The Secret Courts That Quietly Took The Children

A council solicitor rises in a court building in an English county town and asks for an interim care order. A social worker gives evidence about a family she first met eleven weeks ago. A children's guardian, appointed by an arm of government, offers a view. A judge decides, by the afternoon, whether a child sleeps at home tonight.

Nobody in the room has done anything improper. The hearing follows a statute, a practice direction, and a body of appellate authority. Yet almost nothing about it will ever reach the public record. The judgment will probably not be transcribed. The social worker will not be named. The child will not be named, which is right, and the reason given for not naming the child will also, in practice, cover a good deal else.

The state's most severe non-criminal power over a citizen is the power to take away their children. It is exercised thousands of times a year.

In the first quarter of 2026 alone there were 4,160 new public law cases in England and Wales, involving 7,205 children, with care orders making up 65 per cent of the orders sought. Around 83,000 children are looked after by local authorities in England at any one time.

The question worth asking is not whether children should be protected. It is how a rule invented to shield a child from exposure came to shield everyone else in the room.

Wardship Was A Privacy Exception

English law once treated open justice as close to absolute. The authority is Scott v Scott, decided by the House of Lords in 1913, in which a judge had heard a nullity petition in private and then punished the wife for circulating the transcript. The Lords held he had no power to do either.

Lord Shaw described secret hearings as an attack on the foundations of public and private security. Viscount Haldane said any judge asked to depart from publicity must treat the question "as one of principle, and as turning, not on convenience, but on necessity". The recognised exceptions were narrow and specific: wardship, lunacy, and cases where publicity would destroy the very thing the court was asked to protect, such as a secret manufacturing process.

Wardship was an exception because the court in wardship was not adjudicating between adversaries. It was acting as guardian.

The judge stood in the position of a parent, and a parent does not publish the family's difficulties.

That logic was sound for a jurisdiction covering a few hundred children of property. It was then inherited, without anybody deciding to inherit it, by a modern statutory system which supervises the poorest families in the country at scale.

The exception did not expand by argument. It expanded by continuity.

Section 12 Protects The Proceedings Only

The statutory foundation is section 12 of the Administration of Justice Act 1960. It provides publishing information relating to proceedings held in private is not of itself a contempt of court, except in listed categories. Those categories include proceedings under the inherent jurisdiction relating to minors; proceedings brought under the Children Act 1989 or the Adoption and Children Act 2002; and proceedings relating wholly or mainly to the maintenance or upbringing of a minor.

It restricts information about the proceedings, not the identity of anyone. A High Court judge has spelled this out: section 12 does not protect the identity of anyone involved in the proceedings, not even the child. Whatever it is doing, it is not primarily doing child protection.

It has no expiry date. The prohibition is not limited in time, and has been treated as continuing even after the underlying proceedings are discharged.

It applies to publication, a term which has never been comfortably defined for the age of the group chat and the crowdfunding page.

And breach is a contempt of court, punishable by imprisonment, in a jurisdiction where the person most likely to breach it is a distressed parent with no lawyer.

Section 97 Actually Protects The Child

Section 97(2) of the Children Act 1989 makes it a criminal offence to publish material intended or likely to identify a child as being involved in proceedings under the Act, or to identify their address or school.

This is the provision which actually protects children.

It is also the narrower of the two, and the shorter lived. In Clayton v Clayton the Court of Appeal held in 2006 that the section 97 prohibition applies only while proceedings are on foot and ceases when they conclude. Anonymity afterwards depends on a judge weighing rights and granting an injunction.

The two provisions are routinely spoken of together, which obscures how differently they behave.

A system genuinely built around the child would rest on the second provision. The system rests on the first.

The Children Act Built A Permanent Jurisdiction Over Ordinary Family Life

The Children Act 1989 is usually described, accurately, as a liberalising statute. It replaced parental rights with parental responsibility, made the child's welfare paramount, and told courts to make no order at all unless doing so would be better than nothing.

It also constructed the machinery.

• Section 31 sets the threshold for compulsory intervention: the child is suffering or is likely to suffer significant harm, attributable to the care given or likely to be given.
• Section 47 imposes a duty to investigate.
• Section 20 permits accommodation without any court order.
• Section 17 creates duties of support which bring families into contact with the same authority which may later apply to remove their children.

The Supreme Court has confirmed how much weight the word "likely" carries. In Re B (A Child) in 2013 it held likelihood means a real possibility, provided the facts underpinning it are proved on the balance of probabilities.

Harm need not have happened. A court may act on a prediction, so long as the raw material of the prediction is established to the ordinary civil standard.

Set beside the criminal law, the asymmetry is considerable.

To fine a man for a public order offence, the state must prove its case beyond reasonable doubt to a bench, in public, on the record.

