We were asked a ‘simple’ question a while back about the law that protects the privacy around court cases about children. How long does the law preventing people talking about those cases carry on for? Can you say what you like as soon as the case is over? Or does that ban carry on afterwards? And if so when does it stop? Does it ever stop?
Should be an easy question to answer, right? One of the first things that law students learn is how important it is for the public to know what the law is and to be able to understand it. But here, even though getting it wrong can mean someone who shares information from a case about children could mean a fine or a spell in prison, we couldn’t really work out the answer. Nobody really knows. And we even asked Sir James Munby, former President of the Family Division. He didn’t know either.
Over the last month or two a few of us have been on a bit of a mission to find out the answer, but in spite of our digging around we’ve drawn a blank. The practical answer is – that there probably comes a point where either the ban doesn’t apply any more, or at least when nobody is going to pursue you for breaking it – but nobody is quite sure when, and it might be different from case to case. So, if you want to tell your story – or if a journalist wants to write a story about a particular family court case – you are probably going to need to ask the court before you risk it. Whether the court says ‘you don’t need my permission’ or ‘yes you can have my permission’, it’s definitely safer to check first.
Sir James Munby has written a long, detailed and quite technical explanation of what the law says, what it doesn’t say and a bit about what it perhaps might say if we were thinking about clarifying it. We are publishing that essay here:
THE PRESSING NEED FOR REFORM OF SECTION 12
This post is an attempt to summarise the thrust of those legal researches and the conclusions reached by Sir James, for the benefit of non-lawyers, and frankly anyone who just needs a TL:DR (too long didn’t read) summary.
There are a couple of pieces of law we need to explain before we get to the question – and eventually the answer.
Firstly, s97 Children Act 1989. That is a piece of law which protects the identity (name, picture, address etc) of a child who a current case is about. It stops people publishing information that tells people that there is a court case about this child. It’s a criminal offence to break that law, but it is clear that this bit of law doesn’t carry on after the court case ends (though the court could make an order extending it if necessary). The case which decided that was Clayton v Clayton [2006].
Secondly, s12 Administration of Justice Act 1960 deals with the detail of what is said and written in family court, not the identity of the child (or anyone else). This bit of law is less clear. It’s more complicated because in fact s12 just gives a bit of shape to a different kind of law that runs alongside it – the common law. The common law isn’t written down in black and white in the same way as a statute passed by Parliament. We find out about it from case law (rulings by judges). Under the common law it is a contempt of court to publish information relating to proceedings heard in private (a contempt of court simply means doing something relating to a court case that the law or an order of the court says you are not allowed to do, A family court judge can punish someone for contempt of court by fining or sending them to prison). S12 doesn’t actually replace that common law, it just draws some boundaries around it, making clear for example that it applies particularly to certain kinds of case including cases in the family court about the welfare or upbringing of children. Lawyers often talk about the publication of information being a contempt of court because it’s a ‘breach of s12’, but technically its more accurate to say that publication of information is a breach of the common law (as refined by s12).
Both of these laws (s97 and a12 and the underlying common law) apply automatically, without the judge saying so or making any specific order in an individual case. They can be changed by the judge if that is appropriate – made more or less strict, disapplied or extended – but they come into effect automatically as soon as a court case about a child is begun.
Why do we need to trawl through this legal technicality? Well, because when we are trying to work out where the edges of this sort of contempt of court are, we need to look at the common law. S12 doesn’t actually have the answers. It says nothing about duration at all. So we have to go back to the common law.
Unfortunately, the common law isn’t that clear either. Sir James’ article traces back over the old case law, and from his analysis it can be seen that most of the more recent cases proceed on the basis of assumptions about how long ‘s12’ lasts, and those earlier cases that do try and deal with it seem to say slightly different things (some of those assumptions were ones made by Sir James when he was the judge in the case). We couldn’t find any case where the issue has really been the subject of proper legal argument, let alone one where the court comes to a clear conclusion as a result. Often the judge says ‘well the solution in this case is an order that allows this but not that…’ without answering the question more generally.
