T, Re (Children: Publication of Judgment)

Factual and Procedural Background

This appeal concerns the arrangements for the publication of a Family Division judgment in proceedings about a minor child, referred to as T, who was approaching 16 years of age. T has a sister, S, now 18, and two adult half-siblings. The parents' marriage broke down when T and S were young, and since then the children have lived with their mother. Between 2013 and 2022, extensive child arrangement proceedings under the Children Act 1989 took place, involving multiple judges and numerous hearings. The matter came before the judge on appeal from a circuit judge’s decision, and she conducted a hearing concerning T's contact with his father, with the mother seeking to stop contact and the father seeking an order lasting until T turns 18.

On 17 January 2024, the judge handed down a welfare judgment, providing an unbiased account of the proceedings and making findings about the parents' conduct and the children's wishes. The judge ordered contact arrangements until T’s 16th birthday and a further order under s. 91(14) until he turns 18. The judge also addressed publication of the judgment, initially delivered in un-anonymised form, and invited submissions on whether it should be published anonymised or not, now or when T turns 18.

The parties agreed to publication in anonymised form immediately, but differed on future publication. The Cafcass officer reported that both children preferred the judgment not be published un-anonymised at any time. The judge then issued a publication judgment ordering future publication naming the parents but not the children, who would be referred to by random initials.

Both parents appealed the welfare judgment, with the mother also appealing the publication judgment. The court refused the appeals arising from the welfare judgment but granted permission to appeal the publication order. The judge’s decision and the appeals concern the balance between privacy rights and transparency in family court proceedings.

Legal Issues Presented

1. Whether the welfare judgment should be published in an anonymised or un-anonymised form, either immediately or when the child T turns 18.
2. Whether the parents and/or children should be named in the published judgment.
3. How to balance the competing rights under Article 8 (right to privacy) and Article 10 (freedom of expression) in the context of family court judgment publication.
4. Whether the publication of the judgment without anonymisation is consistent with the best interests of the children involved.
5. The appropriateness and timing of a publication order with effect at a distant future date.

Arguments of the Parties

Appellant's (Mother's) Arguments

• Publication without anonymisation is unnecessary since the anonymised welfare judgment sufficiently informs the public about the case and family courts’ approach.
• The anonymised judgment adequately explains the court's application of s. 9(6) Children Act 1989.
• Publication is inconsistent with the children’s best interests; placing their private lives into the public domain does not enhance their informed choices.
• The children’s wishes and feelings should have been given greater respect.
• The judge erred by giving greater weight to public interest in naming the parents despite foreseeable impact on the children.
• Section 97 CA 1989 prohibits publication likely to identify a child unless welfare requires it; here, welfare does not require such publication.
• The case differs from precedent cases involving public figures and misled public; neither parent has a public profile or reason for public identification.

Appellee's (Father's) Arguments

• The judge correctly balanced the competing rights under Articles 8 and 10 and reached a reasonable conclusion.
• Publication naming the parents allows the children to access the judgment free from maternal interference, although this argument was later conceded to have flaws.
• The father’s Article 10 rights to freedom of expression carry significant weight in these circumstances.
• The father intends to speak publicly about his experience of parental alienation after T turns 18, making parental identification inevitable.
• There is no reliable evidence that publication will cause significant emotional harm to the children; T is reported as thriving despite proceedings.
• While the children’s wishes require consideration, they are not determinative given the mother’s manipulative influence.
• The judge carefully considered risks such as jigsaw identification and sought to mitigate these during T’s minority.
• Section 12 Administration of Justice Act 1960 would not prevent the father from identifying himself after 2026, but publication terms must preserve anonymity of children and family members.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the competing interests of privacy under Article 8 and freedom of expression under Article 10 in the context of family court judgment publication. It acknowledged the general principle of open justice and the significant public interest in transparency, especially in cases showing the challenges faced by family courts dealing with parental alienation and protracted litigation. The judge’s detailed findings about the parents’ conduct and the children’s circumstances were considered important for public understanding.

However, the court gave substantial weight to the children’s and mother’s wishes for privacy, recognizing that publication naming the parents but not the children would risk easy jigsaw identification of the children once the parents were named. The judge had sought to balance these risks by anonymising the children and setting publication at a distant future date (T’s 18th birthday).

On appeal, the court found that the judge’s order for publication naming the parents at a distant future date was unusual and problematic. The court could not reliably predict the impact of publication on the children several years ahead, especially as they would be adults by then, and their welfare would no longer be the primary consideration. The potential harm and worry caused by publication could not be adequately assessed at this time.

The court concluded that the judge had erred in principle by making an order with such delayed effect without sufficient evidence to balance the competing rights and interests. While transparency and the father’s freedom of expression are important, the children’s privacy rights and the unpredictability of future harm warranted a more cautious approach.

The court therefore allowed the appeal against the publication order and substituted it with an order granting the father liberty to apply for publication after T’s 18th birthday, allowing the court to consider the matter afresh at that time.

Holding and Implications

The appeal is allowed in relation to the publication order, which is set aside. The court substituted the judge’s order with liberty for the father to apply for any further publication of the judgment after T’s 18th birthday.

This decision means that the previously ordered publication naming the parents but not the children at a distant future date will not proceed as planned. Instead, any decision about publication after T turns 18 will be made based on then-current circumstances and evidence. The ruling underscores the importance of carefully balancing privacy and freedom of expression rights, particularly when the interests of children and young adults are involved, and highlights the difficulty of predicting future harm from publication orders with delayed effect.

No new precedent was established; the court applied existing principles and case law to the facts of this case, emphasizing the need for case-specific assessment and caution in publication decisions affecting vulnerable individuals.