T (Children: Publication of Judgment), Re

This appeal concerns the arrangements for the publication of a Family Division judgment. It was delivered in proceedings about T, who will soon be 16. He has a sister S, now 18, and two adult half-siblings, children of the mother who were adopted by the father. S and T’s childhoods have been marred by conflict between their parents, whose marriage broke down when they were aged 7 and 4 respectively. Since then they have lived with their mother.

Between 2013 and 2022 there were lengthy child arrangements proceedings under the Children Act 1989 (‘CA 1989’) at every level of court, involving some 26 judges and over 70 hearings. Six substantial unpublished judgments were given, including three by Mrs Justice Parker. In their earlier stages the proceedings concerned all four children, but T is now the only minor child.

In July 2022, the matter came before Mrs Justice Arbuthnot (‘the judge’) on an appeal from a decision of a circuit judge, and it remained with her from that point. In December 2023 she conducted a two-day hearing about T’s contact with his father. The mother wanted contact stopped, while the father wanted an order to last until T turns 18.

On 17 January 2024 the judge handed down her final judgment (‘the welfare judgment’). She started by saying that she was writing it in the expectation that, at some point, it would be seen by S and T and that she was trying to give them an unbiased and objective account of what happened in court as they were growing up. In that spirit, she deftly drew together the threads of the children’s history, summarising and quoting the findings of previous judges, making observations about the evidence supplied by the parents and the Cafcass officer, and describing the children’s meeting with her in July 2023.

The judge made these findings:

The judge’s order, in line with the advice of the Cafcass officer, was that there should be an order until T reaches the age of 16 and an order under s. 91(14) until he reaches the age of 18.

As to publication, the judge said this at the end of her judgment, which was handed down to the parties in un-anonymised form:

The parties duly made short submissions about publication. They agreed that the welfare judgment should be published at that point in an anonymised form. The mother argued there should be no further publication. The father argued that the full un-anonymised judgment should be published when T turns 18 in the summer of 2026.

The Cafcass officer was asked to speak to T and S about the publication of the judgment. She reported that:

The judge handed down a further judgment on 2 February 2024 (‘the publication judgment’). She identified two issues that arose if there was to be any publication: whether the parents should be named, and whether the children should be named. Her decision was that there should be further publication in the summer of 2026 and that the parents should be given their full names; the children should not be named and should be referred to by random initials.

The two judgments were then published in anonymised form on the National Archive and on Bailii with these references:

Both parents appealed from the welfare judgment and the mother appealed from the publication judgment. The father challenged the ending of the order on T’s 16^th birthday, and the mother complained about a contact order being made at all. On 15 March 2024, I refused both applications arising from the welfare judgment, certifying the mother’s application to be totally without merit. On the same date I granted her application for permission to appeal in relation to the publication order.

The parties have been very fortunate to have had the benefit of pro bono representation, arranged through Advocate, both at the hearing before the judge and at the appeal hearing. The mother is represented by Ms Maria Scotland and the father by Mr Michael Jones KC and Mr Liam Kelly. We are grateful to them all, and especially to Ms Scotland, who bore the burden of preparing the papers for the court.

The judge directed herself in law and made these preliminary remarks:

The judge then identified what she saw as the advantages and disadvantages of publication. In favour of publication, she had regard to these matters:

Against publication, the judge had regard to these factors:

The judge then came to her conclusion:

The judge accordingly ordered that:

The mother’s grounds of appeal allege a number of errors in the judge’s approach that can, with Ms Scotland’s permission, be distilled in this way:

When granting permission to appeal, I noted the unusual nature of the publication order, in that it has effect at a distant future date. That made it arguable that the impact upon the children of impending publication and of publication at that point in time could not reliably be known or evaluated.

In support of the appeal, Ms Scotland argues that the starting point should be the anonymisation of the parties and this case did not justify the removal of their privacy. The case is different to Griffiths v Tickle (Rights of Women and another intervening) [2021] EWCA Civ 1882, [2021] All ER (D) 85 (Dec) and Re Al M (Publication) [2020] EWHC 122 (Fam), [2020] 2 FLR 463. There, the parties were public figures and the public had been misled. In the latter case, naming the father was integral to protecting the mother and the children. Here, neither parent is in public life or has spoken in public and there is no reason for the public to know their identity. Further, the judge accepted that there is a real and unquantifiable risk that the children will be harmed by publication, particularly when it is not known whether the media will report the case.

