Last week the Court of Appeal heard journalist Melanie Newman’s appeal against an order against disclosure of the court papers behind a flawed decision that a young child should be adopted (subsequently overturned by the Court of Appeal with the child going home). I wrote briefly about the appeal here in the lead-up to the hearing. Southampton City Council (The Council) and the child’s Cafcass Guardian opposed the appeal. The mother consented to the Journalist seeing all the papers and supported the appeal (though she was not a party). The judgment /decision under appeal can be found here.
The Court of Appeal had granted permission to appeal because it raised the following matter of significant public interest:
The balance as between Article 8 and Article 10 where a responsible journalist seeks access to court papers; including consideration of the approach of the court to the Article 8 interests of a young child where a person with parental responsibility wishes to consent to full disclosure of all the court papers on behalf of the child, the subject of the proceedings.’
The appeal hearing was live-streamed last Thursday, and you can watch it in full here. Journalists attending were provided with the written arguments in which the parties set out the basis of their positions on the day, but were not permitted to share or publish these. (I was also given permission on request to share them and the Reporting Restrictions Order with the Editors at the Transparency Project). The agreed time-table allowed the morning for the Appellant and a short afternoon slot for the submissions for the Council, Guardian and then the Appellant’s reply. So, while the public heard quite a bit of the case in support of the papers being shared with the journalist, they neither heard nor read anything much of the arguments against the appeal. The published judgment will capture both written and oral arguments, and will therefore help to provide a more balanced overview. But if the court is to live stream a hearing it would make sense to either publish the written arguments from each side, or allow reporters to do so.
This blog post highlights some of the basic areas of disagreement between the parties to the appeal, with reference to some of the material from the skeleton arguments (as well as some of the things said in court). Of necessity, it selects, paraphrases and shortens the arguments actually made.
What the parties agreed on is important, too. Not least because the very thrust of the argument made by the Council and Guardian (and the line of some of the judges’ questioning) was that Mrs Justice Roberts, the trial judge, was entitled to make her own decision about what weight to give the relevant public interest and privacy considerations and where the balance should fall in weighing those: so long as she gave adequate, cogent reasons, didn’t ignore key evidence or include irrelevant or improper ones.
Heather Rogers QC (barrister for the Council) and Deidre Fottrell QC (barrister for the Guardian) both said Mrs Justice Roberts had delivered a well reasoned, careful, thorough and balanced analysis of the relevant law and issues, meaning that the appeal should fail.
Anya Proops QC represented the appellant Journalist, Newman. She argued that Mrs Justice Roberts had made fundamental errors in her approach such as to render her decision wrong (the legal test for a successful appeal). She said the judge had made errors of law in the process of assessing the impact of the privacy and the free speech principles in the fact-specific circumstances of the individual case. And then, errors in how she had gone about weighing them into the necessary balancing exercise, such that individually and cumulatively her final decision on where the balance should fall in this case was (inevitably) utterly skewed and ‘wrong’.
The limits of the appellate court’s role
All agreed that the law required the appellate court to be slow to interfere with an evaluative decision. All agreed that the balancing exercise as to competing Article 8 (private and family life) and Article 10 (freedom of expression) was the right legal approach – and ‘analogous to the exercise of a discretion’:
The exercise of balancing article 8 and article 10 rights has been described as “analogous to the exercise of a discretion”…While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention. PJS v News Group Newspapers  AC 1081.
The extent of the document disclosure the Journalist was requesting and whether the Court had the authority to permit the disclosure
The lawyers spent a bit of time answering questions Lady Justice King initiated on this point. Ultimately the parties themselves seemed to agree (applying the guidance from a case called Dring) that :
- The Schedule of 12 different classes of document that Mrs Justice Roberts had categorised as those the Journalist had asked to see was right.
Mrs Justice Roberts had divided them into: Document types (7-12) – that had been prepared directly in contemplation of the court proceedings, like expert reports and witness statements. And document types (1-6) – generated otherwise, such as the mother and child’s medical records, certain specific social services records, and even certain letters, emails, and records of phone calls between professionals) (para 114 Mrs Justice Roberts)
- That it was within the High Court’s inherent jurisdiction to permit the Journalist to see all the documents she had requested – even documents 1-6 created without litigation even in mind and never actually filed on the court file itself – because the Court had later decided that they should be disclosed to all parties and indexed for inclusion in various trial bundles along the way. The documents had been made available to the Court in the court bundles whether actually read or otherwise.
- The inherent jurisdiction was in theory capable of going even beyond these to order public interest disclosure but there was no need to grapple with that here.
- The Journalist had based the documents she was asking for on these Indexes of documents and sought nothing wider in this application. Albeit her investigations might go much wider separately e.g. seeking other local authority or health records directly via freedom of information applications etc.
