Adams v Secretary of State for Work and Pensions and Green (CSM)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Neutral Citation | [2017] UKUT 9 (AAC),[2017] UKUT 9 (AAC),[2017] AACR 28 |
| Subject Matter | Child support,Child support - tribunal practice,Charles,W |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 13 January 2017 |
[2017] AACR 9
(Adams v SSWP)
Page 1
[2017] AACR 28
(Adams v Secretary of State for Work and Pensions and Green (CSM)
[2017] UKUT 9 (AAC))
Mr Justice Charles CP CCS/2116/2013
13 February 2017
Tribunal procedure and practice – anonymity – whether practice of anonymising
decisions appropriate
The appellant had appealed to the Upper Tribunal (UT) against the assessment of his liability for child support
maintenance and, in accordance with its usual practice, the UT had anonymised the names of the parties and
referred only to the child’s forenames in its decision: CA v (1) The Secretary of State, (2) EG (CSM) [2014]
UKUT 359 (AAC). Its practice represented a default judicial approach as the UT had not m ade an order
prohibiting publication of th e names of the parties involved in the proceedings under rul e 14 of the Tribunal
Procedure (Upper Tribunal) Rules 2008. The appellant appealed against the UT’s practice, ar guing that subject
to exceptional circumstances all litigants had a common law right to insist on no anonymisation of cases,
particularly those heard in public, unless it was removed by pr imary legislation. Before th e UT could consider
that appeal the CA decision was published on the Fathers4Justice website in an unanonymised form and the UT
issued an interim anonymity order under r ule 14 requiring the decision to be ta ken down. Among the issues
before the UT was wheth er a final anonymity order should be made and whether it should continue its practice
of anonymising parties in child support cases.
Held, allowing the appeal, that:
1. the fundamental common law pr inciple was applied to promote, and therefore was qualified by, the
promotion of the public i nterest on which it was founded and so it had always been recognised that in some
limited circumstances the interests of justice would be better served by a private hearing or anonymisation (with
or without a reporting restrictions order) and so a litigant could not insist on a public hearing and unanonymised
publication (paragraph 49);
2. when a court was determining an open justice issue by weighing competing Convention rights it must
have regard to the fundamental common law principle of open justice and the weight given to it, and thus the
public interest reasons for it, by the courts in England and Wales. The exercise was fact and circumstance
sensitive and, on this approach, a departure from open justice must be justified. Accordingly, an approach of the
UT that was based primarily on an analogy with that taken by the Family Courts or the Court of Protection at
first instance would be wrong (paragraphs 66 to 67);
3. the UT concluded that in this case there should not be a final anonymity reporting restriction order
having decided that the interests of open justice outweighed the h arm arising from embarrassment, worry or
distress to the child (and his mother) subject to extending the existing anonymity order for a limited time to
enable the current position to be preserved if there was an appeal (paragraphs 101 to 102);
4. the UT’s practice of anonymising decisions would continue on the basis that it was explained to all the
parties to the appeal that, subject to further order by the UT, the practice of anonymising decisions would only
be applied if no party objected to it, and (i) th at its effects were that: (a) non-parties who obtained decisions
either directly or indirectly from the UT would do so in an anonymised form, and (b) if someone asked the UT
for the identity of th e anonymised persons the parties would be notified and gi ven an opportunity to object, (i i)
that the UT’s practice did not prevent publication by a party or anyone else of th e identities of the individuals
involved in the case, and accordingly (iii ) if a party wanted an injunctive order they sh ould ask for one
(paragraphs 127 to 132).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Subject to further order of the Upper Tribunal or the Court of Appeal:
(1) On 15 February 2017
[2017] AACR 9
(Adams v SSWP)
Page 2
(a) this decision, and
(b) the decision of Upper Tribunal Judge Turnbull presently reported as CA v
(1) The Secretary of State, (2) EG (CSM) [2014] UKUT 359 (AAC)
will be published on the UT(AAC) database in an unanonymized form.
(2) The injunctive order made on 22 June 2016 is continued to but will end at 9.30 am
on 15 February 2017.
REASONS
Introduction
1. The appellant (Mr Adams) and the second respondent (Miss Green) have a son
Nicholas (N) who is now 15. For most of N’s life his parents have been in litigation about
him. That litigation (the Family Litigation) has been hard fought and has given rise to very
strong feelings on both sides. It has ranged over a number of issues to be decided under the
Children Act 1989. I understand that those maintenance proceedings are continuing.
