The Court of Appeal have affirmed Mrs Justice Roberts’ original decision refusing disclosure of court documents to investigative journalist Melanie Newman. Newman’s appeal was dismissed.
The judgment containing the court’s full legal reasoning was published last Friday. Lady Justice King delivered a concise lead judgment with the Master of the Rolls and Lady Justice Macur agreeing on all aspects.
They found no basis for interfering with the first instance judge’s approach to the targeted, fact specific balancing exercise she had been required to undertake. Roberts J had undertaken this with meticulous care and without error of law.
The Court of Appeal judgment from Newman v Southampton City Council & Ors [2021] EWCA Civ 437 (25 March 2021) is here. Mrs Justice Roberts’ decision is here. (See also links below to the live stream of the appeal, the reports we’ve seen of the court of appeal decision and our earlier blog posts with other links).
Lady Justice King made a series of preliminary points before turning to the specific grounds of appeal in light of that reasoning.
A narrow remit
Well established law requires the appellate court to be slow to interfere with a trial judge’s decision on where the balance falls with respect to competing A8 and A10 rights so long as they approach that balancing act correctly (para 3).
This appeal was solely concerned with whether Mrs Justice Roberts had approached that balancing exercise correctly with reference to the specific facts of the case. (Rather than – presumably – the wider practice and policy implications of where the line is drawn between privacy and open justice more generally, that are better suited to the President’s Transparency Review.) King LJ ends her judgment with a ‘PS to readers’ echoing the Baroness Hale’s observation from the Supreme Court in the leading case of Dring (more below), that applications like this one raise issues more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case. And calling for guidance in the form of court rules to help courts deal with these difficult issues (paras 90-93).
Arguably we saw the same sort of pragmatic, narrowly defined approach i.e. ‘Court of Appeal judges can’t resolve major issues of resources and public policy playing out in the family courts through individual cases and nor should they’ this week in the judgment from the domestic abuse etc conjoined appeals.
The documents and the courts power to order the LA to disclose them
Newman had applied to see all those documents that had made their way into the indices to various court bundles in the care and adoption decision proceedings to decide what she might later want to apply to publish in the public interest as an investigative journalist. They ran to thousands of pages in total. Mrs Justice Roberts had classed these into 12 categories (para 26) and considered them by category, permitting disclosure of only the court orders, plus the psychiatric and psychological assessments and two independent social work assessments of the mother (redacted to protect the child’s privacy).
Following on from the line of her questioning during the appeal, in her judgment King LJ continued to express doubt about whether the High Court even had power within its inherent jurisdiction to order the council to disclose some of the documents that were not prepared for litigation or even necessarily referred to in the hearings (like some of the medical and social services records), sought by Newman as a non-party to the original proceedings.
But ultimately King LJ concluded she need not and should not decide that issue since the original decision and appeal had proceeded on the agreed basis the court did have such power.
She noted the lack of common terminology or meaning across relevant authorities e.g. ‘information relating to proceedings‘ – S.12 AJA, as then interpreted through case law; ‘court documents‘ – the 2009 President’s Guidance; ‘documents filed or lodged with the court office‘ – family procedure rules. See Paragraphs 3 then 32-37 of her judgment where she dips into fascinating but complex arguments on this. And that’s before trying to conceptualise these within the thinking of the Supreme Court in Dring in a wider civil context. (Paras 39-41 of King LJ’s judgment and below).
(See also Lucy Reed explaining Dring for the family courts at the Transparency Project back in 2019).
The open justice principle and Dring
Lady Justice King pointed out that was said in Dring (in a wider, non-family civil context) on the powers under the inherent jurisdiction to order disclosure of documents to non parties, outside court rules (and even a rebuttable starting point of disclosure for proper journalistic purposes) was also with reference to documents placed before the judge and referred to in the course of proceedings. (Para 40). Some of the documents in the Newman appeal presumably merely made it into the various bundles provided for administrative benefit for possible reference at hearing).
Dring provides clear authority that there may well still be compelling arguments against disclosure that outweigh the public interest in open justice and freedom of expression by way of risk of harm to others including children, the justice system, and privacy interests generally (para 41).
Dring is also authority that it’s for the applicant to make the positive case on the potential open justice value and purpose of the disclosure sought in the first instance. The open justice principle is not the equivalent of ‘open sesame’ (Picken J ([2020] EWHC 1873 QB), applying Dring).
Lady Justice King also pointed out that Dring identified two core aspects of the open justice principle behind the inherent jurisdiction – scrutiny /accountability of court decision making processes and understanding how court decisions are made – whereas here, the primary journalistic purpose was investigating /scrutinising the local authority decision making process (and possibly the actions of medical professionals) via the court documents.
