It is unusual for judges to dictate to other judges what they should do; but this seems to be what the effect is of guidance issued by the President of the Family Division (see Transparency in the Family Courts: Publication of Judgements: Practice Guidance of 16 January 2014 http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf). It comes into operation on 3 February 2014. Certain judgements, says the President, must be published automatically; and some – if already printed, for separate reasons may be published.
What Sir James does not say in his Guidance, though he has dealt with it in a number of his recent judgements, is that in each case the judge – as far as I can see – will need to give reasons for any decision s/he makes. Those reasons will depend on factors related to European Convention 1950 Arts 8 and 10, and sometime Art 6 – maybe others, in a particular case. Such reasons will involve a secondjudgement and will include the following:
(1) Whose Convention rights are in issue? – The rights in issue will be those of the parties, of the press and of any other interested individual. ‘Interested’ in this sense is as loose a term as occasion demands (eg individual social workers and foster parents.
(2) What rights and freedoms are in issue? – Art 8 (right to respect for private life) balanced against Art 10 (freedom of expression; with HRA 1998 s 12(4) alongside) will always arise.
(3) What is the ‘comparative importance’ of each right? – In his consideration of the ‘interplay’ of Arts 8 and 10 in Re S (Identification: Restrictions on Publication)  UKHL 47 Lord Steyn spoke of the position where the values under the two articles are in conflict. Then, he said – and this is the classic basis for assessment of the Art 8 and Art 10 balance – there must be an ‘intense focus on the comparative importance of the specific rights… in the individual case…’. The justification for interference, or the restriction of any right, ‘must be taken into account’.
(4) What child is (or children are) concerned in the proceedings? – Mostly this will be all children subject to the particular proceedings; though preliminary or other interim issues may involve only one particular child.
(5) How do the ‘primacy of importance’ of children and their rights affect any decision? – There is a semantic difference between at least two Supreme Court Justices (Lady Hale and Lord Kerr) on this ‘primacy’ point. The rights of each child affected by the decsion, must be given primacy of importance in each balancing exercise.
(6) Is it in contemplation that a child’s rights will in fact be interfered with? –The short answer here is: where publication is permitted then: yes (almost invariably). Any interference with a Convention right by a public body (here, the court) must always be justified.
(7) ‘Sequencing’ of rights to justify interference: degree of interference – To justify interference a judge must sequence the child’s rights (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4; H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  UKSC 25 per Lord Kerr – deportation/immigration cases; but the principles apply for children’s rights generally):
(1) First, the court must ask the question: has there been (or is there proposed to be) any interference with the Art 8 rights of the child?
(2) If so, what is the nature of the child’s rights engaged?
(3) What is the importance of those rights, relative to other rights engaged by the particular proceedings.
(4) What is the degree of interference with the child’s Art 8 rights (and see per Lord Steyn: in Re S, para , it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect’)?
(5) Whether the action proposed justifies interference with the rights engaged (the Convention ‘proportionality’ or utilitarian test)?
(8) What is the justification for interference with the child’s or any other right engaged? – The justification for interference will be a summary of the findings above: as to law, namely the Convention rights engaged tempered by s 12(4); and as to fact. Each case is fact specific. Who are the children; who are the other parties; and what factors in the case justify any particular interference?
(9) Proportionality of any interference – ‘Proportionality’, in Convention terms, is the counter-balance or check to what the court considers Convention rights require of it. The measure of interference has, by this stage, been defined ((6) to (8) above). Proportionality is a cross check. In brief, it requires any public authority – in this case the judge (HRA 1998 s 6(3)(a)) – to justify the interference with a Convention right (ie Utilitarian ‘greater good’ arguments). The judge must show that the interference is proportionate to the aims which the judge says that the interference is sought to achieve. The court may by order extend or reduce the automatic constraints on publicity (eg Administration of Justice Act 1960 s 12); but to do so it must conduct the balancing exercise (along the lines above) as described by Lord Steyn in the House of Lords in Re S (Identification: Restrictions on Publication)  UKHL 47.
David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).