Hershman Levy Memorial Lecture – Munby LJ on Transparency

Lord Justice Munby recently delivered the annual Hershman Levy Lecture on the topic of Transparency and the Children Schools and Families Act 2010, in which he referred to my recent article in Family Law, republished here. You can read the lecture here on the Association of Lawyers for Children website (I’ve downloaded it here: HERSHMAN_LEVY_MEMORIAL_LECTURE_2010, as the link to the ALC website seems not to work all the time).


The Children Schools and Families Act 2010 made its way through ‘wash up’ and received Royal Assent on 8 April 2010.

Amongst other things (not dealt with here) it makes substantial and controversial changes to the law concerning the publication of material relating to family proceedings, which are summarised below. There will be repeals and amendments of a number of pieces of primary legislation, in particular s12 Administration of Justice Act 1960, s97 Children Act 1989 and s39 Children and Young Persons act 1933.

The relevant provisions are contained in Part II of the Act, and they apply to all relevant family proceedings at which the public are / were not entitled to be present. Broadly: divorce, civil partnership and financial matters are not ‘relevant family proceedings’. References to ‘the Act’ in this article refer to Part II and its associated schedules. At the time of writing the Act is not yet in force and no date for its implementation has been announced.

The Act does not apply to proceedings concluded prior to the coming into force of the Act, but does apply to those ongoing at that date. Unlike s97 Children Act 1989 (which makes publication of information identifying a child, his school or his address a criminal offence and which will be repealed as the Act is brought into force) the provisions of the Act do not cease to bite at the conclusion of proceedings, but operate without end point as with s12 Administration of Justice Act 1960 (which defines circumstances where publication may amount to a contempt of court, and is also to be substantively repealed on enactment of Part II), thus fulfilling Jack Straw’s promise to repeal the rule in Clayton v Clayton [2007] 1 FLR 11.

Publication of information relating to the proceedings is made a contempt, except in three specified categories:

  1. an authorised publication of the text or summary of the whole or part of an order or judgment,
  2. an authorised news publication, or
  3. as authorised by rules of court.

These three categories comprise publications which either meet certain criteria, or where the court has specifically given its permission. Any publication which is not ‘authorised’ as defined by the Act will amount to a contempt of court.

‘Information relating to the proceedings’ is not defined but, since this terminology is in identical terms to s12 Administration of Justice Act 1960 existing caselaw, in particular RE: B (A Child) (Disclosure) [2004] 2 FLR 142, is of assistance and tells us that the classes of information falling into this category are likely to be:

…accounts of what has gone on in front of the judge sitting in private, as also the publication of documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries (per Munby J pa 66).

‘Publication’ includes disclosure or communication in any form to any person or persons (s21). This all encompassing definition of ‘publication’ is attenuated by Part XI of the Family Proceedings Rules which came into operation last year, and rather oddly it only is through these rules that a party is permitted to disclose information about the case even to their own lawyer, which would otherwise be a contempt of court under the Act. One might have thought that lawyer : client communication at least would be sufficiently fundamental to be protected by way of primary legislation rather than left to rules of court, but instead legal advisors, litigants and journalists will have to cross reference the provisions of the Act with the Family Proceedings Rules in order to work out what is and is not permitted.

Publication of an order (or a summary or section of it) is classed as authorised providing it does not contain ‘identification information’, does not relate to adoption proceedings (adoption proceedings does not include placement proceedings) and providing the court has not prohibited publication – it will therefore be generally acceptable to publish anonymised orders arising from most family proceedings. Where the order does relate to adoption proceedings or contains identification information it is only classed as authorised where the court has granted permission under s12.

Publication of a judgment is only authorised for the purposes of the Act where the court has specifically granted permission (s12(2)).

