This is a guest post by Sir James Munby, former President of the Family Division. For a summary of the issues raised in this piece please read this post:

Contempt of Court by Publication of Information Relating to Family (Children) Proceedings – A Simple Question without a Simple Answer

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In recent years I have written extensively about the pressing need for reform of section 12(1)(a) of the Administration of Justice At 1960. Needless to say, absolutely nothing has been done.

Here I will:

• Argue that section 12 needs urgent statutory reform to answer the elementary question: How long after the end of the relevant proceedings does section12(1)(a) continue to operate? I will show that the answers given by the caselaw are wildly inconsistent and irreconcilable and are seemingly decided in isolation and without regard to the full corpus of learning on the subject.
• Propose that the protection should last indefinitely though not perpetually but subject to a time-limit of the attainment of the age of 18 by the youngest child in the proceedings.

Section 12(1)(a) applies to:

“proceedings before any court sitting in private … where the proceedings – (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.”

The effect of section 12(1)(a) is to make the “publication of information relating to [such] proceedings” a contempt of court. It should be noted that although the inherent wardship jurisdiction long pre-dated both the 1960 Act and the 1989 Act, the effect of section 12(1)(a) is precisely the same whether the proceedings are in wardship or under the 1989 Act.

In February 2021, together with His Honour Clifford Bellamy, Lucy Reed, Dr Julie Doughty and Louise Tickle, I submitted to the Law Commission a Proposal for the Law Commission’s 14th Programme of Law Reform: [2021] Fam Law 466.

“That consideration be given to a review of s 12(1)(a) of the Administration of Justice Act, with a view to its repeal and, if appropriate, replacement with more focused provisions better suited to the modern world.” 

Our thesis was simple and uncompromising:

“With the passage of time, and in the modern context in which it is now operating, section 12(1)(a) has become unsatisfactory, unfair, unduly complex, inaccessible and outdated. Repeal of section 12(1)(a) is long overdue. Until it is repealed the public’s perception of the Family Court as a ‘secret’ court will persist.”

I returned to this on 6 October 2022 when I submitted to the Law Commission a Memorandum dealing with eight topics which I invited the Commission to consider as part of its Contempt of Court Project. I reiterated the importance of repealing section 12(1)(a).

Earlier, on 14 May 2021, I had sent a detailed submission to the President’s Transparency Review: [2021] Fam Law 923, 1046. In the course of this I made the following interlinked points in relation to section 12:

• The complexity and uncertainty in the law, coupled with the professional reality that few family lawyers (and not even all media lawyers) are actually masters of all the learning, means that legal advice is likely to be very cautious, whether the issue is the meaning and effect of section 12 or the possibility of its disapplication.
• Irrespective of what a lawyer may think it means, section 12 has a seriously chilling effect on what people – families, journalists and legal bloggers – think can be published.
• Given the penalties for breach of section 12, a legal blogger or journalist without access to appropriately skilled legal advice, and even one who is well advised or knowledgeable but has a lot to lose professionally and personally if they or their lawyers interpret the scope of what is permissible differently from a judge, is bound to err on the side of caution.
• The cost, in terms of time, effort and potential legal costs, and the unpredictability of the outcome, mean that an application to the court to disapply section 12, whether in part or in whole, is typically undertaken only by the most determined.

In that submission I had identified what I referred to as two “major problems” with section 12:

• First, I said, there is the sheer complexity of the law. The number of reported cases is enormous. The six critical words in section 12 – “information relating to proceedings … in private” – have probably generated as much litigation as any other six words on the statute book. This complexity appears clearly enough from the current practitioner’s ‘bible’, Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice (second edition, Bloomsbury Professional, 2024), paras 2.109-2.112, where a valiant and largely successful attempt is made to distil and summarise the learning by citing and quoting from the key authorities: Kelly v British Broadcasting Corpn [2001] Fam 59, 71-72, Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, paras 81-82, A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, paras 112-114, and Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam), [2023] 2 FLR 934, paras 8-9. Even that summary is too long to allow quotation here.
• Secondly, I said, the caselaw establishes that there is a crucially important distinction between publishing merely “the nature of the dispute” (which is permissible) and publishing “the substance of the matters” (which is not permissible). There are a few cases which bear on this, but the judgment of Wilson J, as he then was, in X v Dempster [1999] 1 FLR 894, the first to explore the distinction, remains, in many ways, the most important; it comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not. It is no criticism of Wilson J, but rather of the state of the law, that his analysis (and the same goes for all the other cases) is essentially subjective and thus unlikely to be of much use to even the most experienced journalist.

Here I address another major problem with section 12.

I am not some lone voice. That distinguished and highly experienced former Circuit Judge Clifford Bellamy had made the same point as long ago as 2020, explaining the problems with section 12 and why it should be repealed, in an important and closely reasoned book: His Honour Clifford Bellamy, The ‘Secret’ Family Court: Fact or Fiction? (Bath Publishing, 2020), 236, 243-245.

Since then, the President, on 28 October 2021, has published the outcome of his Thttps://www.judiciary.uk/guidance-and-resources/transparency-in-the-family-courts-report-3/ransparency Review: Confidence and Confidentiality: Transparency in the Family Courts. His view (Review, para 38) was emphatic and striking:

“The 1960 Act was concerned to protect and support the administration of justice. Now, 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.”

