Introduction

This short series of posts started from thoughts on Disclosure of information between family and criminal agencies and jurisdictions: 2024 protocol (published by Crown Prosecution Service (CPS) and in force since 1 March 2024: “the Protocol”). The object of the Protocol was to promote prompt communication between the police and local authority lawyers (and any unrepresented parties) in children proceedings. This series seeks to widen the subject:

  • Part 1 dealt mostly with the meaning and context of its use of the overused, and abused, term “disclosure”
  • Part 2 aimed to widen and define the concept of introduction of relevant material from non-parties into family proceedings as a whole (not only children proceedings)
  • This Part will define the procedural context for release of court material to non-parties (eg the police) and of “publication” from family proceedings.

To what extent can court material be permitted to be released for “publication” – a term to be explained shortly and as used by Administration of Justice Act 1960 (AJA 1960) s 12 – by parties to family proceedings or to non-parties? And, in procedural terms, how can this release of material be arranged (eg by a journalist or interested family member).

Release of material from family proceedings

In this post it will be assumed that the limits of openness of family proceedings generally and of what can be released or otherwise passed on to non-parties from family proceedings consists of the following broad categories of court material:

The lead case on the subject of release of material to a non-party to a case is Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2020] AC 629, [2019] 3 WLR 429 (29 July 2019) (considered as an ICLR post at around the time of the judgement in Release of court documents to people who are not parties to the proceedings). The case concerned a group which supported victims of asbestos-related diseases. They applied for access to documents used or disclosed in the High Court in a long damages trial. Their case about release of documents reached the Supreme Court. On behalf of the Court (of herself, Lord Briggs, Lady Arden, Lord Kitchin and Lord Sales) Lady Hale explained the application of the case to the open justice principle and pointed out crisply (in [34]) that “the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different”.

Save where family proceedings are lawfully in private (as explained later), the principles in the case apply to family proceedings as to any other. In support of this point the Supreme Court concluded its judgement:

“Postscript

[51] We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case. About the importance and universality of the principles of open justice there can be no argument…”

The Supreme Court sent the case back to Picken J for a final decision on what could be released in his discretion from the original case before him. The judgment of Picken J in Dring (on behalf of the Asbestos Victims Support Group UK) v Cape Intermediate Holdings plc [2020] EWHC 1873 (QB), [2021] 1 All ER (Comm) 848 (16 July 2020) repays careful reading especially at [63] to [81]. The judge carefully explains the limits of a court’s inherent jurisdiction by reference especially to R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (cited above) which was so persuasive on the Supreme Court in its 2019 decision-making.

To ‘advance the open justice principle’

In Cape Intermediate (above) the Supreme Court said that release to a non-party of court material is not a right:

“[45] … Although the court has the power to allow access [to court material], the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle.”

Picken J in Dring v Cape Intermediate discussed how access to court material might work in practice:

“[71] … A third party making an application for access to documents should show that the documents will advance the open justice principle. This appears, indeed, to be what Lady Hale was saying in the passages to which I have referred. It is also consistent, on a proper analysis, with what was decided in [R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (3 April 2012)] Guardian News and Media since it is important to appreciate that in that case, as Toulson LJ made clear at [82], the applicant, The Guardian, had ‘put forward credible evidence that it was hampered in its ability to report as full as it would have wished by not having access to the documents which it was seeking’.”

He referred to Guardian News and Media (at [76]) where Toulson LJ emphasised that: “The Guardian has a serious journalistic purpose in seeking access to the documents. It wants to be able to refer to them for the purpose of stimulating informed debate” about an aspect of the way in which the justice system was working and the “extradition of British subjects to the USA.” From this Picken J concluded:

“[78] … A third party should not merely show that access to documents would be in accordance with the open justice principle but also that such access would advance the open justice principle. If the position were otherwise, and an applicant could merely insist on production of documents on the basis that this would be in accordance with the open justice principle, there would be nothing to stop anybody making an application and doing so in overly wide terms. That clearly is not what the Supreme Court (whether in this case or in Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455, [2014] 2 WLR 808 (31 October 2013) or A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 588, [2014] 2 WLR 1243 (8 May 2014)) can have contemplated would justify an application under the inherent jurisdiction.”

