Derbyshire County Council v Shannon Marsden & Ors

In care proceedings, disclosure of judgments and supporting documents to the press may be permitted where the public interest in informed scrutiny outweighs competing privacy rights under Articles 8 and 10. The court must balance the child’s welfare and privacy, confidentiality and frankness in family proceedings, the administration of justice, and the public interest in reporting serious matters. Disclosure may be subject to redaction and reporting restrictions.

Statutory reporting restrictions principally protect children and families, not the anonymity of judges or professionals. Lay magistrates may therefore be named. A legal adviser is an integral and legally required part of a lay bench’s decision-making process and may, in principle, also be named.

Three media organisations sought disclosure of the ruling and supporting documents from care proceedings concerning Finley Boden and Child A. Finley was subsequently murdered by his parents, who were convicted after trial. The applications arose against substantial media interest in the circumstances in which the children had been returned to their parents.

The court had directed that relevant documents could be released subject to redaction and existing reporting restriction orders protecting Child A and the carers. The remaining issue was whether the lay magistrates and legal adviser involved in the decision could be named.

1. Disclosure. The applications fell within rule 12.73(1)(b) of the Family Procedure Rules 2010. The court balanced the public interest in open and informed reporting against the privacy and welfare interests protected by Articles 8 and 10 of the Human Rights Act 1998.
2. The public had a legitimate interest in understanding the difficult decisions made in the care proceedings and the roles of the local authority, Cafcass and the court. Disclosure would permit reporting based on full information rather than speculation. Child A’s privacy and that of the carers remained important. The documents were therefore to be disclosed subject to redactions and the existing reporting restriction orders.
3. The court applied the balancing factors identified in Re EC (Disclosure of Material) [1996] 2 FLR 725, including the child’s welfare, confidentiality, frankness, the administration of justice, the public interest in serious crime, the relevance of the material and the effects of disclosure.
4. Professional identities. Sections 97 of the Children Act 1989 and 12 of the Administration of Justice Act 1960 principally protected the anonymity of children and potentially their families. They did not establish a general rule protecting the identities of judges or professionals. The lay magistrates could therefore be named.
5. Section 3(1) and the Schedule to the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 authorised legal advisers to provide legal advice and, where permitted, exercise judicial functions. Section 31O of the Matrimonial and Family Proceedings Act 1984 provided the appointment authority. Rule 27.2(5) and (6) of the Family Procedure Rules 2010 required the adviser to consult with the lay justices and record the decision’s reasons. The adviser was consequently an integral and legally required part of the decision-making process and could in principle be named.
6. The press were entitled, if they wished, to name both the lay magistrates and the legal adviser.