[2025] EWHC 1525 (Fam)

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary."

Section 12 (1) and (4) of the Human Rights Act 1998 provide that:

In Re S (above) Lord Steyn noted the following principles at [17]:

“First, neither article has as such precedence over the other. Secondly, 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. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

The Transparency Order in the present case was made in the Reporting Pilot period. Now that the Transparency Reporting regime has been rolled out nationally, the template order provides for permission to be given to the parties in certain cases to share documents with another accredited journalist or legal blogger, i.e. one who has not attended a hearing.

The current template Transparency Order includes the following provisions:

“13.

No person may publish any information relating to the proceedings to the public or a section of it, which includes:

a.

The name or date of birth of any subject child[ren] in the case.

b.

The name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child[ren] being identified;

c.

The name of any person who is a party to, or intervening in, the proceedings;

d.

The address of any child or family member;

e.

The name or address of any foster carer;

f.

The school/hospital/placement name or address, or any identifying features of a school of the child[ren];

g.

Photographs or images of the child, their parents, carer or any other identifying person, or any of the locations specified above in conjunction with other information relating to the proceedings;

h.

The names of any medical professional who is or has been treating any of the children or family member;

i.

[In cases involving alleged sexual abuse, the details of such alleged abuse]

j.

For the purposes of s.97(2) Children Act 1989, any other information likely to identify the child as a subject child or former subject child.

14.

This Order does not disapply s.97(2) Children Act 1989 unless expressly stated.

15.

For the avoidance of doubt, no body, agency or professionals may be identified in any information relating to the proceedings published to the public or a section of it by a reporter, save for:

a.

The local authority or authorities involved in the proceedings, or the NSPCC if the applicant;

b.

The director and assistant director of Children’s Services within the LA (but no other person from the local authority, including the social worker, without express permission of the court);

c.

Cafcass, Cafcass Cymru or NYAS (but not the children’s guardian, case worker, or reporting officer without express permission of the court);

d.

Any NHS Trust;

e.

Court appointed experts (but not treating clinicians or medical professionals);

f.

Legal representatives and judges;

g.

Anyone else named in a published judgment.”

Effectively the same wording was used in the pilot Transparency Order made by DDJ Elliott. The Transparency Order therefore prevents any person from naming any treating medical professional. At paragraph 15 it prevents a reporter publishing the name of an individual social worker. On the face of it therefore it does prevent non-reporters publishing the name of an individual social worker, albeit the Transparency Order does not amend the restrictions on publishing information relating to proceedings which would include, for example, what an individual social worker had said at a court hearing.

FPR PD12R, paragraph 5.1 provides that, “the court should amend the template as it considers appropriate on the facts of a given case.”

At PD12R, paragraph 5.6 it is provided:

“The template Transparency Order does not permit the parties to themselves publish information from the proceedings where this would otherwise amount to contempt of court (including by virtue of section 12 Administration of Justice Act 1960). This includes re-publishing any media articles or blogs written about the case under the pilot, where accompanied by comment that may identify the child concerned.”

Thus, the template Transparency Order does not lift the restrictions imposed on the parties by AJA 1960, s12, save to the extent that the parties deal with reporters in accordance with the terms of the Order. It does not permit the parties themselves to publish information relating to the proceedings on social media, for example. The Applicants have had the Transparency Order for over a year but I am not confident that they have read it with care. During the course of the hearing, in seeking to answer questions of detail, the most important general point about the Transparency Order may have become lost. Hence, I state it now to avoid misunderstanding. The general rule under AJA 1960, s12 remains in force. The Transparency Order does not allow the parties themselves to disclose or publish information relating to the Children Act proceedings which were held in private in the Family Court except to the extent that the Order allows them to communicate with a reporter. The Family Procedure Rules allow them to communicate with certain others, such as police officers, about the proceedings in defined circumstances. Thus, the Transparency Order made in February 2024 does not allow the parents themselves to post information relating to the proceedings on social media or in any other medium. They are not reporters as defined within the Transparency Order and by FPR r27.11.

In M v F & Anor (above), having concluded that exercise of the inherent jurisdiction allows the Court to lift restrictions on non-reporters including the parties, when otherwise those restrictions would bind them under AJA 1960, s12, observed:

“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.”

Harris J’s concern was that there was no mechanism within the Family Court, as opposed to in the High Court, to lift restrictions on non-reporters disclosing information relating to family proceedings held in private. The Family Court could elect to conduct proceedings in public (FPR r27.11) in which case AJA 1960, s12 would not apply. CA 1989, s97(2) would still apply, but only until the end of the relevant proceedings. I am hearing this application in the High Court and so I do not have to decide the jurisdiction of the Family Court to permit the communication of information relating to private family proceedings by non-reporters. Parties have ready access to platforms allowing them to publish information without the help of a reporter and so this issue may come to be explored in a number of future cases.