WH19P000120 - [2025] EWHC 801 (Fam)

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.

Dr Proudman urges that following a balancing of the competing Article 8 and 10 Convention rights, the transparency order can simply be amended to permit the parties themselves to publish information contrary to the apparent restriction contained in PD 12R, para 5.6. In my judgment, that would be to distort the purpose of the transparency order. The transparency order is simply the vehicle by which the objectives of the rules, as contained within PD12R, are achieved. In other words, it gives effect to these new rules - it is not an end in and of itself. The rules to which it gives effect are on their face, clearly and explicitly, only applicable to “Reporters” who have attended at the hearing pursuant to rule 27.11. These rules recognise the important role of the media within a democratic society in maintaining the rule of law and holding the justice system to account. In my judgment, given the evolution of the rules and their clear terms, it would be an inappropriate interpretative strain to say PD12R applies directly to the parties to proceedings, and a transparency order can simply be amended to give effect to that position.

There are, moreover, sound policy reasons why an expansive interpretation of FPR 2010 rule 12.73 or PD 12R may not be an appropriate use of judicial interpretative powers. This case clearly raises an important question in which competing rights and interests are at stake. To permit a parent to talk directly in the public sphere, even as in this case with efforts to secure the child’s confidentiality, raises very significant and distinct challenges. Social media allows an almost unlimited audience for parents to disseminate information about family proceedings in which they have been involved. Whilst Ms M seeks in this case to exercise her article 10 and article 8 rights in a perfectly responsible way and has a compelling argument to put under Article 10, that will not always be the case. Indeed, Mr F tells the Court he seeks an equivalent right to discuss in public the ‘miscarriage of justice’ to which he has been subjected by the family courts. A change to the rules raises the spectre of many more parents being able to continue their litigation battles in the full public glare of social media to the significant detriment of the child. Children and young people have an important voice in determining these issues that needs to be heard. They may value their own right to speak out about their experiences in the family justice system, but many children and young people are deeply fearful of the intrusion into their private lives. A more far-reaching change to the rules may also operate to the significant detriment of victims of abuse. One unintended consequence of extending transparency in this way, may be to permit parents found by the courts to be perpetrators of domestic abuse to continue their abuse and harassment of victims through ongoing public media campaigns in the name of correcting a ‘miscarriage of justice’. These are all matters that require careful consideration and consultation.

I note that the essential progress that has been made thus far in opening the family courts to greater transparency has been painstakingly consulted on and piloted before reaching the position we now have enshrined in PD12R. The rules governing reporting by the media are very detailed and necessarily complex to ensure all parties rights are safeguarded. It works in no small part due to self-regulation and editorial control by the media and the involvement of accredited journalists and professional bloggers who take seriously their own professional obligations to ensure transparency orders are fully complied with. The same inherent mechanisms of control do not exist when parties directly enter the public domain.

None of this is to say there should not be a means by which parties to family proceedings can obtain permission to speak directly of their own experiences of the family justice system without relying on the media as their voice. Survivors of domestic abuse have a clear interest in being able to do so, underpinned by their Convention rights. The issue is how to secure that right through a process in which the rights and interests of all interested parties can be heard and considered. In my judgment, section 12 of the AJA 1960 provides that process through the development of rules of court. That is what has happened so successfully for media reporting by means of the transparency pilot. In my judgment, that is the correct process by which Ms M’s wish to extend the transparency order to permit direct reporting by parties to the proceedings should be explored.

Following careful analysis of s 12 of the AJA 1960 and the Family Procedure Rules 2010, I am therefore satisfied they do not provide any legal power for this Court to permit Ms M to publish information about the proceedings which goes beyond that contained within the already published judgments.

I turn then to the question of whether there may exist jurisdiction outside of primary or subsidiary legislation to enable this Court to give Ms M permission to speak directly about her experiences of the family justice system. The case law would appear to support such a power remaining as a feature of the High Court’s inherent jurisdiction.

