonymity, and persuaded the judge that naming it might lead to people being able to identify the disabled child at the centre of the case, and another child, causing them emotional harm. But, said the judge, while he had taken Article 10 freedom of expression rights into account in when deciding that the authority should remain anonymous, the media had not been notified of the anonymity application (see: Alerts for the media, below), and he made clear that the media could seek to overturn the decision that the local authority should not be named. Ms Tickle and Mr Farmer took up the challenge – and persuaded the judge to change his mind, which allowed their reports to name the council, which was the London Borough of Haringey. The judge, in his ruling about that, explained why he now felt that the council’s identity should be revealed. He referred to what he had criticised as regards its social workers’ dealings with the family. He said that the council had argued that this ‘was an isolated example of bad practice’ and that it had argued too that lessons would be learned internally if the council remained anonymous. But speedy investigative research by Ms Tickle, carried out to help her oppose the council having anonymity, showed the judge that 18 months before this case, an Ofsted report had raised concerns about Haringey’s social workers similar to those expressed by the judge – which suggested that the council had not learned lessons and needed be exposed to the glare of publicity. It was clear from Ms Tickle’s research, said Mr Justice Hayden, that Haringey’s assertion that the deficiencies identified in the work of one social work team were an isolated aberration and not indicative of a wider systemic failure was entirely inaccurate. Mr Justice Hayden added that ‘it now requires to be stated that this case cannot be seen as an isolated example of strikingly poor practice but is reflective of a much broader and deeper malaise within Haringey's Children with Disabilities Team. He said: ‘This material has been unearthed by the independent press and strikes me as a graphic illustration of the importance of scrutiny of public bodies and the Family Court system by lively and forensically curious journalism….I have concluded that the public interest in naming this local authority must prevail against the potential but not inevitable identification of the children and the potential but not inevitable emotional distress that child B [the younger child], in particular, may be caused. The Editors' Code of Practice affords these children continuing protection, as do my orders preventing publication of their identity. In addition, they have the important support of a father and a mother (notwithstanding my findings against her) who are sensitive to their children's needs and personalities. The father, now the primary carer for child B, is well placed and well equipped to shield him from the consequences of publicity. Moreover, having supported the application of the press to name the local authority, the father strikes me as being in a strong position to explain to his son the reasoning underpinning this judgment’ (PA Media Group v London Borough of Haringey and Others,  EWHC 1282 (Fam).
Case study: In the High Court in 2010, Judge Clifford Bellamy ruled that Coventry city council could be named in media coverage of the outcome of care proceedings. The council had sought the removal of three children from their parents on the basis that the children had been subject to unnecessary hospital admissions, medical examinations and tests, and that this had been caused by the parents lying about or exaggerating the children's symptoms. However, at a late stage, the council withdrew this application for care orders after re-considering its evidence. In his judgment, Judge Bellamy was critical of the council’s earlier decisions in the case, and also criticised a consultant paediatrician for producing a ‘deeply flawed’ report, on which £35,000 had been spent. The judge said that by the time the council withdrew the care proceedings, legal representation for the children and parents had cost the public purse around £400,000, which came on top of the council’s costs. He ordered the council to pay £100,000 towards the parents’ costs (Re X, Y and Z (children)  EWHC B12 (Fam)). The BBC later successfully applied to the judge for permission to name the council, which he had not identified in that judgment. The parents supported the BBC’s application, saying that allowing the media to name the council would not identify their children. The father said too that many of the people with whom the family engaged on a regular basis were already aware that the children had been the subject of care proceedings and that it was only people who were not significant to the family who may conceivably be better able to identify them if the council was named, and the father did not regard that as a problem. Judge Bellamy said: ‘So far as concerns the population served by this local authority, there is a legitimate public interest in the local authority being identified…When weighed in the balance against the potential breach of the children's Article 8 rights and the risks that flow from such a breach, is it a proportionate restriction on the Article10 rights of this BBC to restrain the identification of this local authority? I have come to the conclusion that it is not.’ Judge Bellamy noted that it was increasingly the case that local authorities were being identified in judgments on care proceedings so that they can be held publicly accountable, and that the arguments in favour of public accountability are particularly compelling in the context of care proceedings (BBC v Coventry City Council (care proceedings: costs: identification of local authority)  EWHC B22 (Fam)).
