In re HMP

The Court of Appeal allowed the appeal against a High Court order that had granted the BBC access to documents from concluded care proceedings and a partial variation of reporting restrictions under section 12 of the Administration of Justice Act 1960. The court emphasised the limits of the open justice principle as explained in Dring ([2019] UKSC 38): access to court files under the open justice principle is confined to purposes connected with scrutiny of the courts and the way they decide cases, not to facilitate journalistic investigation into actions of third parties such as local authorities.

The judge below had applied the balancing process between Article 8 and Article 10 rights and concluded the public interest in transparency outweighed the children’s privacy. The Court of Appeal held that the BBC’s amended application was not made for a purpose connected to open justice because the matters the BBC wished to investigate (private fostering and local authority oversight) did not involve scrutiny of the courts or their decision-making. On that ground the application should not have been entertained under Dring and the order was set aside.

Background and parties: Two children were subject to care proceedings which ended in August 2023 with their placement confirmed with a second carer. The proceedings followed the breakdown of a private fostering arrangement entered into by the mother. The BBC applied for access to documents from those proceedings and permission to report some of their contents; the application sought to vary reporting restrictions imposed under section 12 of the Administration of Justice Act 1960. The application was made in the Family Court and transferred to the Family Division of the High Court (Lieven J). The guardian of the children (by litigation friend) appealed the High Court order to the Court of Appeal.

Relief sought: (i) access to documents from the concluded care proceedings; and (ii) partial variation of reporting restrictions so specified information could be reported, subject to limits designed to protect the children.

Issues framed by the court: (i) whether the BBC’s application engaged the open justice principle as articulated in Dring and, if so, whether disclosure and reporting were justified after balancing Article 8 and Article 10 rights; (ii) whether the judge below gave undue weight to information already in the public domain and to the public interest; and (iii) whether the judge underweighted the children’s rights.

Procedural posture: Appeal from the Family Division (Lieven J). The BBC initially resisted the appeal but later consented to setting aside the order on the ground that continuing opposition risked harm to the children; the Court of Appeal allowed the appeal on a different basis.

Court’s reasoning and conclusion: The Court of Appeal accepted that open justice is a fundamental constitutional principle and that Dring identifies its principal purposes: (1) enabling public scrutiny of how courts decide cases and holding judges to account; (2) enabling the public to understand how the justice system works. The court held it is incumbent on applicants seeking access under the open justice principle to explain why they seek access and how granting access would advance those purposes. The BBC’s amended application explained why it wanted the documents but did not show how access would advance open justice. The BBC’s investigative focus — on private fostering arrangements and the conduct of local authorities and other state agencies — was not directed at scrutiny of judicial decision-making or the functioning of the courts. The judge erred in expanding the notion of the (family) justice system to include the independent operations of local authorities and thereby applying Dring to justify disclosure for purposes unconnected to the courts. The appeal was allowed on that basis and the High Court order set aside. The Court did not need to decide the other grounds of appeal.

Appeal allowed. The Court of Appeal held that the High Court erred in applying the open justice principle (as stated in Dring) because the BBC’s application was not for a purpose connected with scrutinising the courts or how judicial decisions are made; the matters the BBC wished to investigate concerned third parties (private fostering and local authority practice) rather than the workings of the courts, so the application should not have been entertained under the open justice principle and the High Court order was set aside.

Appeal from the High Court of Justice, Family Division (Lieven J) (ZW22C50103). The impugned order of 20 January 2025 was heard in the Court of Appeal and the appeal allowed by this judgment ([2025] EWCA Civ 824).