In October 2021, Sir Andrew McFarlane, President of the Family Division, published his report Confidence and Confidentiality: Transparency in the Family Courts and called on judges to publish at least 10% of their judgments. This evolution towards transparency aims to improve the public’s understanding of the court process and enhance confidence in the court system.
The recent case of Re T (A Child) (No.2) (Transparency: Publication of the Party’s Names) [2024] EWHC 161 (Fam) raised the contentious topic of the balance between transparency in family proceedings and the need to protect the privacy of children and vulnerable adults involved in such proceedings. Felicia Munde examines the case and the approach of the family court where children are involved.
According to official court statistics, more than 80,000 children are involved in family law proceedings in England and Wales. While there are undeniable benefits to increased transparency in the family courts, the family court must balance its approach carefully to maintain confidentiality and privacy of both children and vulnerable adults who find themselves entangled in such proceedings. This is particularly the case when it comes to children proceedings that raise safeguarding issues involving domestic abuse, substance abuse and child safety.
Issues in Re T (A Child)
The parties have been engaged in a dispute for more than nine years over contact arrangements for their children, T (now 15), and his sister, S (now over 18). The dispute has involved more than 70 hearings and 26 judges.
In this discrete branch of the case, the court had to grapple with the potential publication of the latest judgment relating to the contact arrangements between T and his father. This judgment also set out a history of the case, including findings that the mother had displayed alienating behaviours and had “deliberately influenced the children into rejecting the father”.
The legal framework within children proceedings
The restriction on publication of decisions and information relating to cases involving children and young people is found in various places, including Section 12 of the Administration of Justice Act 1960, which states that in proceedings relating to the upbringing of a child, publication of information is a contempt of court.
Section 97 of the Children Act 1989 makes it a criminal offence for someone to publish information that identifies a child being involved in any proceedings but can be relaxed where ‘welfare’ requires it, including where necessary properly to balance Article 10 (freedom of expression) and Article 8 (the right to private family life) of the Human Rights Act 1998.
Achieving a balance
In this matter, counsel for the mother argued that, notwithstanding the shift towards transparency in the family courts, there should be continued anonymisation of the judgment. The 2021 case of Griffiths v Tickle & Ors and T’s Article 8 right (right to private family life) were cited in support. Conversely, counsel for the father argued for publication in full, highlighting the public interest, Article 10 (freedom of expression) and T’s right to be informed of the court’s findings.
Weighing against these factors was T’s (and his sister S’s) strong desire, as expressed to Cafcass, to keep their family life private, which was afforded considerable weight.
The court deliberated on the balance of transparency for public interest (Article 10) and the right to private life for the family (Article 8). On balance, the court felt publication was particularly important in this case due to the lengthy legal proceedings and the insight it provides the public into the inner workings of the family court.
The firmly established starting point in domestic jurisprudence is the principle of open justice. In this case, the court found that publication with the naming of the parties would correct what the judge considered to be a false narrative given to T and S by the mother. In this way, publication would be consistent with T’s best interests.
The court decided that the full judgment would be published in three years’ time when T was 18, naming the parents but not T or S. This would protect their privacy while at the same time serving the public interest.
Conclusions
Divorce and Family partner Carly Kinch comments: “The acceleration towards transparency and open court within family proceedings is significant. This case highlights the careful approach courts must take to maintain confidentiality and privacy for children entangled in such proceedings, as well as the different tools the courts can use. These include delaying the publication of judgments and anonymising some names and not others, to further shield and protect children where a decision is taken that transparency must prevail.”
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