Case study: In 2018 Mr Justice Keehan in Nottingham family court rejected an application by Herefordshire council that it should not be identified in respect of two cases in which he severely criticised its use of section 20 of the Children Act 1989. This section gives councils an interim power to arrange accommodation for a child to live away from his or her family for a short period – for example, for short term fostering for ‘respite care’ or because the family has an unexpected domestic crisis. The power should not be used to delay or avoid use of care proceedings in court, in which councils’ applications for permanent or long-term removal of a child from the family can be considered deeply, and in which the court - to justify removal - has to be satisfied that the child is suffering or at risk of significant harm in the family home. But Herefordshire had been using section 20 powers in some children’s cases continuously over a period of years, which meant their cases had not been considered in care proceedings and so they had been deprived of safeguards in law in decisions about their future – for example, they had not been legally represented or had a ‘children’s guardian’ appointed to be their voice. The judge said the cases before him represented ‘two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge’. One of the children had been subject to section 20 arrangements for eight years and the other for nine years, his whole life. There were another 14 children for which the council had ‘wrongly and abusively’ used section 20 arrangements for inappropriately lengthy periods and/or when they should have been the subject of legal planning meetings and/or care proceedings at a much earlier time, the judge said. The council’s recently-appointed ‘director for children’s wellbeing’ requested it should not be identified, because adverse publicity about its past failings would aggravate its ‘struggle’ to recruit solicitors and social workers. The judge said he had confidence in the sincerity and commitment of the director to improve very significantly the council’s work with children. But, the judge said, a public judgment which named the council in respect of the section 20 abuses was necessary for the following reasons: the President of the Family Division had repeatedly emphasised the importance of transparency and openness in the conduct of cases; the public have a real and legitimate interest in knowing what public bodies do, or - as in the cases of these particular children - do not do in the public’s name and on their behalf; the council’s failure to plan and take action as regards both children in the case was ‘extremely serious’; and there had been repeated flagrant breaches by the council of guidance from judges. He said that other reasons justifying identification of Herefordshire council were that not to identify it would unfairly run the risk of other councils covered by the Midlands court ‘circuit’ coming under suspicion, in that it would be obvious his judgment was from that circuit; and that the President and judges had always previously taken a robust approach on the identification of local authorities, experts and professionals whose approach or working practices are found to be below an acceptable standard (Herefordshire Council v AB and CD; Herefordshire Council v EF and GH  EWFC 10).
No automatic anonymity for witnesses giving evidence in a professional capacity
While some judges have, almost routinely, given anonymity to social workers and expert witnesses such as doctors or psychiatrists in published judgments in child protection cases heard in private, others have taken the view that social workers and expert witnesses should not normally be given anonymity under Article 8 for evidence given in court.
Case study: In 2005 the High Court agreed that the BBC, in a documentary about discredited allegations of ‘satanic’ abuse in Rochdale in 1991, could identify two social workers involved in that case. They were criticised in an anonymised judgment in 1991 and wanted their anonymity maintained (British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y  EWHC 2862 (Fam)).
Case study: In 2010 the High Court ruled that a couple could name witnesses, including experts, clinicians and social workers, when speaking publicly about their son, William Ward, having been made the subject of care proceedings when three months old. Those proceedings had begun after fractures of William’s right tibia were discovered, but ended when a judge found in favour of the parents because there was no evidence of ill-treatment or poor parenting. Lord Justice Munby rejected argument that the witnesses needed anonymity as a general protection from people with grievances against the family justice system. He said that in this case no real risk to such witnesses had been established (A v Ward  EWHC 16 (Fam)).
However, in December 2018 Sir Andrew McFarlane, President of the Family Division, issued Practice Guidance on anonymisation and avoiding the identification of children suggesting that social workers and doctors dealing with or treating children involved in cases should normally be anonymised because of the risk that naming them would lead to people being able to identify the youngster (see 14.5.1 above for link to guidance) This issue was considered in some detail in the cases of Re M (Declaration of death of a child)  EWCA Civ 164, and Abassi/Maqsood v Newcastle upon Tyne Hospitals NHS Foundation Trust & Haastrup/Thomas v Kings College Hospital NHS Foundation Trust  EWHC 1699 (Fam).
