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
Draft guidance on reporting in the family courts – consultation period closes June 30th
Press Gazette report May 2019