It’s not that often that a journalist or legal blogger attends a family court hearing but, when they do, they will often ask for permission to report what has taken place, anonymously. Because lawyers and judges are often unfamiliar with dealing with this sort of request, there can be confusion about the correct approach, and sometimes even about whether an ‘ordinary’ Family Court judge is allowed to deal with such a request.
Now that the arrangements permitting legal bloggers access to hearings have been finally incorporated into the FPR, and as the Transparency Review reforms progress, such applications are likely to become more common.
The short answer to the question posed in the title of this post is : any Family Court judge can relax reporting restrictions (but it requires High Court powers to impose them). This post is a basic explainer of why that is, and of the law and procedure rules that apply. It is intended to be reasonably accessible to non-lawyers, but also to be detailed enough to be of use to lawyers, judges and reporters having to work through these issues where they arise in cases they are involved in.
The applicable law
The laws which restricts reporting in most cases concerning children are s12 Administration of Justice Act 1960 and s97 Children Act 1989. Broadly speaking, the former prevents publication of what happens in hearings and is said in documents, whilst the latter prevents publication of information likely to identify the child as a subject of the proceedings. Both of them can be relaxed, where appropriate. The effect of s97 is limited to the life of proceedings (Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 1).
How can the effect of these sections be relaxed?
In the case of s97, the court may relax the prohibition where the welfare of the child ‘requires it’. (s97(4)) That sounds strict, but caselaw confirms the section has to be interpreted to allow for relaxation where necessary to give effect to the convention rights of others (once the court has balanced any competing rights) (Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam)). In practice, s97 is most often relaxed where a child is missing or abducted and there is a need for a public appeal featuring the child’s name and picture, but there are occasional examples of the relaxation of s97 in other circumstances, including where there is no direct positive benefit to the child (see Al M (Children) [2020] EWCA Civ 283, and Griffiths v Tickle).
In the case of s12, there are two routes to the relaxation of the prohibition. Unlike s97, which makes publication of the prohibited information a criminal offence, s12 operates by saying that publication of ‘information relating to proceedings’ is NOT a contempt of court UNLESS it falls within the categories set out in the section. In short, this is where the court sits in private to deal with a case relating to a child (either by exercise of the inherent jurisdiction, the Children Act or Adoption & Children Act or otherwise relates wholly or mainly to the maintenance or upbringing of a minor). That obviously catches most cases about children.
In March 2004 Kent County Council, Re B (A Child) v the Mother & Ors [2004] EWHC 411 (Fam), Sir James Munby set out the classic exposition of the court’s ability to relax or restrain publication via the inherent jurisdiction. This is the first route.
However, a year after the Kent CC case, s12(4) AJA was amended to read as follows :
(4)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 particular where the publication is not so punishable by reason of being authorised by rules of court).
(the 2005 amendment is in bold)
Since then, various iterations of the Family Proceedings Rules and later the Family Procedure Rules (and their accompanying Practice Directions) have set out an increasingly long list of circumstances in which individuals are explicitly permitted to publish information relating to proceedings that would otherwise be caught by s12. The current rules are set out in FPR 12.73 and 12.75 and in PD12G (and in adoption cases in PD14E). Very broadly, they can be summarised as allowing for communication of information in three main areas:
- where information is shared to enable someone to deal with the court case (communication with lawyers and McKenzie friends etc), or for the professionals involved to carry out their functions (for child protection purposes, for the purposes of criminal investigation, for professional regulatory purposes);
- where information is shared for some other legitimate specified purpose (for example to obtain therapy);
- where the court gives permission via FPR 12.73(1)(b).
One of the reforms proposed by the President of the Family Division in his Transparency Review report last October was to adjust PD12G to permit communication between journalists / legal bloggers and parties to proceedings. That change hasn’t taken place yet, but it illustrates the fact that the list of permitted publications (or ‘communication of information’ to use the terminology of the rules) is not fixed.
So, which judges can use these powers of relaxation?
Where an application is made by a journalist or blogger to relax the ‘standard’ reporting restrictions which apply by operation of law, it is almost always in reality an application to relax the potential effect of s12 – a reporter will usually only seek (and the court will usually only grant) permission to report on an anonymised basis, which does not offend against s97 Children Act.
An experienced blogger or reporter may request that they are given permission to report what has happened at the hearing on condition that there is no mention of names, the child’s precise age, or other potentially identifying facts (e.g. in one case it might be country of origin or religion, in another it might be town of residence or number of siblings).
Because pretty much all of the information the reporter wants to report is ALREADY prohibited, this sort of ‘you can report this without that’ arrangement is essentially the court defining how far it is prepared to go in granting permission under FPR 12.73(1)(b). It is NOT the same as imposing a reporting restriction, which is an order that stops somebody doing something that they would otherwise be permitted to do. It is similar to the imposition of a rubric at the top of the order which says, in effect ‘I’m allowing publication but on the basis that you can only report what is in the judgment, and mustn’t identify the people in it’. The list of ‘prohibitions’ that is often proposed by a reporter and often spelled out in an order is simply a convenient way of describing how far the relaxation goes.
So, in the scenario above, the court is not imposing a reporting restriction, doesn’t need to have recourse to the inherent jurisdiction, and is simply exercising the power given to ALL Family Court judges (whatever tier) by FPR 12.73(1)(b).
FPR provides a lawful basis for the relaxation of s12 by the court. It does NOT provide a lawful basis for the imposition of reporting restrictions.
