Court of Appeal dismisses bid by journalist for access to documents held by council in relation to public law children proceedings, but calls for guidance in form of court rules

The Court of Appeal has dismissed an appeal by a journalist after she was refused access to documents held by Southampton City Council in relation to care and placement proceedings.

The journalist, Melanie Newman, had appealed the order made by Mrs Justice Roberts on 28 August 2020. The documents related to proceedings in relation to a girl ("M") who is now 8 years of age.

In Newman v Southampton City Council & Ors [2021] EWCA Civ 437 Lady Justice King, with whom Lady Justice Macur and the Master of the Rolls Sir Geoffrey Vos agreed, said it was common ground that the judge, under the inherent jurisdiction of the High Court, could have made an order in the terms sought.

It was also common ground that the proper approach for the judge to take in reaching her determination was by conducting, against the backdrop of the open justice principle, a balancing exercise as between Article 8 of the European Convention on Human Rights (privacy rights of the mother and M) and Ms Newman's Article 10 ECHR rights of freedom of expression.

It was further agreed between the parties, as confirmed by the Supreme Court in PJS v News Group Newspapers Ltd [2016] AC 1081 at [20] ("PJS") that:

"20.The exercise of balancing article 8 and article 10 rights has been described as "analogous to the exercise of a discretion": AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 at [8]. While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention."

The issue before the Court of Appeal was whether, on the facts of this case, the judge fell into error in the way in which she undertook the “crucial” balancing exercise.

Lady Justice King said: “This appeal is concerned only with the 'targeted and fact specific' balancing exercise undertaken by the judge. In my judgment there is 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.”

In a postscript Lady Justice King said the case had 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".

She said: “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. [51] in Dring, ‘more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case’.

“Just such a process was launched by the President of the Family Division in May 2019 following the appeal against the reporting restrictions order in this case ([2019] EWCA Civ 482). The President's review is now well under way. The call for evidence is complete with more than 100 submissions having been received from both individuals and agencies. The first of three oral evidence sessions has been held. The final session will take place in May 2021 with the final publication of the Family Division's Transparency Review expected in the summer of this year.”

She added that in her judgment the issues raised in the case served to underline the need for the Transparency Review.

On Twitter Ms Newman said: “My two year fight to see a family court file was a waste of time and money. The law must change.”

The background to the case – as set out on the Courts and Tribunals Judiciary website ahead of the Court of Appeal hearing – was that the child was made the subject of a placement order by HHJ Hess when she was four years old.

The Court of Appeal quashed the order on 20 February 2018 with the judgment of the Court holding that the judge had failed adequately to engage with the central allegation advanced by the local authority namely that the child was at risk of physical or emotional harm in her mother’s care.

The matter was remitted to the Family Court but no retrial took place. Instead, the local authority no longer sought orders separating the child from her mother and with the result that the child returned to live with her mother where she remains to date.

Ms Newman is seeking to investigate the case and in particular to look at how events unfolded which led to a local authority seeking permanently to separate a young child from her mother by way of a placement order, but who, a year later following the quashing of the placement order by the Court of Appeal, withdrew its application for a placement order and allowed the child to return to the care of her mother where she remains.