A number of the leading authorities make passing reference to the Court’s inherent jurisdiction to determine matters of publication. In Clayton v Clayton [2006] 3 WLR 599, the Court of Appeal held that the protection afforded to a child’s privacy under s 97(2) of the Children Act 1989 ceases upon conclusion of the proceedings. However, it went on to hold that the Court retains a welfare jurisdiction (either under the High Court’s inherent jurisdiction or by means of orders available under s 8 of the Children Act 1989) to prevent publication of information relating to the upbringing of a child including information that would lead to the identification of a child as the subject of previous court proceedings. In such circumstances, the Court’s jurisdiction is to be exercised following a careful balancing of the competing interests engaged.

As to how Clayton may assist with the issues now before this Court, the father’s wish in Clayton to be able to campaign on issues of shared care drawing on his own experiences in the family justice system, appears in many ways to be very similar to what Ms M seeks to achieve within these proceedings. However, the Court of Appeal’s decision in Clayton was limited to whether Mr Clayton should be prevented from identifying himself and the child as the subject of the judgment and final shared care order already in the public domain, and whether he should be prevented more broadly from campaigning on issues of shared care. The Court of Appeal, having considered the scope of what Mr Clayton was seeking to do (set out at paragraphs 72 and 106 of the judgment), determined that his requests, save for one involving the child in making a film, were uncontentious. Significantly, the Court of Appeal were clear that the decision did not impinge upon the prohibitions under s 12 of the Administration of Justice Act 1960 (per Potter P, [79]). The identifying information father wished to share was limited to publication on matters already within the public domain. That said, during the course of his judgment, Potter P makes brief reference to the courts’ ability to permit publications that would otherwise offend s 12 of the AJA 1960 (para [51]). The source of the courts’ power to do so is not detailed.

I turn next to Norfolk CC v Webster [2007] 1 FLR 1146. This case concerned the parents’ application, supported by the media, for information about ongoing care proceedings with respect to child D to be made public, the parents’ position being that three older sibling children had been wrongfully removed from their care and placed for adoption in a miscarriage of justice. Munby J held that s 97(4) of the Children Act 1989 (which allows publication of the name of a child subject to ongoing proceedings despite the prohibition in s 97(2)) had be to construed in a Convention compliant way, thereby not limiting the occasions on which s 97(2) is dispensed with to those where the welfare of the child “requires it”, but extending it to every occasion when required to give effect to the Convention rights of others. Having conducted the necessary balance of Convention rights, publication of the actual names of the parties was thus permitted.

Munby J went on to give the media permission to attend the ongoing proceedings given the public interest in the case. He held that in the circumstances of this case publication of the judgments would not suffice to meet the Article 10 rights in issue. He went on to hold that as the media were permitted to be present at the hearings, the hearings could no longer be regarded as ‘in private’ and therefore s 12 of the AJA 1960 would not apply. That enabled the media to report on any matters discussed or referred to within the hearing. These are of course matters which are now governed by the careful scheme within the FPR 2010 which, contrary to Munby J’s decision, maintain the private nature of proceedings when the media attend.

As to how the decision of Munby J in Webster may assist in the present case, he also briefly refers to the “clear power” of the court to relax and to increase the default restrictions limiting open justice in children’s proceedings. He held:

The root of the Court’s jurisdiction is again not interrogated in any detail. Thus, the source of these powers, outside what is permitted by primary and secondary legislation interpretated so far as it is possible to do so to achieve compliance with Convention rights, remains unclear.

It is perhaps relevant to note again that section 12(2) of the AJA 1960 explicitly provides power for the court to further tighten the statutory prohibitions on what may be published, whereas there is no corresponding power contained within s 12 for the court to relax the restrictions. In this regard, the enduring parens patriae jurisdiction of the High Court to exercise its protective powers to impose restrictions on reporting extending beyond the statutory scheme (such as to maintain a child’s confidentiality once proceedings have concluded) is tolerably clear. It is the subject of lengthy consideration by Lord Burnett in the Court of Appeal in Abbasi and Hastrup v Newcastle Upon Tyne Hospitals NHS Foundation Trust and Kings College Hospital NS Foundation Trust [2023] EWCA Civ 331. That case concerned the High Court’s jurisdiction to impose a Reporting Restriction Order protecting the anonymity of professionals in an end-of-life case heard in public. The Court of Appeal held:

