Jessica Bradley v CM & Ors

In private family proceedings, open justice is the starting point for applications by non-parties to inspect documents and by journalists to publish information. The court must balance open justice and Article 10 against the Article 8 rights of those concerned, giving the welfare of children primary consideration unless the application concerns their upbringing, when welfare is paramount.

Access to a document does not itself authorise publication. The court may grant access while restricting publication, permitting only selected passages, or imposing anonymity and other conditions. Where there is a strong public interest and no particular countervailing harm, anonymised judgments should generally be published. Expert reports may be disclosed for scrutiny of the court’s use of expert evidence, while private psychological assessments and sensitive personal material may properly remain unpublished.

An accredited journalist sought access to expert psychological reports, Cafcass reports, final orders and judgments in four concluded private-law Children Act proceedings. She also sought permission to publish or communicate material from the expert reports, orders and unpublished judgments.

The applications concerned allegations of alienating behaviour, children’s resistance to spending time with a parent, and the use of expert psychological evidence. The court considered the distinction between attendance-based transparency orders, applications under FPR r29.12, and applications under the inherent jurisdiction to permit publication from proceedings held in private. The central issues were whether disclosure and publication would advance open justice and how those interests should be balanced against privacy, freedom of expression and the children’s welfare.

1. Applications granted in part. The journalist was permitted to inspect the specified expert and Cafcass reports and suitably anonymised final orders. Publication of selected anonymised passages from the expert reports and orders was permitted. Publication of the Cafcass reports and unrestricted publication from the expert reports were refused.
2. Open justice was the starting point for both access and publication. A non-party has no right to inspect the court file, but may apply under FPR r29.12. The applicant must explain why access is sought and how it would advance open justice. The court’s inherent jurisdiction permits access beyond the documents supplied under PD12R.
3. Permission to inspect documents does not, without more, permit publication or communication of information from private proceedings. Any wider permission requires the exercise of the inherent jurisdiction. The court must conduct an intense balancing exercise concerning the specific Article 8 and Article 10 rights engaged, with the children’s welfare as a primary consideration unless the application concerns their upbringing.
4. The statutory restrictions operate differently. CA 1989, s 97 no longer applied because the proceedings had concluded. AJA 1960, s 12 continued to restrict publication of information relating to the private proceedings, subject to variation by the court. A transparency order could vary those restrictions only to the extent authorised by its terms.
5. The strong public interest in understanding how private family courts address alienating behaviour and use expert evidence justified access to, and publication of, suitably anonymised judgments and selected final orders. The judgments should ordinarily be published where there was no particular risk of harm or unjustifiable interference with Article 8.
6. The expert reports could be provided because that would advance open justice and would not substantially interfere with Article 8. Publication was confined to summaries of conclusions and passages directly addressing child arrangements. Detailed psychological assessments, sensitive personal accounts, therapy recommendations, contact details and similar material were excluded as unnecessary and disproportionate.
7. The orders required strict anonymity, including protection of the children’s identities, family members, addresses, schools and other identifying information. The court declined to require anonymisation and disclosure of the many routine case-management orders because that would be disproportionate.

First-instance decision of the High Court (Family Division) on applications concerning access to documents and publication from four concluded private family proceedings.