For the father, Mr Jones and Mr Kelly argue that the judge considered the relevant legal principles and sufficiently balanced up the competing factors under Articles 8 and 10 for her decision to be upheld. They concede that a number of the benefits of publication can be achieved without naming the parties (in fairness to the judge, some of these benefits had been urged by the father), but the judgment is supportable when read as a whole. Mr Jones initially submitted that a critical point, referred to at [30] and [31], is that publication with the parents being named will allow the children to access the judgment for themselves, free from interference by their mother, but after exchanges with the court he conceded that there are flaws in this argument. With more justification he maintained that the father’s own Article 10 rights carry considerable weight on these grave facts. When T turns 18, the father intends to speak publicly, if he can lawfully do so, about his experience of severe parental alienation, so identification of the parents at some stage appears inevitable. As to the impending worry that the children might experience, there was no reliable evidence that knowledge of future publication would cause them significant emotional harm. The Cafcass report indicated that T is thriving despite the ongoing proceedings, which suggests that he would be resilient in the face of publication. Whilst his wishes and feelings require careful consideration, they do not necessarily correlate with his best interests and cannot be determinative, particularly as his mother’s influence has been so corrosive. Moreover, the judge expressly considered the risk of jigsaw identification and was careful to ensure that any such risk would not take place during T’s minority.

Each party made an additional legal submission about the surrounding legislation. Ms Scotland submitted that s.97 CA 1989 prohibits the court from authorising anything likely to identify a child unless it is satisfied that the welfare of the child requires it, see s.97(4). In light of T’s wishes and feelings, it cannot be said that publication was required on welfare grounds. In my view this argument is doubtful. Section 97(2), which prevents the publication of any material intended or likely to identify a child as being involved in proceedings, or the child’s address or school, has effect only until the end of the proceedings: Clayton v Clayton [2006] EWCA Civ 878. It cannot be interpreted as preventing the identification of a child in an appropriate case after the proceedings have ended. For his part, Mr Jones submitted that, even if the judge had decided not to name the parents, s.12 Administration of Justice Act 1960 would not seem to prevent the father from identifying himself in 2026 as the parent described in the 2024 welfare judgment. However, as Mr Jones accepted in argument, the effect of the 2014 Presidential Guidance is that in these circumstances the judgment is deemed to be published on the condition that the anonymity of the children and family members must be preserved. The position therefore does not depend on the interpretation of s.12 alone, and in any case I strongly doubt that it is open to a party to circumvent confidentiality in this way. However, we did not hear full argument on this point, and I say no more about it.

When giving judgment, the judge said that she would write to the children. We were told that she had done so, and not in anodyne terms. The Cafcass officer had also spoken to the children about the outcome, and they told her they did not want to read the welfare judgment.

A decision about whether and in what form a judgment should be published is pre-eminently a matter for its author, acting within a framework of law and guidance. As a matter of law, the decision calls for the familiar balancing of the competing advantages of privacy (Article 8) and freedom of expression (Article 10) as applied to the individual circumstances. Having tried the case, the judge will usually be best placed to identify the relevant factors and to determine where the balance falls. An appeal will only succeed if the judge has erred in principle or reached a conclusion that is outside the range of conclusions which a judge could reasonably reach: PNM v Times Newspapers Ltd [2014] EWCA Civ 1132, [2015] 1 Cr App Rep 1 at [46].

The legal and procedural framework in relation to the publication of a judgment is set out in Griffiths v Tickle at [27-55] and it is unnecessary to rehearse it now. In Re S (A Child)(Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591, the House of Lords enjoined an intense focus on the comparative importance of the competing rights. In A local authority v W [2005] EWHC 1564 (Fam), [2014] EMLR 7, [2006] 1 FLR 1, Sir Mark Potter P observed that the analysis is not a mechanical exercise to be decided upon the basis of rival generalities. In PJS v News Group Newspapers Ltd [2016] UKSC 26, the Supreme Court held that the court must carefully consider the nature and extent of the likely harm to the children’s interests which would result in the short, medium and longer terms from the publication of information about one of their parents.

Guidance has been issued in the past decade by Presidents of the Family Division with the aim of identifying a pathway to publication that will apply in most cases. The guidance acknowledges the importance of transparency as to how proceedings are conducted and decisions are made in the fundamentally important field of family life, while at the same time reflecting the essentially private nature of the subject matter by upholding the anonymity of those affected. Like any guidance it can be departed from in individual cases.

The Practice Guidance Transparency in the Family Courts: Publication of Judgments, issued in January 2014 by Sir James Munby P, provides that where a judgment is to be published after a significant private hearing the judge will normally give permission for publication on condition that the published version protects the anonymity of the children and members of their family (paragraphs 9 and 20). In every case the terms on which publication is permitted are a matter for the judge and will be set out in a rubric at the start of the judgment (paragraph 10). The normal terms described in paragraph 9 may be inappropriate, for example, where parents who have been exonerated in care proceedings wish to discuss their experiences in public, identifying themselves and making use of the judgment; equally, where findings have been made against a person and the judge concludes that it is in the public interest for that person to be identified in any published version of the judgment (paragraph 11).

Further steps were taken in October 2021 by Sir Andrew McFarlane P with the publication of his review: Confidence and Confidentiality: Transparency in the Family Courts, which in turn led in January 2023 to guidance entitled The Transparency Reporting Pilot. This has led to the current expansion of the Transparency Order pilot, with its standard order allowing the reporting of family proceedings while maintaining the anonymity of children and family members.

