W (Children)

Child protection proceedings are conducted under a statutory default of privacy. The general presumption of open justice does not govern them. A court may nevertheless permit controlled publicity after balancing the rights to private and family life under Article 8 against freedom of expression under Article 10.

The trial judge has a wide discretion over the quantity and timing of reporting. Publication must remain proportionate and may require safeguards against harm, unfairness or public confusion. Where daily reporting is permitted, the court may postpone reporting until the end of each hearing day so that sensitive evidence can first be considered for embargo.

In care proceedings concerning five children, Peter Jackson J had made findings about injuries suffered by their deceased sibling. New medical evidence led him to reopen the fact-finding hearing.

Before the rehearing, the judge ordered publication of an edited version of his earlier judgment, permitted accredited journalists to attend and report daily, and provided for publication of the final judgment. The children appealed against the extent and timing of the publicity, relying principally on the risk of harm and confusion from publication before the rehearing had concluded.

The central issues were whether the earlier medical evidence should be published before its reconsideration and whether daily reporting was proportionate and adequately controlled.

1. The appeal was allowed to a limited extent. References to the earlier medical evidence were to be removed from the edited judgment, and daily reporting was prohibited until the proceedings had concluded on each hearing day.

2. The general presumption of open justice does not apply to private proceedings concerning children. The statutory and procedural default under section 12 of the Administration of Justice Act 1960 and rules 27.10 and 27.11 of the Family Procedure Rules 2010 protects the confidentiality of child protection proceedings. Accredited media representatives may ordinarily attend, but attendance does not itself confer a right to publish information from the hearing.

3. The family court and High Court may relax the prohibition on publication in an individual case. The discretion requires a proportionate balance between the Article 8 rights to privacy and family life and the Article 10 right to freedom of expression. The court decided the appeal on the parties’ accepted basis that the child’s welfare was not paramount in that exercise. McFarlane LJ identified a possible tension with existing authority but left that issue for determination on another occasion.

4. Jackson J had applied the correct balancing exercise and was entitled to attach substantial weight to the exceptional public interest, the information already in the public domain and his detailed knowledge of the proceedings. Nevertheless, publishing a partial account of the earlier medical evidence immediately before its reconsideration added little and risked confusion. That risk outweighed the limited benefit of immediate publication.

5. Daily reporting during a child protection fact-finding hearing was highly unusual but within the judge’s discretion. The Court of Appeal could not hold that his proportionality assessment was wrong. The existing order was, however, insufficiently precise. Deferring all reporting until the end of each hearing day ensured that the judge could identify sensitive evidence and impose any necessary embargo.

1. Court of Appeal (Civil Division): By [2016] EWCA Civ 113, allowed the children’s appeal to the limited extent of removing the earlier medical evidence from the judgment prepared for publication and tightening the controls on daily reporting.
2. High Court, Family Division: Peter Jackson J ordered publication of an edited version of the earlier fact-finding judgment and permitted accredited media representatives to attend and report daily from the reopened hearing, subject to restrictions and further directions.