The applicant, a professional journalist, sought a disclosure order which would enable her to see the court file and other materials relating to concluded public law care proceedings. The child at the centre of those proceedings, now aged seven, had been removed from her mother’s care when she was two years old with a plan for adoption. Following several further court proceedings, which included a Court of Appeal reversal of a placement order the child, having spent three years in foster care, was returned to the mother’s care where she remained. The applicant, having begun a wider investigation into what she perceived to be an unusually high percentage of cases in the local authority’s area which resulted in adoption orders, sought access to the information and material which had informed the earlier decision-making of the local authority and the court. The applicant did not seek permission to publish any of the material which might be released as a result of the disclosure order, accepting that she would need to come back to the court and seek that permission on a separate occasion were her journalistic endeavours to lead to a story or an article which she wished to put before the public at large and that she would continue to be bound by whatever restrictions the court considered appropriate. The mother, both on her own behalf and that of her child, had expressly waived her rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the documents and consented to their release to the applicant. The application was opposed by the local authority and the children’s guardian in terms of its reach and the nature and quantity of information and documents sought.
On the application—
Held, application granted subject to conditions. (1) In seeking to understand from information which had been put before the court by the local authority why decisions had been taken both by its officers and social workers and ultimately by the court, the applicant wanted access to everything in the court file. That request was far too wide and, in certain respects, inimical to the child’s interests. The court was not deciding matters of general principle but conducting a targeted and fact-specific exercise which involved a careful balancing exercise of all the competing article 8 and article 10 rights involved as between the individual parties. In considering where the balance between those rights lay, different considerations had to be weighed in the balance in respect of the broad categories of documents which encompassed, inter alia, medical evidence and health records, contact records, police disclosure, social care records, multi-agency minutes and reports, expert’s reports, care plans and court orders. However, while the court rejected the application for wholesale disclosure of the court file, the applicant would be entitled to see limited aspects of the material it contained in an appropriately redacted form where necessary. In terms of any necessary redaction, it would inevitably fall to the local authority in consultation with the guardian to undertake the process of redaction in accordance with the guidance set out in the judgment. To the extent that the court’s decision interfered with either the mother’s or child’s article 8 rights and/or the applicant’s article 10 rights, the interference was proportionate (paras 154, 160–162).
(2) The fact that the mother held parental responsibility for the child and consented on her behalf to the waiving in their entirety of her child’s article 8 rights in connection with the material sought did not determine the question whether disclosure should be ordered. Plainly appropriate respect and weight had to be accorded to the wishes and feelings of any individual who held legal responsibility for a child as a result of being that child’s parent. However, since the balancing exercise had to be conducted in respect of the particular child in the particular circumstances with the focus on the child’s best interests now and in the future, the mother’s consent could not be determinative of the issue (paras 125–128, 170).
Per curiam. The principle of transparency and openness is of crucial importance in a democratic society. There have been significant developments towards greater transparency in the family courts but any wholesale departure from the principled and well-recognised protection afforded to the interests of children is one which will need to be informed by a careful evidence-based review. Sir Andrew McFarlane P has assembled a panel who will assist him in the important task of considering whether the line which is currently drawn between, one the one hand, the need for confidentiality for the parties and children whose personal information is the subject of proceedings, and, on the other, the need for the public to have confidence in the work done in these courts on behalf of the state and society is the right one (para 163).
Anya Proops QC, Zac Sammour and Kate Temple-Mabe (instructed by Howard Kennedy LLP) for the applicant.
Heather Rogers QC and Sarah Earley (instructed by Solicitor, Southampton City Council, Southampton) for the local authority.
Deirdre Fottrell QC (instructed by Goodman Ray) for the child, by the children’s guardian.