Since the 2014 Guidance, several thousand judgments have been published by judges of the High Court, sitting in the Family Division and in the Family Court. In cases about children, almost all of them are anonymised, as anticipated by the guidance and its successors. Where a judgment naming parties has exceptionally been published (as in Al M and Griffiths) the particular and unusual features of the case have been noted by the judges doing so.

This was a case about an ordinary family that became engulfed in extraordinary, though sadly familiar, litigation. It was an obvious case for the welfare judgment to be published in anonymised form. The issue of identifying the parents, and thereby the children as adults, was a different matter. There are two noteworthy features of the judge’s order. The first, which she recognised, is that it is unusual to name parties. The second is that an order for publication at such a distant future date is very unusual, and the ramifications of this needed to be addressed.

The judge regarded the following matters as favouring the naming of the parents:

Some of these factors support the judge’s decision. The general principle of open justice is always relevant, but she rightly did not treat it as decisive. Minimising the father’s ability to speak openly about his experiences was undoubtedly an important matter, but the judge was right at [28] to sound a note of uncertainty about whether this warranted a departure from the norm that the interests of the child will justify interference with freedom of expression (“in this case this may not be so”). The father had not said how he proposes to express himself: compare O (a child) v Rhodes [2015] UKSC 32, [2016] AC 219, which concerned the publication of a book that had already been written.

On examination, the other factors provided little support for naming the parents. Transparency in family proceedings allows the public to have a clear understanding of decisions made in its name. It speaks for judgments to be published wherever possible, and there was no apparent good reason for why the earlier High Court judgments were not published in anonymised form. But an increased focus on transparency does not change the way in which the balancing exercise must be performed in individual cases. Further, while naming families may increase public interest (“What's in a name? ‘A lot’, the press would answer.” per Lord Rodger in In re Guardian News and Media Ltd [2010] UKSC 1), that will be of most significance in a case where media interest is likely to be a factor, which is not so here. The judge was right at [37] to observe that “it is not only families with public profiles where there should be publication”, but wrong to elide publication with naming the parties. As to the ability of the public to understand the difficulties faced by the family courts in alienation cases, or the workings of s.9(6) CA 1989, Ms Scotland is right to submit and Mr Jones to concede that naming the parents could not add anything to what has already been achieved by the publication of the welfare judgment. Critically, the children’s interests were a primary factor in the balancing exercise, and in my view no sound welfare reason for exposing them to publicity was given. Although the judge placed emphasis on this aspect of the matter at [46], there is no reason to believe that publication with names would enable the children to have a more balanced view as adults. The children know where to find the judgment if they want to read it. Exposing their childhoods to the random attentions of friends or potential employers cannot be said to serve that purpose, and might inadvertently cause them real harm.

The factors regarded by the judge as speaking against naming the parents were these:

The judge rightly gave substantial weight to the children’s views and apprehensions as innocent victims. The father himself recognised that it would be wrong for the family to be named while they were under age. Although the mother’s individual privacy could scarcely count for much, the judge paid it some respect. I have already commented on the significance of the family not having a public profile.

However, there were two features, realistically identified by the judge, that should have given her particular pause before making an order with such delayed effect: her acceptance that jigsaw identification of T and S would be easy once the parents were named [43], and her assessment that publication would have an impact on T and S that was difficult to predict [33]. In my view, these features show that the necessary careful consideration of the extent of the likely short, medium and long term harm to their interests was simply not possible. The court was not in a position to predict the effect of its order upon them. As adults, their welfare would no longer be a primary consideration, but their Article 8 rights would remain. The judgment naming their parents would be published when T would probably be about to go to university and S would be in the middle of her degree course. However resilient they may now appear, they have surely been affected by their experience of incessant parental conflict. The judgment might attract little or no attention, in which case publication will have achieved nothing except worry for the children, but if it did attract attention, the potential impact on them could not be known so far in advance and they would not then be in a position to assert their own Article 8 rights.

In general, the arrangements for publishing a judgment in family proceedings are best dealt with in the immediate aftermath of a trial, as here, when matters will be fresh in the court’s mind. There will be situations where a judgment cannot be published immediately, for example because of an impending criminal trial. In such cases, there will usually be no difficulty in the court deciding that the judgment will be published in anonymised form when the criminal proceedings are over. The present case does not fall into that category, because the intention was to publish a judgment naming the parties and because the publication date was to be 2½ years away.

Taking all these matters into account, I have concluded that this unusual order cannot be sustained. Several of the factors relied upon provided no support for it, and the court was not in a position to predict what T and S’s situation will be in 2026. In those circumstances a fair balance could not be struck between the rights and interests that are and will be engaged. I would allow the appeal and set aside the publication order.

It falls on this court to substitute its own decision. I would replace the existing order with an order giving liberty to the father to make a formal application to the judge after T’s 18^th birthday if he seeks any further publication of the judgment. This recognises his Article 10 rights, and it will be a matter for him to decide whether he chooses to assert them in the face of likely opposition from the children. Whatever the position, I would stress that liberty to apply is granted in the unusual circumstances of this case, and is not an encouragement to defer publication decisions in other cases.

I agree.

I also agree.