There has not been, and so far as I am aware there is no intention to carry out, any such review.

Here I want to address a very simple and fundamentally important question to which, despite the enormous number of reported cases over the years, there is astonishingly, so far as I am aware, still no clear and definitive answer: How long after the end of the relevant proceedings does section12(1)(a) continue to operate?

Let me illustrate the problem by posing a very simple and almost commonplace example. Suppose that a local authority commenced care proceedings in relation to a 15-year-old child; that the local authority’s application was dismissed, and the proceedings thereby came to an end; and that both the child (who is now 18) and both parents want to tell their story about the proceedings to a journalist. Has section 12(1)(a) ceased to apply, or does it continue to apply so that an application has to be made to the court to disapply it?

It is, I have to say, a shocking indictment of our law that no-one can venture any confident answer to this question.

In Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11, the Court of Appeal (Sir Mark Potter P, Arden and Wall LJJ) held – this was the ratio of the decision – that the prohibition on publication contained in section 97(2) of the Children Act 1989 lasts only until the conclusion of the proceedings in question. However, Sir Mark, who gave the principal judgment with which both the others agreed, went on to say (para 53):

“That does not of course mean that the provisions of s.12 AJA are diluted or otherwise affected. So that whilst, following an end to the proceedings, the prohibition on identification under s.97 will cease to have effect, the limitation upon reporting information relating to the proceedings themselves under s.12 AJA will remain.” 

He later referred (para 64) to “the scope of the statutory protection provided in any event by s.12 (1) AJA.” The same point was repeated (paras 77, 79). It is to be noted that the President said nothing to elaborate these rather brief statements and provided no reasoned explanation for his bare assertion or assumption. Arden and Wall LJJ agreed with the President’s judgment and neither dissented from what he had said about section 12. It is also to be noted that although Wall LJ referred briefly in passing (para 96) to the earlier judgment of the Court of Appeal (Lord Denning MR, Scarman and Geoffrey Lane LJJ) in In re F (Orse A) (A Minor) (Publication of Information) [1977] Fam 58, neither he nor the other two judges considered its significance for the point with which we are here concerned. This was most unfortunate, for, on any view of what it actually decided, In re F is plainly of considerable significance.

To understand what was decided in In re F it is important to understand the facts. For present purposes they can be summarised as follows. The case related to wardship proceedings in relation to a teenage girl who had been warded by an order made by Arnold J on 16 February 1976. During the course of the proceedings, reports had been prepared for the purpose of the proceedings, both by a social worker on 3 March 1976 and by the Official Solicitor on 11 March 1976. On 5 April 1976, at a time when the proceedings were in fact still ongoing, the Daily Telegraph published an article with the co-operation of the girl’s parents which, amongst much detail provided by her parents, referred to Arnold J’s order and referred to and quoted from each of the reports.

In answer to proceedings for contempt brought by the Official Solicitor the editor of the Daily Telegraph swore an affidavit (see 84F) deposing that “no one of ‘the Daily Telegraph’ was aware prior to publication that the girl concerned was still a ward of court.” Mr Comfort, the reporter who interviewed the parents, accepted that the parents had told him that they had previously initiated proceedings to make their daughter a ward of court but, critically (see 64E, 65B, 84B), said “that he understood that the wardship proceedings had been concluded” and did not know that the child was still a ward of court.  

The parallel proceedings for contempt brought against the Evening Mail are not relevant for the purposes of this discussion.

The material published by the Daily Telegraph included “information relating to proceedings before [a] court sitting in private” within the meaning of section 12(1)(a). So the key issue for the Court of Appeal was whether, as Tudor Evans J had held at first instance, section 12(1)(a) created an absolute offence to which proof of absence of knowledge or intent was no defence, or whether, as the Court of Appeal held, allowing the appeal (I take this formulation from the headnote) it “did not punish a person who published such information unless it was proved that at the time of publication he knew or must be taken to have known that what he published was prohibited by law.”

Lord Denning MR expressed the point as follows (90A-B):

“a person is only to be found guilty of it if he has published information relating to wardship proceedings in circumstances in which he knows that publication is prohibited by law, or recklessly in circumstances in which he knows that the publication may be prohibited by law, but nevertheless goes on and publishes it, not caring whether it is prohibited, or not. As if he said: “I don’t care whether it is forbidden, or not. I am not going to make any inquiries. I am going to publish it.””   

(In quoting the passage in this way I have omitted two lines of garbled text which seem to have found their way into the report in error; compare the text as reported in [1977] 1 All ER 114, 123.)

Scarman LJ put the point rather differently (100A-D):

“in this class of case – publication of information relating to proceedings which the court has ordered to be in private – no contempt is proved unless it is shown that the publisher knew that he was giving information relating to court proceedings and that the proceedings were private proceedings …  in a wardship case no contempt is committed unless knowledge of the existence or imminence of proceedings before a court sitting in private is proved.”

Geoffrey Lane LJ said much the same (107B):

“the effect of section 12 (1) (a) is that any person who is proved to have published without leave what he knows to be information relating to wardship proceedings before any court sitting in private is guilty of contempt. Honest mistake is a defence providing that had the mistaken circumstances been true, no offence would have been committed.”

