Welcome to another week.

Lexis Nexis has published a very good summary of transparency issues within the family courts, as a new reporting pilot launches today.

We are adding an extract from the summary below, written by Nicholas Fairbank and Olivia Gaunt, both barristers at 4 Paper Buildings. Subscribers can access the summary in full here.

What are the issues?

Proceedings in the family courts are often kept behind closed doors in order to ensure that data and information about families (and, most importantly, children) and their private matters are protected. ChA 1989 proceedings and financial remedy proceedings often occur concurrently. Almost always, both sets of proceedings will involve the same parties, so then the question arises as to whether those parties and/or their legal representatives are prohibited from disclosing the papers from current (or concluded) ChA 1989 proceedings into financial remedy proceedings without the court’s permission, and if so, why?

In light of increased transparency in the financial remedies arena, and more recently the reporting pilot announced by the President of the Family Division, Sir Andrew Macfarlane, on 29 November 2022 (see News Analysis: President of the Family Division announces reporting pilot in three areas) concerning proceedings relating to children, this prohibition only increases in relevance. If confidential information from children proceedings is disclosed into financial remedy proceedings and a judgment in the latter is published, a breach of confidentiality (which, as we set out below, is illegal) can cause real harm. It is therefore timely to address the issue given what we have observed (some of which is therefore anecdotal and arguably subjective) to be an increase in the prevalence of references to and often direct quotations from ChA 1989 proceedings in financial remedy proceedings, including regrettably in counsel’s documentation filed with the court.

What is the legal framework that prohibits disclosure?

ChA 1989 proceedings are covered by section 12 of the Administration of Justice Act 1960 (AJA 1960), which states:

‘(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) 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 …’

What constitutes ‘publication’?

There is no statutory definition of publication in this context, however Mr Justice Munby (as he then was) provided a definition in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142 (at para [72]), ie:

‘…where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children, there is a ‘publication’ for the purposes of [AJA 1960, s 12] whenever the law of defamation would treat there as being a publication. I recognise that this means that most forms of dissemination, whether oral or written, will constitute a publication, but I do not shrink from that.’

This definition was cited with apparent approval by the Court of Appeal in Griffiths v Tickle and Others (Rights of Women and Another Intervening) [2022] EWCA Civ 465, [2022] 2 FLR 879.

What constitutes ‘information’?

Munby J, again in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, provided a non-exhaustive list (at para [66]) of what constitutes information, saying:

‘What is it that cannot be published?

In the first place it is quite clear that the effect of [AJA 1960, s 12] is to prohibit the publication of accounts of what has gone on in front of the judge sitting in private, as also the publication of documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.) [AJA 1960, s 12] likewise prohibits the publication of extracts or quotations from such documents: Official Solicitor v News Group Newspapers and Another [1994] 2 FLR 174; also the publication of summaries: X v Dempster [1999] 1 FLR 894 at p898. It is also quite clear, in my judgment, that the prohibition in [AJA 1960, s 12] applies equally whether or not the information or the document being published has been anonymised.’

In the main judgment in Griffiths v Tickle [2021] EWCA Civ 1882, [2021] All ER (D) 85 (Dec), the court provided a similar list (at para [43]), ie:

‘[AJA 1960, s 12(1)] makes provision about the publication of information about such proceedings. This covers the publication of accounts of what has gone on in front of the judge, and the publication of documents such as transcripts of judgments, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings.’

Therefore, for the purposes of AJA 1960, s 12, most of the papers from ChA 1989 proceedings will constitute information which cannot be published.

In X v Dempster [1999] 1 FLR 894 (at p898-899), Mr Justice Wilson provided the following list, which includes orders, and sets out what can be published and is not prohibited, unless subject to a specific order prohibiting publication:

•the fact that a child is a ward of court and is the subject of wardship proceedings, and:

◦the name, address or photograph of such a child (per Re W and Others (Wards) (Publication of Information) [1989] 1 FLR 246, at p257H), and

◦the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings (per Re De Beaujeu’s Application for Writ of Attachment Against Cudlipp [1949] 1 All ER 439)

•that a child is the subject of residence (as it then was) or other proceedings under ChA 1989 or of proceedings relating wholly or mainly to their maintenance or upbringing (per Re W and Others (Wards) (Publication of Information) [1989] 1 FLR 246, at p257H)

•the date, time or place of a past or future hearing in such proceedings (Pickering v Liverpool Daily Post and Echo Newspapers plc and Another [1991] 1 All ER 622, per Lord Bridge of Harwich at p423D–F)