However, despite those uncertainties, the Court of Appeal has held that the High Court continues to hold such powers. Re C [2017] 2 FLR 105, noted above, concerned an application for permission to publish a fact-finding judgment. Having rejected FPR 2010 12.73 as providing the necessary jurisdictional basis to permit publication, Lord Dyson MR went on to hold that such power was found in the Court’s inherent jurisdiction:

In reaching this conclusion on jurisdiction, Lord Dyson relies on the earlier decision of Munby J in Re B [2004] 2 FLR 142. The decision is similar on its facts to the present case. The case concerned an application by a mother to be able to place within the public domain certain facts about proceedings in which she had been found to have harmed her child by reason of Munchausen's Syndrome by Proxy. Mother was appealing the finding on the basis the expert evidence had relied heavily on the discredited work of Professor Roy Meadows. Having carefully considered the scope of what he termed the “automatic restrictions” in section 12, Munby J held:

I am thus satisfied that whilst it is uncertain how the inherent jurisdiction of the High Court to permit publication survives the intervention of Parliament in section 12 of the AJA 1960, the Court of Appeal has confirmed that such jurisdiction endures. I am therefore satisfied this Court has the jurisdictional basis to consider whether that power should be exercised to permit publication by Ms M, Mr F or both.

Before moving to the exercise of my powers, I recognise that I have reached what may be viewed as a less than satisfactory conclusion on the law. 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. There is, furthermore, a lack of certainty as to the constitutional legitimacy of the High Court’s inherent jurisdiction to permit publication in circumstances such as this. These are important questions impacting on transparency which may merit consideration elsewhere.

The Court reminds itself that although this is Ms M’s application for permission to write and speak publicly about her experiences in the family courts, Mr F also seeks the same right. I have therefore carefully considered the witness statements and exhibits that have been filed by both parties.

The seminal authority on how a court is to approach the balancing of Convention rights whenever Articles 10 and 8 are engaged on a matter relating to publication impacting on a child is Re S (a child) (identification: restriction on publication) [2005] 1 AC 593. Within his judgment, Lord Steyn sets down the approach to be adopted:

Ms M has clear rights under articles 10 and 8 of the European Convention to be able to tell her story in her own words. In my judgment, in the circumstances of this case, those rights are particularly weighty and important. Article 10 safeguards the fundamental principle of open justice and ensures in a democratic society there is appropriate scrutiny of what happens within the family courts. In this case there is a strong public interest in there being an open and informed public debate about the way in which the family justice system approaches disputed allegations of rape, domestic abuse and parental alienation in private law proceedings involving contact with a child. Whilst the media plays an important role in reporting these issues, hearing directly from victims as to how they have experienced the system and the impact the proceedings have had upon both them and the child can be particularly powerful. Those direct voices can often prove invaluable in ensuring informed discussion and debate. I am satisfied on the facts of this case there is a considerable and weighty article 10 right in favour of allowing Ms M to speak.

That Article 10 right is strongly aligned with Ms M’s Article 8 right to speak about her experiences as a survivor of domestic abuse. The Court is again entirely satisfied that Ms M’s Article 8 right to speak about her experiences is both weighty and important. It is difficult to put it any better than Ms M does in her own witness statement:

The importance and weight to be afforded to the Convention rights of survivors of domestic abuse was clearly recognised by Lieven J in Griffiths v Tickle [2021] EWHC 3365 (Fam), at para 52. She held:

Turning then to any competing Convention rights, it is important to note again that Ms M does not seek permission for any identifying information about either herself, Mr F or C to be placed within the public domain. She wishes to preserve the family’s anonymity. Ms M’s commitment to maintaining the family’s privacy significantly limits any impact on the competing Article 8 rights of Mr F and C, provided of course that confidentiality can be effectively maintained. It is also relevant in evaluating the weight of the competing Convention rights to note that there is already very considerable information about this case in the public domain due to the publication of the judgments and permitted media reporting under the transparency pilot. The extent of the material in the public domain is unlikely to be very greatly increased by Ms M’s application.

Mr F has a right to respect for his private and family life. However, in my judgment, as a perpetrator of rape and domestic abuse, any Article 8 right to maintain the confidentiality of those findings or the court process by which those findings were made, is of limited, if any, importance. Ms M will in any event continue to protect any identifying information about him. In weighing the Article 10 and Article 8 rights of Ms M against the Article 8 rights of Mr F, the balance in these circumstances very clearly comes down in favour of publication. In my judgment, the protection of Mr F’s Article 8 rights cannot justify the significant and disproportionate interference with Ms M’s Convention rights.

