WH19P000120 - [2025] EWHC 801 (Fam)

The Court thanks both Dr Proudman and Mr Gilmore for their efforts to assist the Court. They have both filed detailed skeleton arguments and supplemental submissions following the hearing on 20^th February 2025. The question of whether this Court has jurisdiction (that is the power) to give permission for Ms M to speak publicly about her experiences, and, if so, what is the framework guiding the exercise of that legal power, might appear to have been a question to which an obvious answer should exist. However, answering the question, once probed, has proved surprisingly difficult.

Dr Proudman submits that section 6 of the Human Rights Act 1998 puts a duty on the Court to act compatibly with Convention rights, including Article 10. She argues that section 12 of the Administration of Justice Act 1960 (s 12 AJA 1960) cannot be presumed to simply prevail in defeating the Article 10 rights of Ms M now the Court is actively seized of the issue. She suggests that whilst s 12 of the Administration of Justice Act 1960 provides a lawful basis for interfering with the Article 10 rights of Ms M, the Court is under a duty to conduct a balancing exercise of the competing rights specific to the needs of this case and determine the necessity and proportionality of any ongoing interference. She submits that primary legislation can and has been made subject to a balancing exercise. She relies, in particular, on the decision of Lieven J in Tickle & Farmer v Griffiths [2021] EWHC 3365 (Fam)in which she asserts that the Court simply relaxed s 12 without limiting it in the way a transparency order does to ‘pilot reporters.’ She also relies on the decision of Bodey J in Tickle & Ors [2015] EWHC 2991 (Fam) which concerned a mother who had turned her life around wishing to discuss her case on social media.

Dr Proudman thus submits that there exists a legal framework to vary the statutory provisions and grant mother’s application. She argues that the novel legal point is whether the transparency order already in place in this case can be amended to allow for this. If the Court does not consider the transparency order can be amended, she would seek for a separate bespoke order to be made as in previous cases where parents have been allowed to speak or write publicly about family proceedings.

Somewhat differently, Mr Gilmore submits that the Court has the power to permit a party to publish information about the proceedings pursuant to FPR r. 12.73(1)(b), thereby disapplying the provisions of s 12 of the AJA 1960. In deciding whether to give such permission, the Court should proceed to balance the competing Article 10 and Article 8 rights in accordance with the judgment of Lord Steyn in Re S (A Child) [2004] UKHL 47. In contrast to Dr Proudman, Mr Gilmore submits that it does not appear permissible to simply vary the transparency order to permit the mother to write and speak directly. He suggests this is because it is unnecessary to do so, the mechanism to allow a parent to publish information about their case having already been established in the key authorities.