WH19P000120 - [2025] EWHC 801 (Fam)

In considering Ms M’s application, the starting point must be that Parliament has established a clear statutory framework in s 12 of the Administration of Justice Act 1960 which in Parliament’s view strikes the correct balance between the competing rights and interests in Children Act 1989 proceedings held in private. FPR r 27.11 provides that Children Act proceedings are to be held in private, subject to any contrary direction by the Court. Section 12 of the Administration of Justice Act 1960 then provides:

The effect of section 12 of the Administration of Justice Act 1960, in general terms, is that it will constitute a contempt of court to publish information relating to proceedings held in private with respect to children unless, by way of exception, it is information limited to the publication of the text or summary of an order (subject to the court expressly prohibiting publication) or publication is authorised by rules of court. Whilst section 12(2) provides express provision for these prohibitions on publication to be further tightened by the court, section 12 does not provide any general power for the court to relax the statutory prohibitions. In Norfolk CC v Webster [2007] 1 FLR 1146, Munby J provided a much-cited authoritative exposition of the scope and effect of s 12 of the AJA 1960:

“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.”

I pause at this point to note the range of information about family proceedings for which publication may be sought. It may include court orders, the judgment, identifying information about the parties, court documents such as witness statements, skeleton arguments and position statements, evidence filed by third parties such as the police or health, oral evidence heard in court or an account of what was said and done by the parties or the judge in the course of a hearing. As is clear from the passage in Webster above, there is much about family proceedings that does not fall within the prohibitive scope of s 12.

In any application it is therefore important to be clear as to what it is that a party may be seeking to place within the public domain. Ms M is not, for example, in any way constrained from discussing anything contained within the published judgments in her case as they are already in the public domain, provided it does not identify the child, something which she does not seek in any event.

Furthermore, in accordance with section 3 of the HRA 1998, primary and subordinate legislation must be interpreted and given effect so far as it is possible to do so in a way which is compatible with Convention rights. In limiting open justice, section 12 must thus be interpreted and given effect, in so far as it is possible, in a way which is compliant with Convention rights, particularly Article 10. However, outside the bounds of that interpretative obligation, it is not constitutionally permissible to simply balance primary legislation against Convention rights and for the Court to ‘disapply’ clear statutory provisions because the Court considers the interests protected within the legislation to be outweighed by competing interests - in this case, Ms M’s Article 10 and Article 8 rights. That would constitute an impermissible infringement of the separation of powers. Where primary legislation is incompatible with Convention rights and cannot be interpreted to secure compliance, the remedy as provided for in section 4 of the HRA 1998 is for the Court to make a declaration of incompatibility.

I turn then to section 12 of the AJA 1960 and the explicit exceptions provided within its terms, such that the following will not amount to a contempt of court:

The first exception appears on its face limited in its scope to “orders” of the court. Although it is not in issue before me, the publication of judgments may well fall within a Convention compliant interpretation of those terms. The publication of judgments handed down within family proceedings is now strongly encouraged and in recent years has become much more routine. Practice guidance on the publication of judgments was first provided by Sir James Munby in 2014; guidance which has been updated in 2018 and again in 2024. Although the Practice Direction does not specify under what jurisdictional power the publication of judgments is permitted, it can be readily achieved by the court convening in open court for the hand down of judgment. Alternatively, it would appear to come within the proper interpretive scope of what is meant in s 12(2) by the text or summary of the whole or part of an order. Judgments whether handed down in open court or pursuant to s 12(2) of the AJA 1960 will usually be anonymised to safeguard the child’s right to privacy and include a standard provision requiring any identifying information to be removed. There are a number of authorities dealing specifically with the question of whether the usual anonymity in published judgments should be lifted. That was the specific issue which came before the Court in Tickle v Griffiths [2021] EWHC 3365 (Fam).

It is relevant to note again the important question as to the scope of what may be discussed within the public domain following publication of a judgment, with or without anonymity. It appears from the submissions before me that it may have been assumed in Tickle v Griffiths that by allowing the publication of the judgment with the anonymity of the parties removed, Ms Kniveton, the mother in that case, would be permitted to speak more generally in public about her experiences as a victim of abuse within the family justice system. The clear importance of her Article 10 right to do so as a survivor of domestic abuse was certainly heavily relied upon in support of the argument that anonymisation in the published judgment should be removed. It does not however appear from Lieven J’s judgment that she was specifically invited to consider and determine the scope of any information relating to the proceedings that could now be freely discussed in the public domain following the de-anonymised publication of the judgment. In my judgment, any broader mandate to speak publicly about the proceedings cannot safely be assumed from publication of the judgment alone, given the potential reach of s 12. The point of the current application, it must be assumed, is that Ms M seeks to publish information which she believes goes beyond the scope of that already placed in the public domain by means of the published judgments.

Section 12(4) sets out a further exception to the prohibition in s 12(1), providing that any publication authorised by the rules of court will not constitute a contempt of court. The Family Procedure Rules now provide for a number of such exceptions falling into two broad categories: i) publication by a party to proceedings to various professionals or for the purpose of receiving advice or support; and ii) publication by accredited members of the media or legal bloggers.

