A judge has granted a journalist permission to see reports by a psychologist in four private family law cases, having concluded that to do so would “advance open justice”.
The expert reports will be strictly anonymised and the scope of reporting limited to protect the children involved. However, the request by a journalist has wider implications for reporting provisions, which were extended last year to all family courts in England and Wales.
Accredited freelance journalist Jessica Bradley requested sight of the expert reports of psychologist Dr Maria Downs in four private family law cases which included accusations of abuse and parental alienation. She also requested the Cafcass reports, final orders and judgments.
Ms Bradley sought permission to publish and communicate the contents of Dr Downs’ reports as well as the final orders and judgments, but not the contents of the Cafcass reports. She had not been in court for three out of four cases, which concerned six children. No reporters attended three of the cases and a Transparency Order made in the fourth case did not permit access to reports.
In his written judgment, Mr Justice Poole pointed out that Ms Bradley’s application went “well beyond” the change in family law reporting that came in last year, and seeks to “widen the ability to investigate and report on family proceedings”.
He added:
“It seems to me that there may be other similar applications by journalists in relation to other cases in the future – they may wish to report on issues raised in cases that have been heard in private which they have not attended.”
Ms Bradley, whose application was represented pro bono by Dr Charlotte Proudman, wrote in her application statement:
“I believe my access to these documents is strongly in the public interest, particularly transparency, to promote understanding of what the family Court process entails, ensuring justice and fair treatment for all, and securing the best use of public resources. It is particularly of public interest due to the recent attention on parental alienation syndrome, and the Family Justice Council recently recognising that ‘parental alienation syndrome’ has no evidential basis and is considered a harmful pseudo-science.”
Counsel Kate Wilson, acting for Dr Downs, opposed permission being given to publish her reports.
The judge recorded that Dr Downs did not use the term “parental alienation syndrome” in her reports, and had not purported to diagnose such a syndrome in any of the four cases.
However, he noted that the “question of how the Family Court deals with, and has in the past dealt with, allegations of alienating behaviour (including when domestic abuse is alleged in the proceedings) and the role of expert evidence in that process, are matters of significant public interest.”
Ms Bradley’s application for access to the reports was not opposed by the four mothers involved in the separate cases, but was opposed by all of the fathers.
Justice Poole continued:
“When judgments are not published and reporters have not attended hearings, the only way in which a journalist can gain a proper understanding of what has happened in proceedings where alienating behaviour has been an issue is by making an application such as that made by Ms Bradley.”
The judge said he had weighed up the competing Human Rights Act claims for Article 8 (the right to privacy and family life) and Article 10 (freedom of expression), “whilst having regard to the welfare of the subject children as a primary consideration”.
He noted:
“Applications of the kind made by Ms Bradley seek to widen the ability to investigate and report on family proceedings. The court can address such applications on the basis of the current rules and established legal principles but, as this application and this long judgment demonstrate, a great deal of effort and thought is required when such applications are pursued. The tension between open justice and the protection of children’s welfare is not easy to resolve.
“I permit Ms Bradley to have access to the Cafcass reports in each case. No application is made to publish or quote from those reports and no such permission is given.”
He concluded:
“As to the reports of Dr Downs, I am satisfied that all reports should be provided to Ms Bradley but that it is necessary and proportionate to restrict publication of the contents of those reports…”
The limits include “the summaries of [Dr Downs’] conclusions and those parts where she responds to questions about child arrangements” as these “are highly relevant to the issue of how the courts dealt with the expert evidence in these cases involving children’s resistance to spending time with their fathers following parental separation.”
The judge also granted Ms Bradley’s request to see copies of final orders.
He added:
“Without transparency the Family Court cannot be fully accountable for the decisions its judges make, decisions which can have lifelong implications for the families involved.”
Last summer an article written by Ms Bradley referencing a fifth case, and featuring quotes purporting to be from a report by Dr Downs, appeared in The Sheffield Tribune.
In his decision, the judge warned of the risk of contempt of court when publishing information regarding family proceedings if permission is not sought via judicial proceedings.
