This is a guest post by Sir James Munby, former President of the Family Division.
On 2 April 2025 Harris J handed down her reserved judgment in M v F and C [2025] EWHC 801 (Fam). The case had first come to public attention when the hearing on 20 February 2025 was reported in The Times on its law page on 27 February 2025. To those familiar with this branch of the law the report in The Times (£) was puzzling, not least because it appeared under the byline of an experienced and highly respected legal journalist.
The headline was One victim’s bid to tell her story, and the strapline was Transparency orders that let journalists report on family cases do not allow parties to write about their own cases. The victim was a woman whom a judge hearing private law proceedings in the Family Court found had been raped by her ex-partner. The report told us that Harris J, sitting in the High Court, was “being asked to vary a family court transparency order to allow a mother to write and speak about her own case under a pseudonym in what is seen by experts as a legal first.” We were also told that Harris J “said that the rules did not appear to provide a legal framework or mechanism to enable the court to make the order sought, and suggested that the issue may not have been considered when the rules were drafted.”
This was far from being the first case in which a litigant had been permitted by the court to write and speak about her case notwithstanding that the proceedings, having been heard in private, were subject to the reporting restrictions referred to in section 12 of the Administration of Justice Act 1960. To go no further back into history, I had myself made such orders in Re Roddy, Torbay Borough Council v News Group Newspapers [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, in Re Webster, Norfolk CC v Webster [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, and in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497. There were, of course, other such cases in the books.
In Re B, para 83, I had said, clearly and without qualification, that:
“the High Court has jurisdiction both to relax and to increase these restrictions. A judge can authorise disclosure of what would otherwise be prohibited. And a judge can impose additional restrictions.”
That was not something which, like Pallas Athena, had sprung fully formed from the head of Zeus, for I went on (para 84) in a passage not cited by Harris J (see her para 54) to identify as the authority for my assertions the decisions of the Court of Appeal in In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 (the disclosure jurisdiction) and In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 (the restraint jurisdiction). I said much the same in Webster, para 53.
More to the point, what I had said in Re B, para 83, had subsequently been approved by the Court of Appeal in Re W (Children) [2016] EWCA Civ 113, [2016] 3 FCR 63, para 35, in Re C (A Child) [2016] EWCA Civ 798, [2017] 2 FLR 105, para 12, in Griffiths v Tickle & Ors [2021] EWCA Civ 1882, [2022] 2 FCR 126, para 47, and in Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42, para 45.
If it was being said that this was a ‘first’ because of the transparency order that had been made by the Family Court, and it now appears from the judgment (para 12) that this was indeed the “novel legal point,” it seemed little short of extraordinary that the power of the court to do what had been a regular part of its practice for at least twenty years, should, so it was being suggested, no longer be available as a consequence of the President’s transparency agenda.
For those with an interest in such things, Harris J’s judgment was therefore looked forward to with eager anticipation.
Let me say at once that her judgment is in many ways an impressive and thoughtful analysis of what is notoriously a complex and difficult area of the law. But it is not entirely comprehensive, omitting certain key matters (no doubt reflecting how the case had been argued), and this has led the judge to what, I have to suggest with all respect, are some erroneous conclusions.
I need not follow Harris J into the minutiae. For immediate purposes it suffices to quote what she said (para 14):
“Having carefully considered the submissions of Dr Proudman and Mr Gilmore, I am satisfied that currently there is no legal power provided for within the family procedure rules by which I can grant Ms M’s application to speak directly in public about her experiences within the family justice system. The power clearly exists within s 12 of the AJA 1960 for secondary legislation to be passed which would provide for such a possibility within the court rules, but no such rules have been adopted. I am however satisfied in accordance with existing Court of Appeal authority, that such power exists within the Court’s inherent jurisdiction, albeit the legal basis for that enduring power is not considered in any detail within the case law and is somewhat unclear.”
To that I need add two points by way of elaboration:
(1) In relation to rules, much of the judge’s focus was on FPR rule 12.73 which, so far as material for present purposes, provides as follows:
“(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated – …
(b) where the court gives permission; or …
(2) Nothing in this Chapter permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.”
Obviously correctly, Harris J held that rule 12.73(2) stood in the way of any reliance on rule 12.73(1)(b). Less obviously correctly, in fact, I would argue, erroneously. Harris J went on (paras 40-43) to consider and reject the submission that “the transparency order can simply be amended to permit the parties themselves to publish information”, because, she said, this would be “contrary to the apparent restriction contained in PD 12R, para 5.6” and “would be to distort the purpose of the transparency order.” She concluded (para 44):
“Following careful analysis of s 12 of the AJA 1960 and the Family Procedure Rules 2010, I am therefore satisfied they do not provide any legal power for this Court to permit Ms M to publish information about the proceedings which goes beyond that contained within the already published judgments.”