‘Identification information’ is defined as ‘information the publication of which is likely to lead members of the public to identify the individual as someone who is or has been involved in or otherwise connected with the proceedings’, or to ‘identify the address or school of the individual as being that of an individual who is or has been involved in or otherwise connected with the proceedings’. This definition is specified to include the categories of information on the following comprehensive but not exhaustive list:

  1. the name of the individual or any title, pseudonym or alias of the individual;
  2. the address or locality of any place where the individual lives or works or is educated or taken care of;
  3. the individual’s appearance or style of dress;
  4. any employment or other occupation of, or position held by, the individual;
  5. the individual’s relationship to particular relatives, or association with particular friends or acquaintances, of the individual;
  6. the individual’s recreational interests;
  7. the individual’s political, philosophical or religious beliefs or interests;
  8. any property (whether real or personal) in which the individual has an interest or with which the individual is otherwise associated;

It will be seen immediately that the prohibition on publication of identification information is in fact significantly broader than current patchwork of anonymity provisions, and now encompasses not just protection of the privacy of children but also of parents and indeed any other individual involved in the proceedings. Far from advancing the Government’s stated aim of promoting open justice the Act further restricts the public dissemination of information about children cases.

Although the detailed list of categories of information set out in s21(1) and rehearsed above are prohibited only insofar as they are ‘likely to lead members of the public to identify…’, the lack of precision and subjectivity inherent in the framing of these provisions is likely to make them very difficult to interpret with any certainty. Conversely, those very characteristics may make enforcement of any alleged contempt by way of breach of these provisions difficult to pursue with success.

An ‘authorised news publication’ is one where an accredited media representative (i.e. press card holder) obtains the information ‘by observing or listening to the proceedings when attending them in exercise of a right conferred on accredited news representatives by rules of court’ (s13(2)). This would presumably exclude publication of information gathered by an a party who is also a press card holder. The publisher of the information must be either the accredited news representative himself or must publish the information with the consent of, or pursuant to a contract or other agreement entered into with her. The re-publication of information gathered from an authorised news publication will also be an authorised news publication.

Publication of ‘identification’ or ‘sensitive personal information’ or ‘restricted adoption / parental order information’ must be expressly permitted by the court in order for the publication to qualify as an authorised news publication. Again, information relating to parental orders or adoption proceedings cannot be classed as ‘authorised’ without the permission of the court. It is difficult to see precisely what useful or newsworthy material  will be left for the press to report once all identification and sensitive personal information has been stripped out. Certainly the current practice of many national newspapers of simply stating ‘names have been changed’ at the foot of an article describing the parties and the circumstances of the case in some detail will have to change unless individual journalists are prepared to make applications for specific permission.

Schedule 2 defines ‘sensitive personal information’ as falling into three categories:

  1. ‘information related to the proceedings which has been provided by a child to a person who is or is expected to be a witness or which has been or is expected to be referred to in the proceedings’. The paradigm example of this would be a child’s wishes or feelings as expressed to their Guardian or parent or drawings or letters written by them to the judge.
  2. Information relating to a medical, psychological or psychiatric condition or a medical psychological or psychiatric examination or evaluation of any person which has been or is expected to be referred to in the proceedings. Query whether this would encompass an expert report prepared by an independent social worker who offers views regarding a person’s psychological profile? Note that the identity of the expert conducting any assessment is not classed as ‘sensitive’.
  3. Information relating to any healthcare, treatment or therapy which has been or is being provided or is proposed to be provided to any person that has been or is expected to be referred to in proceedings.

Sch 1 makes provision for the arrangements in relation to sensitive personal information to be amended by way of order of the Lord Chancellor. Under s19 such an order can only be made after the carrying out of an independent review of the working of both of these provisions and the changes brought into force in April 2009 has been carried out in conjunction with public consultation, and a report has been laid before Parliament. Built into s19 is an 18 month bedding in period before which the independent review cannot commence.

If and when an Order is made under Sch 1 it will no longer be a contempt of court to publish sensitive personal information, providing all the other conditions for authorised publication are met.

