This is a post by Sarah Phillimore.
I was junior counsel in this appeal lead by Paul Bowen QC, which was born – as is so much – from an exchange with the journalist Louise Tickle on Twitter. It was clear from the outset that she raised an important point of legal principle and a clear failing of the lower court to abide by the law and correct procedure.
The appeal was granted today. I took a note of the judgment which isn’t perfect but which hopefully gives you the gist. While I am happy that sense prevailed and guidance will be forthcoming, it is extremely sobering to realise this matter was highly unlikely ever to come to court without the bravery of a journalist, the willingness of a variety of barristers and solicitors to provide their time for free AND the generosity of those online who contributed to Louise Tickle’s crowdfunder – the application fee alone was a staggering £2K and for a long time the spectre of costs was apparent.
Also a very sad omission from the legal line up was anyone from CAFCASS to be the voice of the child. They had no funding.
Equally while the court said some very nice things about the barristers acting for free in the best traditions of the Bar, it would have been good to hear some similar praise for the solicitors who did an immense amount of necessary work that so often goes unsung. The Bundle is probably THE most important aspect of any hearing; a botched or mispaginated one causes significant chaos and irritation. Insufficient attention or praise is given to those who do the very necessary behind the scenes work.
I understand and sympathise with those who critise pro bono lawyers as those who are in effect propping up successive Government’s determination to run legal aid into the ground. But what else are we supposed to do? This appeal dealt with an important matter and it was important that it be heard. It is very necessary and frankly long overdue that the President issues general guidance.
The most crucial comment – for me – was that of Lady Justice King. Fears about ‘jig saw’ identification appear to have become simply a button that is pressed and obviates need for any thought or analysis. Judges should not restrict press freedom to report on family cases on anything other than evidence of harm to a child.
The judgment of the President of the Family Division
The court has before it an appeal against a RRO made by HHJ Levey 19 Oct 2018. Care proceedings with history of substantial litigation in family court. Originally HHJ Hess had made placement order. That Order was subject to appeal witch was granted by full court, heard on Feb 2018. Judgment in public and reported on BAILII and in official law reports. As a result of CoA judgment the case had to be redetermiend by a different judge and that process came before HHJ Levey in the autumn. By that time case had attracted attentnion in media and 3 respected journalists appeated in court as they were entitled to do. Prior to hearing certain journalists had communicated directly to the court of their intention to attend and apply for relaxation of RRO.
Journalists attended and were not represented. As transcript makes plian the issue was dealt with relatively swiftly and Judge made order to restrict reporting of information already in public domain by way of CoA judgment.
One of the three journalists Ms Tickle lodged an application for permission to appeal which was granted. Set down in March for full day.
However, it has however come to pass that all of the parties involved are now agreed as to replacement of reporting restrictions stand in place imposed by HHJ Levey. No longer dispute with respect to appeal decisions. Appeal would proceed by consent.
Because a RRO against all the world not a matter to be dealt with simply on paper and requires this court to consider if it should replace the order.
The court therefore established a short hearing this morning to take stock of process and see if full appeal hearing required. Because the appellant Ms Tickle and those representing BBC wishes to canvass wider issues of principle and practice generated by facts of this case that go beyond terms of order.
Court extremely grateful to Paul Bowen who leads Miss S Phillimore for the very full skeleton that has been prepared that sets out legal landscape in this complicated but very important legal area that relates to transparency in the family court and elements identified by PB that should be encapsulated as guidance. BBC applies to be parties, not contested. Written submissions from AW.
Unfortunately legal funding not available from child but letter submitted. Heard counsel for LA and for child’s mother.
Issues we have to determine are narrow. Should appeal hearing be retained in courts diary in order to determine what priority the welfare of the child should have when court considering relaxation or imposition of RRO? Neither PB nor AW press for hearing in this case on that topic with any force. They are right to do so. It is a matter that undoubtedly requires full consideration but this case is now constituted that no party wishes to argue against propositions media want to make. AW submits this may not be right vehicle for this process and we agree and decline to hold hearing in March for that purpose. That hearing will be vacated and hearing determined today.
Process by which appeal is allowed. In short terms ground of appeal assert Judge gave no reasons for failing to refer to CoA judgment and fails to consider existing case law re transparency in family court. Finally and crucially he failed to undertaken necessary balancing exercise between Article 8 and 10 of EHCR.
This court has sympathy with any judge in current time faced with application such as this. Sympathy for journalists involved often appearing without any legal representation. At present there is no detailed guidance or route map as to how such applications determined. It is my resolve as President to issue such guidance at the earliest opportunity. I therefore propose to develop a draft set of guidance and to consult with various interested parties with a view to issuing.
Reading transcript indicates basic grounds of appeal would be made out. Appeal not contested. Appeal should be allowed on basis that order made by HHJ Levey re RRO was wrong, arising from procedural irregularities that I have done no more than highlight.
The order in relation to the appeal and recording BBC as appellant, appeal allowed and RRO set aside, fresh reporting restriction to be made. Draft order will be further amended and attached.
