In re HMP

The open justice principle permits access to court documents for purposes connected with scrutiny of judicial decision-making or public understanding of the justice system. It does not justify access for an investigation into the independent activities of local authorities or other public bodies, even where the investigation concerns a legitimate matter of public interest.

An applicant has no right of access to the court file. The applicant must explain both why access is sought and how access would advance open justice. Care proceedings cannot be used as a source of material for journalism unrelated to those purposes.

After care proceedings concerning two children had concluded, the BBC sought access to documents and permission to report specified information. Its amended purpose was to investigate a previous private fostering arrangement within section 66 of the Children Act 1989 and the local authority’s safeguarding activity. That arrangement had ended before the care proceedings began and had involved neither the local authority nor the court.

The High Court granted access and partially varied the reporting restrictions under section 12 of the Administration of Justice Act 1960. It held that transparency and the public interest in the investigation outweighed the children’s privacy rights.

The children appealed. The central issue was whether access sought for purposes distinct from scrutiny or understanding of the court proceedings fell within the open justice principle.

1. Appeal allowed. The BBC’s application did not serve a purpose connected with open justice. The High Court’s order granting access and varying the reporting restrictions was set aside.

2. The principal purposes of open justice are to enable public scrutiny of how courts decide cases and to enable public understanding of the justice system. Its core concern is transparency in the work of courts, tribunals and judges. It does not extend to giving third parties access to confidential or private information for reasons unconnected with those purposes: Dring [2019] UKSC 38 and Newman [2021] EWCA Civ 437 applied.

3. A non-party has no right of access to the court file. An applicant relying on open justice must explain why access is sought and how granting access would advance that principle. The BBC’s amended case explained its journalistic purpose but did not explain how access would advance open justice.

4. The High Court had wrongly treated the family justice system as encompassing the independent operations of local authorities and other agencies working with children. Open justice concerns the justice system in the narrower sense. Disclosure serving a proper open justice purpose may incidentally facilitate scrutiny of a public body, but scrutiny of that body is not itself a purpose requiring or justifying disclosure under the principle.

5. Disclosure may be justified where a local authority’s discharge of safeguarding functions was examined in the care proceedings. That was not the position here. The private fostering arrangement had ended before the proceedings began, and the matters under investigation were distinct from the issues addressed by the court.

6. The conclusion on the open justice ground disposed of the appeal. It was unnecessary to determine the challenges to the High Court’s balancing of the children’s privacy rights and the media’s freedom of expression. Any attempt to obtain information about the underlying events would have to proceed by an alternative route.

1. Court of Appeal (Civil Division): By a joint judgment in [2025] EWCA Civ 824, allowed the children’s appeal on the open justice ground and set aside the High Court’s order.

2. High Court, Family Division: Lieven J granted the BBC access to documents from the concluded care proceedings and partially varied the reporting restrictions to permit specified reporting. No neutral citation for that decision is stated.