Re BR & ors (transparency order: finding of fact hearing)
| Jurisdiction | England & Wales |
| Judge | POOLE J |
| Judgment Date | 25 January 2023 |
| Court | Family Court |
Care proceedings – Transparency – Pilot project for reporting of family proceedings – Template Transparency Order – Guidance – Jigsaw identification – Appropriate variations.
On 29 November 2022, the President of the Family Division issued ‘The Transparency Reporting Pilot Guidance’ heralding a pilot project to test a new approach allowing for reporting of family proceedings; the pilot was due to begin in the Family Court at Leeds, Cardiff and Carlisle on 30 January 2023.
The judge in the instant case directed that three public family law applications, brought separately by three different local authorities, concerning three previously unconnected families living in different parts of Yorkshire, should be heard together at a finding of fact hearing, expected to last for 11 weeks. The hearing concerned allegations that the mother in each family had fabricated or induced illness in one child of each family. Certain features were common to all three cases, including that for some months the children directly affected had been treated at the same hospital at the same time.
The reporting pilot was to begin about two weeks after the hearing began. The judge thought it appropriate to adopt the pilot from the outset of the hearing, rather than to do so two weeks after the case had begun and therefore made a Transparency Order (TO) adopting the template order attached to the President’s Guidance. The TO was circulated to the parties and potential pilot reporters were alerted via the Press Office at the Royal Courts of Justice. The judge gave notice that he would consider any written or oral submissions to vary or to discharge the order on 17 January 2023. Only one party – one of the fathers – wholly opposed the making of a TO and invited the court not to permit any reporting. The other parties, whilst not opposing the making of a TO, requested certain specific restrictions.
Held, making a transparency order (TO) and giving guidance on the approach taken—
(1) The pilot had been designed to begin a sea change in transparency in the family courts. It would soon become wholly ineffective if judges in the pilot courts routinely refused to make TOs, but the decision whether to permit reporting was one for the judge to make in each case where a pilot reporter attended. When deciding whether to make a TO and, if so, on what terms, a pilot court judge must strike a balance between rights that favoured publication and the rights of the child to respect for its private and family life, adopting the principles set out in Re S (a child) (identification: restrictions on publication)[2004] UKHL 47 and Griffiths v Tickle[2021] EWCA Civ 1882. Applying Re Webster: Norfolk County Council v Webster[2006] EWHC 2733 (Fam), s 97(2) of the Children Act 1989 did not prevent this balancing exercise in cases concerning children’s welfare, indeed it required it if the court was considering dispensing with s 97(2) to any extent. The President’s Guidance on the Transparency Reporting Pilot should also be taken into account by the pilot courts. Parties and pilot reports should, if at all possible, consider in advance of a hearing what limited variations to the template TO they sought, and be able to justify those variations (see [16], [17], [21], below).
(2) During the pilot, judges in pilot courts would not have time to conduct a detailed scrutiny, let alone to give a written judgment explaining reasons for making or not making a TO. The template TO was therefore of considerable assistance. It included prohibitions on reporting a list of information which would be likely to identify the subject children in every case, for example, their date of birth and their address. It would be unusual to relax any of those restrictions. The more common question for judges in the pilot was likely to be whether to add further specific information to the list of restrictions in the template TO (see [18], [19], below).
(3) The following was the approach the court had taken to the questions of whether to make a TO in this case, in order to permit reporting and, if so, what the terms of the TO should be:
(i)The court must seek to achieve a balance between the rights of publication and the rights of the child to anonymity, applying the principles in Re S.
(ii)The children involved in these family proceedings would be likely to suffer harm if their anonymity were lost.
(iii)There was a significant public interest in allowing reporting of family proceedings as explained in the Guidance on the Transparency Reporting Pilot and in the President’s Confidence and Confidentiality: Transparency in the Family Court publication.
(iv)Save in exceptional cases, where it would be particularly difficult to achieve anonymity for the child, the terms of the template TO would strike the right balance, as required by Re S.
(v)Section 97(2) CA 1989, which made it a criminal offence to publish information likely to identify a child, placed a heavy burden on pilot reporters who were required not only to abide by the prohibitions on reporting the list of specific information set out in the TO, but also to avoid the likelihood of jigsaw identification. The template TO and s 97(2) in combination provided significant protections against subject children being identified.
(vi)The court could not dictate the detail of what reporters wrote or broadcast. However, the circumstances of the particular case might require that the reporting of specific information, not already included in para 13 of the template TO, should be prohibited. Any such further prohibitions should be limited so as to avoid undue interference with art 10 rights to freedom of expression.
(vii)In a particular case there might be other information which might not itself identify the child, but which the court might recognise in the TO as likely to identify the child if reported in combination with reportable information (jigsaw identification).
(viii)In a particular case it might be appropriate to allow reporting of information that would otherwise be prohibited within the template TO, if there was a particularly strong public interest in it being reported.
(ix)A TO could properly be made even if there were or might be pending criminal investigations or proceedings, but the template TO would usually have to be revised to prevent reporting until the conclusion of those investigations or proceedings, so as to avoid causing prejudice to them (see [20], below).
(4) The court had adopted the template TO, with two significant variations.
(i)Firstly, because each of the three mothers had been arrested and criminal investigations instigated, there was to be no reporting until criminal proceedings against all three mothers had been concluded and/or the police or CPS had determined that such criminal proceedings would not be brought and no further action would be taken.
(ii)Secondly, due to the very large number of parties involved in the present case, the court had added a confidential schedule, setting out the real names of the family members, including the children. This was to avoid inadvertent reporting of any members of the three families. If a pilot reporter had any doubts about whether an individual was subject to the prohibition on identification, they could check the confidential schedule.
These additions to the template TO would not be necessary in most cases in the pilot (see [22], below).
(5) Remote attendance by pilot reporters was not a requirement. The potential for discomfort and distress of family members did not justify excluding reporters from observing the proceedings in person; it was important that pilot reporters were able to observe in person and in this case there would be space to accommodate them. However, this was also a hybrid hearing, as some legal representatives and many healthcare professionals would sometimes be attending remotely, so pilot reporters could attend remotely if they wished to do so (see [24], below).
(6) Responsibility for ensuring that a pilot reporter was duly accredited or was a legal blogger rested with the court, which must also be satisfied that the pilot reporters attending had read and understood the relevant TO. For many hearings, it would not be possible for the TO to be drafted in advance of the hearing, as the court might be unaware of a pilot reporter’s intended attendance until shortly before or even until the beginning of the hearing. However, unless or until the court had made a TO, even if that was after the conclusion of the hearing, no reporting of the hearing was permitted as, without a TO, s 12 Administration of Justice Act 1960 prevented any publication of a private hearing. The court had to satisfy itself that the pilot reporter had received and understood the TO whenever that TO was made. If a new pilot reporter attended part way through a long hearing, they would be provided by the court with the TO that was then in force and asked to confirm that they had read and understood it. Pilot reporters would be identified by the court to the parties (see [25], [26], below).
(7) The template TO entitled pilot reporters to access a range of documents upon request. In this case, that would lead to a very large volume of documentation being made available, which would be an unhelpful burden on reporters and parties alike. The court had therefore restricted the documentation pilot reporters were entitled to receive to the opening and closing position statements or skeleton arguments, and the indices to the hearing bundles. The parties were not permitted to provide other documentation to pilot reporters without the court’s express permission. The court had asked the Court Associate to compile an electronic folder – the pilot reporter folder – containing these documents, together with the TO, which could be provided on request to pilot reporters. If a pilot reporter requested any other documentation not included in the pilot reporter folder, the request must be referred to the court to...
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