A step closer to transparency – Summers & Anor v White & Ors [2024]

Monday 21 October 2024

Blog by Jennifer Grehan of the Garden Court Family Law Team.

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In 2021, the President of the Family Division published the much-anticipated Confidence and Confidentiality: Transparency in the Family Courts. Noting that the Confidence preceded the Confidentiality, this attention to transparency and confidence in the family court was long awaited.

On 4 July 2024, in Hannah Summers & Anor v Kristopher Paul Arthur White & Ors [2024] EWFC 182, the High Court set out its stall and its commitment to transparency when hearing Hannah Summers’ application to permit the publication of the name of a respondent father in family proceedings.

Mr White, who was the subject of this application, had previously been involved in longstanding private law family proceedings along with the mother and their child ‘X’.

During those previous proceedings, and in a fact-finding hearing in December 2022, the family court determined that Mr White had raped the mother on three occasions, had attempted a further rape, and demonstrated coercive and controlling behaviour towards the mother whilst in a relationship with her.

This court was faced with considering whether the interest of the public, and in particular Article 10 rights, outweighed the father’s right to anonymity in the previous family court proceedings.

Interestingly in this case, Mr White, who had historically been a serving military officer, had previously been found guilty in the criminal court for a separate offence of rape of another woman, and this information, without reference to any family proceedings, was already in the public domain as is usual in criminal proceedings.

This mother and the child were respondents to the application and the child was represented by their rule 16.4 children’s guardian.

The court reminded itself of the clear guidance given by Lieven J in Tickle v Griffiths [2021] EWHC 3365 (Fam) which was approved by the Court of Appeal in weighing up these applications and set out the following;

  • Section 12 of the Administration of Justice Act (1960) places ‘considerable restrictions’ on the publication of information from family proceedings,
  • Section 97 of the Children Act (1989) places a prohibition on the identification of a child who is the subject of proceedings, but the court may ‘relax’ such prohibition,
  • Any easing of the restrictions under section 97 must be in circumstances that is compliant with convention rights, and not just demanded by welfare requirements of a child (Norfolk County Council v Webster [2007] 1 FLR 1146 per Munby J).
  • In this context, the interest of the child is not paramount but the primary consideration, which requires the court to assess the impact of the proposed reporting, with an ‘intense focus’ on the elements of the claimed rights in each particular case. (Re J (A Child ) [2013] EWHC 2694 (Fam))

When Articles 8 and 10 (ECHR 1950) are engaged:

  • neither takes precedent over the other;
  • a conflict between the two necessitates an ‘intense focus on the comparative rights’ under each article, and;
  • must be proportionate.

The hierarchy of different Article 10 rights:

  • Rights to privacy go beyond issues of publication and include access to information by third parties. Furthermore, repetition of information or repetition of disclosure of information, as well as repeated publication, may constitute further and ‘unjustified’ interference of an individuals’ right to privacy and extends to those with whom he/she is involved.
  • Harm from publication to the subject child must not be assumed, especially where there has already been some publicity and the court must take an objective view about ‘the reasonable expectation of privacy.’ (Clayton v Clayton [2006] 3 WLR 599)

The mother supported the application to disclose the father’s name, but the application was opposed by the father and the children’s guardian on behalf of X.

All parties accepted that the child was the court’s primary consideration.

The mother, who cared for the child full-time, submitted she was best placed to address the issues with the child at an appropriate age, and in fact this was already unavoidable, as the father’s rape conviction was publicised in the media.

The father and the children’s guardian submitted the child would be placed at risk of being identified and that the interference with the child’s rights were not proportionate. The father also set out that those close to him would be impacted, including his partner, but said that she was aware of all the findings made by the court.

It is important to point out that the guardian in this case had previously been criticised in the original proceedings for what the mother called a “woefully inadequate assessment” after recommending contact between the child and the father, and that decision, which relied on the guardian’s analysis, was later overturned in the Court of Appeal. The mother said that she had no confidence in the guardian’s ability in this case.

The court then turned to the ‘spirit’ of the President’s 2022 guidance and recited a quote which had been put to the court from the guidance;

“The level of legitimate media and public concern about the working of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in the culture and process to increase the transparency of the system in a number of respects.”

The court was also eager to make clear that there is a strong public policy argument in preserving the identity of victims of abuse in the Family Court so that victims are not discouraged from making relevant complaints, and that each case must therefore be decided on its own individual facts.

However, the court found this case to demonstrate a compelling public interest argument that prevents an abuser from shielding behind their or the child’s article rights, and went on to say “This consideration gains greater importance where there is an established course of conduct that may expose individuals outside the confines of the case to a risk of harm and to limit if not extinguish their ability to protect themselves or their loved ones”.

The court additionally confirmed it had no hesitation in allowing publication of the fact that the father was previously connected to the armed forces, noting that this information was already clearly within the public domain within previous articles about his criminal conviction.

This decision reflects commitment to transparency in the family court and suggests that future applications to publish names in similar contexts may become more frequent. Applications are likely to be made when an individual has demonstrated that he or she poses a risk to individuals outside the confines of the case, and who have no knowledge of any findings made against the perpetrator. Any established course of conduct by the abuser, that is to say a pattern of behaviour, will lend strength to any such application.

This decision has been welcomed by domestic abuse charities and organisations across the UK, and those in support of instilling public confidence in the UK family justice system.

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