The element of controversy that remains re the draft takes me to submissions by LM. It is the case that country of origin is stated plainly in CoA judgment Feb 2018. Common ground that if possible there should be no reference to the mother’s country of origin. The question is whether the new reporting restriction order should encapsulate that by restricting repetition of country of origin and in particular by in some way of distancing any report to direct reference of case name and neutral citation of CoA and BAILII link.
My Lady and I heard LM’s clear submissions and understand the important the mother places on this information. The court however does not have any detailed information about detrimental impact on mother if journalists otherwise freely able to connect it with other information in the public domain. Court must balance Article 8 rights against freedom of publication in Article 10. In my view, given the information under consideration is already out in public domain in CoA judgment it would be wrong for this court now to prevent any step that prevents ordinary linking to CoA judgment.
I am not persuaded that the mother’s and child’s Article 8 rights are compromised to a degree that would justify any other course and I therefore refuse LM application.
I think that deals with all matters currently before the court. The appeal is allowed with orders I have described being made in due course after any drafting amendments
LADY JUSTICE KING I agree.
Hi please find the unroll here: Thread by @GeorgeJulian: " sitting in front of President of the Family Division Sir Andrew MacFarlane and Lady Justice King https://t.co/aNYry6PDck […]" #RROAppeal https://t.co/EdRT5IwZMc
See you soon. ?
— Thread Reader App (@threadreaderapp) February 15, 2019
EDIT May 2019
This was a significant achievement for Louise Tickle. But perhaps the best outcome of all has been the recent announcement by the President of the Family Division that he is to conduct a review of the entire issue of openness and transparency in family cases. Watch this space!
Transparency in the Family Courts: Publicity and Privacy in Practice April 2018 Doughty, Reed, Magrath
Transparency is in the public interest Guardian Editorial 15th February 2019
Tickle’s Triumph – an independent journalist succeeds in her appeal to secure the right to report on a family case – and prompts new guidance The Transparency Project 15th February 2019
The mother who lost her daughter over an EpiPen Sanchia Berg BBC 14th February 2019
Top family judge vows to clarify reporting restriction rules February 16th 2019 The Times.
Transparency in the family courts and a trip to the Court of Appeal February 19th 2019 Emily Boardman BH&O Legal
Why I fought for the right to open up family courts to greater scrutiny February 19th 2019 Louise Tickle The Guardian.
A big day in court March 4th 2019 Louise Tickle The Open Family Court
President’s precedent favours transparency March 4th 2019 Joshua Rozenberg
Transcript of Judgment from BAIILI
Draft guidance on reporting in the family courts – consultation period closes June 30th
Press Gazette report May 2019
A Parent’s View.
I hope this comment gets in first on this new thread. Well done to Louise Tickle for appealing and well done to her legal team.
Three points about the judgment which are notable:-
1. The appeal was granted apparently for the simple reason that due procedures were not followed strictly in the lower court. Due process was not dismissed as merely technical or legal nicety to be decided at the discretion of HHJ Levy. The Appeal Court supported scrupulous adherence to correct process. Barristers should remember in the future that lapses in procedure will warrant an application for legal funding to appeal because there will be a more than a 50/50 chance of winning under this President.
2. LM application was refused apparently because the Appeal Court decided the information being considered was already in the Public Domain.
In my layman’s opinion , in all Public Law cases such as this one, it is false ideology that the children’s identity is not already in the public domain and there should be complete openness and transparency ( including press reporting). Justice has to be seen to be done.
The Public already are fully aware of the children’s names and are already able to talk about cases and discuss them at will in line with their right to free speech. Because of the lack of openness and honesty,of course, lots of it will be uninformed and /or malicious gossip,guesswork and conjecture against the interests of children.
Extended family,neighbours,friends,acquaintances,doctors,schoolteachers, local policemen , community workers ,milkmen,postmen, coalmen,housing officers and everyone else already know the names of the children and the parents. They are all well aware that suddenly the children have apparently vanished off the face of the earth and are no longer a part of their lives. Many will be well aware social workers and the LA is involved having witnessed the physical removal of the children,seen the SW’s and Police at work, and many are well aware about anonymous referrals ,concerns etc. Some will have made the anonymous allegations.Plus ,in professional circles information and data is freely shared.Children must be protected from institutional abuse. Those arguing for open courts and transparency should not fall for the myth that their names are not already within the public domain because THEY ARE! These are Public Proceedings brought by the Public, aren’t they?
3. As Lady King remarked the possibility of ‘jigsaw’ identification is cited wrongly too often . The real reason for ‘secrecy’ ,in my view, is to conceal evidence and inhumanity from the Public.
Well done to Louise again and praise to you is due,Sarah,for your invaluable pro-bono part in her success.
Thank you. I shall look forward to the new Guidance and hope it stops something like this from ever happening again.
The absence of transparency and vetos on reporting is actually damaging emotionally to children because of the false information,untruths ,unrestrained gossip and speculation which spreads . as a consequence.
1.Regarding CAFCASS guardian not attending court blaming a lack of funding.
I thought free,non-means tested public funding was automatic for children and parents involved in cared proceedings.
This appeal was in cared proceedings thus why no public funding?
In my opinion,appeals should always be available when correct procedures are ignored in the lower court and funding should always be available.Many children would be at home with parents today if it was.