The basic applicable law
Mrs Justice Roberts’ detailed judgment set out what she considered to be the applicable statutory law, guidance and case authorities, and policy developments on the balance between confidentiality and open justice principles before going on to apply them to this case (paras 21-73).
In broad terms, all parties agreed that the Judge had selected the right law , the right broad principles and conducted the right fundamental balancing exercise required of her. Where the parties disagreed was on whether she’d made fundamental errors in her approach to assessing the impact of the rights/principles in the individual case and in her approach in then applying the balancing exercise.
Most (though not all) of the law Mrs Justice Roberts had to apply was agreed. Indeed much of the relevant law was seen as so obvious that it didn’t need much introducing orally in the live streamed appeal, although it was set out in the skeletons as the starting point.
The balancing exercise
Where both Articles 8 and 10 arise, the court must approach the matter in accordance with Re S (A Child)  1 AC 593:
First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.
The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither article has precedence over or ‘trumps’ the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in the terms of proportionality is carried out. (A Local Authority v W  1 FLR 1)
Proops argued that the judge had failed to adequately assess the actual impact of allowing or refusing the application, on the privacy rights or the open justice/free expression rights of the actual individual child concerned, or the actual individual journalist’s investigation (see below) – such that she was fundamentally wrong in principle in determining the application.
Rogers and Fottrell pointed to detail in her judgment and argued that Mrs Justice Roberts had simply (legitimately) given more weight to some factors, and less weight to others, than the Journalist would have given. They said there was no fundamental error in her approach and the appeal should be dismissed.
Additional law and guidance on seeing documents (in particular)
All agreed the Judge was right to apply the recent Supreme Court decision in Dring v Cape Intermediate Holdings Ltd  UKSC 38,  AC 629 on seeing documents in a wider civil context (though with application for all tribunals), itself building on earlier authorities including Re S. The Council placed much more weight on applying Dring than the Appellant, as we see below.
Rogers, for the Council, pointed out that there is no applicable guidance on what documents journalists should see and how to decide this. She referred to earlier guidance, issued in 2009, following the change in court rules to allow journalists into the otherwise private family law courts, that had anticipated their requests for documents. That 2009 guidance had only ever proposed access to such summaries, position statements and other documents as appear reasonably necessary to a broad understanding of the issues in the case. The 2019 President’s guidance on applications to relax reporting restriction orders was largely silent on what documents journalists could/should see or how to decide. She urged guidance to fill that gap. She cited Dring – see below for the proposition that guidance would be a more appropriate forum than individual cases for decisions on wider policy principles about where the line should properly be drawn between confidentiality and transparency. Particularly given the President’s ongoing transparency review is looking at this.
Errors in the privacy assessment (Article 8)?
Proops said the Judge had failed to assess the privacy implications for the individual child in that :
- Mrs Justice Roberts had dismissed the only primary fact specific evidence as to the child’s views or likely harm to the child arising from granting the application almost out of hand with no adequate reasons. There was no other independent evidence of the child’s view, as the Guardian elected not to see the child.
- Then Roberts had substituted for that gap in evidence:
- generalised assertions from the Guardian’s evidence about all children, based largely on research by Julia Brophy, which was about publication to the world at large rather than the scenario in this case, i.e. disclosure to one known journalist who was not planning to publish without separate later permission, if at all.
- And her own speculative view
- Focusing on the fact-specific evidence of risk of harm to the individual child, Proops said that : the individual child here had been wronged by the State, knew she had been, and her private information was also significantly available in the public domain already.
- Proops complained that whilst Mrs Justice Roberts had said that the mother’s parental responsibility must carry significant weight, she then didn’t give it any real weight, and had mischaracterised the mother’s actual evidence on her child’s wishes and best interests.
The Council argued that the Judge had been obliged to have regard to the views expressed by the Guardian as well as the mother’s, which she had given less weight to. Beyond that, Heather Rogers explicitly left arguments about the particular child to the Guardian and adopted those submissions.
The Master of the Rolls pressed Ms Proops on whether her argument about failures to assess the impact the application would have on the particular child, might be more about dissatisfaction with where Mrs Justice Roberts felt the balance fell in weighing the conflicting rights, rather than being able to point to any particular aspect of her reasoning in her judgment as ‘wrong’. Proops re-iterated that Mrs Justice Roberts had relied upon generalised assertions about harm in preference to the consent of a parent with parental responsibility and particularised evidence about the actual child.
