[2025] EWHC 1525 (Fam)

All the hearings in the Family Court were held in private. The law on what may or may not be communicated or published in relation to Children Act proceedings held in private is not easily stated, certainly not to litigants in person.

By CA 1989, s97, in relation to proceedings under that Act:

By AJA 1960, s12:

"s12 Publication of information relating to proceedings in private.

(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 …

(2)

Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

…

(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 s12 provisions continue after the conclusion of the proceedings subject to the power of the Court to vary them under its inherent jurisdiction (see below).

It is not easy to articulate in simple terms what s12 does and does not prevent a person from publishing. Munby J considered the issue in Re: B (A Child) (Disclosure) [2004] 2 FLR 142. He held at [65] and [66]:

“Of crucial importance in the present case is Wilson J's decision in X v Dempster. Analysing the previous authorities, he summarised matters at p 898 (this has now, of course, to be read subject to section 97(2) of the Children Act 1989):

"[E]vents in the lives of the children in the present case which are already in the public domain or which do not relate to the proceedings can be the subject of publication.

Furthermore certain material which might well qualify in a loose sense as information relating to the proceedings can be published because the prohibition is to be construed not loosely but strictly and by direct reference to the mischief at which it is directed. Thus, in the absence of a specific injunction, the following can be published:

(a)

the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing … ;

(b)

the name, address or photograph of such a child as is mentioned in (a) … ;

(c)

the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings as are mentioned in (a) … ;

(d)

the date, time or place of a past or future hearing of such proceedings … ;

(e)

the nature of the dispute in such proceedings … ;

(f)

anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place … ; and

(g)

the text or summary of the whole or part of any order made in such proceedings … "

So much for what can be published notwithstanding section 12. What is it that cannot be published? In the first place it is quite clear that the effect of section 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.) Section 12 likewise prohibits the publication of extracts or quotations from such documents: Official Solicitor v News Group Newspapers; also the publication of summaries: X v Dempster at p 898. It is also quite clear in my judgment that the prohibition in section 12 applies equally whether or not the information or the document being published has been anonymised.

Munby J confirmed that it is not a contempt of court to name a witness as a witness, but it would be contempt of court to publish what they had said at a hearing.

At paragraphs [77] to [79] Munby J held:

“[77] I turn finally to the question of the extent to which section 12 prohibits discussion of the details of a case. Now as Wilson J accepted in X v Dempster, and with respect I entirely agree, whilst section 12 does not prohibit publication of "the nature of the dispute", it does prohibit publication of even summaries of the evidence. Where is the line to be drawn? In Kelly, as we have seen, I said that section 12 does not prevent "public identification and at least some discussion of the issues in the … proceedings." That is not very helpful. More helpful is the light thrown on the matter by Wilson J's analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words:

"Says a friend of [the mother]: "She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court"."

immediately preceded by the statement that the mother was said to be distraught that four people, who were named, had provided affidavits – they were in fact signed witness statements – in support of the father's case.

[78] Wilson J said this at p 901:

"I turn to the third alleged feature, namely that in the piece Mr Dempster recounts an allegation to the effect that the mother has been portrayed in the proceedings as a bad mother who is unfit to look after the children."

He continued at p 903:

"I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded."

I agree with Wilson J's analysis and, if I may respectfully say so, with the particular conclusion to which he came in that case.

[79] Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J's discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of "the nature of the dispute", which is permissible, and publication of even summaries of the evidence, which is not.”

Later, in Norfolk CC v Webster [2007] 1 FLR 1146, Munby J provided a shorter summary of the scope of AJA 1960, s12:

“There is no need on this occasion for any detailed exegesis of s 12. It suffices for present purposes to note that the effect of 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 (or extracts or quotations from 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. On the other hand, s 12 does not of itself prohibit publication of the fact that a child is the subject of proceedings under the Children Act 1989; of the dates, times and places of past or future hearings; of the nature of the dispute in the proceedings; of anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place; or of the text or summary of any order made in such proceedings. Importantly, it is also to be noted that s 12 does not prohibit the identification or publication of photographs of the child, the other parties or the witnesses, nor the identification of the party on whose behalf a witness is giving or has given evidence.”