So much by way of background. What is important for present purposes is not so much the precise formulation of the necessary mens rea – I need not therefore explore further the difference in approach between Lord Denning on the one hand and Scarman and Geoffrey Lane LJJ on the other – but the basis upon which the three judges unanimously went on to hold that the Daily Telegraph was entitled to be exonerated.

Lord Denning put it this way (90E-G):

“The parents told “The Daily Telegraph” that the wardship order had been a temporary one and that it had expired. The newspaper thought that there was no longer any prohibition on publication. They made inquiry at the local council without getting any enlightenment … They made inquiries. Finding no such prohibition, they published the information. In the circumstances, I do not think there was any guilty knowledge or intent on their part such as to warrant a finding that they were in contempt of court.”

Scarman LJ said this (100G-101A):

“A contempt was, therefore, committed, if the newspaper … knew that [its] report … contained information relating to private wardship proceedings.

[The] newspaper [was] aware that wardship proceedings are ordinarily conducted by a court sitting in private. “The Daily Telegraph” reporter knew that there had been wardship proceedings, but believed that they were concluded. He saw the Official Solicitor’s report. I appreciate the force of the judge’s comment that “had he read it properly, he would have known the facts.” But he has sworn he did not know that wardship proceedings were still in being or imminent. He had been told that they were concluded. We have no reason to question the truth of his affidavit: indeed. it is conceded that, where there is a conflict between the evidence of a journalist and of other deponents, we are to accept the word of the journalist. I have come to the conclusion that it is not proved that Mr Comfort, the reporter, knew that he was reporting information which related to wardship proceedings. Accordingly I would allow the appeal of “The Daily Telegraph.””

Geoffrey Lane LJ put it this way (107F-108B):

“So far as Mr Comfort is concerned, it is clear from his affidavit that he is directing his mind to the wrong issues. He is concerned to demonstrate that he honestly believed that wardship proceedings had “been concluded”; that the girl was not a ward of court at the time; that the wardship having ended, the reports which he was shown were obtained simply for the purpose of ensuring that those responsible for F had the fullest information to go on.

“I was not told for what purpose the report had been compiled, but understood it to have been supplied to the [parents] as they and social workers worked out the conditions under which F should remain in the hostel…. I did not, however, appreciate that the wardship proceedings… were still current so I did not consider that there was any legal difficulty on that score.”

Nowhere is his attention directed to the crucial question whether he knew that his article related to wardship proceedings held in private. In the light of the view which the judge took of the law it was unnecessary to explore the matter further. Had it been so explored it may very well be that the court would have been satisfied that the necessary knowledge in fact existed. However, on the affidavits as they stand, although one’s suspicions are raised, I find it impossible to feel sure that Mr Comfort had the necessary guilty knowledge. I would therefore also allow the appeals of “The Daily Telegraph” and Mr Deedes.”

Now to speak plainly this is, with respect to three most distinguished judges, all very curious.

Mr Comfort was clear throughout – and the Court of Appeal was prepared to accept that he was telling the truth – that he knew there had been wardship proceedings but that he honestly (though as it turned out erroneously) believed that the proceedings had come to an end before the article was published. That, it might be thought, raised an obvious point of law: do the restrictions imposed by virtue of section 12(1)(a) cease to bite once the proceedings have come to an end? If the answer is yes, then Mr Comfort’s honest but erroneous belief that they had was plainly both relevant and, indeed, determinative. But if the answer is no, then surely Mr Comfort’s belief, however honest, was irrelevant. After all, as Geoffrey Lane LJ had – correctly – explained (emphasis added):

“Honest mistake is a defence providing that had the mistaken circumstances been true, no offence would have been committed.”

The same point can be put the other way round. The logic of the Court’s exoneration of the Daily Telegraph surely means that the judges were proceeding on the footing that had the wardship proceedings, as Mr Comfort honestly but erroneously believed, in fact come to an end, then section 12(1)(a) would have ceased to bite.

But this, oddly, is not how the point was addressed.

In the course of argument, the point as to the temporal duration of the restrictions flowing from section 12(1)(a) was scarcely touched on. On behalf of the Official Solicitor his counsel, John Waite QC and Nicholas Wilson, are quoted as saying that (81D-E):

“There is no reference to the time limit of the offence; it may be assumed that if proceedings for adoption or an adjudication under the Mental Health Acts have been concluded, the ban no longer exists; but it is difficult to draw hard and fast lines.”

The report contains no elaboration or explanation of the argument to indicate what the position in relation to wardship proceedings might be.

The explanations provided by both Scarman LJ and Geoffrey Lane LJ do not in terms address the point at all and are, with respect, very hard to follow.

Moreover, and importantly, both Scarman LJ and Geoffrey Lane LJ went on to cite with approval a passage from Lord Shaw of Dunfermline’s speech in Scott v Scott [1913] AC 417, 483:

“But I desire to add this further observation with regard to all of these cases, my Lords, that, when respect has thus been paid to the object of the suit, the rule of publicity may be resumed. I know of no principle which would entitle a Court to compel a ward to remain silent for life in regard to judicial proceedings which occurred during his tutelage, nor a person who was temporarily insane—after he had fully recovered his sanity and his liberty—to remain perpetually silent with regard to judicial proceedings which occurred during the period of his incapacity.”

