M (A Child)  EWCA Civ 437
This is a case in which Peggy Ray represented the child (M), through her children’s guardian (though not in the original care proceedings). The case concerned an application by a freelance journalist, Melanie Newman, to appeal the order of Roberts J dated 28 October 2020 when the Judge refused to permit Ms Newman to have access to documents held by the Court, that related to care and placement proceedings brought by a Local Authority (LA) concerning M, who is now 8 years of age.
It was an interesting and important consideration of a child’s right to privacy over records, including her medical records held in Court files in the context of the increasing imperative for the family courts to open themselves to greater scrutiny and transparency, in the public interest.
By way of brief background, the mother was a single parent to M. M suffered with numerous developmental issues and severe allergies. On two occasions, the mother attended hospital by ambulance with M, having unnecessarily administered M with an EpiPen. This raised serious concerns for the professionals and for M’s continued safety with her mother.
In June 2015, M was taken into police protection and placed with foster carers and in 2016 a care order was made that M live with her father. Within a few months, M’s father withdrew from the plan and the local authority reassessed the mother and prepared a revised care plan for M to be adopted. The mother’s only recourse was to apply for the discharge of the care order. The mother’s application was dismissed and HHJ Hess made a placement order. The mother appealed, rising her own funds to do so as no legal aid was available. The Court of Appeal set aside the placement order and remitted the matter for a rehearing. New assessments were carried out and by 2018 by consent the plan was for M to be returned to her mother’s care where she has remained since.
Final orders were made discharging the care order and a supervision order was made for six months. At the final hearing a number of journalists including Ms Newman were present. At the conclusion of the hearing the judge made a reporting restrictions order which prevented the media from reporting information already contained in the Court of Appeal judgment. However, Ms Louise Tickle, who was a journalist who had closely followed the case, made an application to appeal the terms of the reporting restrictions order. That application came before the Court of Appeal on 15 February 2019 and was allowed by consent on the basis of agreed variations to the terms of the order.
Ms Newman has remained in close contact with the mother since the conclusion of proceedings and it is with the consent of the mother that she made this application for access to all of the documents in the court file so that she could use these proceedings as part of her work. Her application was for access only and not publication at this stage.
In this fresh application, Ms Newman sought access to thousands of pages of documents relating to M and her family. Both the LA and the child’s legal team accepted the importance of the principle of open justice and the right to freedom of expression as protected by Article 10, but were concerned by the breadth of the application.
It was agreed that under the Inherent Jurisdiction, the Judge had jurisdiction to allow access to the papers as sought by Ms Newman, however the proper approach to making that decision was for the Judge to undertake a balancing exercise between Article 8 of the European Convention on Human Rights concerning the privacy rights of the mother and M and Article 10 rights concerning Ms Newman’s freedom of expression. The Judge also had to consider the open justice principle which aims to enable the public and/or the press to have a proper understanding of the court process and the conduct of hearings themselves.
Following the hearing in the High Court, Ms Newman was granted permission to access a limited number of documents which consisted of court orders and assessments of the mother, albeit these documents were redacted to protect M’s identification. She appealed the limited range of the documents she was permitted to see.
The issue in her appeal to the Court of Appeal was whether the Judge had exercised the balance between the two respective rights lawfully and had fallen into error in refusing her access to all of the documents she sought.
Article 8 provides: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 10 provides: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
Baroness Hale has highlighted two principal purposes of the open justice principle in the case Dring v Cape Intermediate Holdings Ltd  UKSC 38 (“Dring”) as:
- i) To enable public scrutiny of the way in which courts decide cases; and
- ii) To enable the public to understand how the justice system works and why decisions are taken.
The Supreme Court approved the approach in Cape Intermediate Holdings Ltd (Appellant/Cross-Respondent) v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)where it provided that
“where documents have been placed before a judge and referred to in the course of proceedings…access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons…it is not sensible or practical to look for a standard formula…The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”
The Supreme Court also held that the rules under CPR Part 5.4C for permission to access documents ‘from the court file’ are not exhaustive and its inherent jurisdiction permits the court to order disclosure where a person shows a good cause to allow access outside the rules. The approach was summarised by Baroness Hale as:
“although the court has the power to allow access, the applicant has no right to be granted it. 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. … the court has to carry out a facts specific balancing exercise.”
