In a recent interesting judgment hiding behind the nondescript title of M v F & Anor [2025] EWHC 801 (Fam), Mrs Justice Harris considers the source of a judge’s power to make and vary a transparency order, or to make an order which adjusts the automatic restraints on reporting in children cases in ways not spelled out in new Practice Direction 12R. This is the Practice Direction which from January this year converted the ‘Reporting Pilot’ into the new ‘norm’ of Open Reporting across children cases.
The judgment arose when a mother whose case had previously been reported by the media thanks to a transparency order made under the (then) Reporting Pilot, wanted now to be able to tell her own story rather than to let others tell it for her (something that most transparency orders do not allow). She wanted to do so under a pseudonym to protect the identity of a child, but to be able to give talks and presentations. You can read the backstory here.
Because the terms of a standard transparency order usually allow only the media to report on a case, and do not allow the parent to do so (other than through giving an interview to a journalist), the mother had to make an application to be permitted to tell her own story. Although this is reported as a ‘first’, allowing parents who to tell their own story is something that judges have done on various occasions in the past, before the Reporting Pilot and ‘Transparency Orders’ were even on the horizon.
In late February there were some reports in the media covering a preliminary hearing in the case, where the judge is reported to have questioned the power of the court to vary a transparency order. See here in The Times (£) for example:
One victim’s bid for the right to tell her story – With transparency the new watchword, a mother who suffered domestic abuse wants to publicise her experiences before a judge, while remaining anonymous
The Times report:
‘Mrs Justice Harris 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 seemed a bit odd because the rules are not the source of the judge’s power in this respect. The source of the judge’s power to make a reporting restriction order, a transparency order or any other order that adjust the automatic restraints or freedoms on publication is the inherent jurisdiction and / or s6 Human Rights Act 1998 (as to which see more below). Court rules are secondary legislation and cannot create a power where none exists, and a judge’s powers certainly can’t be taken away by rules of court. Rules and Practice Directions simply tell the judge how to go about managing cases and reaching decisions using her existing powers. Nothing in the court rules had stopped judges allowing reporters and parties to report on cases or to tell their stories in the past, where that was meritorious. Had something got lost in translation?
The judgment – looking for jurisdiction
Now that a decision has been made on the application, allowing the mother to tell her own story as requested, we can understand the preliminary reports by reading the detailed judgment of Harris J.
The decision to allow the mother’s application was, ultimately, comparatively straightforward because of the very strong public interest in the case, the strength of the mother’s own Article 10 rights, and her sensible proposal for a pseudonym to reduce the risk of identification of the child. But what took up the bulk of the judgment was an exploration of a prior question – do I have power to do this and where does it come from? i.e. Jurisdiction.
This was a question that another High Court Judge, Mr Justice Williams, had neglected to ask himself when deciding to afford anonymity to the judges who had dealt with the family proceedings concerning Sara Sharif, and the result was he got in a pickle and was overturned by the Court of Appeal (see Louise Tickle & Anor v The BBC & Ors [2025] EWCA (Civ) 42), who said he didn’t have any jurisdiction at all. Perhaps Mrs Justice Harris had that in mind when she scoured the family procedure rules and case law at length to find the source of her power to do what the mother was asking her to.
In the Tickle v BBC case, the Court of Appeal said the judge had no jurisdiction to grant anonymity to the historic judges, because there was no application before him raising the point, and because there was no evidence that the human rights of the people he was seeking to protect (the judges) were engaged. Neither of those factors apply here – there was an application and the rights of the child and parents (Article 10 freedom of expression and 8 private and family life) were most definitely engaged. Paragraph 61 points to the answer to the judge’s question about jurisdiction in this case:
It seems to me, therefore, that the only realistic jurisdictional foundation for the judge’s decision was section 6 of the HRA 1998, perhaps taken alongside section 37. Section 6 provides, as I have said, that it is “unlawful for a public authority to act in a way which is incompatible with” an ECHR right. Accordingly, if the judge had, on the 9 December 2024, reason to believe that the historic judges’ article 2 or 3 rights would or might be engaged by allowing the press to publicise their names, he would have had to refrain from doing that, and if he had had reason to suppose that their article 8 rights would be engaged, he would have had to undertake the balancing exercise envisaged in Re S.