Clearly, the more weighty and important consideration will be the Article 8 rights of C. In many cases, any interference with a parent’s Article 10 and Article 8 rights will be justified by the need to protect the child’s own right to respect for their private and family life. The child’s rights and interests whilst not paramount will always be a weighty consideration. In this case, C is a victim of domestic abuse in their own right. They too have suffered trauma as a result of exposure to their father’s behaviours. They have a strong and weighty interest in the details of those distressing experiences remaining private. In applications of this nature, safeguarding C will always be at the forefront of the Court’s mind. However, given the position of Ms M that she does not seek for C’s identity to be disclosed, the extent of any interference with C’s Article 8 rights is considerably reduced - provided C’s ongoing anonymity can be effectively secured.

For this reason, and on behalf of C, the Guardian does not oppose Ms M being permitted to publish media articles about her experiences of the family court system and the domestic abuse she suffered at the hands of the father, using an alias. I am equally satisfied that given the inherent safeguards which exist to maintain anonymity when writing for media publication - safeguards which the mother will be able to personally oversee - any impact on C’s article 8 rights is very limited. In those circumstances, I am satisfied balancing C’s article 8 rights against those of Ms M, that the article 10 and article 8 rights of Ms M prevail.

Ms M’s application for permission to speak at events facilitated by organisations such as Cafcass, women’s right groups and children’s rights groups, using an alias, is more finely balanced. In these situations, the level of control Ms M will have over any information shared, including information that could lead to the family’s anonymity being breached, will be significantly reduced. Ms M suggests that in agreeing to speak at such events she will ensure the organisers and any participants are aware of the need to maintain confidentiality, any court orders to that effect and that participants are informed of the potential consequences of breach. Ms M is confident that using this mechanism she will be able to safeguard C’s anonymity.

The guardian is cautious. She does not wish to stand in mother’s way, but she considers that in such situations the risks to C’s anonymity, and hence the risk of a significant interference with C’s Article 8 rights, to be much greater. It is clear that external audiences – many of whom will be completely unknown to Ms M - may be less understanding and respectful of the need for anonymity and the need to comply with the terms of any order. The risk of photographs being published, or information being repeated or commented upon in such a way that risks identification of Ms M and C either directly or by way of jigsaw identification, is much greater. Identifying the source of any breach may well prove impossible. In my judgment, participation in such events carries a notable risk of anonymity being breached.

The extent of any such risk is however variable. The risk of C’s Article 8 right to privacy being compromised will vary depending upon the nature of the event in which Ms M wishes to participate. For example, speaking at a ‘closed’ Cafcass training event is highly unlikely to pose any risk of interference with C’s Article 8 rights. In contrast, speaking at a large online event with open attendance, will greatly increase those risks. The Court accepts that any loss of anonymity for C would be extremely damaging and constitute a serious interference with their Article 8 rights. The question for the Court is whether the risk of interference with C’s Article 8 rights, justifies denying Ms M permission to speak at such events at the expense of her Convention rights. After careful consideration I have concluded that it does not.

Given the weight and importance of Ms M’s Article 10 and Article 8 rights, the Court does not consider they are outweighed by the risk to C’s Article 8 rights, such that a blanket prohibition on Ms M speaking at such events is justified as a necessary and proportionate interference. Ultimately, in my judgment, the greatest protection for C’s Article 8 rights is Ms M herself. She has always sought to exercise her parental responsibility in an entirely child-focused way, such that C is safeguarded and protected. Ms M is clear she will not endanger C’s own interests by risking identification. Given that clear commitment to protecting C’s anonymity, Ms M’s interests and those of C are more easily reconciled. In my judgment, Ms M can be trusted to carefully evaluate those events in which she can safely participate and those events where the risks are unmanageable. I do not consider Ms M would participate in any event where there was a risk her own anonymity or that of C would be compromised. With that safeguard in place to mitigate the risks to C, I am satisfied in balancing the competing Article 10 and Article 8 rights, the balance comes down in favour of publication. In short, Ms M can be trusted to exercise her parental responsibility to uphold and protect C’s rights and interests. In such circumstances, a blanket prohibition would be an unnecessary and disproportionate interference with Ms M’s Convention rights.

