T (A Child) (No.2) (Transparency: Publication of the Party’s Names), Re

In deciding whether to publish a family judgment identifying parties, the court must apply the principle of open justice and balance the competing rights under Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Neither right has automatic precedence. The court must intensely focus on the comparative importance of the specific rights, the justification for restricting each right and proportionality. The child’s interests are a primary, though not paramount, consideration. Publication may identify parents while preserving children’s anonymity where that outcome protects the children’s privacy sufficiently and the public interest in transparency is strong.

The judgment concerned publication of an earlier private-law children judgment. The parties agreed that it should be published immediately in anonymised form. The dispute was whether, when T reached 18, the judgment should identify the parents and whether T and his older sister S should also be named.

The father supported later publication naming the parents. The mother opposed any unanonymised publication. T and S expressed strong wishes that neither they nor their parents should be identified. The central issue was how the public interest in open justice and transparency should be balanced against the Article 8 privacy rights of the mother and children, having regard to Article 10.

1. Applicable framework. The principle of open justice applies in the Family Court. Restrictions on publication arise under section 12 of the Administration of Justice Act 1960, section 97 of the Children Act 1989 and the inherent jurisdiction. These powers overlap, but each must be exercised compatibly with the Convention and by balancing Articles 8 and 10.
2. The starting point is open justice and the legitimate public interest in publication. Naming parties generally increases public interest. Transparency may assist public understanding of lengthy family proceedings, the limits of judicial powers and the consequences of protracted litigation.
3. Neither Article 8 nor Article 10 takes precedence. The court must intensely focus on the comparative importance of the specific rights in the individual case, consider the justification for restricting each right and apply proportionality to each. The child’s interests must be considered first as a primary consideration, although they are not paramount and may be outweighed by the cumulative effect of other factors.
4. The views and feelings of children, their best interests and the likely impact of publication are important factors. The effect of identification depends on what information is already known, the likelihood of identification and the practical protection provided by removing the children’s names.
5. Balancing the strong public interest in publication against the privacy rights of the mother, T and S, the court concluded that publication identifying the parents was consistent with the children’s best interests and would enable them to understand the court’s findings. The risk to their wider privacy was materially reduced because their names would be removed and replaced by random initials.
6. The judgment was therefore ordered to be published naming the mother and father, but with T and S anonymised.