Publishers can name lay justices and advisors in care proceedings
08/08/2023
Reporting on care proceedings is often difficult because of the statutory restrictions which are in place to protect the identities of the children involved, and sometimes their families.
However, a recent decision from the High Court has clarified that those protections do not generally extend to the professionals involved in the case.
The case concerned is that of Child A - a sibling of Finley Boden, who was killed by his parents after he was returned to their care two months prior to his death.
In the case concerning Child A, the BBC, Telegraph and PA Media made an application for the release of the Family Court judgment which allowed Finley to be returned to the care of his parents together with some supporting documents including the skeleton arguments and case summaries from the hearing in question.
Mrs. Justice Lieven allowed the disclosure of versions of the documents which were redacted to protect the identity of Child A.
In doing so, the Judge noted that the balancing exercise between Article 8 and 10 (privacy and freedom of expression, respectively) was not "particularly complicated" in this case, and there is "significant, and legitimate, public interest in understanding the circumstances of Finley’s death".
Further, she said "the release of relevant documents allows press reporting and debate to be based on full information, as opposed to speculation and partial knowledge of the circumstances of the case"
In order to safeguard the privacy of Child A and its guardians (bearing in mind the press is already in possession of information which it cannot report from the murder trial of the parents), Lieven J also put in place a reporting restriction order which, in broad terms, "restricts the publication of names, photos, information about schools which could lead to the identification of Child A or his/her carers".
This alone is noteworthy as an example of the press achieving disclosure of documents in a family case in which there is significant public interest.
However, the second aspect of the judgment deals with whether the names of the Magistrates and the Legal Adviser involved in the hearing in which it was decided that the children should be returned to their parents, should be published.
At this point, Lieven J makes it clear that statutory restrictions relating to care proceedings are to protect the children involved and possibly their families, and not the professionals involved.
Whilst the Judgment acknowledges that Lay Magistrates give up their time to undertake the role without remuneration, it also notes that they are still judges who "make very important decisions that impact on children and families in the most significant way. As such, there is no case for their names not to be in the public domain when decisions are made, in the same way as would the names of judges who had made such decisions."
Whilst noting that the position in relation to the Legal Advisers who assist the Magistrates with the technical legal aspect of a case may be different because they are employees of HMCTS rather than members of the judiciary, the same conclusion was reached - they should also be named.
As per Rule 27.2(5)(6) of the Family Procedure Rules 2010, the presence of and consultation with a Legal Adviser is required before the Bench of Magistrates can make a decision.
Therefore, whilst their position is outside the judiciary, the Legal Adviser is "an integral, and legally required, part of the decision-making process", and as such, it is right that "their names can in principle be placed in the public domain".
With the push towards increased openness in the family courts, this is a welcome step forward and a principle which is certainly worth remembering.