To place his daughter with strangers permanently, it must persuade a judge in private, on the balance of probabilities, harm is a real possibility.t

Separation Can Precede Proof

Emergency protection orders, police protection, and interim care orders exist because some situations do not wait. Nobody sensible disputes the need for urgent powers.

The constitutional difficulty is what urgency then produces.

Nuffield Family Justice Observatory research has found in most cases involving newborn babies, parents receive very little formal notice before proceedings are issued and the baby may be removed.

The same programme of work established nearly half of newborns subject to care proceedings in England were born to mothers who had previous children in proceedings within the preceding five years, and that rates of infant proceedings vary sharply between regions and local authorities.

Once a child is placed elsewhere, time begins working as evidence. Attachment forms. Stability acquires its own gravitational pull. The final hearing is asked to decide what is best for the child now, and now was partly created by an order made months earlier on incomplete material.

Consent Which Is Difficult To Withhold

Section 20 accommodation requires no order and no threshold finding. It is voluntary. The judicial record on how voluntary it has been in practice is not flattering.

Justice Hedley warned the power must not become compulsion in disguise. That phrase was picked up by the Court of Appeal in London Borough of Hackney v Williams, where the trial judge had found "compulsion in disguise" in an agreement signed by parents under implied threat of proceedings, and had awarded damages for the unlawful accommodation of eight children.

The Supreme Court restored the local authority's position in 2018, holding the statute requires the absence of objection rather than the presence of informed consent.

Parents may remove their children at any time.

The available remedies if a council declines are habeas corpus, the Child Abduction Act, or a human rights claim: which is a formidable menu for someone who has just been told the alternative is court.

Forced Adoption: The Ultimate Coercion

Adoption without parental consent extinguishes legal parenthood for good. English courts have been clear about how exceptional it should be. In Re B and then in Re B-S (Children), the appellate courts described such orders as a last resort, to be made only where "nothing else will do".

Adoptions from care rose sharply to a peak around 2015 and then fell, a decline the Department for Education attributes to the 2013 rulings, with 3,040 children adopted from care in the year to March 2025 against 4,110 leaving under special guardianship orders.

Strasbourg has approached the same problem from the direction of procedure. In Strand Lobben and Others v Norway the Grand Chamber found a violation of Article 8 in a forced adoption, not because the outcome was necessarily wrong but because the decision-making lacked safeguards commensurate with the gravity of what was being done, including the absence of up-to-date expert evidence on the mother's capacity.

"Safeguards commensurate with gravity" is a useful test to hold against a system in which the gravest orders attract the least public visibility.

Roy Meadow And Wrongful Convictions

The clearest illustration of what invisibility costs came in the early 2000s. Sally Clark and Angela Cannings were convicted of murdering their infants partly on the evidence of Roy Meadow, whose statistical reasoning the Royal Statistical Society publicly repudiated. Both convictions were quashed.

The Attorney General then reviewed close to 300 convictions.

The children's minister, Margaret Hodge, announced a parallel review of care and adoption cases decided on disputed medical evidence, limited to the narrow category identified in the Cannings judgment. Asked to publish the results, she said publicity about individual cases was extremely difficult. How convenient.

The outcome of the civil review reported by the BMJ was the Family Division described the yield as a small handful of appeals. Even where parents were vindicated, ministers accepted children settled elsewhere might not come home.

Two systems, one body of discredited expert opinion, and radically different capacities for self-correction.

The criminal courts could be audited because their work was on the record. The family courts largely could not, because theirs was not.

Judges Too Lazy To Publish

In January 2014 James Munby, then President of the Family Division, issued guidance urging judges to publish anonymised judgments on the basis too few were available to a public with a legitimate interest in reading what was done in its name.

Publication rose, then sagged. Cardiff University researchers found the rate fell from a peak of 88 Family Court judgments in one quarter of 2015 to fewer than 40 a quarter, with publication concentrated in very few hands. A survey found no judgments published at all in some court centres, five in Birmingham from three judges, and eighteen Designated Family Judges who had never published one.

Between March 2014 and March 2019, 82 circuit judges published nothing whatever.

Andrew McFarlane's 2021 review set a target of 10 per cent of judgments per judge per year, an ambition which tells you a good deal about the baseline. Cardiff researchers identified anonymisation anxiety as a principal barrier.

Transcription costs money, and somebody has to pay.

Whatever else this is, it is not a system in which institutional performance can be measured across cases.

Mandatory Reporting From January 2025

The reforms since 2023 are real and should not be understated, because the government does deserve credit. A reporting pilot began in Cardiff, Leeds, and Carlisle in January 2023, expanded to 16 further centres in January 2024, covering 19 of the 43 court areas, and was then written into the rules.