[my emphasis]
There is a long line of case law which says that the court has power to relax or tighten reporting restrictions. This goes back before the implementation of the Human Rights Act 1998 (‘HRA’). Historically, this power was said to derive from the court’s ‘inherent jurisdiction’, but separately from that, since the HRA came into force s6 has made it unlawful for a court (which is a public body) to act in a way that is incompatible with a convention right. In effect this creates not just a power, but also imposes a duty upon a court to ensure that any order it makes finds the correct balance between (say) Article 8 (private and family life) and Article 10 (freedom of expression). That is what the judges are describing in paragraph 61 of Tickle v BBC.
In Re S (a child) [2004] UKHL 47 (the case referred to in paragraph 61, and which sets out the very ‘balancing exercise’ the judge correctly carried out to reach her decision), the House of Lords considered the impact of the implementation of the HRA on this area. At Court of Appeal level Hale LJ had pondered whether the inherent jurisdiction was now simply ‘the vehicle which enables the court to conduct the necessary balancing exercise between the competing rights of the child under Article 8 and the media under Article 10’. The Lords upheld the Court of Appeal, and having set out the famous balancing exercise, Lord Steyn went on:
The House unanimously takes the view that since the 1998 Act came into force in October 2000, the earlier case law about the existence and scope of inherent jurisdiction need not be considered in this case or in similar cases. The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from convention rights under the ECHR. This is the simple and direct way to approach such cases. In this case the jurisdiction is not in doubt. This is not to say that the case law on the inherent jurisdiction of the High Court is wholly irrelevant. On the contrary, it may remain of some interest in regard to the ultimate balancing exercise to be carried out under the ECHR provisions. My noble and learned friend Lord Bingham of Cornhill invited the response of counsel to this approach. Both expressed agreement with it. I would affirm this approach. Before passing on I would observe on a historical note that a study of the case law revealed that the approach adopted in the past under the inherent jurisdiction was remarkably similar to that to be adopted under the ECHR. Indeed the ECHR provisions were often cited even before it became part of our law in October 2000. Nevertheless, it will in future be necessary, if earlier case law is cited, to bear in mind the new methodology required by the ECHR as explained in Campbell.
Para 23, per Lord Steyn
Lord Steyn doesn’t explicitly deal with the jurisdiction to relax the prior restraints imposed in family proceedings, but logically the principle must apply equally.
Harris J first looked to the rules of court and s12 Administration of Justice Act 1960, concluding that
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.
[Paragraph 44]
Harris J was ultimately persuaded that the power to do what the mother asked must exist by a passage in Re C (A Child) (Private Judgment: Publication) [2016] EWCA Civ 798, [2016] 1 WLR 5204, which approved Munby J’s explanation of the law in Kent County Council v The Mother, The Father, B [2004] EWHC 411 (Fam) (‘Re B‘):
I doubt whether the court’s case management powers are a sufficient basis for holding that the power exists. But I am in no doubt that the court does have the power to order the disclosure of part or all of what takes place in private proceedings (including any judgment made by the court during the course of or at end of the proceedings). In my view the court has that power under its inherent jurisdiction. It had that power before the incorporation of the Convention by the Human Rights Act 1998: see Kent County Council v The Mother, The Father, B [2004] EWHC 411 (Fam) at paras 83 to 86 where Munby J summarised the relevant jurisprudence. The court continues to have that jurisdiction following the incorporation of the Convention. The domestic and Strasbourg jurisprudence is reflected in the Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230 (“the Practice Guidance”) issued by Sir James Munby P in relation to the publication of judgments in family courts and the Court of Protection. See also per McFarlane LJ in In Re W (Children) (Care Proceedings: Publicity) [2016] 4 WLR 39 at paras 32 to 40.
