The Court of Appeal has upheld a Judge’s decision not to allow publication of his judgement in a family dispute.
The case concerned a 12 year-old boy whose bitterly divided parents had engaged in litigation for close to ten years. A shared residence order had previously been in place, specifying that the youngster spend equal amounts of time with his mother and father. However, the relationship between the former couple deteriorated to such an extent that the boy began to express, to quote Lord Justice MacFarlane, “the very clear view that he did not wish to spend any further time in the company of his father for the time being.”
Consequently, at a court hearing in March last year, His Honour Judge Greene sharply cut the amount of time the boy was to spend with his father. In his Court of Appeal judgement, Lord Justice MacFarlane explained that the unnamed youngster, by then 11, had begun to resist the idea of seeing his father at all.
“…the court, and in particular the CAFCASS officer who had been appointed as the young boy’s guardian, had spent a deal of thought and effort to try and achieve some warming of the relationship between the boy and his father so that at least some level of contact could be re established but that had effectively come to nought…”
Judge Greene also ruled that this judgement should not be published. The mother was unhappy with this decision and applied for the judgement to be published in an anonymised form. Her legal team prepared a “heavily anonymised” version of the judgement in support of their application.
Judge Greene said he would consider publication if the father did not object. He invited both parents to make submissions expressing their views. The father made a submission opposing publication, but the mother did not take part in the process. The Judge therefore ruled against publication a second time.
The mother pursued the issue, however, saying she had been unaware of her former husband’s submission but Judge Greene once ruled against publication. He referred to guidance issued by Sir James Munby, President of the Family Division, in January last year. This guidance concerned the publication of judgements.
The Judge said that the ruling did not fall into any of the categories listed by the President as subject to publication in the normal course of events. He was of the view that the father’s opposition to publication and the risk of identifying the family despite anonymisation of the judgement justified a decision not to publish. Publication would not be in the public interest, said Judge Greene, and the fact that earlier judgements on the family’s ongoing disputes would remain unpublished even if the latest was published “may result in an incomplete and misleading impression”.
The mother was granted permission to appeal this ruling.
The President’s guidance sets out exceptions to publication under the European Convention on Human Rights:
“18. In all other cases, the starting point is that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that permission for the judgment to be published should be given.
19. In deciding whether and if so when to publish a judgment, the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.”
This case falls under paragraph 18 and so refusal of publication was open to the Judge. Furthermore, as Lord Justice MacFarlane pointed out in the Court of Appeal, the President’s guidance was guidance only, and not a statement of the law.
Even though the father subsequently stated he no longer objected to publication, the Court of Appeal concluded that publication of the ruling would mean that details relating to the father would still be released into the public domain even if the judgement was anonymised. The Lord Justice stated:
“Article 8 has at its core in every respect the need to consider necessity and proportionality and that is very much at the centre of any decision to be taken under paragraph 18 of the Guidance.”
He also highlighted the risk of “jigsaw identification” of the boy himself. Research by Dr Julia Brophy, published last year, stressed the importance of involving children in decisions to publish judgements concerning them. Therefore the son would have to be consulted on any decision to publish, but given the fact that a year had passed since the ruling by that point, the Court felt it would be inappropriate to further involve him.
The Court of Appeal concluded that the Judge had weighed up all the appropriate factors and had the necessary discretion in this type of case to rule against publication of the judgement. As a result, declared Lord Justice MacFarlane, it was “certainly not possible to hold that he was plainly wrong in deciding that publication should not take place in this case.”
This is a very sensitive and thoughtful judgement, and one that was clearly made in the best interests of the boy concerned, a boy who clearly been involved in far too much litigation in his short life to date.
Read In The Matter of C (A Child) here.