2. I do not know and do not need to know the details of the Family Litigation. I am
grateful to both Dr Pelling and Mr Holden for representing the parents on this application.
Without them the dynamics of the relationship between the parents and their attitudes would
have made a hearing that focused on the issues extremely difficult if not impossible.
3. The appeal to the Upper Tribunal (Administrative Appeals Chamber) UT(AAC) was
made by Mr Adams, as the non-resident parent, against a decision of the First-tier Tribunal
(F-tT) made on 28 March 2011 that Mr Adams was liable to pay child support maintenance in
the sum of £57.14 per week from April 2009. The appeal was heard by Upper Tribunal Judge
Turnbull and his decision is reported on the UT(AAC) database as CA v (1) The Secretary of
State, (2) EG (CSM) [2014] UKUT 359 (AAC) (the Turnbull Decision). The (CSM) in that
title identifies that the Turnbull Decision relates to child support maintenance. And the title
reflects the practice of the UT(AAC), which I describe later, to anonymize such decisions on
its database and in its records. Judge Turnbull did this by anonymizing the names of the
parents and referring to the child by his forename. This application concerns:
i) Mr Adams’s challenge to that practice of the UT(AAC), which he argues is
unlawful, and
ii) whether in this case an anonymity order (and so a reporting restrictions order)
should have been made as an interim order and whether it should now be made
as a final order.
4. The core of the Turnbull Decision was that the First-tier Tribunal (F-tT) had erred in
law in its approach to the application of regulation 18(1)(a) of the Child Support (Variations)
Regulations 2000 (SI 2001/156) (the Regulations) then in force which applied to an asset: “in
which the non-resident parent has a beneficial interest, or which the non-resident parent has
the ability to control”. Judge Turnbull decided that the reference to a beneficial interest in
that regulation encompassed the interest of a beneficiary under a discretionary trust, and so
the interest of Mr Adams under such a trust. For that and other reasons Judge Turnbull
remitted the appeal to a freshly constituted F-tT for redetermination. My understanding in
[2017] AACR 9
(Adams v SSWP)
Page 3
October 2016 was that that hearing, and other appeals relating to child support maintenance
between the parties, had not yet taken place.
5. Mr Adams:
i) sought permission to appeal the Turnbull Decision, and
ii) challenged its publication in an anonymized form (and this challenge has been
referred to as the Open Justice Issue).
6. Permission to appeal was refused by Judge Turnbull, then on paper by Elias LJ and
then, following a hearing, by Sales LJ. In refusing permission to appeal the Court of Appeal
did not deal with the Open Justice Issue. I gave directions that it was to be heard by me rather
than Judge Turnbull. A hearing took place before me on 22 June 2016. The injunctive order I
made and the judgment I gave on that day are set out in Parts A and B of the Schedule hereto.
7. As appears from that judgment and order, the Turnbull Decision had been published on
the Fathers4Justice website in an unanonymized form. The hearing on 22 June 2016 was held
in public and some members of the public attended. Miss Green attended for a very short
time but left leaving Mr Holden to represent her. After it, a number of further applications
were made but I refused to make any substantive orders on the basis that the applications
could and would be dealt with at the hearing on 6 October 2016. At that hearing, Miss Green
again only attended for a short time. As at the earlier hearing in June, Mr Adams attended
throughout.
8. At an early stage of the hearing it was agreed that all assertions of fact made during
submissions would be treated as evidence given on oath and that there was no need for those
asserting them to confirm them on oath from the witness box. The media had been informed
of the hearing but no media representative or member of the public attended. I informed Dr
Pelling and Mr Adams that if members of the public attended but refused to identify
themselves as persons who had been notified of the injunction, I would not spend time on that
issue but would hold the remainder of the hearing in private and give my decision in public.
9. Miss Green, through Mr Holden, indicated that she was no longer seeking to pursue any
committal application in respect of the original and continuing publication on the
Fathers4Justice website. Nonetheless, Mr Adams and Dr Pelling continued their stance of
exercising their right of silence in connection with that publication and the issues of fact
relating to how those responsible for putting the Turnbull Decision on that website in an
unanonymized form had obtained a copy of the Turnbull Decision and the identities of the
parties to it.
10. I indicated that I would give my reasons for my announced conclusions on the
preliminary and other applications in this decision.
Preliminary and other applications
11. These were:
i) An application by Mr Adams that I should recuse myself or direct that this
application should be heard by a three-judge panel comprising myself and two
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