[Para 12]
Essentially, the judge concludes she is bound by the Court of Appeal who agree with Munby J that the power exists.
Jurisdictional unease
At various points throughout the judgment Her Ladyship expresses doubt as to how it all works:
‘section 12(2) provides express provision for these prohibitions on publication to be further tightened by the court, [but that] section 12 does not provide any general power for the court to relax the statutory prohibitions’
[para 19]
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.
[para 52]
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.
[para 55]
These passages all suggest a confusion about what s12 AJA does and does not do, and how it operates. The conclusion at paragraph 56 that there is
a lack of certainty as to the constitutional legitimacy of the High Court’s inherent jurisdiction to permit publication in circumstances such as this
is one which, respectfully, we cannot accept. The case law is crystal clear.
Section 12 Administration of Justice Act 1960 – what does it actually do?
We often talk about s12 as if it is the source of the rules around privacy, and as if it makes publication of information a contempt of court. But a careful reading of the words of s12 and of the caselaw makes clear that is not actually correct, and it is a sort of lazy shorthand (which we are all guilty of).
s12 does not itself create a new type of statutory contempt, and nor does it create a situation which judges are unable to adjust. The publication of information relating to proceedings concerning the welfare or upbringing of a child is a common law contempt which predated the enactment of s12 , and s12(2) expressly leaves intact a judge’s power to permit such publication under the common law i.e. using the inherent jurisdiction (see In re F (Orse A) (A Minor) (Publication of Information) [1977] Fam 58). This is the ‘disclosure jurisdiction’.
s12 AJA does not oust the common law in relation to publication of information arising from children proceedings: it simply draws an outline around it. To put it another way, s12 puts a fence around the pre-existing common law contempt of court so that its edges are defined, making clear that ‘The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court’, before going on to list 3 limited exceptions i.e. which types of information relating to private proceedings will continue to be a contempt of court: ‘except in the following cases…’. This list includes children cases. In short, in enacting s12 Parliament was restricting the common law powers to commit for contempt of court by publication of information, but explicitly leaving untouched the bits inside the fence.
Part of the explanation is back in a part of Re B not quoted by the judge, at paragraphs 83-84. These set out the earlier (pre-HRA) Court of Appeal authorities that went before Re B and which confirmed the jurisdiction:
…Thus the ‘automatic’ restrictions. But it is clear 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.
The principles upon which these jurisdictions (which for convenience I shall refer to as the “disclosure jurisdiction” and the “restraint jurisdiction”) were exercisable before the Human Rights Act 1998 came into force were well established. The leading authorities in the Court of Appeal were, in relation to the disclosure jurisdiction, In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 and, in relation to the restraint jurisdiction, In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1.
One could argue whether or not there are now parallel jurisdictions at common law and under the HRA or whether the latter has superceded the former, but its a sterile debate – the House of Lords evidently didn’t think it made much difference, because the exercise was essentially the same – but either way the jurisdiction obviously exists. What is surprising is that it caused the court so much trouble here, since it is this very jurisdiction which underpins and makes possible Practice Direction 12R and the Open Reporting Provisions and has been repeatedly approved and applied by the Court of Appeal and above, including in a number of ‘transparency’ cases in the last three or four years. And both PD12R and Re S, which the judge followed make clear that the outcome must be case specific.
What powers does the Family Court have to deal with transparency?
Whilst Harris J concluded that it was right to permit the mother to tell her story, and that she had the power to do so, the judge also concludes that the power in the Family Court is much more limited:
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. Similarly, there is no readily available template order for parties to proceedings in the family court to utilise, as now exists in PD 12R for accredited media representatives and bloggers.
