Open Justice Principle – Where are the lines drawn in Care Proceedings?

Re HMP [2025] EWCA Civ 824

Jemimah Hendrick led by Joy Brereton K.C. (4PB) successfully appeared on behalf of the children’s guardian (instructed by Charlotte Image-Flower of Dawson Cornwall), appealing a decision made by Mrs Justice Lieven on 15 January 2025 that allowed disclosure from care proceedings, and reporting of information in relation to the subject children. This appeal was also supported by George Lafanzindes on behalf of Z (the second carer).

Case Summary

This judgment considered the principle of open justice as identified in Dring (on behalf of Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd (Media Lawyers Association intervening) [2019] UKSC 38. The Court of Appeal considered the limits of this principle in the context of care proceedings under the Children Act 1989.

The Court of Appeal reminded us that Dring identified two main purposes of the open justice principle namely:

1. to enable public scrutiny of the way in which the courts decide cases so as to provide public accountability and secure public confidence; and
2. to enable public understanding of the justice system.

The decision at first instance was made by Lieven J who granted the BBC’s applications for:

1. access to various documents relating to the care proceedings; and
2. permission to report the contents of those documents subject to certain limitations and restrictions which were designed to protect, as far as possible, the interests and rights of the children.

By the time of the substantive hearing it was known to the BBC that the placement that they wanted information on was a placement prior to the proceedings and was not considered or endorsed by the court. Despite this, the BBC amended their application focusing on the issue of ‘private fostering’ and continued to seek the disclosure and permission to report.

Mrs Justice Lieven gave the BBC permission to report on the basis that:

1. The disclosure would amount to an interference with the children’s right to privacy;
2. It would not add a ‘great deal’ to what the BBC already knew and could publish in any event;
3. The granting of further access and the freedom to report would not ‘add materially to the harm that the children would suffer’;
4. There was a real public interest;
5. Granting the order would ‘serve the interests of transparency’ in the ‘Family Justice System’ in accordance with Dring;
6. The article 8 / article 10 balance was therefore, to her Ladyship, ‘quite clearly in favour of allowing reporting’;
7. While the Media reporting Transparency Pilot did not bear directly on this case, the principles it is based on included the ‘greater need for transparency in the Family Court system’.

This seemed to the children’s guardian to go too far, tipping the balance unfairly against the children’s rights to privacy. The three grounds of appeal on behalf of the children’s guardian were:

1. That the application was not made for any purpose connected with the open justice principle; accordingly Dring was not engaged and there was no balancing process to conduct; alternatively,
2. That the balancing process which the judge (Lieven J) undertook was flawed because it gave undue weight to the fact that certain information relating to the children was already in the public domain, and;
3. That the judge placed insufficient weight on the rights of the children (“ground 3”).

Conclusions of the Court of Appeal

The Court of Appeal decision, given by the Lady Chief Justice, King LJ and Warby LJ, restated that ‘open justice is a fundamental constitutional principle’ and that the ‘underlying rationale is the need to allow the media and the public access to information about the work done in the courts and tribunals’.

The Court of Appeal however also considered that ‘it is important to understand and respect the limits of the open justice principle in this context’ and that ‘the open justice principle does not extend to affording third parties’ access to such information for reasons unconnected with examining the work of the courts and tribunals and the judges who sit in them’.

Lieven J was found to have overlooked the limits of the Dring principles and the Court of Appeal concluded that ‘the judge’s approach to the application of the open justice principle was wrong in law’. The Court of Appeal considered that the BBC’s investigation was ‘not in any way designed to throw light on the workings of the family courts and their judges’, therefore publication of the information sought by the BBC did not assist the public to understand how (or why) decisions about children are made in the family courts.

Having succeeded on appeal on ground 1, ground 2 and 3 did not fall to be considered. The Court of Appeal concluded:

32. The BBC was not unreasonable in making its initial application in the context of care proceedings at a time when it believed that the private fostering arrangement had been sanctioned by the local authority. Once it became clear that the local authority was not involved until after that arrangement had come to an end, and that the courts had had no involvement at any stage of the arrangement, the application should have been withdrawn. Access to information about the underlying events, if to be pursued, would have to be sought by alternative routes, such as potentially an application under the Freedom of Information Act 2000.
33. The principles of transparency and open justice are there to allow the workings of the justice system to be understood and examined as appropriate. Nothing in this judgment is intended to undermine the importance of those principles or to hinder or discourage the welcome progress that is being made in the application of those principles across all jurisdictions, including in the family courts. The role of journalists in reporting on care cases is clearly in the public interest. However, care proceedings cannot be regarded as an available source of material for journalistic endeavour that has nothing to do with the aims of the open justice principle.

Impact on cases going forward

As of 2025, the Transparency Pilot has  become guidance in all family courts.  It is therefore unsurprising, but important, that the boundaries of these rules are considered carefully by the Higher Courts, including the Court of Appeal, so that it is clear to all tribunals in the family justice system that are dealing with these applications where the boundaries lie.

What is clear from the decision in this case is that the boundaries of the Open Justice Principle do not extend to those matters outside of the court arena, for example, private family placements that are known to the local authority. The judgment highlighted and stressed the following:

25. The central error into which the judge fell was to define the (family) justice system as encompassing not only the work of the courts but also (independently of the courts) the operations of local authorities and other state agencies working with children, and then to apply the principles identified in Dring to the entire (family) justice system as so defined.
26. That is not what Dring is about. The application of open justice principles is confined to the system of justice in the narrow sense. Disclosure for one of the purposes identified in Dring may incidentally facilitate scrutiny of decision-making by local authorities and other public bodies. But enabling such scrutiny is not itself a purpose which requires or justifies disclosure under the open justice principle.

Whilst it is accepted that every case where this is an issue will have to be determined on its own facts and merits it is important to take into account the limitations set out in this case in a context where greater and greater transparency is being encouraged as ‘the norm’.

It is an interesting aside to note that because of the appeal being successful on ground 1 (namely the open justice principle ground) the Court of Appeal did not turn to consider the welfare issues raised by grounds 2 or 3 on behalf of the children. From our point of view, on behalf of the children, this was clearly a case where the media reporting on the matter would have been so contrary to the children’s welfare that an application to do so should be refused.

Those involved in proceedings relating to children  should not fear being the lone voice in the room that considers the child’s welfare when applications to report are made to the court.  It is the view of this author that there will likely soon be a case that the court has to grapple with where the welfare best interest line is drawn in the face of applications for disclosure and to report information.

Jemimah Hendrick