Deidre Fottrell QC, on behalf of the Guardian, argued that Mrs Justice Roberts had properly identified and evaluated the child’s Article 8 rights and was entitled to reach the conclusions she did on the extent of their application and their weight in the balancing exercise. The judge had not mischaracterised the mother’s evidence, but found that the mother’s best interests and the child’s did not align. The mother was saying that the child was traumatised and in counselling, and yet that her best interests would be served by disclosing her records to Ms Newman and potential wider discussion of her family’s involvement in court proceedings.
Fottrell’s skeleton argument set out the legal framework on behalf of the Guardian, including that the child’s best interests are still primary and very important even whilst not paramount; that as a child she enjoyed her own discrete right to private life under Article 8 even where a parent consented; and that an enhanced level of confidentiality attached to her medical records in particular.
Fottrell argued that disclosure of the material sought (particularly the medical records) in and of itself amounted to an impermissible breach of the child’s right to respect for her private life, irrespective of her mother’s view or Newman’s individual standing as a journalist. (Mrs Justice Roberts had granted access to a small number of documents by class of document and a small number of others where redacted). Further, Fottrell argued that any Family Court should be reluctant to permit wider disclosure of documents filed in Children Act 1989 proceedings on the basis of the impact on the child concerned. Here the information sought contained the most personal, sensitive information about the child’s health and welfare decisions in her early years and Mrs Justice Roberts was right to conclude her best interests about having the most intimate details of her own and her mother’s medical records released to a journalist, even if never published, were the foremost factor in her balancing decision.
Rogers also pointed out (citing Dring again) that the fact-specific balancing exercise itself mandates analysis beyond the individual child and journalist/investigation to relevant issues of harm more generally in respect of effective justice and privacy interests. For example, a potentially damaging impact on effective information sharing between agencies vital to child safeguarding procedures:
“any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”. There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. (Dring)
Proops argued that the Judge also got the legal significance of the mother’s consent wrong, citing various examples from domestic and European jurisprudence as authorities in support of the proposition that the mother’s consent must carry considerable weight as a matter of law, not just as a matter of fact. For example, she referred to the GDPR /Data Protection Act statutory scheme that rests on a premise that parents are in charge of decisions about their children’s social media use until they turn 13.
Proops also argued that there was no permissible ground here for departing from the authority of Mr Justice Munby (as he then was) in A v Ward  EWHC 16 (Fam) and that any permissible interference with the child’s Article 8 rights should be largely considered through the lens of her mother’s views and attitude. Anything else was paternalistic. Munby J had said as follows in Ward:
It is for the parents and the parents alone, to decide whether they wish to publicise care proceedings impacting their child. (Ward)
The Ward case featured parents who had still got their court documents in their possession and had sought permission to share them with journalists to tell their story because they had been wronged by the State. They had been supported by the Guardian. All agreed Ward was relevant but there was fundamental disagreement about whether the Judge’s decision to depart from what Mr Justice Munby had said in Ward was permissible. Mrs Justice Roberts had decided she wasn’t bound by Ward. This wasn’t an application from a parent with parental responsibility for permission to share documents with a Journalist. This mother no longer had the documents and was supporting a Journalist to apply for access to the documents via the court, with the court then requiring the Council to redact and send them. (Though Mrs Justice Roberts added that the distinction ultimately had little bearing on her decision anyway).
Rogers and Fottrell said the Judge was right that this was an access to documents application, and not an application about permission to share documents. It was also different from Ward because this Guardian opposed the application and the father too (these parents were separated) was said to have expressed some concern. As a matter of law, they said, it is the court, not a parent, who controls the process of disclosure of information in relation to proceedings and it is well established law that the court also has power to interfere with a parent’s exercise of PR where in the pursuit of the child’s best interests and proportionate.
Proops also argued that the Judge had not had proper regard to the context that applied here. All the broad themes that were most obviously private were already in the public domain, such as the mother’s arrest and the child’s own medical history. This wasn’t an abuse case where the granular detail would significantly further erode the child’s privacy. The argument that the journalist knowing the level of detail (separate from publication) of itself required her application to be dismissed because of harm to the child was illogical. There would have been no objections from the court or Guardian based on harm to the child of the Journalist merely listening to the same detail if she’d attended the hearings, as she was entitled to do.
Rogers pointed to the parts of the judgment showing that the judge had looked at the context in considerable detail. There was a proper balance to be struck. Dring was authority for the principle that mere engagement of the open justice principle doesn’t give rise to unrestricted access (‘open sesame’).
Errors in the free speech assessment (Article 10) ?
Proops argued that it had been impermissible for the Judge to substitute her own investigation and conclusion on the proper public interest in the Journalist investigating further. She said :
- It was not enough to say that the Court of Appeal had righted the miscarriage of justice and their published judgment contains all the information required. The whole point of the open justice principle is robust independent scrutiny of the public law processes in the court and children’s social care services underneath and thus public commentary based on that scrutiny process (citing Webster).