The court must conduct a “balancing exercise” said Picken J. It must take into account a variety of factors in the particular case:

“[81] I agree with [counsel for Mr Dring and the Forum], therefore, that the proper approach is not to seek to impose “limits” (as described by Lady Hale at [41]: [Picken J’s emphasis]) or prior hurdles to the exercise of the Court’s discretion. Rather, the Court should engage in the balancing exercise described by Lady Hale (as well as Lord Reed [in A v BBC] and Lord Toulson [in Kennedy]) and, in so doing, accord appropriate weight to the various different factors…”

A procedure for release of documents from family proceedings

Rules for family proceedings have yet to be rewritten by FPRC as recommended by the Supreme Court (see reference to [51] above). The position for “use” of court documents by, or release to, non-parties remains in relative procedural obscurity. What, in practical terms, can anyone do to obtain court material. Perhaps a journalist wants to see material from a case (as in the cases cited above); a lawyer wants more background material (eg skeleton arguments, or witness statements); or a parties’ relative considers untruths may have been told in court?

In Cape Intermediate (at [16] to [23]) the Supreme Court sets out how CPR 1998 r 5.4C might form the basis for an application for release (as sought by Mr Dring). But family proceedings are not formally regulated by CPR 1998. The procedure for release in any family proceedings is no more than at FPR 2010 r 29.12:

“29.12 Access to and inspection of documents retained in court

(1) Except as provided by this rule or by any other rule or Practice Direction, no document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without such permission.”

What does FPR 2010 r 29.12 say of any procedure for application? Nothing. This post therefore seeks to fill the gap and urges FPRC to adopt some of what follows. It concludes with a proposal for a practice direction to assist a means for the seeking of permission (ie the family law equivalent of Cape Intermediate and Guardian News and Media) and to:

Permission for release of court material to parties for ‘publication’ or to non-parties

The essence of all this is release for publication of documents in “private” proceedings to the parties or to non-parties (“non-party” is the post-CPR 1998 term for ‘third parties’). That comes down to a question of the extent to which – in family proceedings – the privacy of parties and children in proceedings (eg per European Convention 1950 Art 8) should be balanced by freedom of expression (Art 10) of parties and non-parties. Such freedom, where it is held to apply, is unlimited save as directed by a court.

So, when can material from a court file be published by a party to family proceedings or released to someone who is not a party to proceedings. As relevant to family proceedings, s 12 (as amended) deals with “publication” from a court file. As relevant to family proceedings s 12 says:

“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

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;…

(e)where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published….

(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” (underlining added).

The underlined passage was added by amendment of s 12(4) by Children Act 2004. Under the amended s 12(4) amendment rules have been made which are applicable to all family proceedings: the amendment rules are part of the children proceedings part of Family Proceedings Rules 2010 (FPR 2010), but emphatically apply to all types of relevant proceedings under FPR 2010. These amendment rules in their current form are set out in FPR 2010 Part 12 Ch 7 and PD12G.

‘Publication’, communication and use: some definitions

The lead case on balancing European Convention 1950 rights as between Art 8 and Art 10 when it comes to “publication” or not, is In re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (28 October 2004) (“Re S (Identification)”). Speeches in that case were delivered six months after In re B (a Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142 (19 March 2004) (aka Kent County Council v B (A Child)) in which Munby J provided what is treated regarded the definition of “publication” in the context of AJA 1960 s 12(1). The earlier (Munby J) case – considered under the definition of “publication” (below) – was not referred to in the later Re S (Identification).

Definition of terms applicable to release or publication of material to non-parties, or to publication by parties, include the following terms:

Publication – in Re B (above) Munby J said of a meaning for publication in AJA 1960 s 12 that:

“[68] … One might expect the word [publication] here to have the same meaning as in the law of defamation: see Arlidge, Eady and Smith on Contempt (Sweet and Maxwell, 2nd Ed, 2000) para 8–79, suggesting that the publication contemplated by s 12 is not confined to information communicated through the media but includes private communications to individuals.”

Munby J’s definition is backed by the current edition of Arlidge, Eady & Smith on Contempt (with supplement) 5th Ed, Sweet & Maxwell (2017) (see para 8-149). “Publication” may include “private communications to individuals may very well constitute contempt unless permission [is] obtained from the court”.

