BBC v The Carer & Ors [2025] EWFC 421

“67 Welfare of privately fostered children. (1) It shall be the duty of every local authority to satisfy themselves that the welfare of children who are or are proposed to be privately fostered within their area is being or will be satisfactorily safeguarded and promoted and to secure that such advice is given to those concerned with] them as appears to the authority to be needed. (2) The Secretary of State may make regulations— (a) requiring every child who is privately fostered within a local authority’s area to be visited by an officer of the authority— (i) in prescribed circumstances; and (ii) on specified occasions or within specified periods; and (b) imposing requirements which are to be met by any local authority, or officer of a local authority, in carrying out functions under this section. (2A) Regulations under subsection (2)(b) may impose requirements as to the action to be taken by a local authority for the purposes of discharging their duty under subsection (1) where they have received notification of a proposal that a child be privately fostered. (3) Where any person who is authorised by a local authority to visit for the purpose has reasonable cause to believe that— (a) any privately fostered child is being accommodated in premises within the authority’s area; or (b) it is proposed to accommodate any such child in any such premises, he may at any reasonable time inspect those premises and any children there. (4) Any person exercising the power under subsection (3) shall, if so required, produce some duly authenticated document showing his authority to do so. (5) Where a local authority are not satisfied that the welfare of any child who is or is proposed to be privately fostered within their area is being or will be satisfactorily safeguarded or promoted they shall— (a) unless they consider that it would not be in the best interests of the child, take such steps as are reasonably practicable to secure that the care and accommodation of the child is undertaken by— (i) a parent of his; (ii) any person who is not a parent of his but who has parental responsibility for him; or (iii) a relative of his; and (b) consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child. (6) The Secretary of State may make regulations requiring a local authority to monitor the way in which the authority discharge their functions under this Part (and the regulations may in particular require the authority to appoint an officer for that purpose).”

"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."

“48. Sixthly, the child's best interest will be critical, Griffiths at [71], although they will still have to be balanced against the other rights asserted. In practice, in most cases in the Family Court, it will be of great importance to preserve the anonymity of the child, so far as is reasonably practicable. I note this caveat because there will be cases, such as Griffiths itself or cases concerning a high profile criminal case, where anonymity can only be preserved in reality to a certain degree. There may be an important distinction between cases such as the present, where the reporter is seeking to report wholly generic and systemic matters, and where the reporting is of the facts and evidence in the case, where the risk of identification of the child is much greater. The experience of the Transparency Pilot currently under way is that anonymity of the child can be effectively preserved by the use of a detailed Transparency Order. 49. Seventhly, there is a public interest in the reporting of cases in the Family Courts. This is made clear in the report of the President of the Family Division (Sir Andrew McFarlane) in his report Confidence and Confidentiality: Transparency in the Family Courts (21 October 2021). At paragraph 22 the President said: "The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects. In short, the reasons for this conclusion are as follows: …" 50. The Report goes on to refer to the genuine and legitimate public interest in the Family Justice System for the purposes of gaining public confidence in the system, and greater knowledge and understanding of issues such as domestic abuse, see [30]. In my view it is relevant that because most Family Court cases are held in private and with no reporting, there is less knowledge or understanding of the challenges facing the Family Justice System than those facing the Criminal Justice System. There is a very real public interest in there being greater understanding of the work done by the Family Courts.”

“12 Publication of information relating to proceedings in private. (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; …. (e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published. (2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication. … (4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this Section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).”

