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Article 10 Rights v Article 8 Rights: Tickle v Father & Ors [2023] EWHC 2446 (Fam) (05 October 2023)

This was an appeal within private law proceedings concerning rights under Article 10 ECHR to report and the child & family’s Article 8 rights to privacy. There were 4 parties – the appellant journalist (who shall be referred to as “LT”), the father, the mother and the child.

At a final hearing on 22nd August 2023 concerning the child, LT attended court – this was Day 2 of the final hearing. Another member of the press had sought to attend the hearing on Day 1 but the judge had refused. On 22nd August 2022 the judge heard a number of arguments including an argument in respect of LT’s attendance, which was opposed by the F and Guardian unsuccessfully, and LT’s application for the relaxation of reporting restrictions to permit reporting of the hearing (only to report what had happened at the hearing in terms of procedural and systemic issues rather than the substantive issues and evidence); the latter argument was adjourned (supported by the F and the Guardian).

LT appealed against the adjournment of her application.

At paragraph 22 of the judgment Mrs Justice Lieven DBE reminds us of the law to be applied, summarised as follows:

  • Proceedings concerning children in the Family Court are ordinarily heard in private
  • The publication and/or communication of information relating to the proceedings and/or the identification of the child concerned are restricted by virtue of s.12(1) of the Administration of Justice Act 1960 ("AJA"), and s.97(2) of the Children Act 1989 ("CA").
  • S.97(4) CA has been held to provide a basis for the relaxation of reporting restrictions, and information may be communicated "where the court gives permission" in accordance with r.12.73(1)(b) FPR.
  • By virtue of r.27.11(2)(f) FPR "duly accredited representatives of news gathering and reporting organisations" are permitted to be present at "any hearing" notwithstanding that the proceedings are "held in private".
  • A court may direct that a journalist, otherwise permitted to attend by virtue of r.27.11(2)(f), "shall not attend the proceedings or any part of them" where satisfied that this is "necessary" on the basis of one of the four conditions set out at r.27.11(3)(a) and (b).
  • The issue of publication of a judgment, and consequential reporting, was considered by the Court of Appeal in Griffiths v Tickle & Ors [2021] EWCA Civ 1882.
  • The nature of the exercise to be undertaken, and the issue requiring 'intense focus' was summarised in the following terms in Griffiths v Tickle & Ors: "71. The critical question, therefore, is whether the best interests of the child, treated as a primary consideration, are weighty enough to justify maintaining that fetter, during the course of the proceedings under s 97(2) Children Act, and indefinitely as a consequence of s 12 AJA. Put another way, do the child's best interests make it necessary and proportionate to impose those restrictions on the Article 8 and 10 rights relied on by the applicants and the mother? …"

At paragraphs 30-32 of the judgment, the court refers to the Guidance produced by the President of the Family Division, issued on 3 October 2019, 'Guidance as to Reporting in the Family Courts'. Furthermore, we are reminded of the importance of open justice at paragraph 34.

Mrs Justice Lieven DBE concludes by setting out some relevant principles to be applied when approaching an application for reporting of a Family Court hearing:

  1. Firstly, although Family Court proceedings are normally held in private the press and legal bloggers are entitled to attend under FPR27.11(2)(f).
  2. Secondly, such a person can be excluded, but only where it is "necessary" in the interests of the child, the safety or protection of parties or others, or the orderly conduct of proceedings, FPR27.11(3).
  3. Thirdly, in approaching the test of "necessity", what was said in Re H-L (a child), albeit in a different legal context, is a useful guide.
  4. Fourthly, it will rarely, but not never, be appropriate for the Court to inquire as to why the journalist is seeking to report, or how s/he became aware of the hearing. However, if the Judge becomes concerned that one party is seeking to use reporting as a litigation strategy, particularly in the context of issues around coercive control, the Judge may wish to inquire into the background to the application to report. This can only be considered on a case specific basis.
  5. Fifthly, in determining whether a reporter can report on what they see and hear in a Family Court, the Judge will have to apply a balance between Article 8 and Article 10. The approach to such a balancing exercise was considered in detail by the Court of Appeal in Griffiths v Tickle [2021] EWCA Civ 1882 at [27]-[40]. The Court will have to apply an "intense focus" on the "comparative importance of the specific rights being claimed in the individual case …", see Griffiths [37] and Lord Steyn in the House of Lords in Re S at [17].
  6. Sixthly, the child's best interest will be critical, Griffiths at [71], although they will still have to be balanced against the other rights asserted. In practice, in most cases in the Family Court, it will be of great importance to preserve the anonymity of the child, so far as is reasonably practicable. There will be cases, such as Griffiths itself or cases concerning a high profile criminal case, where anonymity can only be preserved in reality to a certain degree. There may be an important distinction between cases such as the present, where the reporter is seeking to report wholly generic and systemic matters, and where the reporting is of the facts and evidence in the case, where the risk of identification of the child is much greater. The experience of the Transparency Pilot currently under way is that anonymity of the child can be effectively preserved by the use of a detailed Transparency Order.
  7. Seventhly, there is a public interest in the reporting of cases in the Family Courts. This is made clear in the report of the President of the Family Division (Sir Andrew McFarlane) in his report Confidence and Confidentiality: Transparency in the Family Courts (21 October 2021). At paragraph 22 the President said:

"The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects. In short, the reasons for this conclusion are as follows: …"

  1. Eighthly, there may well be cases where it is appropriate to adjourn a decision about whether a case can be reported on until the final hearing. However, whether that is justified must be considered on the facts of the individual case. Adjourning the decision is itself an interference with the reporter's Article 10 rights, and as such is different from a more normal case management decision. The Court must bear in mind that the resources of media outlets and reporters are finite, and a reporter may not be able to return on a future occasion.
  2. Ninthly, in deciding whether to allow reporting, the views of the parties, including the child, are of great significance. However, they are not determinative, so no party holds a veto against reporting. As in Griffiths there will be cases where one party wants to be allowed to "tell their story", and to prevent them doing so will be an interference, albeit potentially justified, in their Article 8 rights. There may therefore be cases where there are competing Article 8 rights which need to be considered.

Mrs Justice Lieven DBE concluded the judge in this case did not properly direct himself with regard to the Article 8/10 balance and proceeded to determine the application herself:

  1. For the reasons that I have set out above, I take the view that this is a case where the Article 8/10 balance, and taking into account any impacts on Article 6 rights, points clearly in favour of allowing report. In very brief summary, there is effectively no risk of the child being identified. There is a strong public interest in allowing Ms Tickle to report the generic concerns about the Family Justice System which arise. There is no interference in any parties' Article 6 rights. I will therefore allow the appeal and allow the application.