[paragraph 56]
On this last conclusion we respectfully disagree with the judge. The Family Court plainly has power to deal with these issues, and the lack of a suitable template order does not prevent judges of the Family Court from making similar orders in future, if warranted.
Firstly, s6 Human Rights Act 1998 undoubtedly is available to and binds judges of the Family Court as much as it does those in the High Court. The court undoubtedly has a duty to carry out the same Re S balancing exercise when an application is before it, and to implement a decision which is compatible with the outcome of it (or if it cannot due to some statutory barrier to make a declaration of incompatibilty).
Secondly, the inherent jurisdiction is available to and exercisable by judges in the Family Court when the power is used to make incidental and supplemental orders, such as transparency orders during proceedings. This was recently affirmed explicitly in K (Children) (Powers of the Family Court) [2024] EWCA Civ 2 when the President said:
The appeal is an opportunity to reaffirm the wide and flexible powers of the family court. Where proceedings have been properly issued, the judge or magistrates to whom the case has been allocated may make incidental and supplemental orders of a kind that could be made under the inherent powers of the High Court where the purpose of such orders is to give effect to their substantive decision.
Those powers are explicitly set out in S31E(1)(a) of the Matrimonial and Family Proceedings Act 1984, the Act which created the Family Court in 2014. That does not make them statutory powers, any more than s12 made the pre-existing common law publication contempt into a statutory contempt.
It appears that the judge may not have been referred to K (Children) (Powers of the Family Court), as it is not mentioned. It is as a result of these inherent powers being available to Family Court judges that the court is empowered to make any order relaxing the provisions around reporting or publication of information, whether in the form of a ‘transparency order’ or not. If the court did not have them the whole Open Reporting scheme would fail.
So what about the FPR and PD 12R?
It appears that, in part, as a result of submissions made by counsel for the child the judge started her exploration with a focus on the FPR. In doing so the judge was really looking in the wrong place. True it is that FPR 12.73(2) contains a provision which says that this section of the rules don’t permit publication of information to the world at large (‘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’), but when one appreciates that the source of the power is not the rules it is obvious that this is a red herring.
Harris J seems to treat Practice Direction 12R as limiting her power in respect of publication of information, and is cautious about whether she is allowed to go outside of its anticipated structure. This is a misunderstanding. The Transparency Order is a vehicle through which the court can meet its duties under s6 HRA (or the inherent jurisdiction if you prefer). The template order is designed to be adapted to meet the facts of the case and the resultant fact specific balance that Re S tells judges they are required to carry out.
And if one wants to look at the rules a better place to look is PD12R itself, which explicitly reminds the reader that a transparency order template is just that and that it is up to the court in the individual case to adjust it to fit the specific facts and circumstances i.e. so that it is in line with the outcome of any Re S balancing exercise. For instance:
7.1 This section sets out matters the court may wish to take into account when considering whether to make a Transparency Order and, if so, what the terms of such an order should be.
7.2 As noted in paragraph 5.1, there is a template form of Transparency Order, but the court may modify the terms of the template Transparency Order as appropriate on the facts of the case.
…7.6 Where the court makes a Transparency Order, the court retains a discretion to later vary or discharge the Transparency Order
The answer to this case was very simple: consider the facts and where the balance lies and craft an order that matches the outcome of that exercise. In many, perhaps most cases, that will be an order that looks much like the template provided through PD12R, but where the balancing exercise dictates something else there is no requirement to stick slavishly to the template, and indeed it will be wrong to do so.
A Transparency Order is not a straightjacket, it is just a tool, and it needs to be tailored to fit.
Post script
An interesting aspect of this judgment that we’ve not had space to cover here is the refusal to permit the father (found to be a perpetrator of abuse) to tell his own story, as he had also asked to do.
Lucy Reed KC is the Chair of The Transparency Project
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
Our legal bloggers take time out at their own expense to attend courts and to write up hearings.
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.
Thanks for reading!