The rules providing for publication by a party to the proceedings to professionals or to receive advice or support are contained within FPR 2010 rr. 12.73 and 12.75:

As Mr Gilmore suggests, on first reading, rule 12.73(1)(b) may appear to confer a general discretion on the court to permit publication of information relating to proceedings, thereby avoiding contempt of court. Indeed, there would appear to be one authority in which r.12.73 was directly invoked to permit publication in circumstances analogous to those of Ms M. In Tickle & Others [2015] EWHC 2991 (Fam), Ms Tickle had applied for permission to publish an extended article about care proceedings involving a mother who had written on social media in an anonymous blog and spoken to various professional audiences about her experiences. The matter was not contested, and an agreed order was placed before the court. It was not therefore the subject of any judicial consideration or determination. The agreed order provided:

Paragraph 4 of the order is of particular interest, providing as it does unlimited permission (which must therefore include the mother in the proceedings) to publish information relating to the current or past proceedings. The order refers to rules 12.73(1)(b) and 12.73(2) but the judgment is silent as to how those provisions within the rules are reconciled. The issue having not been argued before Bodey J or addressed by him within the judgment, this is not therefore a precedent on which the Court can place any great weight.

Turning directly to the terms of r.12.73, it can clearly be argued that any purported interpretation of rule 12.73(1)(b) to confer a general power on the court to permit publication of information relating to proceedings to the public at large, cannot survive r. 12.73(2). Rule 12.73(2) explicitly prevents anything contained within ‘this chapter’ permitting communication to the public at large. On its face, that must also apply and limit the scope of judicial power contained within r 12.73(1)(b), that rule sitting squarely within ‘this chapter’.

The question arises whether pursuant to s 3 of the HRA 1998, and in order to give effect to Ms M’s article 10 rights, rule 12.73(1)(b) and r 12.73(2) can be read in such a way as to ensure compatibility with the Convention. I remind myself that the Court has much greater scope for ensuring a Convention compliant interpretation of rules contained within subsidiary legislation than it does with primary legislation. However, even accounting for that greater interpretative freedom, in my judgment, to read rule 12.73(1)(b) as the vehicle by which a party may achieve publication to the public at large, risks going beyond the legitimate scope of interpretation, and strays into territory properly reserved to statutory bodies. Firstly, r 12.73(1)(b) must be read within the context of the chapter in which it appears: they are rules directed at permitting, by default, limited and controlled disclosure to specified professionals. Rule 12.73(1)(b) clearly permits the Court to authorise disclosure beyond the specific circumstances identified in rule 12.73(1)(a). However, within that context, s 12.73(2) is clear and specific in its terms that ‘nothing within the chapter’ permits any publication to the public at large. Read as a whole, this chapter is focused on disclosure to specified professionals for specific purposes. It could be argued r 12.73(1)(b) is different, in that it does not operate by default and maintains the courts’ overriding control of publication, thereby ensuring proper consideration of any competing rights and interests. However, to interpret r 12.73(1)(b) as conferring such a wide and unfettered discretion on the courts, would divorce the rule from the context in which it appears (the publication of information to professional advisers) and ignore explicit provisions within the rules to the contrary.

This conclusion is supported by the judgment of Lord Dyson MR in Re C [2017] EWCA Civ 798. Re C concerned an application for the publication of a fact-finding judgment in care proceedings where the parents had been convicted in criminal proceedings of offences concerning the death of a sibling child. In considering his jurisdiction to permit such publication (which he found existed within the Court’s inherent jurisdiction), Lord Dyson MR held:

However, there is authority to the contrary. McFarlane LJ, with whom Macur and King LJJ agree, appeared to come to the opposite conclusion in Re W[2016] EWCA Civ 113. That case concerned an appeal against decisions of Peter Jackson J, as he then was, to permit: i) publication of a fact-finding judgment; and ii) allow media attendance and daily reporting on the re-hearing of those factual allegations. McFarlane LJ held:

Determining which of these competing Court of Appeal authorities should be followed is not straightforward given neither interrogates the legal arguments on the effect of the rules contained within r 12.73 in any detail. However, it must be noted that the relevance and potential impact of FPR 2010 r 12.73(2) is not referred to by McFarlane LJ in his judgment in Re W, whereas it is specifically considered, albeit very briefly, by Lord Dyson MR in Re C. For that reason, and for the reasons set out in paragraph 31 above, this Court prefers the approach to r 12.73 set out within Re C.

The second exception provided for within the rules is now contained within FPR 12.73A and 14.14A and PD12R. These new rules which came into effect on 27^th January 2025 follow the successful transparency pilot that has been overseen by the Transparency Implementation Group (TIG). Following careful piloting these significant new rules achieve a shift in the balance between open justice and privacy, whereby media reporting is now permitted essentially by default, subject to maintaining the privacy of the child and adult parties. These default provisions will always be subject to any alternative orders of the court. The transparency order referred to within PD12R provides a ready and consistent template for use throughout the family courts and includes detailed provisions on such matters as the media’s access to court documents.

FPR 12.73A and 14.4A simply provide that Practice Direction 12R makes provision in relation to the court giving permission to communicate information from proceedings. PD12R is clear and explicit in its terms as to its scope:

This Practice Direction applies where-

a Reporter attends a court hearing in accordance with rule 27.11 FPR and Practice Direction 27B; and

that hearing is in proceedings of a type referred to in paragraph 1.2.