Newman v Southampton City Council & Ors

When deciding whether a journalist should receive confidential material relating to concluded family proceedings, the court must balance the specific Article 8 and Article 10 rights without giving either automatic precedence. A child has privacy rights independent of those of a parent. Parental consent attracts appropriate respect and weight but does not determine the outcome.

Access itself intrudes upon privacy, even without subsequent publication. The court may consider the purpose and potential value of the requested material, possible harm, the child’s present and future interests, and the practical burden and proportionality of disclosure. Open justice does not ordinarily justify an unrestricted investigative trawl through sensitive material extending beyond what is needed to understand the proceedings. A correctly conducted, fact-specific balancing exercise will not readily be disturbed on appeal.

A journalist sought access to thousands of pages held by Southampton City Council concerning concluded care and placement proceedings involving a child, M. She wished to investigate the local authority’s decision-making and potentially use the proceedings as a case study. M’s mother consented, but M’s Children’s Guardian opposed extensive disclosure because of M’s independent privacy interests.

Roberts J granted access to limited material but refused the wider application in Newman v Southampton City Council [2020] EWHC 2103 (Fam). The journalist appealed, arguing principally that the judge had given insufficient weight to the mother’s parental responsibility, investigative journalism and the proposed separation between access and any later application to publish.

The central issue was whether the judge had erred in balancing M’s and her mother’s Article 8 rights against the journalist’s Article 10 rights.

1. Appeal dismissed. Roberts J had undertaken the required targeted and fact-specific balancing exercise with meticulous care. She had demonstrated no error of law, so the Court of Appeal had no basis for intervening.

2. The governing approach was the ultimate balancing test in Re S (A Child) [2005] 1 AC 593. Neither Article 8 nor Article 10 has inherent precedence. The court must focus intensely upon the comparative importance of the particular rights, consider the justification for interfering with each, and apply proportionality to both. An appellate court will not readily disturb a balance reached on the correct basis.

3. M possessed privacy rights separate from her mother’s rights. The mother’s exercise of parental responsibility deserved appropriate respect and weight, but it was not conclusive. The court was entitled to take an objective view of M’s interests, including her age, trauma, lack of Gillick competence, independent representation and emerging psychological, social and physical identity. A parent’s agreement to disclosure therefore did not require the court to permit it where the child’s distinct interests pointed in another direction.

4. Allowing a third party to inspect private information is itself an intrusion into privacy, even if dissemination goes no further. Earlier disclosure or the presence of some information in the public domain does not remove privacy rights. Repeated disclosure, particularly in a different medium, may constitute a further invasion, and the court must assess its additional quality and magnitude.

5. The open justice principle supports access which enables scrutiny of judicial decision-making and understanding of court proceedings. It did not require the proposed unrestricted investigative trawl through thousands of highly confidential medical, social-care and family documents to examine local-authority decision-making beyond the proceedings themselves. The judge had also given proper weight to the journalist’s legitimate investigative role and Article 10 rights.

6. The judge could consider the likelihood and implications of a later publication application when assessing proportionality. Practicality, retrieval, redaction, cost and administrative burden were also relevant. The limited disclosure ordered despite those burdens showed that Article 10 had received real weight.

The court observed that broader questions of transparency and access in family proceedings were more appropriately addressed through consultative rule-making than through an individual case.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the judge’s refusal to grant the journalist the extensive access sought: [2021] EWCA Civ 437.
• High Court (Family Division): Roberts J granted access to limited documents but refused access to the wider body of confidential material relating to the care and placement proceedings: [2020] EWHC 2103 (Fam).