Court of Appeal allows appeal against BBC in open justice case

In In re HMP [2025] EWCA Civ 824, the Court of Appeal concluded that the purposes behind the BBC’s application were not connected with the open justice principle, and the application “should not have been entertained under the auspices of that principle”.

The appeal was brought against an order made in the Family Division of the High Court on 20 January 2025 following care proceedings concerning two children.

The Order granted an application by the BBC for: (i) access to documents in the proceedings; and (ii) the partial variation of the reporting restrictions imposed by section 12 of the Administration of Justice Act 1960 so as to permit reporting of specified kinds of information drawn from those documents.

The Order was made on the basis that the open justice principles as identified in Dring applied, and that the issues being looked into were matters of “public interest”.

Outlining the background to the case, Lady Carr CJ, Lady Justice King and Lord Justice Warby said that in late 2021, the children's mother arranged for them to be looked after by “the first carer” under a private fostering arrangement.

After about four months, the first carer gave the local authority notice that she could no longer look after the children.

Following this, the local authority initiated care proceedings in the family court. On 1 April 2022, an interim care order was made, and shortly afterwards, the children were placed with the second carer.

The care proceedings came to an end in August 2023 when an order was made confirming the placement of the children with the second carer under the supervision of a different local authority.

However, events in 2022 and 2023, in which the children were not involved, prompted two respected BBC journalists to take an interest in the way in which the children had been cared for by the first carer and the role of the local authority in respect of those arrangements.

On 4 October 2024, the BBC applied to the Family Court for: (i) access to various documents relating to the care proceedings; and (ii) permission to report the contents of those documents subject to certain limitations and restrictions which were designed to protect, as far as possible, the interests and rights of the children.

The Court of Appeal judges noted: “At this stage, the BBC knew little about the proceedings and the involvement of the local authority in the lives of the children. The BBC believed, and the basis of its application was, that the children had been placed by the local authority with the first carer following an assessment by the local authority.

“The purpose of the application as then stated was to understand how the children came to be placed with the first carer by the local authority, as part of the BBC’s role as watchdog generally, and specifically in relation to the operation of the family courts.”

The application was transferred to the Family Division of the High Court and came before the judge.

By this stage, the BBC had learned of the true factual position: the decision to place the children with the first carer had been one taken by the mother privately and without the local authority's involvement. It was a private fostering arrangement which had ended prior to the proceedings commencing.

The BBC amended its application and shifted the grounds on which the application was based, focussing on reporting on private fostering arrangements generally, and the monitoring of the same.

The judge heard argument from counsel on behalf of the BBC, the local authority, the second carer and the guardian. On 15 January 2025, she gave a reserved judgment by which she upheld the application and made the Order.

The appeal was brought by the guardian of the children, acting as their litigation friend, on the following three grounds:

1. the application was not made for any purpose connected with the open justice principle; accordingly Dring was not engaged and there was no balancing process to conduct;
2. the balancing process which the judge (Lieven J) undertook was flawed because it gave undue weight to the fact that certain information relating to the children was already in the public domain;
3. the judge placed insufficient weight on the rights of the children.

The appeal was originally resisted by the BBC. However, by the time of the hearing, the BBC consented to an order that the appeal be allowed, and that the judge’s order be set aside on ground 3. The BBC stated its position as follows:

“The decision to offer to agree to the setting aside of Lieven J’s order by consent has been reached following careful consideration of our duty of care under the BBC’s Editorial Guidelines in relation to the two children. The Guidelines require us to take due care over the physical and emotional welfare and the dignity of under-18s who are involved in our editorial content and, having considered the submissions (and particularly those of [the second carer]), it is our view that that maintaining our opposition to the appeal would cause them undue harm.”

The Court of Appeal judges said: “We agree that the appeal must be allowed, but on a basis different to that advanced by the BBC. Fundamentally and importantly, the appeal must succeed on the open justice ground, ground 1.”

The Court outlined its reasoning as follows:

“The court in Dring identified two main purposes of the open justice principle, namely: (i) to enable public scrutiny of the way in which the courts decide cases so as to provide public accountability and secure public confidence; and (ii) to enable public understanding of the justice system.

“The Supreme Court in Dring made clear that a non-party has no right of access to the court file; the court’s permission is required. It is incumbent on the person seeking access to documents under the open justice principle to explain (i) why he seeks access and (ii) “how granting him access would advance the open justice principle.

“In this case, the BBC’s amended explanation explained why it wanted access to the file but said nothing about how this would advance open justice. The limits that we have identified were overlooked, and the judge’s approach to the application of the open justice principle was wrong in law.”

The judges observed that the objective of the BBC 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.

They found that the “central error” into which the judge fell was to define the family justice system as encompassing not only the work of the courts but also 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 Court of Appeal judges said: “That is not what Dring is about. The application of open justice principles is confined to the system of justice in the narrow sense. Disclosure for one of the purposes identified in Dring may incidentally facilitate scrutiny of decision-making by local authorities and other public bodies. But enabling such scrutiny is not itself a purpose which requires or justifies disclosure under the open justice principle.”

Allowing the appeal, Lady Carr CJ, Lady Justice King and Lord Justice Warby concluded that whilst the issues which the BBC wished to investigate were matters of “legitimate public interest”, those issues arose “separately and distinctly” from the issues that arose in the proceedings.

They said: “The purposes behind the BBC’s application were not connected with the open justice principle, and the application should not have been entertained under the auspices of that principle.”

In a closing statement, the Court of Appeal observed: “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.”

Lottie Winson