The October issue of Bloomsbury Family Law Briefing is now available for subscribers.
Re W (Implementation of Adoption Plan pending Appeal) [2024] EWCA Civ 837, [2024] WLR(D) 359 (25 July 2024) – Guidance on what steps can be taken by local authorities where there is a possibility of an appeal from a placement order following care proceedings.
Re N (A Child) (Care Order: Welfare Evaluation) [2024] EWCA Civ 938 (2 August 2024) – Local authority appeal allowed where a judge had agreed that a child be taken by the father to Italy. It was not enough for the judge to say merely: the Italian social services ‘would carry out whatever work and monitoring they deem to be necessary’ and leave it there.
Re Y, V & B (Fact-Finding: Perpetrator) [2024] EWCA Civ 1034 (13 September 2024) - Appeal allowed because care hearing judge failed to identify a perpetrator. Remitted rehearing, listed before the presiding family judge for allocation and any case management.
Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB) (24 September 2024), Ritchie J – The claimant (K) in tort proceedings had been found to be dishonest. The defendant (ABP) applied for wasted costs against K’s solicitors. At the stage where the lawyers were required to ‘show cause’ Ritchie J refused the wasted costs order application and provided a helpful overview of the law on wasted costs.
Re Cynberg (a bankrupt), Cynberg v Nilsson and Anor [2024] EWHC 2164 (Ch), [2024] WLR(D) 393 (23 August 2024), James Pickering KC (as a Deputy High Court judge) – Appeal of H’s trustee in bankruptcy and on H’s bankruptcy after the couple’s divorce. Where parties’ former matrimonial home was jointly held, a formerly married couple were able orally to agree to transfer equitable title to the sole name of the wife as a common intention constructive trust.
Re T & O (Appeal: Fair Hearings: Delegation of Judicial Functions) [2024] EWHC 2236 (Fam) (29 August 2024), Henke J – A judge had in effect delegated her duties to an independent social worker in relation to a child arrangements order. Mother’s appeal allowed: such delegation was not satisfactory (see eg [47]).
Towards release of documents in family proceedings
Administration of Justice Act 1960, s 12, contempt and privacy of court hearings
What contempt law may apply to any proceedings ‘before any court sitting in private’ (Administration of Justice Act 1960 (AJA 1960), s 12(1)); and this is especially a question for family proceedings (which are mostly intended to be heard ‘in private’ (FPR 2010, r 27.10))? ‘Interference with the administration of justice’ – the form of the contempt involved – is where information about secret (‘in private’) court hearings are publicised. The urge for open justice in all court proceedings pulls away from this. The law of contempt in many aspects is the subject of a Law Commission consultation paper (CP 262), Contempt of Court https://lawcom.gov.uk/project/contempt-of-court-2/.
Open justice – the antithesis of ‘secrecy’ in courts – can broadly be broken down into the following categories:
- Open justice: the court is open to those who wish to attend in any capacity; and see R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420, [2013] QB 618 (3 April 2012).
- Release of case related documents (eg skeleton arguments, statements and other pleadings), the better for those attending court proceedings to make sense of a hearings Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498.
- Release and publication of court documents and collateral use of material (CPR 1998, r 31.22; and FPR 2010, Pt 7, r 12.73 and PD12G (which applies to all family proceedings)).
- Anonymity (CPR 1998, r 39.2(4)): can only be determined on a case-by-case basis (Lupu -v- Rakoff) [2019] EWHC 2525 (QB) (30 September 2019), Nicklin J.
This article is mostly concerned with the release of court material where material is published or communicated (FPR 2010, Pt 12 Ch 7 by parties and non-parties (such as Mr Dring: Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) (‘Cape Intermediate’) [2019] UKSC 38, [2020] AC 629, [2019] 3 WLR 429 (29 July 2019)). Collateral use of disclosed material is part of this (CPR 1998, r 31.22)).
The article suggests examples of non-party (formerly ‘third party’) applicants such as journalists and charities concerned with the outcome of a case and sets out in full the relevant parts of AJA 1960, s 12 (as a whole) and goes on to explain how AJA 1960, s 12 works in practice and how application can be made under FPR 2010, r 29.12. At present procedure is vague. How to proceed and a draft practice direction is proposed.