Although Lord Shaw was emphatic that the law could not impose perpetual silence, there is equally nothing in what he said to suggest that the ban automatically came to an end as soon as the proceedings had concluded. Nor did either Scarman LJ or Geoffrey Lane LJ when they referred to what Lord Shaw had said. Scarman LJ (93G) commented that:

“as was also clearly said in Scott v Scott [1913] AC 417, the common law did not permit the cloak of secrecy to remain wrapped round the proceedings longer than was necessary in the interests of the ward. “When respect has thus been paid to the object of the suit, the rule of publicity may be resumed,” Lord Shaw of Dunfermline said in the course of his speech at p 483 (emphasis added).”

Referring to section 12(1)(a) he went on (99F):

“Parliament must have intended the old law to continue, for example … where by the passage of time “the rule of publicity may be resumed”: Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 483.”

Geoffrey Lane LJ said much the same (107C-D):

“The embargo on publication of matters disclosed in a private hearing is not necessarily perpetual. Silence should only be enforced for so long as is necessary to protect the interests of those for whose benefit the rule is made: see Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 483. Where … all necessity for preserving the confidentiality of information about an infant has with the passage of time disappeared, publication will not be a contempt (emphasis added).”

If they were proceeding on the basis that section 12(1)(a) ceased to apply when the proceedings came to an end, why did Scarman LJ and Geoffrey Lane LJ refer to Lord Shaw at all. The very fact that they did surely goes to show that, whatever their reasons for exonerating the Daily Telegraph, it was not because they believed that section 12(1)(a) was time-limited in that way. The puzzle remains: why did they nonetheless decide to exonerate the Daily Telegraph?

I might add that the difficulties in understanding precisely what was decided in In re F are compounded by an unfortunate error in the headnote where (emphasis added) it says (60A):

“The prohibition against publishing information relating to such proceedings is not confined to what took place at the actual hearing but extends to information about the past, present, and contemplated future of the ward, including confidential reports prepared for use in wardship proceedings; but once those proceedings have been concluded the rule of publicity may be resumed (post, pp. 90D, 93F-94A, 107C-D).”

So far as I can see the statement which I have highlighted is not justified by the passages cited or, indeed, by the caselaw generally.

Before passing on from Scott v Scott it should be noted that in the House of Lords no-one other than Lord Shaw addressed the present point. Fletcher Moulton LJ in the Court of Appeal had dealt with it in his great dissenting judgment, subsequently vindicated in the House of Lords, but on this point he seems to have gone rather further than Lord Shaw: see Scott v Scott [1912] P 241, 266, where, having vigorously repudiated the view that the wardship court “has the power to enjoin a secrecy which is unlimited as to time”, he continued:

“I am satisfied that the Court could not compel wards to keep silence as to proceedings before the Court after they had attained their majority.”

Reference had been made in In re F to the earlier decision of Wynn-Parry J in In re de Beaujeu’s Application for Writ of Attachment against Cudlipp [1949] Ch 230, 235, though not to what he had said on the present point (emphasis added):

“I am of opinion that, prima facie, it would be a contempt of court to publish an account of proceedings relating to an infant conducted in chambers without the express permission of the judge who heard the case. I use the words ‘prima facie’ because I do not intend to attempt to state any exhaustive rule. There may well be cases in which the permission of the judge is not required, because, for example, of the lapse of time between the hearing and the date of publication. Such cases must be dealt with as and when they arise and, as I see it, cannot conveniently be made the subject of any hard and fast or exhaustive rule.”

The point arose obliquely in Re E (A Minor) (Child Abuse: Evidence) [1991] 1 FLR 420, a decision of Scott Baker J in 1990. In the context of an issue as to whether there should be publication of the judgment delivered at the conclusion of wardship proceedings, subject to the continuation of an injunction to prevent identification of the parties, an issue arose as to whether there was jurisdiction to grant such an injunction to continue after the discharge of the wardship proceedings. It was in this context that Scott Baker J observed (455) that:

“The prohibition contained in s. 12(1)(a) of the Administration of Justice Act 1960 is not limited in time. It, therefore, remains a contempt to publish:

‘Information relating to proceedings before any court sitting in private …  where the proceedings relate to the wardship … of an infant …’

even if the wardship proceedings are discharged.”

The point seems next to have arisen in In re X and Others (Minors) (Wardship: Disclosure of Documents) [1992] Fam 124, a decision of Waite J in 1991 concerned with the aftermath of the Cleveland scandal. A newspaper sought access to the wardship files of several wards of court, who fell into three conceptually distinct categories (see 129). (1) In relation to 5 children the proceedings had come to an when orders were made de-warding them. (2) One child had come of age and thereby ceased to be a ward of court. That child (see 132) did not object to disclosure of the papers relating to the wardship proceedings which concerned her provided that there be reporting restrictions so that she could not be identified. (3) The remaining children were still wards of court. For present purposes the importance of the case, where the judge had the benefit of detailed argument with much citation of authority (including In re F(Orse A) (A Minor) (Publication of Information) [1977] Fam 58, in which he had himself appeared as counsel), is that it was (correctly) common ground that what was being sought was access to documents in proceedings to which section 12 had applied and – this is the critical point – that both the argument and the judgment proceeded on the basis of a tacit assumption that section 12 continued to apply not merely after the proceedings had come to an end but even in relation to the child who had come of age. There was no attempt to argue for different outcomes depending upon which category the children were in. In the event, the newspaper’s application for disclosure was refused.