14.10.2 – Alerts for the media
In 2005 the then President of the High Court Family Division issued a Practice Direction that a party applying for such an injunction should give national media organisations advance notice by using the Injunctions Alert Service operated by the Press Association in order to comply with section 12 of the Human Rights Act 1998 (President’s Practice Direction Application for Reporting Restriction Orders  2 FLR 120). Practice Direction 12I of the Family Procedure Rules 2010, which mirrors that requirement, also points to guidance in Practice Note: Official Solicitor: Deputy Director of Legal Services: CAFCASS: Applications for Reporting Restriction Orders  2 FLR 111), which was issued at the same time as the original Practice Direction. See Useful Website, below, for Practice Direction 12I.
The Practice Note warns that the Press Association’s injunction alerts service does not extend to local or regional media or magazines, and that if service of the application on any specific organisation or person not covered by the alerts service was required, it should be ‘effected directly’.Whilst alerts should give details of a case, including the identities of parties, publishing details given in any notification is a contempt of court.
Family law injunctions restricting reports of criminal and
In some instances, High Court injunctions made in family law cases have restricted media reports of criminal or inquest cases.
In the 2004 case of Re S (A Child) (Identification: Restrictions on Publication)  UKHL 47, the House of Lords ruled that the media’s freedom to report a criminal trial should not be restricted to protect the privacy of a child who was not involved in it. A mother was accused of murdering her nine-year-old son by poisoning him with salt. Her younger son, aged eight, was subject to care proceedings brought by a local authority, which applied to the High Court for an injunction to stop the media naming the mother or the dead son in reports of the pending murder trial, or publishing photographs of them, or identifying the surviving son. In the House of Lords, Lord Steyn said the publicity impact on the surviving son would be essentially indirect. He added that if such an injunction was granted, the process of piling exception upon exception to the principle of open justice would thus be encouraged and would gain momentum, to the detriment of the media’s role in reporting criminal cases. The spectre of being involved in costly legal proceedings to oppose such injunctions was bound to have ‘a chilling effect’ on local newspapers, which did not have the financial resources of national newspapers, he added.
But in 2005, the High Court Family Division banned the media from identifying a defendant in a criminal trial, in order to protect her children from publicity, although they were not involved in the criminal case. The mother was awaiting sentence after admitting knowingly infecting a man with the HIV virus. He was the father of one of the children. The local authority argued that if media reports identified the mother, the placement of her children with foster parents would be prejudiced because of the stigma of HIV, and the children were likely to face continued ostracism in the community (Re W (Children) (Identification: Restrictions on Publication)  EWHC 1564 (Fam)).
In 2007 the High Court banned the media from referring, in coverage of an inquest, to the existence of a five-year-old girl (Re LM (Reporting Restrictions: Coroner’s Inquest  1 FLR 1360). The inquest was into the death of her older sister. The surviving child had been removed from the parents after a family court concluded that the mother caused the sibling’s death through ill-treatment. But the High Court refused an application by the five-year-old’s legal guardian to block media reports of the inquest from identifying the dead child and parents. It had been argued that publicity naming them would undermine the surviving girl’s therapy and jeopardise efforts to get her adopted.
14.11.1 Inspection of evidence and copy of decree
Part 7.20 of the Family Procedure Rules 2010 permits anyone, within a period of 14 days after the decree nisi is made, and if it has not been contested, to inspect and make copies of an evidential statement which Part 17.19 requires the petitioner* to supply before the decree can be made. This statement must tell the court if there have been any changes in the information given in the application for the divorce. The reporting restrictions covering divorce proceedings, explained below, may limit what can be published from the statement.
Part 7.36 allows anyone to obtain from the court a copy of the decree absolute.
In the very rare cases in which a divorce case or the ending of a civil partnership is contested by one of the parties, Part 22.19 of the rules may be of use to journalists. This says that 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. This rule says too that the court will not make such a direction (order) unless it is satisfied that the witness statement should not be open to inspection because of the interests of justice; the public interest; the nature of any expert medical evidence in the statement; the nature of any confidential information (including information relating to personal financial matters) in the statement; or the need to protect the interests of any child or protected party. The rule says too that the court may exclude from inspection words or passages in the witness statement. Again, the reporting restrictions covering divorce proceedings apply to what can be published from witness statements. Note the ‘concise statement’ requirement, referred to below.
*NB the Divorce, Dissolution and Separation Act 2020, which introduced ‘no-fault divorce’ so that couples could legally separate without having to identify a reason (such as the unreasonable behaviour of one party) came into force on 6 April 2022 and makes changes to the terminology used in divorce, dissolution, nullity and separation proceedings so that where divorce proceedings began after that date, a petition is replaced by an application, a decree nisi by a conditional divorce order and a decree absolute by a final divorce order.
