Where open justice is trumped by children privacy
JXMX v Dartford & Gravesham NHS Trust & Ors  EWCA Civ 96 should be required reading for every court dealing with children proceedings; and many other forms of family proceedings as well. In 36 unhurried paragraphs it explains the common law on when the open justice principle can be overridden (Roberts J took 177 paragraphs to do the same thing in Cooper-Hohn v Hohn  EWHC 2314 (Fam), Roberts J). The same common law and (as applicable) statute law which applies to all civil proceedings (though family proceedings rule-makers have introduced rules which impede the simple common law principles in a way which gives every impression of illegality: FPR 2010 r 29.10 and 29.11; and see https://dbfamilylaw.wordpress.com/2014/10/31/why-family-law-gets-privacy-wrong-response-to-transparency-consultation/ – my response to Sir James Munby P’s July consultation paper on what he calls ‘transparency’).
The background is that JXMX sustained severe birth injuries and sued the Trust responsible. She will always be a protected party, with people looking after her and her interests. Her claim was settled for a significant sum. The settlement went before Tugendhat J for approval, a hearing which is in open court. Her advisers asked for an anonymity order; and, for example, her mother had said that she was concerned that people might start looking to her for payments if the large sum awarded to her daughter was reported in the press. She was concerned about her and her daughter’s loss of privacy.
The judge was unconvinced. All of her daughter’s affairs would be looked after by a professional Deputy, and, he said, the mother’s fears were not objectively well founded.
The Court of Appeal, in a judgment of the court, set out clear statements of principle in favour of open justice from cases such as Scott v Scott  AC 417, and A v British Broadcasting Corporation  UKSC 25. They referred to the summary of the common law position (now codified, largely, in CPR 1998 r 39.2). Children law, said Lord Reed in A, recognised that there may be many different cases in which the court must have regard to the need to do justice in a wider sense than merely reaching a just determination of the issue between the immediate parties. So, said the Court of Appeal, interests contrary to open justice may arise:
 Proceedings involving children and vulnerable adults will often call for a measure of privacy, not necessarily because of the inherent nature of the issues to which they give rise, but because such persons may suffer a distinct injustice if they are exposed to the publicity that may be generated if the proceedings are held in public. Moreover, a claimant who is, or will in due course grow up to be, a protected party may need protection from those who would seek to gain access to the funds that are intended to provide compensation for the injuries in respect of which they were awarded.
One can entirely understand that those involved in any proceedings on family breakdown would want privacy; but why should they start (as FPR 2010 r 27.10 suggests they are entitled to do) in any different position than any other litigant Or as Jeremy Bentham would say, why should family courts judges be any less on trial than any other judge?
The correct approach on privacy, as ever, is to put the law first; and the law here is the common law ‘open justice principle’ (per Toulson LJ in Guardian Newspapers above; or as explained in MX); unless that openness should be restricted by order of the court (Re S (Identification: Restrictions on Publication)  UKHL 47,  2 AC 593) or by statutory intervention – eg by contempt proceedings. As Lord Scarman explained in Attorney General v Leveller Magazine Ltd  AC 440 at 469:
No one shall be punished for publishing….information unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally. Parliament clearly had the general rule in mind when in 1960 it enacted that even the publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court save in specified exceptional cases: section 12 (1) of the Administration of Justice Act 1960….
The common law starts from the premise that anyone subject to it can do what they want, unless lawfully prohibited (hence the negative – ‘thou shalt not’ – approach of much parliamentary drafting (eg Administration of Justice Act 1960 s 12(1)). The default position in any civil proceedings is open justice. Exceptions – and there are sure to be many in family proceedings; and for protected parties generally – must be statutorily provided for or ordered by the court on a principled basis. That does not include in delegated legislation, especially legislation for which there are no obvious vires.
Many of the applicable ‘exceptions’ are summarised in CPR 1998 rr 31.22 and 39.2. Adopt those rules into FPR 2010 and – in procedural law, at least – the problem would be solved.
And there it is: a family lawyer (me) who, yet again, protests too much on this subject; for I know Sir James Munby P is still tying himself in knots over it. The law is very simple; and it is clearly as can be set out in JXMX v Dartford for any children case (subject to the provisions also of Administration of Justice Act 1960 s 12).