In 1993 the Lord Chancellor’s Department issued a Consultation Paper, Review of Access to and Reporting of Family Proceedings, a long, cogent and detailed analysis including a discussion of section 12. On the present point there was (paras 2.56-2.57) brief but inconclusive reference to both Scott v Scott and In re F, but not, it may be noted, to either Re E or In re X.

The point arose again in Oxfordshire County Council v L and F [1997] 1 FLR 238. Care proceedings had concluded, with none of the children subject to any form of statutory supervision. The parents now wished to discuss with the media information about the case part of which (see 248-249) plainly fell within the prohibition in section 12 assuming it still applied. Stuart-White J treated it as axiomatic, and seems to have had no submissions to the contrary, that it did (249):

“publication of information relating to the proceedings … would be a contempt of court unless leave to publish is given.”

In Attorney-General v Pelling [2005] EWHC 414 (Admin), [2006] 1 FLR 93, Dr Pelling was found guilty on 8 April 2005 of publishing in April 2003 a judgment given in private by His Honour Judge Goldstein on 21 August 1996 in 1989 Act proceedings in relation to his son, who had been born 20 November 1990. Laws LJ, in a judgment which had referred extensively to Scott v Scott and In re F, said this (para 56):

“We have considered whether, by the date of the defendant’s publication of Judge Goldstein’s judgment, so much time had gone by since its delivery that the interests of justice no longer required the judgment’s protection by the law of contempt. We have concluded that the defendant cannot be acquitted on that ground. His son was, as we have said, only 12 at the time of publication.”

In recent years the unarticulated assumption has been that section 12 has indefinite effect. In A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, I was concerned in 2009 with disclosure issues arising out of care proceedings in relation to a child born in 2005 which had been dismissed in 2006. I proceeded on the footing (para 24) that although the restrictions imposed by section 97(2) of the 1989 no longer operated (for which I cited Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11) the restrictions imposed by section 12 of the 1960 Act continued to apply. In the event I (i) made an order disapplying section 12 and (ii) granted injunctions to protect the anonymity of certain individuals.    

In In re G (A Child) (Wider Family: Disclosure of Court File) [2018] EWHC 1301 (Fam), [2018] 4 WLR 120, [2018] 3 FCR 227, I was concerned in 2018 with applications for disclosure of materials from private law proceedings before Singer J in 2002 involving three children: G, then aged 2, BB then aged 15 and B then aged 17. By the time I was considering the matter in 2018, G was almost 18, BB and B were adults in their 30s. The importance of the case for present purposes is that I proceeded on the footing (see para 50) that the restrictions imposed by section 12 continued in effect in 2018, that is, some 16 years after the proceedings had concluded; the very experienced counsel appearing before me had not suggested otherwise. In the event I resolved the disputes, without disapplying section 12, by making orders permitting some limited disclosures.

What this historical survey of the relevant case-law demonstrates is the remarkable fact that this manifestly important question has never been the subject of any sustained argument by counsel or detailed analysis by the judges. Much of what has been said is, in truth, little more than assumption or bare assertion devoid of reasoning or explanation.

I turn to the textbooks.

Borrie and Lowe, The Law of Contempt (4th ed 2010), para 8.4, says this:

“The decision to hear a case in private does not impose a perpetual obligation to remain silent so that in some cases publication might be permissible after the passage of time or change of circumstances, even without judicial consent.”

This is elaborated in a footnote:

“See Lord Shaw in Scott v Scott [1913] AC 417 at 483 who suggested that publicity may be resumed when eg a ward attains his majority or when confidentiality has been abandoned or the secrets become public property. See also Wynn-Parry J in Re De Beaujeu [1949] Ch 230 at 235, [1949] 1 All ER 439 and Geoffrey Lane LJ in Re F [1977] Fam 58 at 107.”

It may be noted that the summary of what Lord Shaw said is not entirely accurate.

In their invaluable survey, The Family Courts: Media Access & Reporting (July 2011), the authors, Adam Wolanski and Kate Wilson, both noted experts in this field, say this (para 47): “The prohibition [arising under section 12] is without time limit.” The authority cited in support of this bald statement is Re E (A Minor) (Child Abuse: Evidence) [1991] 1 FLR 420.

Harrison and Phillips, McNae’s Essential Law for Journalists (27^th ed, Oxford University Press, 2024), para 14.3, comments that reporting family law cases is “fraught with difficulties” because of, inter alia, the 1989 Act and the 1960 Act. It is said (para 14.6.1), though without reference to authority, that “The section 12 restrictions apply unless the judge lifts them.”  

Burrows, Open Justice and Privacy in Family Proceedings (The Law Society, 2020), does not address the point at all. Nor does Arlidge, Eady & Smith on Contempt (5th ed and supplement).

Comment is really superfluous. What help is any of this to the lawyer or to the journalist, let alone to those parents and children involved in the proceedings?

The only place where one finds any recognition of the reality that too much is uncertain is in the very thoughtful discussion in Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice (second edition, Bloomsbury Professional, 2024), para 2.132 where, having referred to Clayton and In re F, the authors continue:

“The question remains … for how long following the conclusion of the proceedings should one treat s 12 as being live in the absence of a specific order? This might be until the youngest subject child is 18, or until the subject child is Gillick competent and consents, or, possibly, forever. The answer may lie in the purpose behind this specific form of contempt, which is said in Re F to be driven by the essential privacy of the matters discussed in court or described in papers, rather than the risk of prejudicing a trial within anticipated or current proceedings, as with other forms of contempt. The need and entitlement to privacy will not lapse with the conclusion of the proceedings and, in practice, any person who wishes to publish material arising from them will be wise to either seek and obtain judicial permission to publish or the consent of all those whose privacy is affected (which may include parents and third parties).”

