CX (A child) (Reporting restrictions order: National security), Re

Applications for access to documents from concluded private children proceedings engage the constitutional principle of open justice where the purpose is public scrutiny of the court’s decision-making and public understanding of the justice system. The court must conduct a fact-specific balancing exercise between the benefit of disclosure and the risks of harm, beginning with a clear presumption in favour of open justice. Attendance at the original hearing is the preferred course, but a journalist’s failure to attend does not ordinarily preclude disclosure of primary documents. Disclosure may be ordered subject to carefully tailored redactions and reporting restrictions protecting the Article 8 rights of the child and family. The court must assess any future application by another journalist separately.

The applicant, a freelance journalist, sought disclosure of extensive documents from private family proceedings concluded in 2023 and permission to report them. The original proceedings concerned allegations of domestic abuse and arrangements for the child to spend time with her father, who was serving in the Special Forces. The father and the Secretary of State for Defence sought reporting restrictions based on privacy and national security. The parties ultimately agreed anonymised reporting restrictions and permissions, leaving disclosure of the underlying documents as the principal issue. The central question was whether disclosure, subject to proposed redactions, was justified under the open justice principle despite the journalist’s non-attendance at the original proceedings.

1. Orders. The court approved the agreed transparency order and reporting restrictions order and ordered disclosure of the documents sought by the journalist, subject to redactions proposed by the children’s guardian and the Secretary of State for Defence.
2. The application fell within the open justice principle because its purpose was public scrutiny and public understanding of the family court’s determination of domestic abuse allegations and their consequences for child arrangements. The principle gives the court an inherent jurisdiction over access to documents placed before it. The applicant must explain how access advances open justice, after which the court balances that benefit against the risk of harm: Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38.
3. The balancing exercise begins with a clear presumption in favour of open justice unless displaced by sufficient countervailing justification: Tickle & anor v The BBC & Ors [2025] EWCA Civ 42. Judgments and core documents supplied under the transparency regime are important, but specialist journalistic analysis may require access to the primary evidence underpinning the judgment.
4. Attendance at the hearing is the preferred means of understanding tested evidence. It is not, however, a precondition to disclosure. A failure to attend does not ordinarily justify refusing primary documentary evidence merely because the preferred course is no longer available.
5. The agreed anonymisation and reporting restrictions, together with the proposed redactions, sufficiently protected the Article 8 rights of the child and parents against the importance of Article 10 freedom of expression. The application for disclosure to the particular journalist was determined on its own facts. Any future application by another journalist should be considered separately.