Care proceedings cannot be seen as an 'available source of material for journalistic endeavour that has nothing to do with the aims of the open justice principle', the Court of Appeal has ruled.

A hearing in re HMP centered on an application by the BBC to see documents in care proceedings and to vary reporting restrictions so that those documents could be reported on. The application was granted and an order made on the basis that the open justice principles identified in Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd, that the issues which the BBC was investigating were matters of public interest, and the rights of the media and the public to freedom of expression outweighed the privacy rights of the children involved, applied. 

The children’s guardian appealed the order on the basis that the application was not made for any purpose connected with the open justice principle. 

The BBC originally requested access to the documents as it believed a local authority had been involved with placing the children with a carer. The carer had looked after the children in a private fostering arrangement and without the local authority’s involvement.

The judgment said: ‘Upon appreciating these matters, the BBC had amended its application and shifted the grounds on which the application was based, focussing now on reporting on private fostering arrangements generally, and the monitoring of the same. The BBC’s amended explanation explained why it wanted access to the file but said nothing about how this would advance open justice. The judge’s approach to the application of the open justice principle was wrong in law.

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‘The objective of the BBC, whilst undoubtedly part of a legitimate journalistic investigation, was neither to scrutinise the way in which courts decide cases, nor to enable the public to understand how the justice system works and decisions are made. It was not in any way designed to throw light on the workings of the family courts and their judges.’

The lady chief justice, sitting with Lady Justice King and Lord Justice Warby, said the judge’s ‘central error… 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’.

The judgment added: ‘The application of open justice principles is confined to the system of justice in the narrow sense.’

Allowing the appeal, the judgment said the BBC ‘was not unreasonable’ to make its initial application but once it realised the local authority was not involved in the private fostering arrangements ‘the application should have been withdrawn’.

It added: ‘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.’