Standing back from the authorities, it might be thought that there are, in principle, four possible views, namely that the restrictions arising under section 12 survive:

1. Until but not after the end of the proceedings.
2. Until but not after the child reaches the age of 18.
3. Indefinitely but not for ever.
4. In perpetuity.

I shall consider these in turn.

The first and fourth alternatives can, I suggest, be fairly easily rejected.

• In relation to (1) (until but not after the end of the proceedings):
  • This, as we have seen, might be thought the logical corollary of the reasoning in In re F but seems not to have been the basis on which Scarman and Geoffrey Lane LL actually proceeded.
  • It is inconsistent with the clear statements of both Scott Baker J in Re E and of Sir Mark Potter P in Clayton.
  • It is inconsistent with the assumption upon which other cases have proceeded.
  • It is inconsistent with the analysis in Doughty, Reed and Magrath.
• In relation to (4) (in perpetuity):
  • This was emphatically rejected in Scott v Scott (by both Fletcher Moulton LJ and Lord Shaw) and in In re F (by both Scarman and Geoffrey Lane LJJ).
  • It has never in fact been propounded so far as I am aware by anyone else.

The real contest, it might be thought, is between (2) and (3).

• In relation to (2) (until but not after the child reaches the age of 18):
  • The furthest that anyone seems to have gone in this direction was Fletcher Moulton LJ, though it is important to note that he did not say that the restrictions previously in play came to an end when the ward attained his majority. What he asserted was that “the Court could not compel wards to keep silence … after they had attained their majority”, a very different proposition.
  • It was not the basis on which either Waite J in In re X and others or I in Re G proceeded.
  • There is also the very obvious problem: how would such rule operate in the typical kind of case involving children of different ages?
  • There is a further problem: what if the ward (former subject child) does not wish to waive his privacy?
  • There is a yet further problem: what is to happen in relation to the privacy interests of other people involved in the proceedings, either as parties or as witnesses?
• In relation to (3) (indefinitely but not for ever):
  • This accords with the views of Lord Shaw in Scott v Scott, of Wynn-Parry J in In re de Beaujeu, (seemingly) of both Scarman and Geoffrey Lane LJJ in In re F, of Laws LJ in Pelling,and with my unarticulated assumption in both A v Ward and Re G.
  • But there is a very obvious and serious problem to which I must return: if indefinitely for how long?

Unsurprisingly, because it is the ward (or former ward), after all, who is the person about whom the wardship proceedings have been brought, Fletcher Moulton LJ, Lord Shaw, and Scarman and Geoffrey Lane LJJ all focus attention on the position of the ward.

It is important at this point to remember why, in Scott v Scott, the House of Lords was unanimous that the normal rule of openness and publicity did not apply to wardship proceedings. The reason was most clearly explained by Lord Shaw, [1913] AC 417, 483:

“The affairs are truly private affairs; the transactions are transactions truly intra familiam; and, it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.”

The wardship court is concerned with “truly private affairs”, arising “intra familiam” – within the family – and within the domus.

This leads on to the next matter. In the very nature of things, wardship proceedings also inevitably involve people other than the ward. Sometimes, as where parents unite in an application to protect their teenage daughter from the reciprocated attentions of an undesirable suitor, there is no issue as between the parents. A classic example is In re Martindale [1894] 3 Ch 193; more recent examples are referred to in Re K (Arranged Marriage) [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, para 79, and Egeneonu v Egeneonu [2017] EWHC 43 (Fam), [2017] 4 WLR 100, [2017] 2 FLR 1181, paras 41, 48-49. Usually, however, there is an issue between the parents (or, indeed, with other members of the family or with outsiders), for example, to take two traditional causes of controversy, disputes as to who should have care and control of the ward or as to the religion in which the ward should be brought up. So, if the primary focus is on the ward – it is, after all, the ward whose interests are paramount – that surely does not mean that the interests of the ward’s parents (and, it may be, other members of the family) are simply to be ignored or left to fall out of account. Exactly the same point applies, to take examples arising under the 1989 Act, where there are disputes as to residence or contact or public law proceedings involving separation of a child from his parents or family.

In this connection it is vital to appreciate that, unless mentally incapacitated, the ward once he has attained his majority, and as an adult being master of his own destiny (for the parental responsibility of the parents and any local authority will of course have lapsed), has, as a matter of law, the sole and unfettered right to waive his privacy. His decision on that is determinative, for on that issue the decision is for the now adult ward, not the ward’s parents nor the court: see E v Channel Four & Anor [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, para 52, and The British Broadcasting Company v Rochdale Metropolitan Borough Council & Ors [2005] EWHC 2862 (Fam), [2007] 1 FLR 101, paras 16-17. Similarly, even if the child has not attained her majority but is Gillick competent: see Re Angela Roddy [2003] EWHC 2927 (Fam), [2004] 2 FLR 949.