The other complicating factor with the common law is that because it is seen through judge’s interpretation in judgments, the common law changes over time as society changes. So even the fact that some judges in the 1970s thought one thing, might not be the complete answer in a very different world in 2024.
Sir James gives some recent examples of several famous adults (a judge, a journalist and an actor) giving public accounts of the court cases about them as children – the most recent being Minnie Driver:
“Minnie Driver, the well-known actor, was born in January 1970. Interviewed by Kirsty Young in Young Again broadcast on 8 October 2024, she describes an incident previously recounted in her memoir, Managing Expectations: A Memoir. (Manilla Press, 2022). How in 1976, following the breakdown of the relationship between her unmarried parents, she and her older sister were made wards of court. She describes the dreadful order that she says was made: “The judge gave my mother this impossible set of tasks that she had to achieve within seven weeks to maintain custody of us: she had to be married, own her own house and have us in school. She somehow did it. You would think that it was 1876. It was absurd.” In her memoir she refers to the judge as “some bewigged distillation of the Victorian patriarchy.””
Clearly the editors of Radio 4 and the publishers of Minnie’s book didn’t think they were in contempt of court in including this account in her book and their radio show (or at any rate didn’t think the risks were sufficient to prevent publication), and nobody realistically would suggest they shouldn’t be able to tell their stories so many years on from the court case, so many years after they reached adulthood, and probably after the passing of the adults concerned in those cases. But what if they had told their story aged 18? Or aged 25? Or whilst their younger sibling was still a child or their parents still alive? Frankly, nobody knows where the line is drawn.
This uncertainty about duration is not the only aspect of this law which is unclear. It’s also unclear how much detail is too much detail. Caselaw tells us that it is ok to publish ‘the nature of the dispute’ but not ‘information relating to proceedings’ (this phrase is replicated in s12 itself). There too there is obviously a line, but frankly nobody knows where that is drawn either. Minnie Driver’s account probably is ‘information relating to proceedings’ because it contains accounts of what the judge said (which case law tells us is ‘information relating to proceedings’) but it is probably the right side of the line when it comes to timing.
Sir James’ article also highlights the fact that in many family court cases there will be not just one person’s rights to consider (rights to freedom of expression, rights to privacy etc) but potentially rights held by other children, by parents, and by other people involved in the case. If a court is asked to rule on what is permitted, or to permit something that s12 (or the common law) prevents being published, it will weigh all those rights in the balance before coming up with a solution. So, as soon as the question is put before a court, the Human Rights Act means that the common law now has to be interpreted in light of the rights of anyone whose private information is involved (balanced with the rights of those who want to tell their /a story), and whether or not a publication would be a contempt of court the court can still make orders that continue to restrict publication if that is needed to protect the rights of others. Equally, even if a publication would otherwise be a contempt of court, a judge can still make an order saying publication can go ahead, which then stops it being a contempt.
The former President proposes that if nothing else, s12 is amended to make clear that this sort of contempt only carries on automatically until the child is 18, but that it can still be extended for longer in an individual case if the judge thinks that is necessary.
What is absolutely clear however, is that for actions which have the potential to put people in prison, the law in this area is really very confusing and in urgent need of clarification. Realistically that clarification must come via Parliament in the form of statute. In any case brought before the court the court is likely to once again take the pragmatic step of simply issuing an order which deals with the issues in the individual case, neatly sidestepping tricky questions about the common law.
The Law Commission are currently running a consultation about contempt of court, stating that their aims are to clarify and simplify the law in this area – and so this topic is one that The Transparency Project will be raising with them.