Reporting restrictions in matrimonial and civil partnership cases
Media reports of matrimonial proceedings – that is, divorce, nullity and judicial separation cases - or proceedings to end a civil partnership are restricted by section 1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act 1926, which limits them to the following information:
- the names, addresses, and occupations of parties and witnesses;
- the grounds of the application and a concise statement of the charges, defences, and counter-charges in support of which evidence has been given;
- submissions on any point of law arising in the proceedings and the decision of the court on the submissions;
- the summing up of the judge, the judgment, and any observations made by the judge in giving it.
Parliament enacted the legislation in 1926 to curb the practice by some newspapers of reporting salacious evidence from divorce cases – the most newsworthy of which involved the upper classes – at great length.
In a divorce case, the ‘charges’ made by the petitioner are the grounds for seeking a divorce, for example, the spouse’s adultery, desertion, or unreasonable behaviour. The restrictions mean that media reports of contested divorce actions are primarily based on what is said by the judge in judgment, though this may well provide a lengthy account of the case’s issues. The safest course for a journalist at a hearing in a contested divorce is to wait until all evidence in the case has been given, to guard against the withdrawal of key elements, because of the stipulation that charges, defences, and counter-charges can only be reported if evidence is given in support of them. The restrictions also apply to reports of case documents. If these restrictions are breached, ‘a proprietor, editor, master printer or publisher’ is liable for a jail term of four months and/or a fine. The Attorney General must give consent for a prosecution for breach of the restrictions.
Part 7.16 of the Family Procedure Rules 2010 says a court hearing matrimonial and civil partnership cases may order that the identity of any party or witness must not be disclosed if it considers this necessary to protect the interests of that party or witness.
Can journalists attend?
Part 7.16 of the Family Procedure Rules 2010 state that as a general rule matrimonial and civil partnership proceedings are heard in public. But Part 7.16 also says a hearing, or any part of it, may be in private if publicity would defeat the object of the hearing; it involves matters relating to national security; 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; 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; or the court considers a private hearing to be necessary in the interests of justice.
Hearings about financial orders
In the matrimonial and civil partnership proceedings there may be hearings on financial orders – known as ‘ancillary relief’ or ‘financial remedy’ – that is, the division of property and other financial arrangements between estranged couples. There has been considerable confusion over recent years as to whether such hearings are public or private, or whether parties should be anonymised. However, in 2021 the lead judge of the Financial Remedies Court (FRC) Mr Justice Mostyn issued a consultation paper on a proposed standard Reporting Permission Order (RPO) in order to 'codify and clarify the existing rules concerning the reportability of financial remedy proceedings so as to achieve a better balance between privacy of the parties, on the one hand, and transparency and freedom of expression, on the other'. The proposed RPO included who could attend a hearing, what documents the press would have access to and what matters could be reported. The judge later decided that the work should continue alongside the wider transparency objectives of the TIG and a sub-group to consider issues relating to the FRC was set up in February 2022 and is due to report on its findings in Autumn 2022.
Meanwhile, in a number of recent judgments, Mostyn J has reversed his prior view on the privacy to be afforded to financial remedy hearings. For instance, in Xanthopoulos v Rakshina  EWFC 30, he concluded that the default position is that information contained in financial remedy proceedings is reportable, and neither the proceedings nor judgments should be anonymised; and that to depart from that position requires a judge to balance the competing rights under Articles 8 and 10 of the ECHR. This judgment set out a lengthy history of transparency in divorce cases. It followed his view in BT v CU  EWFC 87 (reiterated in A v M  EWFC 89), where he said ‘it should be clearly understood that my default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations’. Most recently, at the time this additional material was published, the judge expressed his view in the case of Gallagher v Gallagher (No.1) (Reporting Restrictions)  EWFC 52 that the standardised anonymisation of judgments in such cases is ‘unlawful’ and that only Parliament could change the current presumption in favour of open justice by introducing legislation. These recent judgments are being considered by the FRC sub-group as part of its review.
Disputes over financial provision for children
As explained in 14.4 of McNae’s, if a legal dispute, before or after divorce proceedings, between a couple about a child involves proceedings under the Children Act 1989 – for example, about financial, residence or contact arrangements – the Act bans identification of any such child (and therefore also of their parents) in media reports. But hearings about ‘financial orders’ (formerly known as ancillary relief) arising from divorce proceedings do not necessarily involve the 1989 Act.