The pervasive theme of Scott v Scott – and it is not limited to wardship cases; it applies across the whole of family law – is the right of a litigant to be able to talk about the litigation and the impermissibility of judicial attempts to fetter this right. And this right, according to Fletcher Moulton LJ, applies to the ward once he has attained his majority. In the modern law this finds its application in the recognition that the right of the litigant to speak about the litigation is a right protected not just by Article 10 but also by Article 8: see Re Angela Roddy [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, paras 35–36, and Tickle v Griffiths [2021] EWCA Civ 1882, [2022] 2 FCR 126, paras 27-28.

On the other hand, and this reality cannot be ignored, the non-application or dis-application of section 12 may of course have a possible impact on the Article 8 rights of others who were involved in the proceedings, whether as parties or as witnesses: see, for examples, Roddy, Rochdale, A v Ward and Re G. In each of those cases, it is to be noted, such competing rights were protected by the grant of appropriate orders, either reporting restriction orders and/or orders permitting disclosure. That exercise involved in each case a careful and rigorous application of the well-recognised ‘balancing exercise’: see In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593.

A proper regard for these two potentially conflicting interests, as indeed a proper regard for the views of both Fletcher Moulton LJ and Lord Shaw in Scott v Scott, points the way forward and indicates the answer to the fundamental question: section 12(1)(a) does not cease to apply merely because the child has attained the age of 18.

Let me take a very simple example. Suppose there is a single child of the family who was the subject of care proceedings, who has now reached the age of 18, and who has fallen out with his parents. What are the consequences if the correct view is that section 12(1)(a) has ceased to apply?

• The child’s parents can decide to reveal all, and without giving any prior notice to their child who, if given the choice, might wish to preserve the cloak of privacy afforded by section 12.
• The child can decide to reveal all, and without having to give any prior notice to those, like the parents, who may have privacy interests which they would legitimately wish to preserve.

Neither outcome would seem right. And the first would seem particularly troubling. The child (now adult) was the subject of the proceedings and the person in whose interests section 12 was originally brought to bear. Why should his privacy interests in matters that may be exceedingly sensitive, private, personal and, perhaps, potentially embarrassing be swept away merely because he is now 18? The answer is that they should not, and nothing Fletcher Moulton LJ said even hints they should.

So, the correct answer to the fundamental question is, I suggest, that section 12(1)(a) continues to apply indefinitely (but not perpetually) notwithstanding the end of the proceedings and even if the child has reached the age of 18. This, as it seems to me, meets the principles laid down by Fletcher Moulton LJ and Lord Shaw (taking them together and accepting, as I do, their consistency) and meets the modern requirements, deriving from Articles 8 and 10, mandated by In re S.

The problem, of course, is that identified by Wynn-Parry J in In re de Beaujeu:

“Such cases must be dealt with as and when they arise and, as I see it, cannot conveniently be made the subject of any hard and fast or exhaustive rule.”

There is, I suggest, a principled approach which enables one, at least up to a point, to escape this counsel of despair. What do I have in mind and how would it work in practice?

Applying these principles to the example I have given, I suggest that:

• The view of the child (now adult), as the subject of the proceedings and the person in whose interests section 12 was originally brought to bear, must be predominant, though not decisive.
• If the child (now adult) wishes to preserve his privacy and opposes any disapplication of section 12, it should remain in place, any legitimate claims for publicity by the parents or others (for example journalists) being accommodated by appropriately crafted orders permitting disclosure.
• If the child (now adult), wishes to waive his privacy and seeks disapplication of section 12, that should be ordered, any legitimate claims by the parents or others for privacy being accommodated by appropriately crafted reporting restriction orders.

There will, of course, be more complex cases, for example, those involving two or more children and/or other members of the family and/or third parties such as witnesses, but proper application of the principles I have identified will point the way to the appropriate solution.

Returning to the example and question I posed at the outset, how, on this footing, is the journalist to proceed? More specifically, can the journalist proceed (and if so when) on the assumption that section 12(1)(a) can be ignored absent a court order?

As noted above, Doughty, Reed and Magrath suggest that a journalist:

“will be wise to either seek and obtain judicial permission to publish or the consent of all those whose privacy is affected (which may include parents and third parties).”

In substance I agree with this, but suggest a slight, though important, adjustment.

It all depends on what the journalist proposes to publish. If (say) the journalist is proposing to refer to an aunt’s mental health problems, then it would be reckless to publish without either obtaining judicial sanction or the aunt’s consent. If, on the other hand, the journalist is proposing to say nothing at all about the aunt, let alone about her mental health problems, then the fact that she is a family member who has article 8 rights for which she would be entitled to seek protection, is, I should have thought, neither here nor there. A similar analysis would apply in relation to witnesses, at least if it was proposed to name or otherwise identify them.

Putting the point shortly: A journalist who wishes to proceed without first obtaining judicial sanction must (i) obtain the consent of all those persons whose article 8 rights may be impacted by what is proposed to be published and (ii) exclude from what is published anything engaging the article 8 rights of those who have not consented.

If in doubt the journalist should apply to the court. Depending on the circumstances the application might be for a declaration that section 12 has ceased to apply and/or for an order disapplying section 12 subject to any necessary conditions, limitations or reporting restriction orders.

This is the lawyer’s answer. The journalist’s response is likely to be rather different. Would any editor publish on the basis of the various parties giving consent? Would their lawyers let them? What if someone were to withdraw consent just before publication? The reality, I suspect, is that almost all would be deterred by fear of it turning into a very expensive nightmare. The chilling effect is extreme. 

