Open justice: a default position
In passing – though it is an important point – McFarlane LJ was firm on one aspect of the submissions made by counsel for the press. It was suggested by her that the ‘default position’ in any publicity case was the ‘open justice principle’ (a term used by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening)
 EWCA Civ 420,  QB 618 and adopted by subsequent Supreme Court jurisprudence).
Not so, said McFarlane LJ (para ). If any presumption exists as to open court, this may be so in the general run of civil proceedings; but it is not the case in children proceedings. There the starting point is Administration of Justice Act 1960 (‘AJA 1960’) s 12(1)(a) which provides:
'(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –
(a) where the proceedings –
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor ...'
So he says, the ‘default position’ where proceedings are covered by s 12(1) ‘is liable to be a contempt unless the court directs otherwise’ (para ). Children proceedings will be private (FPR 2010 r 27.10; and subject to any rare direction otherwise). This leads to the conclusion that for children proceedings there can be no ‘open court presumption’:
' … Attendance at a private hearing remains … subject to the overall restriction on publication imposed by AJA 1960, s 12 (and the specific restriction on naming the child and/or the child's school established by CA 1989, s 97(2)) ...'
Relaxation of controls: judicial discretion
As already mentioned, the Court of Appeal was ‘uneasy’ at the judge’s approach to daily reporting; but it was stressed by McFarlane LJ that this was a matter for the judge’s discretion which must be accorded a wide margin on appeal (para ). The extent to which a judge may depart from the restrictions on publicity demanded by AJA 1960 s 12(1) justify repetition here. In the months before his practice guidance on ‘transparency’ Sir James Munby P gave judgment in Re J (A Child)  EWHC 2694 (Fam)
and explored the extent to which judge’s may diverge from strict adherence to privacy.
He starts by pointing out the ‘automatic constraints’ on publicity. Children Act 1989 s 97 (prohibits publication, but only till the conclusion of proceedings (Clayton v Clayton  EWCA Civ 878,  1 FLR 11
)). Administration of Justice Act 1960 s 12(1) (above) relates to ‘proceedings in private’, including family proceedings, but narrows those proceedings to those in relation to children. It does not apply to ‘anyone involved in the proceedings’ (eg expert witnesses, social workers, the local authority etc; and see Clayton
above). Injunctions for the anonymity of others involved in the process – eg medical witnesses, social workers etc – will rarely be granted, ‘unless there are compelling reasons’ (para ).
The court can extend or reduce the automatic constraints publicity; but to do so it must conduct a balancing exercise within the European Convention 1950 as described by Lord Steyn in the House of Lords in Re S (Identification: Restrictions on Publication)  UKHL 47
(at para ). It is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect, said Lord Steyn. The interests of the child must be a primary consideration (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4
at para ). 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
) to publicise information (Art 10).
In conducting that balancing exercise, the primacy of the best interests of the child must be considered. This was further explained in the Supreme Court in (not considered by Sir James) H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)
 UKSC 25 where Lord Kerr said:
' … It is unquestioned that in each of these cases, the children's article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children's rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….
 ….no factor must be given greater weight than the interests of the child.'
related to children in immigration proceedings (ie not involved with publicity), but the principles in relation to the interests of children are parallel.
The views of parents ‘caught up in it’ should be discussed publicly, and that they must be able to publicise their views of the failings of judges or the system or criticisms of local authorities. The judge must not be permitted to exercise any form of editorial control over this. In Re Roddy (A child) (Identification: Restriction on Publication)  EWHC 2927 (Fam),  2 FLR 949
at para ) Sir James (as Munby J) had emphasised that:
' …. judges are not arbiters of taste or decency …. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists …'
The court was not entitled, in this jurisdiction, to seek to prevent dissemination because material might seem defamatory or criminal.
Two quite distinct paramountcy issues arise in this case. Neither were resolved: perhaps they need not have been. On the question of whether the paramountcy of a child’s interests applies, McFarlane LJ said only that the question had not been fully argued:
' … I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand. As this present judgment is a record of the reasons for our decision announced on 23rd November 2015 and that decision was based upon the children's welfare not being the paramount consideration, I do no more than flag up this potential point which, if it is arguable, must fall for determination by this court on another occasion.'
It is not possible to tell from the judgment whether the cases referred in relation to Re J
(above) were referred to the court in Re W
; nor whether this aspect of Re S (Identification: Restrictions on Publication)  UKHL 47,  2 AC 593
was dealt (probably not given the limits on time likely to have been available to the court). It is possible, in view of Lord Kerr’s comments on sequencing that the primacy of child’s interests has been dealt with in the Supreme Court.
What was unquestionably in issue in the House of Lords in Re S  was the importance of press freedom which Human Rights Act 1998 guarantees. In Re S
this special provision – not quite paramountcy for the press – was referred to by Lord Steyn thus (after he had set out the exact terms of European Convention 1950 Arts 8 (right to respect for family life) and 10 (freedom of expression):
' … By section 12(4) of the Human Rights Act 1998 Parliament made special provision regarding freedom of expression. It provides that when considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression the court must have particular regard to the importance of the right.'
Issues under Art 8 and 10 are central to any reporting restrictions order application. The rights of the press under s 12(4) will always be in contention where publicity for children proceedings are concerned and as explained in Re S
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.