Thank you Lucy! It’s nice to finally have an answer of sorts. Albeit not a clear one. But nonetheless I am grateful for you efforts in delving into this issue. As our child edges closer and closer to age 18, I am killing time prepping as best I can for getting our story out there. I’ve completed the OU criminal law module and have Family Law and Evidence Law modules starting next February, which will be concurrent with the Creative Writing module I am currently on. If I can’t get it out there as a biography, I’ll get it out there as a ’novel’. In the last two years, our child has spontaneously written two (clearly cathartic) short stories based on their experiences as a child forced by court to have ongoing contact with an abusive father. They also again spontaneously said last week, that they’re really paying attention to their newly introduced subject of psychology at school, as they want to help others who have to go through what they go through. These kids stories matters and they need the freedom at age 18 plus to be able to have their voice heard in a public arena. It’s the only true justice they will ever get. They never got it from the family court. It should be their right under Human Rights legislation. Prisoners of war get to tell their stories, as do murderers etc….. so should our kids, who the family court have made prisoners of silence.
Thank you for your comment. We should emphasise that turning 18 does not, under the current law, lift the section 12 restrictions.
The post by the former President only addresses one aspect of a much wider question. What are the rules for public (including social media) discussion of cases in the family courts. In principle, I believe, it has been potential contempt of court to reveal anything. Some selective relaxation recently. Publication of more judgements by with appropriate anonymisation, approved journalists etc. But both are probably selective. Rumour thrives in a vacuum etc. And social media means this can go far wider, and therefore be much more misleading and therefore potentially damaging than ever before.
What is wrong with this suggestion? In the criminal courts where there are issues involving children, the proceedings are open and reporting is allowed, but with fierce – and normally observed – rules about the identification of children. How much adaptation would be required to apply the same in the family courts?
This suggestion would cover the issue discussed here, and more?
To declare my interest. A trustee of the charity Both Parents Matter. The new name, as better reflecting our mission, of the now 50 year old one, Families Need Fathers. The respected and respectable charity, Government funded until ‘austerity’. Our commitment is to try to ensure that children whose parents live apart get the benefits of a full and free relationship with both their parents (and wider families) unless there is a reason otherwise. Which there sometimes is. As required by clause 9.3 and others in the UN Convention on the Rights of the Child.
@JohnBaker “children…get the benefits of a full and free relationship…” Indeed the child should be able to freely decide if it wants to have any relationship with the absent parent, and to what extent.
The “benefits” of a relationship with an absent parent assumes that a relationship with the absent parent will have positive benefits for the child. That also assumes that the absent parents is capable of understanding and accepting that the child’s needs are paramount – not the parents needs – but the child’s needs. The purpose of contact with an absent parent is that it is for the child’s benefit and the child has a right to have it, but also equally it needs to be acknowledged that a child likewise has a right to refuse to have contact or a relationship with the absent parent.
Prof. Lauren Devine’s research in 2015 included speaking to adult survivors of enforced court contact with the ‘absent parent’, and the majority of them who had not continued to have a relationship with that parent once they turned 18, or whenever contact had legally ceased, said that overall they were glad they’d had that contact because it allowed them to find out for themselves what the absent parent was really like. We have always taken comfort from this finding, although it has to date not been any comfort for our child itself. However enforced contact has had the same effect on our child. Our child, now a teenager lives to be free of the father they has been forced to have contact with for the last 13 years.
Absent parents need to mindful of the old adage ‘be careful of what you ask for incase you get it’. This is an excerpt from one of the stories they spontaneously write from time to time. This was written (whilst actually staying over at the father’s) when they were aged 11
“ [name redacted] was twenty four now and very successful, he worked at a car dealership making loads of money, he was making £630 a week. His dad had died on his 18th birthday, which was a good present, one he had been asking for, for fifteen years. He had everything he wanted but one day he decided to go on holiday at Berlin in Germany, where his favorite book was based on. The book was called ‘The Boy In The Striped Pyjamas’.“
Written by a child whose childhood has been absolutely blighted by enforced contact with the father who so claims to ‘love’ his child, but who in reality has loved nothing but the power and control the contact has given him. We never needed to engage in any so called parental alienation – this man alienated his own child all by himself with no help from anyone else. But to end on a positive note, our child has recently commented that they really listen and pay attention during psychology lessons at school, because they want to become a Forensic psychologist….