- The Court of Appeal is not a panel of investigative journalists. Its role is quite different from the “bloodhound” and “watchdog” roles that the courts recognise are played by the media in cases like this (See Reynolds v Times Newspaper  2 AC 127 at p.205; and see also Von Hannover v Germany  EMLR 379; (2005) 40 EHRR 1).
- For this family, injustices not remedied by the Court of Appeal included 2.5 years separation of the child and her mother and the £20,000 costs incurred by the mother in appealing against her child being placed for adoption. The Court of Appeal judgment had not answered the question of whether the Placement Order application should ever have been issued because it had sent the decision back for fresh trial on evidence. That new trial never happened because the Council changed their minds and returned the child home.
Proops said Mrs Justice Roberts had failed to weigh, in the balancing exercise, the wider harm to children generally of the media being unable to perform their watchdog role.
The Council cited Dring again (51) that, notwithstanding the vital importance of the open justice imperative, wider principles about the right balance between openness and confidentiality in relation to the Family Court were best considered in guidance in the context of the ongoing Transparency Review where the views of stakeholders and implications for practice and procedure in the overall context could be fully considered. In a postscript to their Judgment in Dring the Supreme Court had said:
We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case. About the importance and universality of the principles of open justice there can be no argument. But we are conscious that these issues were raised in unusual circumstances, after the end of the trial, but where clean copies of the documents were still available. We have heard no argument on the extent of any continuing obligation of the parties to co-operate with the court in furthering the open justice principle once the proceedings are over. This and the other practical questions touched on above are more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case. (Dring para 51)
The Master of the Rolls also pressed Proops on whether some of her arguments went too wide. She might be pushing at something of an open door, but the wrong door, with the right door being the ongoing Transparency Review, as the Local Authority and Guardian suggested.
Fottrell suggested that Ms Newman had other routes of information gathering available to her to inform her investigation in relation to the allegedly high number of applications for placement orders in Southampton and the approach in relation to factitious illness cases, including freedom of information requests to the local authority. (Note also Newman here saying on twitter on the day that this was a wrong assumption with respect to child records).
Error in the balancing exercise ?
Proops argued that the above errors in assessing the impact on privacy and the public interest in the particular case alone were enough to make the final decision ‘wrong’ by infecting the balancing exercise that had to follow. But she went on to argue that there was fundamental error in the balancing exercise too. She said Mrs Justice Roberts had impermissibly pre-judged the public interest in publication, saying she was unlikely to permit publication and then relying (backwards) on that to decide where the balance lay between competing interests and rights on her seeing the documents, so as to improperly conclude that access to the documents was unlikely to serve any meaningful public interest purpose for the balancing exercise.
Fottrell and Rogers agreed with Mrs Justice Roberts that it was artificial to look at the balancing exercise required on the basis that Newman would see the documents and that would be it. That did not reflect the reality of the situation. But to suggest she had impermissibly conflated the application for sight of documents with a possible future application to report from them was a mischaracterisation.
The Master of the Rolls pressed Rogers for the Council on whether Roberts J had been right to prejudge what the journalist would find and consider in the public interest to report by accessing the documents, and whether the judge was permitted to do this. Rogers characterised it not as prejudging but legitimately having an eye to potential publication or otherwise. He pressed her again. Was it not arguing backwards? Wasn’t the Journalist clear in having identified a wrong and wanting to see the material that could show how it occurred?
Rogers also cited Dring again that it wasn’t just a matter of the fact specific balancing exercise but also going on to legitimately apply fact-specific considerations of proportionality and also practical impact. She said the onus was on the Appellant to show that the document they sought would advance the open justice principle and that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate, referencing the potential impact of redaction on an already hard pressed authority. Again the proportionality exercise must be fact-specific.
Whatever the outcome of this particular appeal, I’d like to see the Court of Appeal routinely publish the anonymised written legal arguments (skeletons) or permit others to publish them, if under-resourced to do so themselves.
I would also like to see the Transparency Review clarify whether the law does already, or should now, permit transmission onwards of skeleton arguments and RROs to those with editorial responsibility in publications and who are not accredited journalists (whether commercial outlets or public legal education charities endorsed like the Transparency Project with the President’s Office) to fulfil their duties of ensuring the legal compliance and factual accuracy of what they publish.
There’s no indication of when the Justices will be ready to give judgment. They have made clear it will not require a hand-down hearing. We’ll flag it when we see it and add it here. We haven’t been able to publish sooner because we only received the updated copy of the reporting restriction order on Tuesday.
We have a small favour to ask!
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Feature Pic: RCJ4 image by piqsels