The High Court ruled on an application for permission to publish information regarding her experiences in the family court and the domestic abuse she suffered using an alias.
Background:
Ms. M made an application for permission to be able to publish information regarding lengthy private law proceedings between herself and her child's father, Mr. F. She sought permission to publish media articles about experiences of the family court system and the domestic abuse she suffered at the hands of Mr. F, using an alias, so that she could speak at events facilitated by such organisations as Cafcass and women's and children's rights groups.
Mr. F’s position is that he does not oppose the application but sought equal rights as in his opinion he was subject of a miscarriage of justice in the serious findings of rape and domestic abuse made against him.
The guardian, on behalf of C, their child, is supportive of Ms. M’s application but raises some concerns regarding any permission to speak at public events due to the difficulty in maintaining anonymity.
Information on the case had already been published, and some accredited media representatives attended the re-hearing. HHJ Baker made a transparency order allowing Ms. M and Mr. F to speak to accredited journalists and provide direct quotes regarding the case. Ms. M has already done so. The order did not permit them to write or speak directly about their own experiences of the family justice system.
Decision:
Despite Ms. Justice Harris expressing her sympathy for Ms. M’s position, she ultimately found that the Court does not possess the legal power under the family procedure rules to grant the application to publish information beyond what has already been disclosed in published judgement. Such power could, however, exist if Parliament passes secondary legislation that would grant the possibility of making such order based on Section 12 of the Administration of Justice Act (AJA) 1960.
The Court reminds us that open justice is a fundamental principle of democracy and that the “privacy and confidentiality afforded to family proceedings and enshrined in primary legislation is a significant exception to that fundamental principle.” Articles 8 and 10 of the European Convention on Human Rights (ECHR) are not absolute rights. “In this context, the Article 8 rights of the child to respect for their private and family life will always be a weighty consideration in any question of publication of private and sensitive information about family proceedings of which they are the subject. In any balancing exercise, the child's welfare is an important consideration, albeit not the primary or paramount consideration.”
Implications:
This case exemplifies that, although a court can be sympathetic to the position of one of the parties, it is bound by whether it has jurisdiction to make any order sought. The Court will, therefore, always ask itself whether it has jurisdiction before balancing any rights and interests.
In this rather unusual case, Ms. M made the right choice by asking the courts before agreeing to participate in any public debate, as any failure to do so could have severe repercussions.
This decision could give Parliament the required momentum to act and allow victims to share their experiences within the justice system. As Ms. Justice Harris noted “the Court fully appreciates that the inability to be able to speak openly about how, as a victim of rape and domestic abuse she was dealt with by the family justice system, compounds the trauma she has suffered, and is experienced as a further means of coercion and control. Ms. M clearly has an invaluable contribution to make to current debates about domestic abuse, parental alienation and contact with children within the family justice system.”
This case is also a very interesting read for anyone interested in Section 12 of the Administration of Justice Act 1960, as it provides a detailed discussion on the topic.