Communication – is the term used, following on from the amendments to AJA 1960 s 12(4), in FPR 2010 Part 12 Ch 7 and PD12G. “Communication” provides a synonym for “publication” in s 12. It is intended to protect from any question of contempt proceedings certain communications between agencies concerned with child protection and other aspects of private hearings covered by s 12(1). The operation of PD12G (which contains the main working parts of the s 12(4) provisions) was explained by Baker J In re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam) [2015] 1 FLR 1218 and its practical aspects – the importance of obtaining permission where a non-party is not within any of the PD12G exceptions – can be seen in In re X, Y and Z (Disclosure to the Security Service) (Commissioner of Police of the Metropolis v A Local Authority) [2016] EWHC 2400 (Fam), [2017] 2 FLR 583, [2016] 4 WLR 153, McDonald J.

Use – CPR 1998 r 31.22 (“Subsequent use of disclosed documents”) in effect defines the common law (ie it applies in family proceedings). As relevant here r 31.22 says:

“(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.”

Where a document is produced by a party by compulsion it is covered by an “implied undertaking” that it should not be used outside the proceedings in question (Riddick v Thames Board Mills [1977] QB 881; [1977] 3 WLR 63, CA). Since what amounts to a reversal of the previously restrictive decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (see above); however, this implied undertaking has been relaxed by what is now r 31.22. As can be seen this rule enables a person in proceedings (other than private proceedings) to publish – ie “use” – documents ‘read to or by’ the court. Where a judge has made reference to documents read by the judge privately (mostly out of court prior to or during a hearing) then these are treated as ‘read’ under r 31.22 (Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781 (above)).

Rule 31.22(2) and (3) together enable a party to proceedings to apply to the court to prevent use (or publication) of material which has been disclosed (and see NAB v Serco Ltd [2014] EWHC 1225 (QB), Bean J for discussion of this type of application).

‘In private’ hearings

As can be seen, s 12(1) catches “proceedings before any court sitting in private”. If any proceedings are in fact heard “in private” then s 12(1) applies. It remains the case – oddly, it might be thought – that a statutory provision depends mostly on definitions in delegated legislation (ie in this instance to eg CPR 1998 r 39.2 and FPR 2010 r 27.10).

In family cases application of the relatively draconian s 12(1) therefore depends on such provisions as FPR 2010 rr 27.10 and 10.5. These two rules respectively assert that the majority of family proceedings shall be heard in private especially, per r 10.5, in domestic abuse proceedings. Yet it is by no means entirely clear – as Mostyn J explained in Xanthopoulos v Rakshina [2022] EWFC 30, [2023] 1 FLR 388 (12 April 2022) – that rule makers have clear vires (statutory powers: see Courts Act 2003 ss 75 and 76) to make a rule which asserts that proceedings are to be in private. Privacy and its corollary, open justice, is a matter for the common law, not rule makers, to dictate.

Does Administration of Justice Act 1960 s 12(1) apply?

What are the correct questions to ask for the court or any would-be publisher or communicator – party or non-party – of information under AJA 1960 s 12(1) and (4)? This involves a three-stage test:

  1. Are the proceedings being heard, or were they heard, “in private”: whether in law, by court order or according to any rule. If so, it may be contempt to publish, that is contempt is not inevitable, save where (2) applies.
  2. As a general rule it will always be contempt to publish if one of the ‘automatic constraints’ (as Sir James Munby P described them in In re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, [2014] 2 FCR 284 (5 September 2013) apply (ie the list in s 12(1), of which (a) and (e) are given above).
  3. This is the case unless one of the s 12(4) exemptions applies. In the case of family proceedings, s 12(4) exemption from contempt proceedings applies if one of the exceptions provided for in FPR 2010 Part 12 Ch 7 and PD12G applies.

And it is not enough for a would-be disseminator of information from proceedings heard “in private” necessarily to rely on legal advice as to whether s 12(1) applies. Best advice is to ask the permission of the court (see FPR 2010 r 29.12), if in doubt. In X v Dempster [1999] 1 FLR 894 (9 November 1998), Wilson J was dealing with a contempt application against a journalist and his newspaper where the defence was that they had been advised by a barrister that they could publish. The main question in was whether the journalist had guilty intent sufficient for contempt. Wilson J (as he then was) said yes. At 904 he said:

“The publication must be of information known to relate to proceedings which are taking place in private. Both Mr Dempster and the company [ie the Daily Mail] clearly had such knowledge. Lord Denning [Wilson J was citing from Lord Denning MR in Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA] would have been the first to say that a belief that an otherwise unlawful act is lawful does not make it so. There is no point in our having a legal system if the law is whatever people think it is.”

