Matthew White analyses the first recorded High Court judgment concerning journalistic access to the court file in public law family proceedings.
The case of Newman v Southampton City Council & Ors  EWHC 2103 (Fam) is likely to be of interest to media lawyers generally, and throws up potential complications surrounding the scope and extent of the privacy rights of children vis-à-vis their parents.
The applicant in the case, Ms Newman, is a professional journalist with a long-standing interest in the workings of the family court. In early 2018, she became aware of the sad case of M, a child who had been removed from her mother’s care at the age of two and subject to a permanent care order pursuant to which she was to placed for adoption by her local authority. M’s mother opposed the order, and succeeded in having it set aside on appeal to the Court of Appeal. King LJ, giving judgment for the Court of Appeal, held that the order (made by HHJ Hess) had been made on “the slimmest of evidence“.
The matter was remitted to be reconsidered by HHJ Hess. By this stage, the case had come to the attention of a number of journalists, including Ms Newman, who attended the remitted hearing. However, by the time of the remitted hearing the proceedings had effectively been compromised, with the LA agreeing that M could be returned to her mother’s care.
Ms Newman wished to report on M’s case. She sought access to the entirety of the Court file in the proceedings concerning M. She claimed that this access was necessary to enable her to undertake her journalistic work. Her application was opposed by the LA, and by the children’s guardian appointed for M (albeit M’s mother, in whose care she now resides, did not oppose it).
Roberts J allowed Ms Newman’s application in very small part. She ordered that Ms Newman be granted access to a narrow set of documents on the Court file, namely expert reports and assessments relating to M’s mother and position statements and case summaries produced in the proceedings. However, Roberts J rejected Ms Newman’s more far-reaching request to be granted access to the entire file, and refused to order access to any other document.
In arriving at that view, the Judge traced the development of the law and practice in the Family Court concerning the conflict between transparency and the need to maintain confidentiality, a particularly acute need in proceedings that by their very nature concern the most intimate aspects of the lives of the parties involved. In the final analysis, Roberts J explained (in terms that will be familiar to all media and privacy lawyers), that contest between the two interests falls to be determined through the “ultimate balancing exercise” set out by the House of Lords in Re S (A Child) (Identification: Restrictions on Publication)  UHL 47 at ¶17:
“… 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. This is how I will approach the present case.”
Roberts J held that this balancing exercise applied in M’s case notwithstanding the fact that M’s mother, the person with parental responsibility for her, supported Ms Newman’s application. The Judge explained:
127. Plainly, appropriate respect and weight must be accorded to the wishes and feelings of any individual who holds legal responsibility for a child as a result of being that child’s parent. That concept is in itself central to the private family rights recognised and protected by Article 8 whenever those rights are engaged. However, each of M and her mother has rights to a private family life and those rights are engaged together, as a family unit, and separately as individual human beings. What the mother’s email tells me about M is that I am dealing here with a child who has been severely traumatised by these proceedings. That trauma has been such that the child requires ongoing therapeutic intervention to mitigate its continuing effects. She is still only 7 years old. Her mother has clearly engaged her in discussion about these proceedings and I know not, and do not speculate, about the extent to which the mother’s own views may have been projected onto her child in terms of [M’s] “verbalised wishes”.
129. … I find myself unable to agree with the conclusions which this mother has reached in relation to the ongoing engagement of M’s Article 8 rights. I do not accept that her child’s anonymity is, as her mother expresses it, “beyond repair”. The information contained in the various judgments which are now published and available for public consumption is indeed significant in terms of background detail and content. That, without more, does not necessarily justify giving further access to the child’s private information to a journalist, albeit that she is an individual who is entitled to this court’s respect for her professional endeavours.
Weighing the competing Article 8 interests of M against Ms Newman’s Article 10 rights to report on the proceedings, Roberts J concluded (in all respects save those set out above) that the “ultimate balancing act” favoured confidentiality rather than transparency. The following passage, taken from the Judge’s analysis of the competing interests in respect of medical records, reflects Robert J’s general approach:
"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. I appreciate that Ms Newman cannot justify that interference on any specific basis because she has not yet seen the medical and other records. She wants to read them in order to see what they contain. Having reflected carefully, and because of the intimately personal and sensitive nature of this material, I do not consider the mother’s consent to its release on her own or M’s behalf to be sufficient to displace the overwhelming need to ensure that such information remains confidential from public scrutiny and I would include Ms Newman within this embargo. In the context of this application, I am satisfied that she has sufficient material about the medical history of both M and her mother. It is either already in the public domain and recorded in the judgments to which I have referred or it is likely on the balance of probabilities to be irrelevant to any decisions which were made in those proceedings. To the extent that those judgments have not recorded the full detail of the medical evidence available in the bundles, I am satisfied that such confidence will have been preserved for a very good reason."
This analysis throws up a number of interesting questions concerning the law of privacy as between parents and children. The boundaries of a child’s private life, as distinct from that of the wider family unit, are difficult to conceive, both in abstract terms and in practice. Parents are responsible for their children, and are expected to make decisions for them regarding a wide range of matters, including the information that is shared about them, including to public authorities (hospitals and schools being obvious examples). As those of us of a certain age know, parents routinely share private information regarding their children on social media (photos that, in the parents’ eyes at least, are cute, funny anecdotes and the like). Should this be regarded as legally objectionable?
Of course, Roberts J was concerned with an application to the Court to share information with a journalist. She was not dealing with an application by a six-year-old for an injunction preventing his mother from posting any more photos of him on her Facebook account. But, is there really so great a difference between an application, supported by a parent, to the Court requesting the Court to provide a third party with information the parent no longer holds, and the parent giving the information him or herself?
These, and other, questions may well find themselves before the Court of Appeal. In a separate ruling handed down on Monday  EWHC 2148 (Fam), Roberts J refused Ms Newman permission to appeal to the Court of Appeal. One presumes that Ms Newman will now seek permission from the Court of Appeal itself.
In the same ruling, Roberts J made an important ruling on the costs of the disclosure that she ordered. The net effect is that the reasonable copying costs of the LA were to be paid by Ms Newman, but the more substantive costs of redacting the documents the LA were ordered to disclose were to be borne by the LA. This approach will ensure that the costs of applications like Ms Newman’s will not be prohibitive for other journalists who may seek to make applications in the future.