Update 25 March:
Freelance journalist Melanie Newman has lost her unprecedented Court of Appeal bid to see a file of family court documents relating to a child who was almost permanently taken away from her mother.
Three appeal judges on Thursday ruled that the High Court’s balancing exercise, between the privacy of the child in the case and Newman’s right to freedom of expression, had been “conducted with meticulous care” and “demonstrated no error of law”.
Lady Justice King said: “There is no basis for this court to interfere with the balancing exercise which in my view was carried out correctly.”
The judge said she felt the material being sought by Newman went “beyond anything that either the guidance or authorities have to date had in mind. Ms Newman seeks to embark upon what has been referred to as an ‘archaeological dig’. She wishes to trawl through thousands of highly confidential documents, many of which refer in detail to the most intimate medical and psychological details of this child’s life, in order to see if something turns up…
“Ms Newman is not seeking to push the boundaries of transparency in the family courts by way of a better understanding of the court process, or of the hearings which took place… or even particularly to hold the judge or the family justice system to account.
“Ms Newman seeks to delve beyond the court proceedings themselves and to have access to documents such as social care and medical records in her capacity as an investigative journalist in order to track through the decision-making process which informed the decision to apply for a placement order. It should be understood that in saying this I do not in any way criticise Ms Newman’s proper journalistic desire to hold the local authority to account. I am, however, seeking to establish the context in which the balancing exercise had to be conducted by the judge.”
Nonetheless Lady Justice King said the case highlighted the need for the transparency review of the family courts which launched in 2019 to investigate whether “the current degree of openness should be extended” from the current standard where journalists can attend any hearing but normally not report on its substance.
Sir Andrew McFarlane, president of the Family Division of the High Court, is expected to publish his conclusions this summer.
Original story published 17 March 2021:
A journalist seeking unprecedented access to a file of family court documents is doing so in order to perform her crucial “public service watchdog bloodhound role”, the Court of Appeal has heard.
Freelance journalist Melanie Newman applied last year for “wholesale disclosure” of a file of evidence relating to a child at the centre of private court proceedings who was almost removed permanently from her mother.
Mrs Justice Roberts denied Newman’s request, saying the journalist should only be entitled to view “limited aspects” of the file containing documents produced by council social services staff.
Newman has now taken the case to the Court of Appeal, arguing that allowing journalists access to the court judgments alone is not sufficient to meet the required standards of open justice.
Anya Proops QC, representing Newman, told a virtual Court of Appeal hearing on Thursday 4 March that although accredited journalists are allowed to attend private family court hearings, there were numerous obstacles to this in practice.
In this case, as in many, journalists were not aware of the issues in play until the Court of Appeal judgment overturning the child’s placement order was published, Proops said. This also means journalists are often unable to decide to which hearings they should dedicate their limited resources.
Proops said this raised a “very real question” as to whether journalists’ right to access hearings was being “rendered practically nugatory” and said this meant it was “all the more important” to ensure journalists can access documents and play their “public service watchdog bloodhound role” if they were unable to attend proceedings.
“Ms Newman through her investigatory role can better understand how matters unfolded before the court,” Proops said.
“We do say it is important there is further transparency in the case of M so the media acting in its public watchdog role can understand and investigate all of the… decision-making that led to this child faced with the prospect of being permanently separated from [their] mother.”
Proops said Newman wants to use this “important high-profile case where something clearly went seriously wrong” to explore the public interest issues demonstrated through a lengthy chain of decision-making starting with the local authority in question, Southampton City Council. She added that the decisions did not “begin and end with the judge’s decision to make the placement order”.
Proops argued Mrs Justice Roberts’ ruling against Newman had erred in law in her approach to privacy, freedom of expression, and the balancing act between the two considerations.
Mrs Justice Roberts said she had undertaken a “careful balancing exercise of all the competing rights involved as between the individual parties to this particular case” and that she was “not deciding matters of general principle”.
Proops said the court had not given enough weight to the fact the child’s mother supported the disclosure of the documents to Newman, adding: “It is very difficult to say that the impact on M of permitting disclosure is one that results in a serious interference of privacy rights.”
She claimed there had been a “fundamental error” in the court’s assessment of Newman’s Article 10 freedom of expression rights, adding that its judgment “completely fails to recognise the cardinally important point that the media must be permitted to discharge its constitutionally important role of independently scrutinising the facts of this case which include all the public law decision-making in this case, judicious and local authority”.
Proops added that the court is “not an expert journalist” and is therefore “not able to make editorial judgments of the kind Ms Newman would have to make in the course of making such an application” or anticipate what she “might unearth through bloodhound activities”.
She also said Mrs Justice Roberts had wrongly concluded the court would deny Newman the right to publish what she had unearthed if she were to apply to do so at a later date. If successful the journalist’s current request would only allow her to read the documentation, meaning she would have to make a further application if she wanted to report what she found.
Heather Rogers QC, representing Southampton City Council, agreed with the judgment against disclosure and said: “In terms of the role of the journalist we accept of course that reporting on matters of public interest is an important aspect of life in a democratic society under Article 10, no challenge about that.
“But the question is how far does it go in a case like this if you are a journalist and you have got a legitimate intent? Does that mean you can go to court and say ‘I want to see everything in the file just because I have got a proper interest in the matters of public interest in the underlying proceedings’?”
Rogers said the council had concerns that if Newman’s application was successful, it could create a costly precedent so that every time a request for access is made in future “it will be required to be considered carefully by those involved”.
“It is a time-consuming exercise and it is a factor in considering where this will go,” she said. “This does cause my client concern as to the consequences of allowing access to journalists.”
Rogers argued there was “plenty” of information available for Newman to track how the case developed in records that can be easily followed by outsiders to the proceedings.
She said this “absolutely serves the open justice principle in the right way “.
Deirdre Fottrell, for the child’s appointed guardian, expressed concern about the case being used to set a precedent, saying she was concerned only with what is best for this particular child.
She argued that Mrs Justice Roberts’ judgment was a “model in terms of identifying the competing interests and the competing rights of this case”.
The Master of the Rolls, Lady Justice Macur, Lady Justice King will give their ruling at a later date.
Picture: PA Wire/Kirsty O’Connor