Outside the pilot, you will have to ask. Do this at the start of the hearing.
It is normal to be supplied with these documents, but you are not entitled to quote from them in your reporting without permission of the judge. So, you will have to ask.
What can I report?
In a pilot court, once a transparency order is made, you have the right to report what you have observed in court, quote from the skeleton arguments and quote any parties who have agreed to be interviewed.
If you are not in a pilot court, you must ask the judge for permission to report anything that has been seen or done in the hearing. You also must ask permission to interview and quote parties if you wish to do so, and for permission to quote from documents you may have been supplied with.
How to apply:
Let the court know at the start of the hearing that you are likely to want to apply to report. At the end, stand up and make your application orally.
The law to quote is Re S, which deals with the balancing of Article 8 privacy and Article 10 freedom of expression. The court must bring an “intense focus” to this before deciding. Remind the court that the welfare of the child is a primary consideration in this balancing exercise, but not the “paramount” one, and any risk to the child needs to be weighed against the presumption in favour of open justice, and the public interest in reporting.
If you want to interview and quote a party outside court, and especially if they have indicated they wish to talk to you, then refer to “the right to tell your story” as set out in the Court of Appeal judgment on Griffiths: you could point the judge to point 70:
“The judge’s approach to the mother’s right to tell her story was firmly grounded in principle and authority. Lieven J may, if anything, have slightly undervalued this aspect of the case … the statutory provisions do not prevent disclosure of the underlying facts; they prohibit identification of a child as involved in Children Act proceedings, and what went on in court.”
Preserving parties’ anonymity is vital
Within the pilot, you are entitled to identify the local authority and director of children’s services (not individual social workers), but not the family members or the court-appointed guardian. There are other restrictions within the transparency order that will help to anonymise the family. The judge can vary these, if you or one of the parties argues for the transparency order to be less, or more restrictive.
Outside the pilot, it is regarded as normal to ask to identify the local authority, but sometimes a council will ask the judge to restrict its name being published. Councils are state authorities with enormous powers over people’s lives, so it will usually be strongly in the public interest to be allowed to publish the name.
Before you ask to report, think about how you are going to anonymise family members. This goes beyond not reporting their names. Does any information need to be restricted to help prevent jigsaw identification? Is anything not editorially essential? If there are details that are particularly identifying that are not editorially essential, let the court know you are happy not to report them.
Note down whatever is agreed – or ordered – and ask the judge if one of the lawyers can draw up an order that you would like to see in draft form. Explain that you cannot report until the order is made, therefore, ask for the order to be worded so that it “takes effect without the seal of the court” once the judge has agreed to it.
Make sure the lawyers have your email address and phone number for follow-up.
You should then receive the draft transparency order. When in court, ask that one of the lawyers is charged with sending it to you. Check it through very carefully. If it contains, or omits, anything you believed the judge ordered in the court, inform the lawyers for the parties as soon as possible.
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