It’s common knowledge that people involved in family court proceedings held in private are very restricted in what they can say about what’s happening. There are well-established and accepted restrictions on naming children (under section 97 Children Act 1989). The confusing part comes in when someone might be in contempt of court just for talking or writing about their case, even when anonymised.
When the Law Commission issued its consultation in July 2024 on reforming the law of contempt (which is currently a very wide and scattered set of provisions) we were disappointed that the Commission viewed this type of contempt as outside their remit.
We sent in a response to the consultation and we were invited to a round table discussion in mid October 2024, which two of our trustees attended. The organisers were happy to engage with us about the problems of this type of contempt although the topic was at that stage seen by the Commission as ‘reporting restrictions’ and outside their scope.
We’re therefore very pleased that, surprisingly, the proposals now issued do include a very clear and firm recommendation exactly on this issue. If the recommendation is accepted by Parliament, it will open up court proceedings about children who are subject to applications about their welfare in public and private law and, to a limited extent in financial disputes (under Children Act 1989, Schedule 1), to far more transparency. Anonymity protection would stay in place.
Here’s an outline of what’s involved.
Overview
The Law Commission’s report runs to more than 330 pages but there’s also a summary – both are published here. The aim is to simplify the current myriad provisions for liability for contempt of court into four categories:
(1) contempt by breach of court order or undertaking.
(2) contempt by publication when proceedings are active. This is the area of law that ensures that investigations and trials are held fairly and not jeopardised by publications that might interfere with the process and outcome. It is probably the area most in need of clarification. Particular attention has been paid to address the sort of confusion and misinformation that arose on the arrest of the person later convicted of the murders in Stockport in July 2024.
(3) contempt by disrupting proceedings.
(4) general contempt. This is a sort of catch-all for other situations where the person charged with contempt has intentionally interfered with the administration of justice in a non-trivial way or created a substantial risk of such an interference.
Family courts – the problem of section 12
Under section 12(1)(a) of the Administration of Justice Act 1960, sharing information relating to proceedings held in private about children may be contempt. A party or a reporter could go to prison, even if there was a small audience or they didn’t intend to commit a breach. Under the court rules, family court hearings about children are held in private. This is the origin of the perception – some might say the reality – of ‘secret family courts’ and probably the main reason The Transparency Project was set up ten years ago. We have of course been critical of section 12 over the years. So have others, increasingly and more recently. In his Transparency Review in 2021, the President of the Family Division said:
… some sixty years after its enactment, I have concluded that s 12 has the contrary effect of undermining confidence in the administration of Family justice to a marked degree. Whether s 12 should be repealed and replaced by a provision that is more fit for purpose is a matter for Parliament and not the Judiciary. I do however support calls for urgent consideration to be given by Government and Parliament to a review of this provision
The Open Reporting Provisions that now apply in family courts are basically a workaround to address these problems with section 12.
We have published two posts about section 12 by the retired President, Sir James Munby here and here. He was scathing about the Law Commission ignoring the need to reform the provision. He pointed out that, amongst the confusion surrounding section 12, no one even knew how long the ban lasted – was it into perpetuity? Even long after the children in the case had grown up.
We sent in a 15-page response; but our concerns would probably be almost entirely resolved by the Law Commission recommendation going through. As would the question we recently raised with the Family Procedure Rule Committee about the duration of section 12.
The Law Commission recommendation
There is a whole chapter in the report on section 12, because it didn’t quite fit in with the original structure the Law Commission was working on. Although it’s the fact that cases about children and vulnerable adults are usually held in private that have caused the most controversy, the section also applies to other types of hearings held in private, which the Law Commission considered. They sum up the chapter as follows:
Chapter 7 considers whether the new liability framework necessitates reform of section 12 of the Administration of Justice Act 1960. Section 12 imposes contempt liability for publishing information from private proceedings. The issue is not whether such publication should ever attract liability, but whether a distinct form of contempt is needed, given the broader framework we recommend. In our view, section 12 functions as a de facto reporting restriction but lacks alignment with our recommended form of liability for contempt by breach of order. Unlike bespoke discretionary court-ordered reporting restrictions, which are subject to judicial scrutiny and proportionality assessments, section 12 operates automatically and without safeguards. It may impose liability even where the publisher is unaware of the restriction, creating inconsistent and potentially unjust outcomes. This overlap risks confusion and undermines legal certainty. To ensure fairness and coherence within the contempt framework, and informed by consultees’ views, we recommend abolishing the provisions in section 12 that affect child welfare and certain proceedings brought under the Mental Capacity Act 2005 or the Mental Health Act 1983. We also recommend that Government consider abolishing those provisions that affect proceedings where information relates to a secret process, discovery or invention. Any reporting restriction should instead be imposed through clear, court-issued orders that are consistent with human rights standards.
There hadn’t been a consultation question on section 12 but some people did include it in their responses, possibly connected to questions on ‘active proceedings’ – see below. The report mentions responses by the High Court, specifically a group comprising the President, members of the judiciary at all levels of the Family Court, and a senior judge of the Court of Protection. There were also responses from Rights of Women, Sir James Munby, the Media Lawyers Association and us. The Law Commission concluded that ‘section 12 contempt’ should be removed from hearings about children and vulnerable adults. ‘Section 12 contempt’ should not be a category of contempt at all. Individual reporting restriction orders (RROs) applied to hearings would be a much more appropriate solution. If such a RRO was breached, this would come under their Category 1 contempt. (Liability under s 97 Children Act 1989 is a criminal offence – it isn’t part of contempt legislation.
Here is their recommendation:
We recommend repeal of the exceptions to the general rule in section 12(1) of the Administration of Justice Act 1960 found in paragraphs (a), (b) and (e).
We hope what now seems an uncontroversial recommendation can be swiftly acted on.
Family courts and the Court of Protection – when are proceedings ‘active’?
A potential problem with regard to Category 2 about publication of ‘active proceedings’ in family courts and the Court of Protection was considered by the Law Commission. Basically, proceedings are defined as ‘active’ under the Contempt of Court Act 1981 for the period that reporting has to be curtailed to ensure a fair trial. For example, in a criminal case, they are ‘active’ from the date of arrest or charge until a defendant is sentenced (or the proceedings end for another reason). There’s discussion in the paper about situations where people involved in the family court or CoP, because of the nature of some cases, might not be aware of exactly when the case stops being active. This is all quite interesting and can be read on pages 146-149 but the conclusion is that it’s not really a problem and is sufficiently covered by the definitions in the 1981 Act.
Conclusion
If and when sections 12(1)(a) and (b) are repealed, there won’t be automatic restrictions on sharing information from family courts, the CoP, or Mental Health Review tribunals, just because they are held in private. Most CoP hearings are now held in public anyway, but can be held in private. Instead, courts will be able to make RROs that stop certain details being published, as appropriate. It may be that current practice in CoP hearings of a standard transparency order template is extended to such hearings.
Image: Sharing knowledge – sketch by Lucia Obst, Wikimedia Commons
We have a small favour to ask!
TEN YEARS A CHARITY
The Transparency Project is a registered charity in England and Wales run by volunteers who mostly also have full-time jobs. Although we’ve now been going for a decade, we’re always working to secure extra funding so that we can keep making family justice clearer for all who use the court and work in it.
We can’t do what we do without help from you!
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page