Her reference to PD 12R para 5.6 as containing a “restriction” is curious. Para 5.6 merely contains a description of the effect of the template transparency order, use of which is not compulsory. On the contrary, PD 12R para 4.1(b) (see the words “and in what terms”) plainly contemplates that the transparency order can be adapted to suit the circumstances of the particular case.
(2) In relation to what she referred to throughout as “the inherent jurisdiction”, three things are notable about Harris J’s analysis:
First, she founds the jurisdiction she is exercising on what she refers to (para 45) as “the High Court’s inherent jurisdiction”.
Second, she refers to the fact that in the authorities, so she asserts (para 47), “The source of the courts’ power … is not detailed” and (para 51):
“The root of the Court’s jurisdiction is again not interrogated in any detail … the source of these powers, outside what is permitted by primary and secondary legislation interpretated so far as it is possible to do so to achieve compliance with Convention rights, remains unclear.”
She observes (para 52) that:
“It is less clear how the High Court’s inherent jurisdiction can be invoked to permit publication where Parliament has intervened, and where permitting publication appears to cut across clear statutory prohibitions to the contrary, as contained in s 12 of the AJA 1960.”
Nonetheless she concludes (para 55):
“I am thus satisfied that whilst it is uncertain how the inherent jurisdiction of the High Court to permit publication survives the intervention of Parliament in section 12 of the AJA 1960, the Court of Appeal has confirmed that such jurisdiction endures.”
Third, and consistently with her view that she is exercising the inherent jurisdiction, she says (para 56) that:
“Any exercise of the inherent jurisdiction to permit publication requires an application to a High Court judge and is thus not a readily accessible remedy in family proceedings being heard in the family court.”
The inherent jurisdiction
It is quite clear that, prior to the coming into effect in October 2000 of the Human Rights Act 1998, the basis of the court’s jurisdiction was indeed to be found in the inherent jurisdiction in relation to children: see In re Z (A Minor) (Freedom of Publication) [1997] Fam 1. (I add that at that time the commonly accepted view was that the previously existing inherent jurisdiction in relation to incapacitated adults had been abrogated in 1960: see In re F (Mental Patient: Sterilisation) [1990] 2 AC 1.)
It is equally clear that the exercise of the inherent jurisdiction in this context did not cut across the statutory scheme in section 12 (cf, Harris J, para 52). Section 12(4) as originally drafted provided that:
“Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section.”
And in In re F (Orse A) (A Minor) (Publication of Information) [1977] Fam 58 the Court of Appeal in its definitive analysis of the meaning and effect of section 12 had made it clear that the publication of the matters referred to in section 12(1)(a) was not of itself and in all circumstances a contempt of court. The Official Solicitor had argued (85G) that section 12(1) should be read as if in the phrase “except in the following cases” the words “that it shall be” should be inserted after the word “except,” so that the statute was to be read in the sense “shall of itself be a contempt of court.” The Court of Appeal disagreed. Lord Denning MR (86G) said that section 12(1) should be understood as if it meant “may be”. Scarman LJ (99E) said:
“I cannot read the words “of itself” in subsection (1) as implying that in the five excepted cases contempt is necessarily committed if the court sits in private.”
See also Geoffrey Lane LJ to like effect (105C).
I might observe that, if publication of the matters referred to in section 12(1)(a) was of itself and in all circumstances a contempt of court, it would not, for example, have been lawful for a judge to send the papers to the police or the GMC or, indeed, to authorise the publication of his own judgment delivered in private. That, manifestly, cannot have been a correct view, and the analysis in In re F explains why it was not.
In contrast to the position before October 2000, it is clear that the basis of the court’s jurisdiction now is to be found not in the inherent jurisdiction in relation to children but in section 6 of the Human Rights Act 1998: see In re S (A child) (Identification: Restriction on Publication) [2004] UKHL 47, [2005] 1 AC 593, para 23, Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, para 55,and Tickle v BBC, para 61.
This has two consequences. First, that the jurisdiction now applies in relation to incapacitated adults and not just children. Second, and of determinative importance in the present context, that the jurisdiction is exercisable not just by the High Court but also by the Family Court. As Sir Mark Potter P said in Clayton, para 56:
“This approach has the beneficial effect that, with the substitution of the Convention for the inherent jurisdiction of the High Court as the source of the power to grant anti-publicity injunctions in such cases, it is clear that the power to grant such an injunction on welfare grounds in Children Act proceedings now applies equally to proceedings in the County Court as in the High Court.”