Sadly, the same cannot be said of Mr F. The Court notes that Mr F also seeks the Court’s permission to write and speak publicly about his experiences of the family justice system. The Court must therefore undertake the same balancing of rights and interests as that undertaken for Ms M.

The Court accepts Mr F also has Article 10 and Article 8 rights to speak about his experiences of the family justice system. The importance to be attributed to those rights is not straightforward. His rights cannot be simply brushed aside because he has been found to be a perpetrator of rape and serious domestic abuse. Mr F’s position is that he has been a victim of a miscarriage of justice, and he wishes to be able to speak out about his experiences in the public domain. It is not the role of the courts to ‘police’ the value of what individuals may wish to say about their experiences of the family justice system. Those who claim to have been the victims of a miscarriage of justice can play an equally important role in ensuring appropriate scrutiny of, and accountability for, what happens within the family courts. There remains a strong public interest in there being an open and informed public debate about the courts’ approach to disputed allegations of domestic abuse in private law proceedings involving contact with a child. It would in my judgment set a dangerous precedent for the courts to attribute diminished weight and value to an individual’s Article 10 and Article 8 rights because they claim the family justice system has got it wrong. The Court must therefore start from the position that Mr F has weighty Article 10 and Article 8 rights, any interference with which requires careful justification.

To be weighed against Mr F’s Article 10 and Article 8 rights are however the competing rights of Ms M and C. As a survivor of rape and domestic abuse, Ms M has weighty Article 8 rights to be placed within the balance. The Court is satisfied that any publication of Mr F’s ‘story’ will constitute a significant and potentially harmful interference with the Article 8 rights of Ms M. The Court reminds itself that there are specific findings against Mr F of using social media as a vehicle of abuse against Ms M, thereby compounding her trauma. There is evidence before this Court that Mr F has continued to use social media to abuse and harass the mother. Ms M has produced screen shots of social media messages in which Mr F continues to refer to Ms M in highly derogatory terms. Given the nature and tone of those messages, I am satisfied that to permit Mr F to speak publicly about the family proceedings, albeit in an anonymised form, would perpetuate and compound the abuse of Ms M, causing her further significant harm. It would constitute a very significant interference with Ms M’s Article 8 rights.

The same considerations apply with respect to C and the risk and seriousness of any interference with C’s Article 8 right to respect for private and family life. Whilst Ms M can be trusted to exercise her parental responsibility to safeguard C’s anonymity, Mr F cannot. The messages produced by Ms M, evidence Mr F’s desire to re-litigate the proceedings on social media, in disregard to the need to maintain C’s privacy and protect C from harm. It is clear from the messages that Ms M and C could be easily identified by way of jigsaw identification. In the Court’s judgment, the risks to C and Ms M’s Article 8 rights if Mr F is permitted to write and speak publicly about the proceedings is very high indeed.

When the Court weighs Mr F’s Article 10 and Article 8 rights against the high risk of interference with Ms M and C’s Article 8 rights, the balance comes down in favour of the need to protect the rights and interests of Ms M and C. The Court attaches particular weight to the impact on C of any breach of his right to privacy. In the Court’s judgment, any interference with Mr F’s Article 10 and Article 8 rights is thus necessary and proportionate to ensure C and Ms M’s Convention rights are protected.

On the question of publication, and pursuant to the Court’s inherent jurisdiction, I therefore conclude:

Mr F has filed a C2 application alleging Ms M has committed a contempt of court by publishing certain information about the family proceedings for the purpose of bringing financial enforcement proceedings against Mr F in Scotland. The costs orders made against him by HHJ Baker and Morgan J remain unpaid. That application is dismissed on the grounds of procedural irregularity, Mr F having failed to comply with the strict procedural safeguards for committal applications set out at FPR Part 37.10. For the avoidance of doubt, this Court gives permission to Ms M to disclose any orders or judgments from these proceedings to other legal authorities for the purposes of enforcement of the Court’s orders. All steps should be taken within the limits of the proceedings to redact any information that may lead to the identification of C.