C (A Child)

A court has inherent jurisdiction to permit publication of a judgment delivered in private family proceedings. For a judgment concerning a final care order, the starting point is publication unless compelling reasons require otherwise.

The possibility of future criminal proceedings remains relevant to the right to a fair trial, but its weight depends on the likelihood of those proceedings and the seriousness of any risk. A speculative retrial usually carries little weight. In assessing prejudice, the court should trust juries to follow directions, expect responsible conduct from the media and consider the fading impact of publicity.

Seven media organisations sought publication of a judgment delivered in private care proceedings concerning C, the younger sibling of a murdered child. The judgment contained findings against C's parents. After their subsequent criminal convictions, Pauffley J refused publication because of the possibility that publicity might prejudice a successful appeal and retrial.

The media organisations appealed. The central issues were whether the Family Court had power to release the judgment and whether the speculative risk to the father's fair-trial rights outweighed open justice and the applicants' freedom of expression.

1. Appeal allowed unanimously. The care judgment could be published subject to the approved redactions required to protect C's identity.

2. The power to authorise disclosure did not arise from rule 12.73(1) of the Family Procedure Rules 2010, because rule 12.73(2) prevented that Chapter from permitting communication to the public at large. Although the adequacy of case-management powers as a jurisdictional foundation was doubtful, the court possessed an inherent jurisdiction to disclose all or part of private proceedings, including a judgment. That jurisdiction survived incorporation of the Convention.

3. The applicable transparency guidance accurately reflected the law. A judgment concerning the making or refusal of a final care order should ordinarily be published unless compelling reasons dictate otherwise. The assessment must consider all the circumstances, including articles 6, 8 and 10 of the European Convention on Human Rights and the effect upon current or potential proceedings.

4. Article 6 did not become irrelevant merely because the original criminal proceedings had concluded. The risk to potential future proceedings was a matter of fact and degree. The more uncertain those proceedings were, the less weight the affected person's fair-trial rights ordinarily carried. Here, neither the prospects of permission to appeal nor the likelihood of a successful appeal had been demonstrated. A retrial was therefore speculative.

5. Even if a retrial occurred, publication created no real possibility of prejudicing its fairness. The substantial-risk standard in section 4(2) of the Contempt of Court Act 1981 reflected the relevant domestic approach, under which postponement was a last resort. The assessment required particular regard to juries' ability to follow judicial directions, the responsibility of editors and broadcasters, and the fading effect of news reports. Domestic and Strasbourg authority supported confidence that appropriate directions would ordinarily protect trial fairness, even after highly prejudicial publicity.

6. Pauffley J had treated a small risk as decisive without properly evaluating those considerations. The risk was negligible and was plainly outweighed by open justice, the media's watchdog function in care proceedings and the applicants' article 10 rights.

1. Court of Appeal (Civil Division): By [2016] EWCA Civ 798, unanimously allowed the media organisations' appeal and permitted publication of the care judgment with approved redactions.

2. High Court, Family Division: Pauffley J dismissed the application for publication because she considered that disclosure might prejudice a possible criminal retrial.