The Court of Appeal rules that the BBC misused its open justice claim to gain access to sensitive family documents
The Court of Appeal has ruled that the open justice principle does not exist to facilitate journalism disconnected from scrutinising the court system, overturning a judge’s decision that had allowed the BBC access to confidential care proceedings.
In a strong rebuke to how the High Court had interpreted open justice, the appellate court held that the family justice system must be viewed narrowly—focused solely on court processes, not broader state activity.
The case, Re HMP, centred on the BBC’s attempt to access documents from family court care proceedings. The broadcaster also sought to vary reporting restrictions so it could publish material from the case. The original application succeeded, with the judge finding that public interest and freedom of expression outweighed the privacy rights of the children involved.
The BBC argued that the case concerned a private fostering arrangement allegedly involving a local authority, and that its investigation would expose failings in monitoring such placements. The judge who granted access referred to the principles set out in Dring v Cape Intermediate Holdings Ltd, a leading Supreme Court case on transparency and public access to court documents.
However, the children’s guardian appealed, asserting that the BBC’s application had no legitimate connection to the core aims of open justice.
In a unanimous judgment delivered by the Lady Chief Justice, sitting with Lady Justice King and Lord Justice Warby, the Court of Appeal sided with the guardian. The judgment said the BBC’s revised application shifted away from the courts and towards broader reporting on private fostering—a topic that, while important, fell outside the scope of judicial scrutiny protected by open justice.
“The BBC’s amended explanation said nothing about how access to the file would advance open justice,” the judgment stated. “The judge’s approach… was wrong in law.”
Embed from Getty ImagesThe judges clarified that the principle of open justice is intended to illuminate how justice is administered—not to support investigative reporting into the operations of local authorities or private care arrangements unless those directly involve the court process.
“The central error,” the Lady Chief Justice explained, “was to define the family justice system as encompassing the work of the courts and the independent operations of local authorities… and then to apply Dring to that broader definition.”
The appeal court rejected that approach and stated emphatically: “The application of open justice principles is confined to the system of justice in the narrow sense.”
Importantly, the ruling acknowledged that the BBC was not unreasonable in making its initial application. But once it became clear that the local authority had no involvement in the fostering arrangement, “the application should have been withdrawn.”
The court was careful to stress that its ruling should not chill media access to the family courts when appropriate. “Nothing in this judgment is intended to undermine the importance of open justice,” the justices wrote. “The role of journalists in reporting on care cases is clearly in the public interest.”
However, they drew a firm line: “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.”
The decision reinforces the boundaries around family court transparency, signalling that journalists must show a clear and direct link between their requests and the public’s right to understand how courts operate—not simply pursue material for broader investigations unrelated to judicial scrutiny.
