High Court case highlights balancing act between transparency and privacy in family proceedings

Citation: [2024] EWHC 161 (Fam)
Judgment on

Introduction

The High Court of Justice case concerning Re T (A Child) (No.2) (Transparency: Publication of the Party’s Names) brings to the fore the ongoing tension between maintaining the anonymity of parties in family proceedings and adherence to the principle of open justice. This case illuminates core legal principles that underpin the Family Division’s jurisdiction to balance Article 8 and Article 10 rights under the European Convention on Human Rights (ECHR), with particular focus on publication judgments.

Key Facts

In Re T (A Child) (No.2), the central issue concerned the publication of a family court judgment about a protracted dispute over child contact arrangements, upon the child reaching the age of majority. The case had seen multiple hearings over ten years, with several judgments made pertaining to allegations from both parents. Both pro bono counsel presented arguments related to the transparency of judgment publication. Notably, the children, via a Cafcass officer, expressed a wish to maintain privacy over family proceedings.

The Court referenced several key legal principles and case laws in its determination, which will be elucidated:

  1. Open Justice Principle: Embodied in Article 6 ECHR, it posits that justice should be administered in public. The Court emphasized that this also applied to the Family Courts ([paragraph 10]).

  2. Article 8 and Article 10 ECHR: Article 8 guarantees the right to respect for private and family life, while Article 10 provides the right to freedom of expression and information. The Court emphasized that neither article has precedence over the other, and any conflict requires an ‘intense focus’ on the comparative rights in individual cases ([paragraph 17]).

  3. Prohibition on Publication: Identified in section 12 of the Administration of Justice Act 1960, section 97(1) of the Children Act 1989, and the inherent jurisdiction of the court, publication restraints can be imposed to protect the identity of children in proceedings ([paragraph 11]).

  4. Balancing Exercise: In the context of the rights under ECHR, when Articles are conflicted, an “ultimate balancing test” must be applied to each ([paragraph 17]), as stated by Lord Steyn in Re S.

  5. Griffiths v Tickle & Ors ([2021]): This case was significant for its discussion on the publication of private children cases. It was mentioned to highlight that the context of the case can affect the balance between the right to freedom of expression and the right to private life ([paragraph 5-6]).

  6. Clayton v Clayton ([2006]): It was noted that the prohibition on publication under section 97(2) of the Children Act 1989 ends when proceedings are concluded ([paragraph 14]).

  7. Re AI M (Publication) ([2020]): Reiterated that the court, when asked to lift or extend reporting restrictions, must balance the ECHR Articles’ rights ([paragraph 15]).

Outcomes

The Court, while regarding the transparency and the principles of open justice as crucial, ultimately decided to order publication of the judgment in an anonymised form initially, with de-anonymization to occur when the youngest child involved reaches the age of 18. This delayed publication in unanonymised form was conditioned on the omission of the children’s names, identifying them by initials instead ([paragraph 46-47]). The Court weighed the children’s Article 8 rights against the public interest and concluded that full insight into the case for the children, as they transition into adulthood, warranted publication ([paragraph 45-47]).

Conclusion

In Re T (A Child) (No.2), the Family Division of the High Court navigated the intricate process of balancing the need for open justice with the rights of the children involved to privacy under Article 8. The judgment showcases the nuanced approach taken by family courts in matters where the public interest in transparency intersects with the private lives of individuals, particularly children within family law disputes. By ruling for eventual publication with particular anonymisation conditions, the Court demonstrated a commitment to safeguarding the personal interests of the child while also acknowledging the significance of public accessibility to the judicial process. The Re T decision further solidifies the precedent that publication decisions must be tailored to the specific context of each case, emphasizing an individualized balancing test aligning with both domestic jurisprudence and European human rights standards.