(‘Organic’ – characterised by gradual or natural development – OED)

So say the Court of Appeal, in a judgment given in a case called Re C (A Child) on 24 March; the full judgment has not yet been published.

The judges in this case commented that there had been a move in the family justice system away from publication of a judgment in a parental dispute about contact arrangements being unusual or exceptional. However, they emphasised that the President’s guidance issued in January 2014  is guidance only, not the law. The guidance states:

Permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media. (paragraph 16)

There follows a list, in paragraph 17, of serious types of case where a judgment should normally be published. This list does not include a contact dispute such as that in Re C. Then in paras 18 and 19:

In all other cases, the starting point is that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that permission for the judgment to be published should be given.

In deciding whether and if so when to publish a judgment, the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression).

In a nutshell, this case had arrived at the Court of Appeal because a mother of a 12-year-old boy wanted the judge’s final decision to be published in an anonymised form, but the judge had decided not to have it published. Although details of the dispute between the parents are not available, she appears to be aggrieved by the final decision, rather than wanting it publicised as an example of success in the family courts. She appealed against the decision not to publish, but the Court of Appeal disagreed with her and upheld the original decision. The reasons they gave were:

  1. It was a matter for the judge’s discretion as to whether to send off this type of judgment for publication.
  2. This was simply a case management decision and should be respected as such by the higher court.
  3. The Court of Appeal should not encourage judges to give full judgments on the issue of publication; a short decision with reasons was sufficient, just as the judge had done here.
  4. One factor in this reluctance to encourage long judgments on the issue of publication was that judges were already busy enough deciding their ongoing cases, without also having to review older cases, perhaps months later.
  5. The changes called for by the President are organic and ongoing and it is not the place of the Court of Appeal to intervene and give its own guidance.
  6. The Court of Appeal would only intervene if the lower court had been plainly wrong in deciding against publication.
  7. In this case, the judge had undertaken the correct exercise in balancing the competing human rights of the parties. He had referred to the President’s guidance; he had asked first whether the father objected and had then received submissions from the father that he did object; the judge also had considered the risk of identification; he knew the history of the case well and was in a position to draw the conclusion he had that publishing just one of four judgments in the case would create a misleading impression.
  8. The mother had argued that there was an issue of public interest in the case because the system had failed her son, but the Court of Appeal did not agree – there was no failure on the part of the court process.

So, what does this tell us about transparency? First of all, it’s impossible to know from the brief facts what the 12-year-old thought. Maybe the father’s evidence included some information about his son’s point of view, but this does not necessarily comply with the recent rhetoric on children aged 10 and over having their views taken into account.

It is certainly difficult to discern any public interest on the bare facts available although the mother had engaged a barrister to argue this on her behalf. Publication on Bailii in accordance with the President’s expectations may therefore not have been the answer here, but that leaves the mother with nowhere to go with her claim that there are matters that arose in her case which should be aired. The father had not responded to the appeal so we don’t know how strongly he felt he needed to argue against the publicity. Although one reason often put forward in support of more reporting is that public education about ‘routine’ cases is necessary to counter the sensationalism in the press, the judge in this case concluded that such public interest as there may have been was outweighed by other factors. It would therefore appear that it is indeed exceptional for a contact dispute to be published.

So, no urgency felt in the Court of Appeal about the long interval since the consultation on guidance closed in October, which we noted here . Organic… doesn’t that have something to do with the slow food movement?