Also, the then Mr Justice Munby said in Countess Spencer v Earl Spencer  EWHC 1529 (Fam) that it would be ‘very unusual’ for the reporting restrictions of section 12 of the Administration of Justice Act 1960 to apply to any ancillary relief hearing held in private. He said that even when points were made in such hearings in relation to children – for example, on how big a house was needed for them, or whether they needed a nanny – the focus would be on the financial affairs of the parties, not the children’s welfare, which was why section 12 was unlikely to apply. Similarly, the disclosure restrictions under Part 12.73 of the Family Procedure Rules 2010 do not necessarily apply to private hearings about financial orders arising from divorce proceedings but may apply if the 1989 Act is involved, for example, financial compensation for breach of a contact order.
14.12 The Court of Protection
The Court of Protection, which was established by the Mental Capacity Act, established a reputation for secrecy because its rules stated that its hearings were to be held in private. They included provision for the media to be able to apply for access, but any media organisation which managed to get a journalist into a hearing then faced the problem of having to argue about what might or might not be reported. The result was that the media had to fight a long and expensive battle – in which The Independent played a major part – to prise open the doors of the court. From 2016 the Court of Protection conducted a ‘Transparency Pilot Scheme’ in which sittings were generally held in public, but with reporting restrictions being imposed to protect the privacy of families and individuals involved in cases. This is now the usual approach in the Court of Protection and journalists can see a copy of the ‘transparency order’ in a case, which sets out the restrictions it is either proposed should be, or which have been, imposed.
Case study: A judge in the Court of Protection allowed the media to report most of the proceedings in a case involving a claim that a local authority acted unlawfully when it kept an autistic man with learning difficulties in a council support unit and away from his family home. Mr Justice Peter Jackson imposed only minimal restrictions, and said journalists could report his full judgment in the case of disabled Steven Neary, 21, as well as what happened at hearings which took place between 23 and 27 May 2011. But he did order that they could not report ‘details of individual incidents’ involving Steven Neary, or identify individual social workers, care assistants, support workers or specific social services facilities or other leisure facilities which Steven used. The judge’s order followed an application by a group of media organisations headed by The Independent, supported by Guardian News and Media Ltd, Times Newspapers Ltd, the BBC and the Press Association. The case - the first in which journalists were able to attend proceedings held in private and report on them to the extent allowed - arose after Hillingdon Council took Steven Neary into a support unit for two weeks' respite care to give his father Mark Neary, his main carer, a break – then decided that he should remain in its care. It then planned to move to a residential home away from the borough. Mark Neary fought a year-long battle to get his son home, and finally the council applied to the Court of Protection for an order confirming its right to keep Steven Neary in its care - and was instead ordered to return him to his father.
Access to the Court of Protection
New Court of Protection Rules came into effect in 2017, which were further supplemented by a Practice Direction following the conclusion of the pilot scheme. Under these rules, the court will ordinarily sit in public, with reporting restrictions to protect the identities of those involved in the proceedings – however, in some cases, the media will be allowed to report some identifying details. These reporting restrictions will usually be provided to the press in a ‘transparency order’. The full practice direction can be found here: https://www.judiciary.uk/wp-content/uploads/2017/12/pd-4c-transparency.pdf
Report by President of Family Division, Sir Andrew McFarlane, following review into transparency in family justice system.
An official guide for journalists, judges and practitioners explaining the law on reporting family courts, issued in 2011 by the then President of the Family Division Sir Nicholas Wall, the Society of Editors, and the Judicial College.
Practice Guidance issued in 2019 by the President of the Family Division, Sir Andrew McFarlane, on Reporting in the Family Courts
Online guide to family law
Child Maintenance Service and Child Support Agency
Children and Family Court Advisory and Support Service
Part of The Guardian’s coverage of the Brandon Webster case
Judgments in the Griffiths case
Arguments before the courts in Griffiths case
Family Procedure Rules 2010
Practice Direction 27B
Open Justice Court of Protection – a project which aims to promote transparency in the Court of Protection
Transparency Project – Media Guide: Attending and reporting family law cases
Practice Direction 12I
Practice Direction on Committal Hearings for Contempt of Court
Court of Protection Rules