Journalists and legal bloggers (reporters) are normally allowed to see certain types of documents under the Reporting Provisions that came in this year, and earlier during the Reporting Pilot. Sometimes reporters ask to see other relevant documents, and there’s a process for applying to do this. This blog post is about a case where the BBC have been following a case in the family courts in which they asked for, and were given permission to see, certain extra documents. However, other parties in the case weren’t happy about this and applied for permission to appeal (PTA) against that order for disclosure of the documents.
We watched the Court of Appeal live stream hearing on PTA on 17 March. The video of that two-hour hearing can now be viewed here.
There was a lot of discussion in the hearing about how far the ‘open justice principle’ (see below) applied in this situation. It appeared that the BBC had asked to see some papers about a private fostering arrangement that had been in place some time ago, regarding two of the children in the family.
The Court of Appeal did agree to give PTA, so there will presumably eventually be an appeal hearing and a judgment, which we’ll continue to report on. The outcome could be important in future cases in deciding what documents reporters can ask for and expect to see.
Note: PTA does not mean that any judge is predicting a successful appeal – it is just a gateway process to check that only cases where there is a real prospect of success go ahead to be fully heard on appeal.
The arguments for PTA
The application for PTA was being made by the children in the case (through their Cafcass guardian) against a decision by Mrs Justice Lieven in January to disclose certain documents to the BBC. These related to the children’s experiences in the private fostering arrangement. The BBC had sought disclosure under the ‘open justice principle’ (see below). However, the barrister for the children argued that the parameters of the open justice principle do not extend to the workings of local authorities and the child protection system in general, beyond matters before the court.
There is a reporting restriction order in place. and therefore there was little detail revealed in this public hearing about the care proceedings themselves. However it appeared that several children may be directly or indirectly involved, although the private fostering arrangement related to only two of them. This private arrangement had been made between the children’s mother and a friend, and had lasted for a few months. The friend then left the country and it was at that point that the local authority children’s services department became involved. The barrister for the children said that the private fostering arrangement had begun and ended before any family court decisions were made, so was outside the open justice principle.
There were some discussions about whether the BBC should have gone down different avenues, for example a Freedom of Information request, to find the information they wanted. There had also been a ‘learning review’ (safeguarding practice review) which would be a public document and accessible to the BBC.
The barrister for the children said that their current carer was extremely concerned about the potential impact on the children and on herself of certain information getting into the public domain. This was not ‘speculative’, but apparently there was direct evidence before the Court of Appeal of the harm the children were likely to suffer if they came across publicity of certain matters. Although for obvious reasons, the barrister did not explain what the risks were, it was helpful to an observer to hear that these had been properly evidenced.
The barrister for the local authority supported the children’s application for PTA. She explained that the private fostering arrangement should not be described as a ‘placement’ in the sense of any local authority assessment or actions having been involved. She said it was separate to decisions made in the care proceedings.
Arguments for the BBC
The barrister for the BBC reaffirmed that reporters were fully engaged with the reporting restrictions and would continue to give any required undertakings for confidentiality. He said that the BBC wanted to report accurately and believed they required this extra information in order to do so. He said that Mrs Justice Lieven was right to say that the BBC request for the papers fell squarely within the open justice principle. The initial social work statement had dealt significantly with the private arrangement as part of the local authority’s evidence in bringing the application for care orders and the private fostering had ‘triggered’ the proceedings. The BBC had specified and justified in their application how these documents would enable them to report.
The BBC’s case was that Mrs Justice Lieven had undertaken the required balancing exercise between the Article 8 rights of the children and their carer and the Article 10 rights of the BBC. She had said there was a real public interest in knowing more about private fostering and inter-agency working. She had also given weight to how much of the information was already in the public domain before ordering the disclosure.
Decision
The Court of Appeal decided that there was a real prospect of success of an appeal on three of the grounds put forward by the children’s guardian. The first of these to be considered was that the judge’s decision was wrong because such disclosure was not within the open justice principle; private fostering did not form part of the court’s decision making; disclosing these extra documents would extend the open justice principle beyond court proceedings into the workings of the local authority.
What is the ‘open justice principle’ in Cape v Dring?
We have written about Cape v Dring HERE and (in a Family Court case) HERE.
The Supreme Court judgment and a summary are here.
Basically, the Supreme Court said that there is an inherent jurisdiction to provide third parties with access to documents, which applies in all courts. (Although of course there are specific restrictions to be taken into account in family courts).
The purposes of the open justice principle are (1) to hold individual courts and judges to account, and (2) to enable the public to understand how the justice system works and why decisions are taken.
It is for the person seeking access pursuant to the Court’s inherent jurisdiction to explain why they seek it and how granting such access will advance the open justice principle.
While the “default position” is that access should be permitted on the open justice principle, the interests of the person seeking access should be balanced against any harm that might be caused to the interests of others. There may well be good reasons for not allowing access. Good reasons for not granting access may include national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality.
The Court will take into account the practicalities and proportionality of requiring a party to a dispute to provide court documents to a non-party.
We will update this post when we hear further on the appeal itself.
We have a small favour to ask!
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