This is a short blog to introduce the people and issues, and explain the lead up, ahead of the live-streamed appeal in M (A Child) tomorrow. It aims to give non lawyers a bit of orientation and some links when tuning in to the court of appeal proceedings. 

The listing details are here. The link to watch via live-stream goes live here tomorrow, Thursday Fourth of March 2021. The appeal hearing starts at 10.30am and is expected to last about 5 hours over the one day. 

The Court of Appeal have provided some useful background information for the public at the live streaming page:

In an ideal (transparency) world they’d also routinely publish the anonymised legal arguments (skeletons) that the Judges have and the parties will be referring to. It’s hard even for lawyers to follow the complex legal arguments without these, never mind journalists or members of the public. 

In an ideal world too the Court of Appeal will give a bit of an introduction and explanation of how it all works at the beginning for the non-legal public tomorrow.

But live streaming is itself a new (and welcome) development for family cases in the Court of Appeal. 

And the President of the Family Division is in the middle of a review of the whole tricky business of transparency and the family courts right now:

Who is Who?

The three Justices hearing the appeal are the Master of the Rolls, Lady Justice Macur and Lady Justice King. Lady Justice King has already sat as a court of appeal judge twice in relation to this case. The ‘Master of the Rolls’ – Right Honourable Sir Geofrey Vox is second only to the Lord Chief Justice in seniority and is known to sit on some of the more legally complex cases before the Court of Appeal. 

The Appellant is Melanie Newman, freelance journalist with a particular interest in the family courts. She is being represented by Anya Proops, Qeens Counsel (QC), of 11 Kings Bench Walk Chambers. (I’m only referring to the QC’s leading the bigger legal teams because it’s they who will be visibly leading on the day for their clients).

Southampton City Council are represented by Heather Rogers QC, of Doughty Street Chambers.

The child’s Guardian is represented by Deidre Fottrell QC, of 1 Garden Court Chambers. 

What’s being appealed?

Mrs Justice Roberts’ (2019) decision that Newman should not have access to the full set of documentary evidence the family court relied on when ordering (in 2017) that a child needed to be adopted, in order that Newman might investigate how that decision (later overturned by the Court of Appeal with the child going back home) came about. 

The published judgment with the decision and reasoning being appealed is here: Newman v Southampton City Council & Ors [2020] EWHC 2103 (Fam) (05 August 2020.

How did we get here and why might it matter to the mother and the journalist?

When setting aside the 2017 decision that the child required adoption (the Placement Order), the Court of Appeal said that the Placement Order had been made on ‘the slimmest of evidence’. 

The only reason the child wasn’t adopted, with all ties to her birth family severed against her parent’s wishes, was her mother’s appeal to the Court of Appeal. Legal aid was not available to her and it cost her some £20,000 that she could ill afford.

Newman followed the case with other journalists. She was interested in how the decision to recommend adoption was reached by the local authority and endorsed by the court. Including what might be driving an apparent trend in this particular local authority of an unusually high percentage of cases resulting in adoption orders.

Confidentiality rules prevent parents sharing the court documents or the substance of what goes on in children’s court cases with journalists and others. Nor can anyone including the media publish them. The rules apply even if the court case is long finished, or a parent is worried about a miscarriage of justice, or publication won’t involve anything that would identify the child or family. Breach of the rules is potentially a contempt of court. The only option is to apply to court for the rules to be relaxed in your particular case to the extent you need them to be to do the thing you want to do. 

Newman decided to apply to the family court for permission to have copies of the court documents that the judge had access to when making the Placement Order in 2017 (the court file). She wanted to understand the decision better and decide from there whether or not she then wanted to apply separately for permission to report anything.

(Appeals are subject to different rules. The starting point is that they can be reported though a specific reporting restriction order may be made in the particular case as applies here. What is already in a published family court judgment can also be published so long as the anonymity of the family members is strictly maintained. The 2018 Court of Appeal judgment has already been published on an anonymised basis. See links below). 

The child’s mother had full legal decision making rights (parental responsibility) for her child who was 7 years old by the time of the application. She wanted the journalist to access the papers to investigate and potentially for lessons to be learnt from her families experience. She consented on behalf of herself and her child. 

Her application was heard in the High Court by Mrs Justice Roberts who reviewed the law on the balance between competing confidentiality / privacy etc rights (Article 8 of the Human Rights Act) and freedom of expression (Article 12) rights; weighed them in the particular case; and concluded that a few limited documents such as those relating to the mother rather than the child should be shared with the journalist. Others like the social work assessments and expert reports about the child, and the social work witness statements and medical records should not . Mrs Justice Roberts considered that she wasn’t dealing with an application of a mother for permission to share documents in her possession but of a professional journalist for documents she couldn’t otherwise access since the mother no longer had the documents. The cost and time it would take the local authority to redact and copy the documents and public policy arguments, as well as issues relating to the child’s privacy rights (couched mainly in fairly general terms) all featured in her reasoning. See para 111 onwards of her judgment and a summary of her legal reasoning at the 11KBW blog.

What are the legal issues for the Court of Appeal?

There are links to at the foot of this blog post on the wider picture and arguments about the right balance between confidentiality and transparency (including public confidence in the family court system) being looked at more generally by the president in his transparency review. 

The appeal concerns the same law on the proper balance between competing privacy and freedom of speech rights. Applied specifically to an application by a journalist to see the court file on the particular facts applying, including the consent of a parent on behalf of her young child. 

It’s the first time the question of how far journalists should be permitted access to documents placed on the court file in public law family proceedings has really been scrutinized in this way. The Court of Appeal granted permission for the appeal because it raised the following matter of significant public interest:

The balance as between Article 8 and Article 10 where a responsible journalist seeks access to court papers; including consideration of the approach of the court to the Article 8 interests of a young child where a person with parental responsibility wishes to consent to full disclosure of all the court papers on behalf of the child, the subject of the proceedings.’

At this point I’d love to suggest readers turn to the published, anonymised legal argument documents lodged with the court by the leading barristers on behalf of the appellant journalist, local authority and child’s Guardian, to really follow this hearing and provide the link. I can’t of course because they are not published and I may not publish them. I have however at the time of writing just received the third of the skeleton arguments on behalf of the parties on the basis of legal rules that permit accredited journalists attending the hearing to request them, but not as yet had the opportunity to absorb these.

Further Reading

Michael White wrote about the original decision here at the 11 KBW Panopticon Blog. We also saw reports at Local Government Lawyer, the Gazette, and Hold the Front Page.

Melanie Newman wrote for the Transparency Project here about her experience of applying and why it mattered.

Mrs Justice Roberts published her decision and her subsequent decisions not to allow permission to appeal and on costs here.

The anonymised, published judgment from the Court of Appeal decision on the Placement Order is here.

A Transparency Project blog about the Court of Appeal decision about the Placement Order with links to media reports of it is here.

A Transparency Project blog about journalist Louise Tickle’s earlier appeal in the Court of Appeal against a reporting restriction order in the same family case, which lead to the President issuing guidance on how press applications to relax reporting restrictions should be dealt with is here.

Start here for more on the wider transparency review underway.

See here for a recent submission to the Law Commission urging legal reform.

Feature Pic: RCJ4 image by piqsels