From 27 January 2025, open reporting provisions applied across the Family Court in England and Wales, with a presumption that a transparency order will be made unless there is a legitimate reason to refuse. Practice Direction 12R phased it in: public law from 27 January 2025, private law and inherent jurisdiction cases from 1 May 2025, and proceedings before lay justices from 29 September 2025. The order works by varying section 12, so compliance with its terms means no contempt is committed.

The practice direction is unusually candid about the details. Its provisions repay reading side by side.

The order ordinarily lasts until every child in the case turns 18. Where an advocate's document quotes material the reporter is not entitled to see, the quoted passage may not be reproduced. Documents obtained by one reporter may not be shared with another.

Case By Case Is Not Open Justice

A reporter may describe a hearing. She may not obtain the evidence on which it turned. She may name the council but not the social worker whose assessment carried the day. She may quote a mother, though the mother herself may not publish a word, a restriction the High Court enforced in 2025 against parents who wanted to publish everything about the loss of their children and were told the reporting restrictions would not be lifted.

She may not compare the threshold documents of one authority across forty cases, because she will only ever hold the ones handed to her at hearings she personally attended, in a jurisdiction which disposed of over 60,000 cases in a single quarter.

And the reporters are few.

The independent evaluation by the National Centre for Social Research found an initial flurry of attendance followed by less interest than anticipated, with one participant in court three or four times a week reporting a single case in ten months.

Legal aid has been cut, local newspapers have closed, and the scheme depends on a profession which has spent fifteen years shrinking.

The judiciary reports no known breaches of children's anonymity during the pilot, which is a genuine achievement and disposes of the argument that openness and child protection cannot coexist.

Judges Who Anonymise Themselves

The limits of judicial self-regulation were exposed three days before the national rollout began. After 10 year-old Sara Sharif was murdered by her father and stepmother, journalists sought material from the earlier family proceedings. A High Court judge released a great deal of it, and then, of his own motion, ordered the circuit judges who had made the earlier decisions could not be named, citing the risk from what he called a "virtual lynch mob".

The Court of Appeal disagreed comprehensively.

In Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42, the Master of the Rolls held the judge had no jurisdiction to make the order, no party had asked for it, and there was no evidence the judges had been threatened. The local authority itself supported the appeal.

It required two freelance journalists, backed by a litigation charity, several national broadcasters, a two-day appellate hearing, and a case which had already produced a murder conviction at the Old Bailey.

The ordinary family case has none of those things.

Who Has A Lawyer, And Who Does Not

Public law care proceedings carry non-means-tested legal aid for parents, which is one of the better features of the system. LASPO 2012 removed most private law family work from scope from April 2013, leaving a domestic abuse evidence gateway many cannot satisfy.

In the first quarter of 2026, nearly half of private law disposals involved no representation for either applicant or respondent, three percentage points up on the previous year.

Grandparents seeking to care for a grandchild, and relatives applying for special guardianship where no care proceedings have been issued, fall outside the protected category.

The family member offering the alternative to state care is the one least likely to be represented while offering it.

Faster, Kinder, And No More Visible

Reform continues, and much of it is good. On 17 March 2026 the Government confirmed national rollout of Child Focused Courts, formerly the Pathfinder model, which cut case durations by around seven and a half months in pilot areas.

The President of the Family Division called it a game changer.

The model is more investigative, gathers evidence earlier, and puts a Child Impact Report at the centre. Legislation is also proposed to abolish the presumption of parental involvement.

Every one of those changes makes the machine work better.

None of them alters what can be seen from outside it.

Giving evidence to the Justice Committee in October 2025, Andrew McFarlane observed being transparent is more than letting journalists in, and is "an attitude of mind".

Attitudes of mind are commendable.

They are not, historically, what open justice was built on.

Corruption Festers In Darkness

Open hearings were never intended to entertain the public or to punish participants. They existed because a system which cannot be observed cannot be corrected, and because officials behave differently when their reasoning may be read by strangers.

Family proceedings have never been ordinary courts, and there are good reasons why. A child is not a litigant who chose to be there. Intimate medical and psychological material is unavoidably in play. Anonymity for children is not a concession; it is a requirement.

Three questions survive all of that.

Does protecting a child's identity require anonymising the professional whose assessment persuaded the court?

The transparency order names the council and the director of children's services but not the social worker, a distinction which protects individuals rather than the child, and which makes patterns across cases very hard to establish.

Can a system be accountable when the record is optional?

Most first instance judgments are never transcribed, publication depends on judicial appetite, and the target for improvement is one judgment in ten.

And is transparency granted by order the same thing as justice conducted in public?

Under the current framework a judge decides, case by case, how much may be reported, retains a discretion to permit no reporting at all, and controls which documents a reporter may see. The presumption now runs the right way. It remains a presumption operated by the institution being observed.

The state may take a child. It should be able to in extreme circumstances to protect him or her when no other protection exists.

What has never been squarely decided is whether it may do so while remaining, in the ordinary sense, unwatched.