•the nature of the dispute in such proceedings (Pickering, at p423F–G)

•anything which has been seen or heard by a person who was conducting themselves lawfully ‘in the public corridor or other public precincts outside the court in which the hearing in private is taking place’ (Re W and Others, at p257G–H), and

•the text or summary of the whole or part of any order made in such proceedings (AJA 1960, s 12(2))

In relation to the fact of proceedings, in Griffiths v Tickle and Others (Rights of Women and Another Intervening) [2022] EWCA Civ 465, [2022] 2 FLR 879 the court cited P v Liverpool Post and Echo Newspapers plc [1991] 1 All ER 622, which said that there is ‘nothing objectionable about disclosure of the mere existence of such proceedings’ (at para [26]). Indeed, parties to financial remedy proceedings are routinely required, when completing their Form E, to include ‘details of any other court cases between you and your spouse/civil partner, whether in relation to money, property, children or anything else’ (section 1.15, Form E).

What are the relevant provisions in the Family Procedure Rules 2010?

‘Publication’ (as defined) is not specifically permitted by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955. FPR 2010, SI 2010/2955, r 12.73(1)(a) states that for the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated where the communication is to:

•a party

•the legal representative of a party

•a professional legal adviser

•an officer of the service or a Welsh family proceedings officer

•the welfare officer

•the Director of Legal Aid Casework (within the meaning of section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012)

•an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings

•a professional acting in furtherance of the protection of children, or

•an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies

In addition, FPR 2010, SI 2010/2955, r 12.73(1)(b)-(c) provide that information may be communicated where the court gives permission, or (subject to any direction of the court) in accordance with FPR 2010, SI 2010/2955, r 12.75 and FPR 2010, PD 12G.

As FPR 2010 does not specifically make provision for disclosure of ChA 1989 proceedings papers into financial remedies proceedings, publication of information from ChA 1989 proceedings is not authorised by FPR 2010 and, unless permission is given by the court, may amount to a contempt of court.

What is the position where ChA 1989 proceedings are ongoing?

In relation to ChA 1989 proceedings which have not yet concluded, the protection comes from ChA 1989, s 97(2), which states that:

‘No person shall publish [to the public at large or any section of the public] any material which is intended, or likely, to identify—

(a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b) an address or school as being that of a child involved in any such proceedings.’

For a comprehensive summary of the relevant provisions and legal background, see also Confidentiality and (un)authorised disclosures of Children Act documents for use in Financial Remedy proceedings [2022] Fam Law 762.

What are recent developments as to transparency in the family courts?

The President’s report in October 2021, ‘Confidence and Confidentiality: Transparency in the Family Courts’ discussed the challenges of ‘squaring the circle’ in managing the juxtaposing needs of ensuring all parties’ confidentiality and identities are kept private, while implementing steps to boost confidence in the family courts. The President argued that the current system fails to allow public scrutiny or accountability and that reform is necessary to increase transparency, without compromising the anonymity of the families and children involved in cases.

The transparency reporting pilot is up and running, for a period of 12 months from 30 January 2023. The designated courts are in three parts of the country (Cardiff, Leeds and Carlisle), with a view to a nationwide expansion if successful. The pilot relates specifically to children proceedings.

Under the pilot, accredited journalists and ‘legal bloggers’ (ie ‘duly authorised lawyers’ for the purposes of FPR 2010, SI 2010/2955, r 27.11) will be permitted to report what they see and hear in designated family courts, subject to a transparency order. In each case, the court will consider whether to make a transparency order but will retain discretion to direct that there should be no reporting of a particular case. The standard transparency order directs that, among other details, the name of any subject child, parent or other family member who is a party or is mentioned in the case, or whose name may lead to the child being identified, cannot be reported unless the court grants express permission. Crucially, a transparency order does not permit the parties themselves to publish information from the proceedings where it would otherwise be restricted by AJA 1960, s 12 and/or FPR 2010 (ie into financial remedy proceedings).

See also the decision in BR & Others (Transparency Order: Finding of Fact Hearing) [2023] EWFC 9, a public law children case in the Family Court at Leeds, in which Mr Justice Poole made reference to the commencement of the reporting pilot in that court regarding a finding of fact hearing expected to last for eleven weeks. With the pilot due to begin approximately two weeks after the beginning of the hearing, Poole J thought it appropriate to adopt the pilot from the outset of the hearing rather than to do so two weeks after the case had begun.