“76. I can conveniently start with the summary which I set out in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142 , at para [82]: “(i) Section 12(1)(a) of the Administration of Justice Act 1960 has the effect of prohibiting the publication of: ‘information relating to proceedings before any court sitting in private … 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 (iii) otherwise relate wholly or mainly to the … upbringing of a minor.’ (ii) Subject only to proof of knowledge that the proceedings in question are of the type referred to in s 12(1)(a) , the publication of such information is a contempt of court. (iii) There is a ‘publication’ for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children. … (v) Section 12 does not of itself prohibit the publication of: (a) the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing; (b) the name, address or photograph of such a child; (c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings; (d) the date, time or place of a past or future hearing of such proceedings; (e) the nature of the dispute in such proceedings; (f) anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place; (g) the name, address or photograph of the witnesses who have given evidence in such proceedings; (h) the party on whose behalf such a witness has given evidence; and (i) the text or summary of the whole or part of any order made in such proceedings. (vi) Section 12 prohibits the publication of: (a) accounts of what has gone on in front of the judge sitting in private; (b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive); (c) extracts or quotations from such documents; (d) summaries of such documents. These prohibitions apply whether or not the information or the document being published has been anonymised.” … 111. The point can be tested by an example which was canvassed during the course of argument. Suppose that a local authority in exercise of its duties under section 47 convenes a child protection conference at a time when there are no proceedings on foot and, indeed, when there has not even been consideration of whether or not proceedings should be commenced. Now whatever other restrictions there may be upon the use of the document, section 12 plainly cannot apply and the publication of the minutes of that conference cannot be a contempt of court, because there are no proceedings on foot. But why should the self-same act – publishing the minutes but without any reference to the proceedings – be a contempt of court merely because proceedings have in fact been commenced and the minutes lodged with the court attached to some witness statement or report? Why should the question of contempt in relation to a publication which does not refer to any proceedings at all depend upon whether or not proceedings have been commenced and upon whether, if they have, the particular document has been produced to the court as an exhibit? In my judgment it makes no sense. And it makes no sense because it is not the law and because it does not focus upon the statutory language. 112. Where, then, is the line to be drawn? The key is provided, of course, by the statutory principle, reproducing the common law principle to be found in Martindale , that what is protected, what cannot be published without committing a contempt of court, is “information relating to [the] proceedings”

“41. The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case. 42. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. In A v British Broadcasting Corpn, Lord Reed reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott [1913] AC 417, 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard “with open doors”, “bore testimony to a determination to secure civil liberties against the judges as well as against the Crown” (para 24). 43. But the second 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. In the olden days, as has often been said, the general practice was that all the argument and the evidence was placed before the court orally. Documents would be read out. The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out. It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material. 44. It was held in Guardian News and Media that the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing. It follows that it should not be limited to those which the judge has been asked to read or has said that he has read. One object of the exercise is to enable the observer to relate what the judge has done or decided to the material which was before him. It is not impossible, though it must be rare, that the judge has forgotten or ignored some important piece of information which was before him. If access is limited to what the judge has actually read, then the less conscientious the judge, the less transparent is his or her decision. 45. However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so. As was said in both Kennedy, at para 113, and A v British Broadcasting Corpn, at para 41, the court has to carry out a fact-specific balancing exercise. On the one hand will be “the purpose of the open justice principle and the potential value of the information in question in advancing that purpose”. 46. On the other hand will be “any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”

“48. In my judgment, what Ms Newman seeks is beyond anything that either the guidance or authorities have to date had in mind. Ms Newman seeks to embark upon what has been referred to as an "archaeological dig". She wishes to trawl through thousands of highly confidential documents, many of which refer in detail to the most intimate medical and psychological details of this child's life, in order to see if something turns up. Almost certainly something would 'turn up' as it has long been acknowledged that things went wrong in this case to the significant prejudice to the mother, but mainly to the detriment of M. This is abundantly clear from the Court of Appeal judgment in the appeal against the making of the placement order. 49. Ms Newman is not seeking to push the boundaries of transparency in the family courts by way of a better understanding of the court process, or of the hearings which took place in respect of M, or even particularly to hold the judge or the family justice system to account. Ms Newman seeks to delve beyond the court proceedings themselves and to have access to documents such as social care and medical records in her capacity as an investigative journalist in order to track through the decision-making process which informed the decision to apply for a placement order. It should be understood that in saying this I do not in any way criticise Ms Newman's proper journalistic desire to hold the local authority to account. I am, however, seeking to establish the context in which the balancing exercise had to be conducted by the judge.”

“26. I have put in place a RRO that limits any reporting to protect the anonymity and Article 8 rights of Child A and those caring for him/her. Given the criminal trial, the press necessarily has information which they are restricted from publishing in the interests of protecting those privacy rights. In broad terms, the RRO restricts the publication of names, photos and information about schools which could lead to the identification of Child A or his/her carers. I have ordered that any material disclosed as a result of this judgment is redacted to ensure that that information is not disclosed. 27. None of the parties disputed that the documents listed, subject to redactions, should be given to the press. The parents expressed some concern about releasing any information which could lead to Child A's identification. However, in the circumstances, I put very much more weight on the submissions of the Guardian and the carers, both of whom accept the principle of the documents sought being released.”

“For enduring legal and health and safety reasons, it is not permissible to publish the review, which concluded in April 2024 However, after consultation with the national child safeguarding practice review panel, it has been decided that the learning identified by the review should be widely available for professionals and published. This document represents the results of that decision.”