However, while it is clear that a Family Court judge has jurisdiction (power) to make orders of this sort via FPR 12.73(1)(b), there will inevitably be cases where, for reasons of complexity or gravity, it is appropriate for the matter to be allocated to a judge with High Court powers. In our experience, many of these requests are both uncomplicated and uncontroversial, once the parameters of the request are clearly set out. They can be and are quite properly dealt with by judges of all levels, at the hearing when the request is made, and in practice can often be agreed by discussion between the parties as to what might be identifying or should otherwise not be published. There are examples on our legal blogging page of reports made pursuant to permission given under FPR 12.73(1)(b) by District Judges and Circuit Judges (largely without opposition from the parties).
So, a judge faced with this sort of request doesn’t need to worry about whether they CAN deal with such a request, they only need to consider if they SHOULD. This is consistent with the guidance issued by the President of the Family Division in 2019 on the topic, which clearly anticipates that matters will generally be dealt with in the Family Court, but that there may be some cases where transfer is indicated :
in deciding whether to lift automatic reporting restrictions and/or to publish the judgment, the court may need to consider whether, in order to allow such reporting, additional reporting restrictions need to be imposed under the inherent jurisdiction (for example, anonymising any children and their parents after the conclusion of the proceedings, when CA 1989, s 97(2) no longer applies). In such cases, consideration should be given to transferring the issue for determination by a judge with High Court jurisdiction.
Note that the guidance only indicates that this should be considered, not that it is automatic. In many cases the extension of the effect of s97 will be both disproportionate and unnecessary (particularly in the case of legal blogging reports unlikely to generate enduring or widespread mainstream media attention and where proceedings are likely to be ongoing for some time).
However, in cases where the court is asked to IMPOSE a contra mundum injunction (an injunction against everyone) that restricts publication of information that could otherwise be lawfully published (whether that is to extend the life of s97 beyond the end of the proceedings or something else) a proper application will be necessary (on notice) and the decision will require consideration by a High Court judge (or a Circuit Judge exercising High Court powers via s9 Senior Courts Act), because this requires the exercise of the Inherent Jurisdiction (High Court powers).
Cases where the court is, unusually, asked to relax s97 for reasons other than to recover a missing child are likely to be of sufficient importance and complexity to be allocated to a judge with High Court powers (as indeed were all the examples we gave above).
What factors are relevant to a judge’s decision?
In every case, the court will need to weigh and balance any competing Convention rights – typically these will be the Article 6 and 8 rights of the parties, and the Article 10 rights of the reporter (and sometimes the parties too). In many cases, this need not be a laborious exercise, because the anonymity provisions should hopefully strike a reasonable balance between those rights, protecting Article 8 rights, whilst facilitating Article 10 rights at the same time, and representing no more than a necessary and proportionate interference with either set of rights. In other cases, the balance will be far more nuanced and complex and more time will be needed. As ever, the needs of the case and the appropriate outcome will be very fact specific. The classic exposition of the judicial exercise is set out in paragraph 17 of the judgment of Lord Steyn in Re S [2004] UKHL 47, where he set out four propositions :
- neither article has as such precedence over the other.
- where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.
- the justifications for interfering with or restricting each right must be taken into account.
- the proportionality test must be applied to each (the ultimate balancing test).
The case of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 confirms that welfare is ‘a primary consideration’ but not paramount when the court is dealing with an issue not about a child’s upbringing (including an issue about publication).
All Family Court judges are required, as part of their regular work, to balance the competing Convention rights of the parties and to consider lawfulness, necessity and proportionality, so this exercise in itself is well within the competence of Family Court judges. Advocates and judges in the Family Court, where the culture is one of the prioritisation of privacy, need to pay particular attention to the first two of the four propositions, and to focus on the specifics rather than general assertions or assumptions derived from common practice or experience.
What about Magistrates?
After publication of this post we were asked on twitter if this post applies to Magistrates. This section is an updated added to clarify that point.
The short answer is : yes, but. Magistrates apply the same rules and law we discuss above and have the same powers as more senior tiers of the judiciary.
As we described above Magistrates CAN make orders using rules 12.73(1)(b), but whether they SHOULD will probably depend on the circumstances. Because Magistrates are the least senior rank of the judiciary and they are not legally qualified (though they do have a legally qualified legal adviser to help them), it is probably more likely that Magistrates would feel it was appropriate to refer the request to a more senior Judge than if the same issue came up in front of a case heard by a District or Circuit Judge.
It is probably worth pointing out that there is some ‘Allocation Guidance’ which gives some indication of what sorts of issues should be allocated to which tier of judge. However, it hasn’t been updated since 2014 and isn’t massively helpful on this issue. The Guidance relating to PRIVATE law proceedings suggests that ‘Cases where there is, or is likely to be, a significant issue in relation to disclosure of documents to or from third parties or outside agencies’ should be allocated to District Judges. However, the Guidance relating to PUBLIC law proceedings suggests that cases described as raising ‘Complex issues as to disclosure – where a party seeks leave to withhold information from another party, or where there is an issue about the release of confidential information involving a difficult point of law, or where disclosure of documentation involves a difficult or sensitive exercise of discretion or public policy issues’ should be allocated to CJ/HCJ level (unless released to a DJ).
That probably supports the proposition that issues of publication other than very straightforward, and probably agreed requests for permission to publish, should be referred to a more senior judge for a decision, or at least for confirmation that the Magistrates may deal with it. It also supports the point made above that the complexity of the disclosure request is likely to inform decisions about whether more senior judges i.e. DJs and CJs SHOULD deal with an individual application, or if they too should refer it upwards.