Although no permission is required to publish the identity of a professional witness this is likely to be of limited use to the media until the restrictions on publication of sensitive personal information are lifted. Until then the majority of the evidence such a professional would give is unlikely to be publishable under the Act because it would be ‘sensitive’ in one way or another. In the short term this is most likely to have an impact on social workers, portions of whose evidence may not be ‘sensitive’.

The court has power to superimpose its own orders in relation to what would otherwise amount to an authorised news publication and may make permissive or restrictive orders. However, the exercise of these powers is now subject to the criteria set out in sections 14 – 16, hence existing case law may be of limited value in future.

Pursuant to s14 the court may not permit the publication of identification information, or sensitive personal information unless at least one of the following criteria are fulfilled:

  1. It is in the public interest to give permission,
  2. It is appropriate to give permission to avoid injustice to a person involved in, referred to or connected with the proceedings,
  3. It is necessary to give permission in the interests of welfare of a child or vulnerable adult involved in, referred to or connected with the proceedings,
  4. An application has been made by a party or on behalf of a subject child and in all the circumstances it is appropriate to give permission,

The court must have regard to any risk that publication may pose to the safety or welfare of any individual involved in, referred to or connected with the proceedings and may impose conditions on publication.

S15 effectively creates a presumption against publication in relation to restricted adoption or parenting order information and the court must pay particular regard to issues of consent and capacity.

S16 restricts the court’s power to make prohibitive orders on publication of material that would otherwise amount to an authorised news publication, to cases where the publication would give risk to a real risk of prejudice to:

  1. the safety of any person,
  2. the welfare of any child or vulnerable adult, or
  3. in the interests of justice in the proceedings, or
  4. additionally, where identification information relates to a professional witness but that information is interwoven with the identification or sensitive personal information of another person involved in the proceedings, or where the professional witness has been, is or will also be a treating professional (s16(3)(c)).

Publication of information relating to the proceedings which does not accord with the requirements of Sections 11 – 16 of the Act will amount to a contempt of court, subject to a number of knowledge / constructive knowledge defences provided by s17, namely that:

  1. the person publishing did not know or had no reason to suspect at the time of publication that the information was ‘information relating to the proceedings’, or
  2. that the information published was obtained from a prior publication and the person publishing did not know or have reason to suspect it was not an ‘authorised news publication’, or
  3. that the publication would have been authorised but for the fact that it contained identification, sensitive personal or restricted adoption / parenting information which the person publishing did not know or have reason to suspect fell into those categories.

There are no provisions in the Act relating to the court’s powers to deal with a contempt, and the position must therefore continue to be that the court’s power to deal with any unauthorised publication is contingent upon issue of a ‘notice to show cause’ by a party, and subject to all the usual rules relating to contempt. Thus there is more to chew on, but with no more teeth.

It will be seen from the length of this ‘summary’ that the new provisions are complex and one might anticipate a considerable degree of confusion particularly on the part of the media as regards the meaning and operation of the new provisions. In the context of the current national crisis in the newspaper industry it will be interesting to see how many national – let alone local – papers are able to satisfy the requirement to attend court in order to source information for the purposes of publication. It may be that in the current economic climate the journalistic resources are simply not deployed for these purposes except in a very few cases. This is particularly so where there is still no change to the arrangements relating to access to documents, although as ever it is still open to an individual journalist to make an application to the court for sight of documents.

Whilst the Act appears to relax the regime for the reporting of family cases by the media, it is appears to be designed to prevent any publication of information by families themselves or by campaigning groups such as fathers rights groups, whether that be by way of blog or the offering up of their version of events to the media: unless the court orders otherwise information that a journalist would be entitled to publish cannot be published by a parent or other party, a parent cannot pass even anonymised and non-sensitive information to a journalist to publish, and the views or comment of parents cannot be published at all. Whilst there are valid arguments in support of measures which promote the balanced and accurate reporting of the goings on in the family courts by the media, for the furtherance of public confidence in the system (and a quite separate argument about whether or not these provisions will achieve that), the author questions the wisdom of the approach taken by the legislators to the enormous quantity of very private information arising from family proceedings that is published by individuals on the internet – which appears to be simply to ban it without providing any mechanism for enforcement.