He was, of course, speaking before the creation of the Family Court and at a time when much of the jurisdiction of what is now the Family Court was exercised by the County Court. And as McFarlane LJ said in Re W, para 35:
“It is well established that the family court and the High Court has the power to relax the prohibition on reporting on a case by case basis (emphasis added).”
In Re K (Children) (Powers of the Family Court) [2024] EWCA Civ 2, [2024] 1 FLR 1261 (an authority not referred to by Harris J) Sir Andrew McFarlane P referred (para 29) to the Guidance I had issued on 28 February 2018: Jurisdiction of the Family Court: Allocation of cases within the Family Court to High Court Judge level and transfer of cases from the Family Court to the High Court. He set out (para 32) the Schedule to that Guidance. Part A, headed “family court does not have jurisdiction; must be commenced in the Family Division,” listed at 1:
“Inherent jurisdiction of the court relating to children (including applications for interim relief and injunctions invoking the inherent jurisdiction of the court and applications to make a child a ward of court or to bring such an order to an end).”
Part B, headed “family court has jurisdiction but must be commenced in the Family Division,” listed at 16:
“Issues as to publicity (identification of a child or restriction on publication or injunctions seeking to restrict the freedom of the media) where this is the principal relief sought.”
The President summarised (at para 35(6)) what for present purposes is the key principle:
“When family proceedings have been properly issued in the family court, it is open to the court to make incidental and supplemental orders to give effect to its decisions.”
The relevant parts of the 2018 Guidance are entirely consistent with the key propositions (1) that the jurisdictional basis for what Harris J refers to as the inherent jurisdiction is no longer (as it was before 2000) the inherent jurisdiction but now the Human Rights Act 1998 and (2) that both as a matter of principle and on the authorities every court – including here the Family Court – will have jurisdiction:
- Part A/1 provides no obstacle to the Family Court having jurisdiction: it refers to the inherent jurisdiction, which for present purposes is irrelevant, but says nothing about publicity.
- Part B/16 correctly accepts that the Family Court has jurisdiction in relation to “Issues as to publicity (identification of a child or restriction on publication or injunctions seeking to restrict the freedom of the media)” and merely provides that such issues “must be commenced in the Family Division … where this is the principal relief sought” (emphasis added). As explained in Re K, para 36, this means that the Family Court will have jurisdiction to make a publicity order where (as in the case before Harris J) it “is incidental or supplemental to the substantive orders that [were] sought in the proceedings.”
I emphasise that none of this affects her ultimate decision on what Harris J calls the inherent jurisdiction point, but it does, if I am right, meet the alleged problem about the jurisdiction of the Family Court.
The rules
I can take this very shortly. Harris J seems to treat the template transparency order as definitive and PD 12R para 5.6 as determinative. Neither assumption is sound, given the perfectly plain language of PD12R para 4.1(b) (“and in what terms”) which gives the court an unlimited discretion as to the precise terms of the transparency order to be made in the particular case. Moreover, PD12R para 4.5 provides that the court “may at any time make, vary or discharge a Transparency Order” (emphasis added). I can see no reason why the power in para 4.5 cannot be exercised in relation to a transparency order made while the proceedings were on foot merely because a final order has been made.
Conclusion
Contrary to her view, from which I have respectfully to differ, the order Harris J made in the High Court could have been made in the Family Court:
- Under the Human Rights Act 1998 and, for the reasons explained by the Court of Appeal in Re K, quite compatibly with the Guidance Part B/16; and
- Under PD12R para 4.5.
A comment and a suggestion
Yet again we see here the appalling complexity of the law surrounding section 12. In a previous paper, The Pressing Need for Reform of Section 12, published on the Transparency Project website on 19 October 2024, I referred to Lord Bingham’s famous analysis of the rule of law where he identified the first of its key components as being that “The law must be accessible and so far as possible intelligible, clear and predictable”: Tom Bingham, The Rule of Law (Allen Lane, 2010), 37. I ventured the view that no one could seriously contend that section 12(1)(a) meets this test. M v F and C [2025] EWHC 801 (Fam), providing yet further illustration of how section 12 is misunderstood even by lawyers, demonstrates yet again the pressing need for reform if we are to comply with the rule of law.
Pending the more radical reform which is so desperately required, may I propose a simple rule change, suggested to me by Sir Nicolas Mostyn, which would solve this particular problem and have the merit of confirming the Family Court’s jurisdiction to give the necessary permission:
- Rule 12.73(1)(b) should be amended to read “where the court gives permission, the terms of which may disapply the prohibition in rule 12.73(2).”
- Rule 12.73(2) should be amended to read “Subject to the terms of any permission granted under rule 12.73(1)(b), nothing in this Chapter permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.”
Can we hope for early action by the Family Procedure Rule Committee.
We have a small favour to ask!
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