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Evidence, Practice and Procedure: President's Guidance on Publication of Judgments
Date:30 JAN 2014
Solicitor Advocate

David Burrows - Practice of Family Law: Evidence and Procedure

David Burrows

From 3 February 2104 the Guidance of Sir James Munby P, Transparency in the Family Courts: Publication of Judgements: Practice Guidance of 16 January 2014 [2014] FLR (forthcoming), will be in force. It covers three categories of judgment of High Court or circuit judges in the family court. It requires permission to be given for certain judgments to be reported; and divides these into three categories:

  • The judge must give permission for publication if s/he thinks publication is in the public interest (para 16): ‘permission to publish ... should always be given ... whether or not a request has been made by a party or the media'.
  • Specified more serious children applications where a judgement exists in ‘publishable form' (para 17).
  • Permission to publish sought by the press or a party (para 18).

Where the judge has established that a judgement comes within the categories of case in paras 16, 17 or 18 s/he will next consider the human rights issues engaged by the court's publication decision. A further determination on this issue will be required with reasons provided. Often this will be as part of a hearing; but (as para 17 implies) it may be sometime afterwards. In the case of para 16 it is for the judge, on his/her own initiative (FPR 2010, r 4.4) whether to direct publication; and this principle may also apply to para 17 (the guidance is not clear).

Own initiative orders are made under FPR 2010, r 4.3 which contains safeguards as to after the event notice to the parties r 4.3(5) who can apply to have an order ‘set aside, varied or stayed'.

Checklist for European Convention 1950 balance

A checklist for consideration whether an order shall be made (provided here for the assistance of press, legal advisers and (respectfully) the judge, alike) will start by placing the issue in its European Convention 1950 context; for publication immediately draws in considerations under Arts 8 and 10, and often 6 (at least):

(1) Whose Convention rights are in issue? - The rights in issue will be those of the parties, of the press and of any other interested individual. ‘Interested' in this sense is as loose a term as occasion demands (eg individual social workers and foster parents). Other individuals or bodies concerned for the child - NSPCC, Barnardos and other charitable bodies, perhaps - may have an interest in publication or not.

(2) What rights and freedoms are in issue? - Article 8 (right to respect for private life) balanced against Art 10 (freedom of expression; with the bolstering of Art 10 by HRA 1998, s 12(4))) will always be in issue. Paragraph 19 draws attention also to Art 6, which may especially be engaged where the judgment relates to an interim issue (as do a number of cases comprise in Guidance Sch 1).

(3) What is the ‘comparative importance' of each right? - In his consideration of the ‘interplay' of Arts 8 and 10 in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591 Lord Steyn spoke of the position where the values under the two articles are in conflict. Then, he said - and this is the classic basis for assessment of the Art 8 and Art 10 balance - there must be an ‘intense focus on the comparative importance of the specific rights ... in the individual case ...'. The justification for interference, or the restriction of any right, ‘must be taken into account'.

(4) What child is (or children are) concerned in the proceedings? - Mostly this will be all children subject to the particular proceedings. That said, it will be born in mind that preliminary or other interim issues may involve only one or more particular children in a family; and in different ways (Re LC (No 2) [2014] UKSC 1, [2014] 1 FLR (forthcoming) is a classic example of this, albeit not that publicity was the issue).

(5) How do the ‘primacy of importance' of children and their rights affect any decision? - There is a semantic difference between at least two Supreme Court Justices (Lady Hale and Lord Kerr) on this ‘primacy' point. The rights of each child affected by the outcome of the human rights balance, must be given primacy of importance in each balancing exercise.

(6) Is it in contemplation that a child's rights will in fact be interfered with? - The short answer here is: where publication is permitted then: yes (almost invariably). Any interference with a Convention right by a public body (here, the court) must always be justified.

(7) ‘Sequencing' of rights to justify interference: degree of interference - To justify interference a judge must sequence the child's rights (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 1 FLR 2170; H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor Intervening) [2012] UKSC 25 per Lord Kerr - deportation/immigration cases; but the principles apply for children's rights generally):

  1. First, the court must ask the question: has there been (or is there proposed to be) any interference with the Art 8 rights of the child?
  2. If so, what is the nature of the child's rights engaged?
  3. What is the importance of those rights, relative to other rights engaged by the particular proceedings.
  4. What is the degree of interference with the child's Art 8 rights (and see per Lord Steyn: in Re S, para [25], it is ‘necessary to measure the nature of the impact ... on the child' of what is in prospect')?
  5. Whether the action proposed justifies interference with the rights engaged (the Convention ‘proportionality' or utilitarian test)?

(8) What is the justification for interference with the child's or any other right engaged? - The justification for interference will be a summary of the findings above: as to law, namely the Convention rights engaged tempered by s 12(4); and as to fact. Each case is fact specific. Who are the children; who are the other parties; and what factors in the case justify any particular interference?

(9) Proportionality of any interference - ‘Proportionality', in Convention terms, is the counter-balance or check to what the court considers Convention rights require of it. The measure of interference has, by this stage, been defined ((6) to (8) above). Proportionality is a cross check. In brief, it requires any public authority - in this case the judge (HRA 1998, s 6(3)(a)) - to justify the interference with a Convention right (ie Utilitarian ‘greater good' arguments). The judge must show that the interference is proportionate to the aims which the judge says that the interference is sought to achieve. The court may by order extend or reduce the automatic constraints on publicity (eg Administration of Justice Act 1960, s 12); but to do so it must conduct the balancing exercise (along the lines above) as described by Lord Steyn in the House of Lords in Re S.

It is ‘necessary to measure the nature of the impact ... on the child' of what is in prospect, said Lord Steyn. So said, Sir James, the interests of the child must be a primary consideration (ZH (Tanzania), at para [33]). The balance must be drawn between respect for the child's private life (Art 8) and the right of the press and a parent or others who might want (as in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR (forthcoming)) to publicise information (Art 10).

David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

He can be contacted on Twitter: @dbfamilylaw, or connect with him on LinkedIn.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.