An individual involved in family proceedings might well ask why it is that the media are entitled to publish information concerning their family when they themselves are not, even if the material is stripped of identification or sensitive personal information? The Act is clearly based on the premise that there is a public interest in the workings and decisions of the family court being open to public scrutiny, subject of course to appropriate protection of the privacy of all those involved, but in particular the children. If information concerning family proceedings is to be more widely published to the world at large (and the author recognises that to be a proposition not universally welcomed), is it not difficult to prevent those about whom that information relates from playing a part in that process? If one of the purposes of this programme of reform is to increase public confidence in the family court system by making it visible, is it right to bar those individuals whose rights are being adjudicated upon by the courts from speaking publicly about their experience? Although a permissive judicial power is retained by the Act so that individual parents may be granted permission, it seems unlikely that many parents will have the resources or inclination to heap yet further court appearances on themselves in order to obtain such permission, or that they are likely to be the sort of litigants with sufficient confidence in the system to consider it a purposeful venture. Of course, one might argue that an important difference between parents and / or ‘campaigning bloggers’ and professional journalists or media organisations is that the latter will be most likely have a better understanding of the legal restrictions in place, and are subject to a professional and commercial imperative to operate within the law, all of which may be said to protect against accidental or contumelius breaches of the law.

It is abundantly clear that the intricacies of the Act will present a considerable challenge to even the legal and media professionals confronted with issues surrounding publication of information, and no doubt this difficulty would be magnified were lay parties to proceedings required to work out whether or not material they wished to publish included identification information or otherwise offended against the Act. But that raises an argument as regards the clarity and complexity of the legislative provisions rather than a justification for the severe restriction on the right to free speech of the subjects of proceedings.

Not only is the Act unlikely to result in a significant increase in the quantity or quality of reporting of family proceedings by the media, (indeed if it is honoured by the national press it will result in a significant contraction in the quantity and quality of information so published), it also fails both to address the widespread reality that – notwithstanding the current legal framework – a small but significant number of parents do publish often highly sensitive information about their case on the internet, which risks identifying the child concerned or may otherwise adversely affect their welfare, whilst simultaneously prohibiting the publication by a parent of his own experience at the hands of the family justice system on blogs otherwise, even where that publication is in measured and suitably anonymised form. Although to some extent already impermissible by virtue of s12 Administration of Justice Act 1960, the new law will effectively outlaw the discussion by a parent of his or her experience in the family court (even if anonymised) on community websites and internet forums for the purposes of support and guidance.

Far from presenting the risk to children’s privacy that the Act’s opponents may have anticipated, the Children Schools and Families Act 2010 is more likely to reduce the amount of information about subject children that finds its way into the public domain, and will be a disappointment to both the media and family justice campaigners alike. Sadly the only group likely to benefit from this legislation are the lawyers instructed to deal with the inevitable applications and appeals that will be follow the implementation of it.

This article was published in the July issue of Family Law, and is reproduced courtesy of Jordans. The author would like to acknowledge Richard Norman’s assistance in the preparation of this article.

Washed up and hung out to air in public

Fudge - Stephanie189

Children Schools & Fudge Act 2010?

Further to my previous post on the passing of the Children Schools & Families Act 2010, The Times has published an article about the new provisions which is spot on: it identifies – importantly – that the new law, when it is brought into force, will in fact be more restrictive than the existing privacy rules covering children proceedings. In particular, not only will anonymity rules apply to the children themselves, but they will also apply to anyone involved in the proceedings, apart from professional witnesses.

So much for open justice. The Times says ‘a Fudge’, I’m inclined to agree.

PS Does anybody know when this is likely to be brought into force?