Moreover, what of those most directly affected by section 12: the families, the parents and children? What of their right to be able to talk about the litigation, recognised in Scott v Scott and now, as we have seen, protected not just by Article 10 but also by Article 8? The shameful reality, given all the uncertainties about the meaning, the effect and, not least, the duration of the prohibition imposed by section 12, is that this right is rendered largely nugatory.

What all this very clearly demonstrates is the remarkable uncertainty of the law in relation to the duration of the prohibition in section 12(1)(a). This uncertainty manifests itself in two distinct respects: first, the substantive law is uncertain; secondly, and if I am correct in my conclusions about the substantive law, its application is wholly uncertain and it is impossible to predict with any degree of certainty what the outcome may be in any particular case. And all this, it must be remembered, where the price of ‘getting it wrong’ is the possibility of an unlimited fine or even imprisonment.

The stark reality is that there is no acceptable process of judicial construction, however bold, which can enable a judge to eradicate the uncertainties inherent in section 12(1)(a). The defects in section 12(1)(a) are incapable of solution by the judges. Therefore, and leaving aside the more general arguments in favour of the repeal or reform of section 12, the only solution to this particular problem is to impose a statutory time-limit.

There are in principle three possible solutions.

• The first is to limit the operation of section 12(1)(a) to the period until the youngest child reaches the age of 18.
• The second would be to limit it to the period until X years after the youngest child reaches the age of 18. Whatever time-limit were to be selected it would be arbitrary – what is there to say that it should be 5, 10, 15, 20, 30 or 40 years – but it would at least provide certainty. What, then, on this approach should the time limit be? It should certainly not be towards the upper end of the bracket: could it seriously be suggested that a grandparent should be prohibited 30 or 40 years later from telling a grandchild all about what may be an important part of their family’s history? Properly, I suggest, it should be at the very lower end of the bracket: perhaps 5, or at most 10, years. I would prefer 5.
• A further possibility would be to express the protection as extending until either (say) 10 years after the last substantive order in the case or until the youngest child has reached the age of (say) 23, whichever is the later. I would not favour this: there is a paramount need for clarity and certainty on this crucial point and the date of the relevant order (perhaps many years in the past) may not be readily accessible to those who need to know whether or not the protection is still in place.

The question therefore is as between (1) and (2). My preference is for (1).

I propose therefore that, to meet this particular problem, section 12(1)(a), even if it remains otherwise unaltered, be amended to stipulate a time-limit of when the youngest subject child in the relevant proceedings has reached the age of 18.

Of course, whatever the time-limit it would not prevent the court, as at present, and applying well-known principles, either disapplying the statutory restraint or extending it by order.

In his famous analysis of the rule of law, Lord Bingham 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. And, as he pointed out, this is a principle long recognised in the jurisprudence of the European Court of Human Rights. He quoted what the Court had said (in a case, it may be noted, involving the law of contempt) in Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49:

“[T]he law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case … a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”

Can anyone seriously contend that section 12(1)(a) meets the test propounded both by Lord Bingham and by the Strasbourg court? I doubt it. How long before some intrepid journalist brings an application in accordance with section 4 of the Human Rights Act 1998 for a declaration of incompatibility or takes the matter to Strasbourg? And how long before some family member alleged to be in contempt for having breached section 12 takes the point by way of defence? And what of the outcome if they do?

This is, surely, yet another reason why the Law Commission should grapple with section 12. Its omission to do so, even if (which I do not accept) imposed upon it by the restrictive terms of reference which limit the ambit of its current investigation of the law of contempt, requires it to ignore a very large ‘elephant in the room’.

I conclude with three examples illustrating the uncertainties and absurdities of the present law.

• Sir Nicholas Mostyn, the recently retired judge, was born in July 1957. As he tells us in an essay entitled Why be a Family Lawyer? in Stephen Cretney (ed), Family Law: Essays for the New Millenium (Family Law, 2000) pp 109-112, in 1969 when he was 12 years old his parents divorced and he, and his younger siblings, were made wards of court. According to his detailed account, the divorce was acrimonious and the wardship proceedings, in which the Official Solicitor was involved more than usually protracted.
• Nicholas Farrell, the well-known journalist, was born in October 1958. In a recent article entitled Dolce vita in the issue of The Spectator for 14 September 2024, he tells us that his divorced parents could not agree on whether, aged 15, he should be allowed to travel around Europe with a school friend on Interrail tickets, that his mother seized his passport and hid it, but that “I managed to get a replacement via something called the Official Solicitor.”
• 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.”

Each example exemplifies two issues:

• Does what they have published amount to no more than “the nature of the dispute” (which is permissible) or have they published “the substance of the matters” (which is not permissible). The fastidious lawyer might answer very possibly the latter.
• More fundamentally, can it seriously be asserted that these authors (aged at the relevant time 43, 65 and 52 respectively) should still be constrained by section 12?  Even the most fastidious lawyer would say the very suggestion is obviously absurd – but not be able to say why.

And, back of all this, there is another question, which I mention without further discussion: if some person were to seek their committal for contempt of court, what would be the requisite mens rea?   

The case for urgent and drastic reform is surely unanswerable.

Feature pic: Bars Creative Commons thanks Alberto at Flickr