Did CAFCAS fail this child?
Did the parent get public funding?
2.When the President issues new, practice guidelines how long will it take to trickle down? If lower courts are allowed to get away with flouting guidelines,the miscarriages of justice will never end,they will go on and on.
Failure to conduct cases correctly in ANY way by the judge or the LA complainant and any unlawfulness or dishonesty should mean automatic appeal with public-funding,I would say.
Because they weren’t care proceedings. Only care proceedings have automatic funding.
I hope the guidance will get a lot of publicity and thus the ‘trickle down’ effect will not take long
Legal protocol is so illogical and confusing for parents and the terms used contradict the meaning . It is complicated.
The case is described as an appeal against an RRO in care proceedings but you say they weren’t care proceedings. That is by the by, but surely if a parent wishes to appeal against an order issued in care-proceedings,say an ICO or a full care-order because due procedures were not followed strictly as to court-orders or for any other reason, then the appeal is in care-proceedings just as the lower-court case was. The only difference is that it is the parents bringing the case not the LA.
As i have written many times, many miscarriages go unappealed not because there isn’t a good reason for an appeal but because the barrister feels unable to apply for public-funding.
Parents should not have to LIP, the original funding certificate should cover all hearings up to and including an appeal and all other domestic remedies in ‘the best interests’ of the children. This particular child is only back with Family now because they managed to raise £60000.
Usually, the LA’s deliberately target poor,vulnerable families only which is a big problem. These families must be protected.
Its not ‘by the by’. ONLY care proceedings get automatic public funding. This was an appeal against the making of a reporting restrictions order, so no automatic funding.
It remains curious ,though, that an appeal can be listed and described by a judge as IN care proceedings but counted as not being IN care proceedings by those who administer the system of legal funding and who guard the public purse.
The law is a strange animal,no doubt, but the world of the legal-funding commission is even more odd when it puts the best interests of children second to saving expenditure.Perverted might be a better word for it.
The rules say funding should be automatic in care-proceedings. It matters not whether the LA has more than a 50-50 chance of winning a case. However frontline practitioners declare their own rules when care-proceedings judgments are appealed. The frontline practices should be reformed radically in line with the ‘vision for change’.
The appeal follows care proceedings but it isn’t part of those proceedings. At the end of the care proceedings, the legal aid certificates are discharged. Therefore any application to appeal is a brand new application on a new form and requires a new legal aid certificate. The test is now ‘means and merits’ which makes it very hard for anyone to qualify for public funding of an appeal
These are not ‘self declared’ rules. These are the actual rules of the court which all must obey.
Thanks , Sarah,for making the position more clear for readers.
Clearly, the actual rules of the Court must be changed radically in the best interests of children and the ‘vision for change’. I suppose the President has the power to do it and should be approached and lobbied accordingly.
I have already made one suggestion which is that the original certificate should automatically include all hearings up to and including an appeal.
Also that all other domestic remedies open to parents such as an application for discharge should be eligible for automatic funding.The views of parents should be prioritised for once and the imbalance of power reduced. I have also suggested before an alternative solution . The LA to pay for all representation in the interests of the families and children,it is supposed to support but that would mean a change to the law, i think.
Too many children are enduring institutional abuse because of the funding problem.
Perhaps the Judiciary might be persuaded to find that the LA’s already have a statutory duty under the Children Act to provide help and support to Children and Families and that in order to fulfill those statutory obligations, it should be financing advocacy and legal funding for them.
That would go some way to eliminating the power imbalance in the interests of a fair hearing, in my opinion. No changes to the law needed.
There is no such duty. There is a POWER. that is not the same as duty. therefore a change to the law would be needed.
Lawyers probably already know this but in the small matter of rehabilitation home, discharge of care-orders,SGO’s and so on ,which LA’s have a clear responsibility to consider every six months and work towards according to statute , they simply refuse to comply.
If parents raise the possibilities and express a desire to co-operate and make rehabilitation , transition plans etc. , the LA will simply refuse to discuss the possibility saying they have no plans to return children home. Then they challenge the parents to take issues to Court if they are not happy!
Readers, legal funding should be available automatically non-means tested for these kinds of application FORCED UPON PARENTS BY the LA concerned,surely? The LA’s are clearly abusing their POWER.
Really ,though, in our broken system even when non-means tested legal funding is available to respondents ,the power imbalance remains. Why?
Because the legal aid certificates grant insufficient funds. In my experience , they are extremely limited (perhaps £5000) which ,in reality,is nowhere near enough to pay for adequate legal representation and that is a problem which not only applies to Family Courts but also in the criminal law arena. This has caused the barristers themselves to protest and many refuse to take on legal aid work because of it. They are unable to do their jobs properly and give enough time to read the bundles. They may or may not be refusing to take on work but the tendency is for solicitors to do the job themselves and the £5000 isn’t even enough to pay for qualified solicitors.Many times non qualified staff are used.
So article 6 rights to a fair hearing are contravened,i would say without a doubt.
This is another clear reason why the powers of civil Family Courts should be limited. There should be no interference in family life ordered ever unless there has been a fair hearing .
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