Al M (Children)

When deciding whether to relax reporting restrictions in proceedings concerning children, the court must conduct an intense and proportionate balance between the competing rights under Articles 8 and 10 of the ECHR. Neither right has automatic precedence. The children’s welfare is a primary consideration, although this court did not decide whether it is paramount on such an application.

An appellate court will ordinarily respect the trial judge’s evaluative balance unless it was wrong. Immediate publication may be justified before a final welfare hearing where the relevant findings are final, the evidence on publication is sufficient, and publication is necessary both to advance open justice and to protect the children’s and parent’s private and family life.

These wardship proceedings concerned two children who had come to England with their mother. The President of the Family Division had made final findings about the father’s conduct and had determined the limited protection afforded by assurances and waivers concerning the risk of abduction.

On 27 January 2020 the President ordered publication of those judgments and relaxed reporting restrictions, subject to continuing protections for the children’s location, schooling and photographs. The father appealed, contending principally that publication should await the final welfare hearing and that the balance was wrongly struck. He also sought to add a late ground that the children’s welfare was the paramount consideration. The central issues were whether immediate publication was premature and whether the President’s evaluative balance should be disturbed.

1. Appeals dismissed. The President’s decision whether to permit publication was evaluative and akin to a discretionary exercise. The Court of Appeal’s role was review, not a fresh balancing exercise. It could intervene only if the President had erred in principle or was wrong. No such error was shown.

2. The President correctly applied the balancing approach in Re S [2004] UKHL 47. Articles 8 and 10 have presumptive parity. The court must focus intensely on the particular rights and impacts, consider the justification for interfering with each right, and apply proportionality. The children’s interests required primary consideration.

3. The exceptional circumstances entitled the President to conclude that publication was necessary. There was a powerful international public interest in the factual findings. Publication would also assist the mother and children by providing an authoritative account capable of correcting the harmful false narrative affecting their private and family life. The probable media attention did not make that conclusion irrational.

4. The decision was not premature. The fact-finding judgment was final and was not likely to be revisited at the later welfare hearing. The President had sufficient evidence, including the Guardian’s focused investigation of publication. He was entitled to find that delay would achieve nothing and that the need for publication was urgent. There was likewise no principled basis to publish the fact-finding judgment but withhold the assurances and waiver judgment.

5. The application to add the paramount-welfare ground was refused. On the President’s findings, publication was in the children’s interests as well as strongly supported by public-interest considerations, so the proposed point could not affect the result. The Court also observed that the wider legal question should not be determined without a reasoned first-instance decision and full argument in a case where it could matter.

6. The reporting permission was not impermissibly vague. A blanket ban on reporting what accredited journalists had observed would undermine their attendance. The phrase directly related to the published judgments adequately excluded reporting of other welfare matters, including the children’s experiences, health, education, views and contact history.

• Court of Appeal (Civil Division): dismissed the father’s appeals against the President’s publication orders and refused permission to add a new ground of appeal: [2020] EWCA Civ 283.

• Family Division: the President ordered publication of the fact-finding and assurances and waiver judgments on 27 January 2020, subject to continuing protections for specified private information. A further order of 21 February 2020 permitted consequential publication and reporting.