FPR r12.73(1) provides 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 –

…

(b)

where the court gives permission, including as provided for under rule 12.73A.”

However, by FPR r12.73 (2),

“Except as provided for under rule 12.73A, 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.”

Rule 12.73A provides that Practice Direction 12R makes provision in relation to the court giving permission to communicate information from proceedings. FPR PD 12R applies when a reporter attends a specified hearing. It has no application therefore when no reporter attends. The stated aim of PD12R is to “support Reporters being able to report on what they see and hear in court in accordance with the terms of a Transparency Order (“the transparency principle”).The Transparency Order allows a reporter, defined as an accredited journalist or legal blogger, to report on proceedings they have attended. By FPR r27.11 accredited reporters are “duly accredited representatives of news gathering and reporting organisations” and a legal blogger is “a duly authorised lawyer attending for journalistic, research or public legal educational purposes.” It is important to emphasise that a person who blogs about the law or about a case they have observed is not a “legal blogger” unless they come within that narrow definition.

The parties may disclose certain specified documents to reporters under the Order but those reporters must have been served with the Order.

By paragraph 28(b) of the President’s Guidance on the Transparency Reporting Pilot Guidance, November 2022, which was in place at the time of the hearings in February, May and July 2024, the reporting Pilot applied to:

“All applications for placement orders where the application is made within care proceedings, up to the point at which any placement order is made or the application for a placement order or otherwise is concluded.”

The operation of FPR PD 14G and PD12R is now to the same effect.

It seems clear therefore that the Court may, by use of a Transparency Order, permit the communication of information relating to family proceedings held in private, but the Transparency Order addresses only publication by reporters, not the parties or other non-reporters. What then of the jurisdiction to permit disclosure or publication of such information by non-reporters? In her recent judgment in M v F & Anor [2025] EWHC 801 (Fam), Harris J confirmed that the High Court may exercise its inherent jurisdiction to permit or restrict publication of information relating to proceedings which would otherwise be governed by AJA 1960, s12. She adopted the judgment of the Court of Appeal in C (A Child) [2016] EWCA Civ 798, [2017] 2FLR 105, in which Lord Dyson MR considered the jurisdictional basis of such orders and was unconvinced that it could be derived from FPR r12.73. However, he held at [12]:

“ 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.”

When deciding whether to make a Transparency Order, if so, on what terms, the judge must strike a balance between rights that favour publication and the rights of the child and others to respect for their private and family life, adopting the principles set out in by the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593 ("Re S") and by the Court of Appeal in Griffiths v Tickle [2021] EWCA Civ 1882. In Griffiths v Tickle,the Court of Appeal noted that Lieven J had "conducted a fact-sensitive scrutiny of the competing considerations" as required when applying the Re S principles. That scrutiny is required whenever the Court is invited to relax or to extend reporting restrictions and I must conduct such an exercise in the present case.

Since a Transparency Order varies the effects of statutory restrictions on publishing information relating to proceedings, the Court has to consider the principle of open justice and the application of Articles 8 and 10. The use of the template Transparency Order referred to in PD12R is a device of practical assistance to Judges who have to make swift decisions in circumstances when a reporter attends a hearing. Nevertheless, when making or varying a Transparency Order, the Court is engaged in the “scrutiny of competing considerations”. The application of that process in children proceedings was considered in Re J (A Child) [2013] EWHC 2694 (Fam), by Sir James Munby P:

“The court has power both to relax and to add to the “automatic restraints”. In exercising this jurisdiction the court must conduct the “balancing exercise” described in In re S … and in A Local Authority v W …. This necessitates what Lord Steyn in Re S, [17], called “an intense focus on the comparative importance of the specific rights being claimed in the individual case”. There are, typically, a number of competing interests engaged, protected by arts 6, 8 and 10 of the Convention. I incorporate in this judgment, without further elaboration or quotation, the analyses which I set out in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam); [2004] 2 F.L.R. 142, at [93], and in Re Webster … at [80]. As Lord Steyn pointed out in Re S, [25], it is “necessary to measure the nature of the impact … on the child” of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) ….”

Article 8 of the European Convention on Human Rights and Fundamental Freedoms states,