To ask permission of the court this series of posts comes back to Cape Intermediate and its refinement by Picken J as considered above. As the inscrutable FPR 2010 r 29.12 stands any applicant for permission to receive court material or to publish should apply under FPR 2010 Part 18 (for an interim order to the judge who is dealing with the case or who dealt with the hearing which involved the original material).

‘The ultimate balancing test’; human rights issues

The extent to which the court will go to consider an application for release will depend on the purposes for which publication is sought: will publication “advance the open justice principle”. Tickle v Herefordshire County Council [2022] EWHC 1017 (Fam), [2022] 2 FLR 1366 (4 May 2022) concerned a journalist’s aim to expose the poor practices of a local authority’s children’s department.

The first question for a judge in a case like  Herefordshire CC will be to balance the human rights issues in play: privacy of family members (European Convention 1950 Art 8) with freedom of expression (Art 10: freedom of expression, whether of eg the press, of a party to proceedings or a non-party). In Re S (Identification) (above) Lord Steyn considered this in the context of whether a mother’s name should be published in criminal proceedings. She was being tried for murder of a small child whose young sister identity might be compromised. Lord Steyn explained his view of the competing human rights issues as follows:

“[17] The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”

In the Herefordshire CC case, the journalist (ie a non-party) sought to publicise a care case, and to give the name of a mother involved in a television programme. Lieven J summarised her approach to the Re S (Identification) factors. There were, she said, a number of factors which operated in favour of allowing a child’s mother to speak openly about her adverse experiences at the hands of the county council and which did not therefore require her to be anonymised. The council’s proposed restrictions on the journalist’s interview and the intended BBC programme were too wide. There was a public interest in issues surrounding the council’s social work practice being known about and being subject to public debate.

The counterbalancing potential for harm to the mother’s other children from her being identified was relatively limited. They were all under the age of eight, their use of social media still limited. The case did not involve distressing and highly personal information. None of these factors tipped the balance against publicity.

How to apply for permission to publish in family proceedings whether as a party or non-party? Either fear that they may be caught by s 12(1) and (4))? How is court permission under FPR 2010 rr 12.73 or 29.12 to be obtained to for release or other publication of court material.

For family proceedings there is, at present, no procedural equivalent of Cape Intermediate (above) and its recommendation of use of CPR 1998 r 5.4C. The best that can be proposed for now is to adopt a procedure analogous with CPR 1998 rr 5.4C and 5.4D by application formally under the FPR 2010 Part 18 interim application procedure in the context of FPR 2010 rr 12.73 or 29.12.

Civil Procedure Rules 1998 r 5.4D, Picken J and a way forward

Under the heading “Supply of documents from court records – general” CPR 1998 r 5.4D(1) says that a person who wishes to obtain a copy of a [court document] must pay any court fee. Rule 5.4D continues: (a) if “permission” is required an application in CPR 1998 Part 23 (which is echoed closely by FPR 2010 Part 18) must be filed; or (b) “if permission is not required… a written request for the document” is required. Rule 5.4D(2) says that an application “may be made without notice, but the court may direct notice to be given to any person who would be affected by its decision”.

Applications may be by a party to proceedings or by a non-party (eg media, police etc). Some applications may be clearly matters for a without notice order (eg where a journalist has been in court and heard a document referred to or read). A need for notice of an application will vary according to the facts of individual facts (Cape Intermediate started out not on notice; but was on notice for most of its life).

Advancement of the open justice principle must always be born in mind, as explained by Picken J in in Dring v Cape Intermediate Holdings (above) and to the “the balancing exercise described by Lady Hale [in Cape Intermediate)] (as well as Lord Reed [in A v BBC (above)] and Lord Toulson [in Kennedy (above)])” in considering whether to order release to a non-party or to permit publication by a party.

Featured image: documents, via Shutterstock.