X & Anor v LB of Hillingdon & Ors (Transparency: Restrictions on Disclosure of Information by Parties)

Restrictions on publishing information from children proceedings heard in private remain governed by Administration of Justice Act 1960, s 12, unless varied by a court exercising its inherent jurisdiction or by a Transparency Order. Any relaxation requires an intense, fact-sensitive scrutiny of the competing rights under Articles 8 and 10, with the children’s welfare as a primary consideration.

A Transparency Order principally facilitates reporting by accredited journalists and legal bloggers. It does not generally permit parties or other non-reporters to publish information from the proceedings. Restrictions protecting the identities of individual social workers and healthcare professionals may be continued where publication would create a serious risk of abuse, intimidation, interference with professional functions, or harm to the children. Such restrictions should be proportionate and time-limited.

The applicants were the parents of twins who had become subject to final care and placement orders in proceedings under Part IV of the Children Act 1989. A Transparency Order had been made during the Transparency Reporting Pilot. The applicants applied to the High Court to remove or relax reporting restrictions so that they, reporters and others could publish information about the proceedings, including the names of judges, lawyers, social workers and healthcare professionals.

The children’s local authority and guardian opposed any substantial relaxation but supported suitably anonymised publication of earlier judgments. The central issues were the scope of s 12 of the Administration of Justice Act 1960, the High Court’s inherent jurisdiction, the effect of a Transparency Order, and the balance between freedom of expression, privacy, professional safety and the children’s welfare.

1. Jurisdiction and statutory framework. Section 97 of the Children Act 1989 ceased to apply when the relevant children proceedings concluded. Section 12 of the Administration of Justice Act 1960 continued to regulate publication of information from the private proceedings. The High Court had inherent jurisdiction to permit or restrict such publication by non-reporters, including parties.
2. Applicable principles. The court had to conduct an intense and fact-sensitive scrutiny of the competing rights under Articles 8 and 10. Neither right had automatic precedence. The court had to assess the comparative importance of the specific rights, the justification for interference with each right and proportionality. The children’s welfare was a primary consideration, although not invariably paramount in the balancing exercise.
3. Effect of the Transparency Order. The existing order permitted reporting within its terms by accredited journalists and authorised legal bloggers. It did not permit the applicants themselves, or other non-reporters, to publish information relating to the proceedings on social media or elsewhere, except for communications expressly permitted by the order or the Family Procedure Rules.
4. Protection of professionals and children. The evidence showed a serious and near-certain risk that publication naming individual social workers and healthcare professionals would lead to abuse, bullying, intimidation and potentially defamatory attacks. It would also heighten the risk of identifying the children and jeopardising their prospective adoption. Those risks justified continuing the restrictions. The principles in Abbasi were applicable, but questions concerning the wider compatibility of the Transparency Order regime with that decision did not require determination.
5. Orders. The Transparency Order was varied to cover the High Court proceedings and the 30 July 2024 hearing, and to permit parties and reporters to share documents with accredited journalists or legal bloggers who received the order and confirmed their understanding of its terms. Restrictions preventing identification of individual social workers and healthcare professionals were continued for two years, with liberty to apply for an extension. The judgments of DJ Hussain and HHJ Downey were authorised for publication subject to anonymisation and any necessary redactions. All other requests to lift reporting restrictions were refused.

First-instance decision of the High Court (Family Division). The judgment records that earlier applications for permission to appeal and challenges concerning the care and placement orders had been refused, but those decisions were not under appeal in the present application.