Al M (Children)

The court reiterates that where publication of judgments in private children proceedings is sought the court must undertake a balancing exercise between Article 8 and Article 10 rights, performing a focused parallel analysis of the justification for interfering with each right and applying proportionality; the interests of the child are a primary consideration in that exercise but are not automatically determinative, and publication may be authorised before a final welfare hearing where a judge reasonably concludes it is necessary and inevitable to protect the child's welfare or other significant rights.

The Court of Appeal reviewed two consolidated appeals arising from wardship proceedings concerning two children and orders permitting publication of earlier family-division judgments (a fact-finding judgment and an assurances-and-waiver judgment). The President of the Family Division had found serious misconduct by the father in a fact-finding hearing and had refused to treat assurances as providing protection from abduction; the President then ordered publication of those judgments and limited reporting of the hearings, relying on a balancing exercise under Articles 8 and 10 ECHR and welfare considerations. The father appealed, principally arguing prematurity (that publication should await the final welfare hearing) and that the judge erred in law about the weight to be given to children's welfare. The Court of Appeal dismissed the appeal, upholding the balancing approach and the President's assessment of necessity and timing.

1. Disposition: The appeals are dismissed; the President's orders permitting publication of the fact-finding judgment and the assurances-and-waiver judgment, and limited reporting of the hearings, are upheld.
2. Legal framework: The court reaffirmed that applications to relax reporting restrictions in private family proceedings engage a parallel balancing exercise under Articles 8 and 10 ECHR (following the approach in Re S, Re J and W). That exercise requires an intense focus on the comparative importance of the specific rights asserted, consideration of justifications for interference with each right and application of proportionality.
3. Role of children's welfare: The interests of the child are a primary consideration and must be addressed first in the balancing exercise, but they do not automatically trump Article 10; the court rejected the contention that the welfare of the children must be treated as the paramount and therefore determinative consideration for publication questions in all cases.
4. Prematurity challenge rejected: The Court held that the President had not erred in principle in deciding the publication issue prior to the final welfare hearing. He had received and considered focused material (including the Guardian's welfare analysis) directed specifically to the publication question, and the fact-finding judgment was final in character; the President was entitled to conclude publication was inevitable and that delay would bring no advantage.
5. Assessment of competing considerations: On the facts found by the President, the Article 10 public-interest case was very strong and publication would also advance the Article 8 interests of the mother and the children by counteracting a false public narrative that was harming their private and social life; the President's conclusion that publication was necessary and timely was within the ambit of reasonable conclusions and not plainly wrong.
6. Reporting of what occurred in court: The Court refused to impose a blanket prohibition on accredited journalists reporting what they observed; it endorsed the President's approach limiting reporting to matters "directly related" to the two judgments while protecting other aspects of the children's lives and welfare.
7. Procedure on new ground: The Court refused permission to amend the grounds to assert that welfare is paramount for publication decisions; even if arguable, the point raised important questions of law that should be full argued at first instance and, on the present facts, would not have produced a different outcome.
8. Orders and practical guidance: The President's publication orders are sustained; the Court indicated that precise redactions and the form of any reporting order should be considered further at a short hearing to settle the permitted scope of reporting and any necessary redactions of this judgment.

• Court of Appeal (Civil Division): Appeal dismissed; upholds the President of the Family Division's orders permitting publication of the fact-finding judgment and the assurances-and-waiver judgment and limited reporting of hearings (this judgment) [2020] EWCA Civ 283.
• High Court (Family Division): President (Sir Andrew McFarlane) – original fact-finding judgment and assurances-and-waiver judgment and subsequent publication order (27 January 2020); those judgments are the subject of the appeals (dates/citations of the two Family Division judgments: not stated in the judgment).