A heavily redacted judgment about a BBC application to the Family Court appeared on BAILII and The National Archives (TNA) in December (last month) although it had been delivered a year earlier. We can also see from the number – 421 – that this was allocated by TNA only last month. This is why it has a 2025 citation rather than 2024.
It’s interesting to see a judgment in this format, because normally a judge would revise a copy to make it suitable for publication, not black out large sections. The subject matter – open justice and access to documents is also interesting to us.
What we think is important though, is that this judgment from December 2024 was found by the Court of Appeal back in July 2025 to be wrong. We therefore think that the absence of any link from this judgment to that appeal judgment on either BAILII or TNA is potentially confusing, and could mislead non-lawyers into thinking the judgment accurately represents the law. We have asked TNA and BAILII to insert a hyperlink between the judgments. We wrote about the appeal here – Access to Family Court documents under the open justice principle. (UPDATE 14 January – BAILII has now added an explanatory line and link at the top of the Family Court judgment.)
Briefly, we’ll set out what was said in Mrs Justice Lieven’s judgment in December 2024, and what happened in the appeal in July 2025. Lieven J had said in her judgment that she was going to publish it, and in retrospect we can see why she had to wait until after the appeal. We don’t know why publication then took another six months.
Family Court judgment by Lieven J – BBC v the carer and others [2025] EWFC 421
Journalists with the BBC had been investigating a case where the background was ‘particularly tragic’ [para 4] and there had been a large amount of information available in the public domain that the press were free to report on [paras 47-49]. The application by the BBC was for access to court documents, including some about a private fostering arrangement (Children Act 1989, Part IX). They argued the public interest in the effectiveness of oversight of private fostering arrangements and in having greater knowledge and understanding of whether this system operates effectively to protect children. There were also issues of public interest raised in a Safeguarding Board Learning Review (although this had been published only in a very generalised form that did not identify the family).
The un-named local authority, the children’s current carer, and the Cafcass guardian argued that further publication about the case would create a risk of harm to two children. Lieven J suggested that the local authority was more concerned with protecting its own reputation. Failures by agencies during the lockdown era had been identified in the Review and presumably in the media coverage.
There’s a good deal of discussion by Lieven J on case law regarding what can be published about family court hearings when there’s already a lot already in the public domain. The judge also considered the Supreme Court decision in Cape v Dring regarding access to documents before the court. We’ve explained the relevance of ‘Dring’ as the judges now seem to call it, in our March post. The judge then undertook the balancing evaluation between the children’s privacy rights under Article 8 and the applicant’s rights under Article 10. She concluded:
… in my view the Article 8/10 balance tilts quite clearly in favour of allowing reporting. If there is going to be reporting, or it can be assumed, then there is a strong public benefit in it being as well informed as is possible. There is no benefit in the media being required to speculate as to what happened in proceedings if the information can be given to them without any material additional harm to the children. There is a danger in cases such as this in the refusal of permission to disclose documents generating more and less well informed public interest than if the Family Justice System is open and shows that there is nothing to hide [54].
Court of Appeal judgment – Re HMP [2025] EWCA 824
The teenage children in the case (via Cafcass) supported by the local authority and children’s carer (who presumably has parental responsibility) applied for permission to appeal Lieven J’s decision to allow the BBC’s application. They argued that the private fostering arrangements had been put in place before any application had been made to court. Permission to appeal was given because there was a real prospect of success.
In July, the Court of Appeal published its judgment, overturning Lieven J’s decision. This meant that the BBC should not have been permitted to read all the documents they wanted to.
The guardian argued:
- that the BBC application had not been made for any purpose connected with the open justice principle, so Dring was not engaged and there was no Article 8-10 balancing process to conduct,
- alternatively, that the balancing process which Lieven J undertook was flawed because it gave undue weight to the fact that certain information relating to the children was already in the public domain,
- that she had placed insufficient weight on the rights of the children.
By this point, the BBC had reviewed the position and decided that it wouldn’t be right to continue with further investigation into the case, acknowledging the possibility this might cause the children harm. Therefore ground 3 was no longer an issue that needed to be resolved.
However, the Court of Appeal went ahead with the appeal on the ‘open justice’ ground (ground 1). This must have been seen as an important principle to be discussed, as the Court consisted of Lord Justice Warby (a media law specialist), Lady Justice King (a family lawyer) and Lady Carr (the Lady Chief Justice).
They said that:
The court in Dring thus identified two main purposes of the open justice principle, namely: (i) to enable public scrutiny of the way in which the courts decide cases so as to provide public accountability and secure public confidence; and (ii) to enable public understanding of the justice system. [para 21]
The BBC’s purpose was not to shed light specifically on family courts. The judge had made an error in applying Dring to local authorities and the whole family justice system, not keeping it limited to the work of the courts.
The BBC was not unreasonable in making its initial application in the context of care proceedings at a time when it believed that the private fostering arrangement had been sanctioned by the local authority. Once it became clear that the local authority was not involved until after that arrangement had come to an end, and that the courts had had no involvement at any stage of the arrangement, the application should have been withdrawn [30]
Some thoughts on transparency
The Court of Appeal judgment is helpful in clarifying the limits of the Open Justice Principle.
Enquiries and investigations into local authority practice before a court application was made will need to follow a different route. The judgment suggests via a Freedom of Information Act request, although we don’t understand how that could achieve the desired result.
However, when a contradictory lower court decision is subsequently published without any explanation, this risks undermining the educative message set out in the appellate judgment.
Image: thanks Finn Hackshaw, unsplash
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