(Dring also adds (at para 43) that the public understanding part of the open justice principle goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases. Dring was not about seeing documents to scrutinise the court decision but seeing the documents that were before the court in order to continue to hold companies to account for victims of asbestos related illness arising in the course of employment).
King LJ noted too that the sheer volume and range of disclosure sought was way beyond what case authorities, guidance or incremental moves towards greater transparency had contemplated to date. Nor was Newman’s application a targeted one for some particular document or documents but more of ‘an archaeological dig’ through the whole lot.
The specific appeal grounds
It was argued on Newman’s behalf that certain errors had infected the trial judge’s entire final decision:
(1) Roberts J had taken an unlawful approach to the balancing exercise in failing to give adequate deference to the mother’s parental responsibility and consent
This one was the appellant’s main argument and went right to the heart of a key aspect of significant public interest that the Court of Appeal had identified at the permission stage in deciding to hear the appeal – the proper approach of the court to the Article 8 interests of a young child where a person with parental responsibility consents on their behalf.
There was no unlawful approach, said King LJ (quoting paras 125-128 of Roberts J’s judgment in full at para 62). Roberts J had acknowledged the mother’s PR (unimpeded by state interference) and its centrality to her Article 8 rights. From there she had simply gone on to consider that this 7 year old couldn’t possibly be competent to form her own view and thus had a Guardian appointed to represent her. That Guardian took the view not only that she had independent privacy interests distinct from her mother’s but that these would remain relevant in terms of her emerging identity as she grew to adulthood. The child’s independent privacy interests simply did not coincide with her mother’s interests and wishes and Roberts J was entitled to conclude that the child’s privacy rights should be decisive. This particular 7 year old had been traumatised by the proceedings, was in therapy, and if she had in fact said what her mother had said about wanting her own case to help others this was indicative that her views had been affected by her mother’s, directly or otherwise.
Munby’s decision in the case of Ward was central to the argument for the journalist that the judge should have been slow to override the decision of a parent with parental responsibility wanting to consent for their child. This case was different, King LJ determined, because:
the court and the parties have recognised, by the consensual appointment of a Children’s Guardian, that the mother’s and M’s individual Article 8 private life rights may not coincide (65)
(Munby J’s decision in Ward concerned a baby (albeit 5 by the time of his decision in 2010). Presumably he too may have had independent privacy rights from his parents but no decision had been taken to instruct a Guardian to represent his interests because there was no basis on which that was thought required. Decisions about appointing a Guardian in such applications may have particular resonance going forward).
Moreover, a child’s separate privacy rights applied as much to journalists seeing private documents with intimate details about her early life as they did to potential publication. And were capable of applying even where much of the information had already been put in the public domain (para 67).
Roberts J was entitled to conclude as she did that:
In considering where the balance lies, it seems to me that the overarching factor which I have to weigh in the balance is whether it is in M’s overall best interests to release to a journalist the most intimate details of her own and her mother’s medical records even if the dissemination goes no further than that. Such a step would represent a clear court-directed intrusion of this child’s most basic and fundamental rights to a private family life. If those rights are to be the subject of court-sanctioned interference, there has to be a proper justification. (136)
(2) The Judge was wrong in law in failing to recognise the cardinal importance of the media being permitted to discharge its investigative role in this case, by way of independently scrutinising the facts of the case and the local authority’s decision making
Put another way, the argument was that she had not given adequate weight to Newman’s freedom of expression rights and the significant public interest in enabling effective investigative journalism, said King LJ. She referenced paragraph 120 of Mrs Justice Roberts’ judgment in refuting that suggestion and said the argument amounted to no more than that the journalist did not agree with the outcome of the balancing exercise conducted by the judge.
(3) The Judge had given inadequate weight to the fact that Newman had applied only to see and assess the material, not to publish it at this stage
King LJ said not. Roberts J had been entitled to have an eye to the likelihood of a future application to publish within her proper proportionality exercise given the considerable financial and time costs to supply and redact the thousands of pages asked for. Even if she had gone a bit far in saying of the one set of documents (the medical and social services records) that she wouldn’t be likely to permit publication if an application was later made, this wasn’t sufficient to find her wrong when looked at in the totality of the whole judgment and her careful analysis by category.
Further Reading
Melanie Newman (comment) in the Times before judgment and tweets in response to judgment
Local government lawyer – Court of Appeal dismisses bid by journalist for access to documents held by council in relation to public law children proceedings, but calls for guidance in form of court rules
Press Gazette – Journalist loses Court of Appeal fight to find out why court nearly took child away from mother
Care Appointments – Journalist loses latest round of litigation over access to social services family court file
The live-streamed appeal hearing
Alice Twaite at the Transparency Project on some of the legal arguments after the hearing
Alice Twaite at the Transparency Project on context and links ahead of hearing
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