In this appeal, the LA drew the court’s attention to the remitted hearing in Dring heard before Picken J ( EWHC 1873 QB), when he summarised the position following the Supreme Court’s decision, saying that the open justice principle is not the equivalent of ‘open sesame’ and that the court must carry out the balancing exercise giving appropriate weight to the relevant factors.
There were three main points made by Ms Newman.
Firstly, It was argued on behalf of Ms Newman that where a journalist has been able to attend a hearing, he or she will have been able to hear all manner of confidential information and that as an investigative journalist, she should be in no worse a position than if she had been aware of and able to attend the hearing. The court however held that Ms Newman had overlooked the fundamental point that whilst a journalist can attend, they are not permitted subsequently to report on the proceedings and at best would have been allowed to see only skeleton arguments /position statements and such other documents as enable him or her to have a proper understanding of the proceedings. Therefore Ms Newman sought to be put in a superior position to an attending journalist.
It was also submitted on behalf of Ms Newman that the alleged failure to properly weigh the Article 8 rights in play lay at the heart of the appeal and on its own should result in the appeal being allowed. She further argued that the judge fell into error in relation to her approach to the countervailing Article 10 rights and that the Judge failed to give adequate weight to Ms Newman’s rights to freedom of expression and in particular to the significant public interest in enabling effective investigative journalism.
Finally, when considering the balancing exercise, the main argument that Ms Newman used was that the mother had provided her with consent to view the documents and as she had parental responsibility she could make this decision on behalf of M.
The parties agreed the approach to be taken by the court was to consider the balancing exercise found in the seminal case of Re S (A Child)  1 AC 593 which set out that:
- a) Neither article has precedence over, or “trumps”, the other;
- b) Where the values under the two articles are in conflict, ‘an intense focus on the comparative importance of the specific rights being claimed’ is necessary;
- c) The justifications for interfering with or restricting each right must be taken into account;
- d) Finally, ‘the proportionality test must be applied to each’ in what Lord Steyn described as ‘the ultimate balancing test’.
The Court of Appeal said the situation was not as submitted by Ms Newman and the court must take into account not only the mother’s view that access to the court files is in the best interests of M but also, taking an objective view of the matter, the following matters in relation to the child in question:
- i) Children have independent privacy rights of their own;
- ii) Whilst M’s interests are a primary consideration, they are not paramount;
iii) Rights of privacy are not confined to preventing the publication or reporting of information. To give a third party access to information by allowing them to see it, is in itself an incursion into the right of privacy for which there must be a proper justification;
- iv) Even “the repetition of known facts about an individual may amount to unjustified interference with the private lives not only of that person, but also of those who are involved with him”.
- v) Repetition of disclosure or publication on further occasions is capable of constituting a further invasion of privacy, even in relation to persons to whom disclosure or publication was previously made—especially if it occurs in a different medium.
Having considered all of the case law and extensive argument, the Court of Appeal held that Roberts J had given appropriate respect to of the fact that the mother has parental responsibility unimpeded by state interference, which respect was reflected in the careful and detailed analysis in her judgment and that there was no basis for the Court of Appeal to interfere with the balancing exercise which was carried out correctly.
The judge had correctly identified the task before her observing that “The principle of transparency and openness is of crucial importance in a democratic society”. The judge further recognised that: “There have been significant developments towards greater transparency in the Family Courts”. That does not, as the law presently stands, alter the balancing exercise which had to be conducted in this case.
It was concluded that this appeal was concerned only with the ‘targeted and fact specific’ balancing exercise undertaken by the judge and that there was no basis for this court to interfere with the judge’s approach to the ultimate balancing test which was conducted with meticulous care and which demonstrated no error of law.
However by post script the Court of Appeal added:
- This case has served to emphasise the need for the development of guidance in the form of court rules in order to assist courts in dealing with these difficult issues. Although “about the importance and universality of the principles of open justice there can be no doubt” and the Re S test provides the ultimate balancing exercise as between the Article 8 and Article 10 rights, there are many issues of both practice and principle which are, as Baroness Hale said at para.  in Dring, “more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case”.
Peggy Ray – Partner
Alice Zagradski – Trainee solicitor