In August this year, a journalist attempted to observe the first day of a multi-day final hearing in a private children case. She was refused access by the judge, His Honour Judge Haigh.
The following day, another journalist [Louise Tickle, who is a member of The Transparency Project] attempted to observe the second day of the same hearing. The judge permitted this but adjourned (postponed) her application for permission to report. The second journalist’s appeal was allowed. On appeal, Mrs Justice Lieven said that the delay was an impermissible interference with the journalist’s right to freedom of expression, given that what she had asked to report didn’t give rise to any risk of identification or breach of privacy rights of the family. You can read that judgment here : Louise Tickle v Father & Ors  EWHC 2446 (Fam).
Although the appeal didn’t depend upon what had happened on Day 1, the second journalist sought access to the transcript of Day 1, and to publish that transcript. Publication of transcripts of hearings is very unusual in this sort of case. The only other example we can think of is here (where publication arose from an appeal involving the same journalist and similar errors by a different judge). The appeal judge, Mrs Justice Lieven said:
I have an agreed and approved note of the hearing on 22 August but not of the first day, 21 August 2023. This is because Ms Tickle [the second journalist] was not present on the first day and it formed no part of her original Grounds of Appeal. However, Dr Proudman [barrister for the mother] in her Skeleton Argument in support of the appeal made reference to various things that were said on the first day, which had been reported to her by her client. The Father disputed the accuracy of some of that report. I note that Dr Proudman was not present at that hearing. I took the view that it was not appropriate to consider any submissions which turned on what happened on 21 August without having a transcript approved by the Judge. I therefore told Mr Barnes [barrister for second journalist] that if he wished to pursue his Amended Grounds, I would have to adjourn the appeal, and that would necessarily involve adjourning it until after the substantive hearing in the case, which is listed for 4 days commencing on 17 October before a different Circuit Judge. In those circumstances Mr Barnes elected not to pursue his application to amend. I did however order a transcript to be produced of 21 August given the serious points that were raised by Dr Proudman’s Skeleton Argument.
And so it was that the second journalist gained access to the transcript and secured permission to publish it. We have been asked to publish that transcript and do so here, so that you can understand why she she thought it was in the public interest to pursue that publication. Read the transcript in full.
We have written separately about what we think of that transcript (see here). Louise Tickle has written about it here:
In this post we simply summarise its contents, because it is quite long (62 pages) and in places may be difficult to follow. We understand the transcript will be published on The National Archives soon and when it is we will add the Neutral Citation and link.
Summary of the transcript
The transcript begins by identifying who is present:
Ms Shield is the barrister for the father. Ms Wilson is the barrister representing the child. The mother doesn’t have a lawyer, but does have a McKenzie friend present – Ms Baker. A McKenzie friend is someone who is allowed into court to offer support to a person without a lawyer. Confusingly, Ms Baker is a barrister but not one who is a practising barrister, so as a McKenzie friend she is there for support rather than to speak on behalf of the mother and she doesn’t feature much in the transcript. Although there is some discussion about whether she should be allowed to ask questions for the mother this argument is abandoned.
The judge starts by identifying the practical issues he needs to sort out before he can get on with the evidence. Those issues seem to be:
- the application for the mother to be allowed to have her McKenzie friend with her (this is not opposed)
- the application for the McKenzie friend to ask questions (ultimately not pursued)
- An ‘application’ from a journalist Suzanne Martin ‘to participate and listen to the hearing, and have access to the bundle. This has been received that morning by the court’ (that’s the judge’s description).
- an issue about whether the child’s Cafcass Guardian (a social worker appointed to look after the child’s interests in the court case) should visit the nursery to deliver a letter and report back (it appears this took place)
- some documents that were missing from the court bundle but which (it appears) had been seen by everyone (seems to have resolved itself)
- an issue about whether the father could rely on some video clips and a letter from a council (no objection)
- discussion about a missing transcript of an earlier judgment (which seems to have resolved itself later on)
- participation directions sought by the mother on grounds of vulnerability.
In the course of this section of the hearing, the judge asks the parents whether they were ‘surprised’ by the journalist’s application. They both say that they are.
The judge says
“This initial request is in anticipation of making an application to lift the reporting restrictions”. So, there you are, (inaudible). Think about it carefully. If you want to know my view on the transparency project*, it is not supportive. I have always felt these cases are deeply private, and my judgments are there really for the parents, to help them, to help the families, they are not for public consumption or to allow press and journalists to further their journalistic ambitions. But there is always an exception. And I am as close to it as I have ever been. So, you think about it carefully.(page 5)
*Note: we do not think the judge is referring to us here, but to wider shifts towards transparency.
There are long discussions about the letter for the child and the judge’s options at the end of this final hearing, all of which have potential (says the judge, mainly by way of dialogue with or explanation to the mother) to cause the child harm.
There is quite lengthy discussion about the fact that no participation directions have been sought by the mother before. (Participation directions are sometimes called ‘special measures’ and are adjustments made to the process to ensure that a witness can participate fully without intimidation and in a way that enables them to give the best answers they can – typically but not always things like screens or breaks in questioning).
The judge adjourns at around 11.15 for 30 minutes to allow the parties to discuss all the above issues [bottom of page 22], having indicated that he plans to start the case properly at 2pm. The journalist has not been present for this part of the hearing.
The judge has all the parties back in (presumably at around 11.45 but the transcript isn’t clear). There is further comment from the judge about the delivery of the letter to the child. Various of the issues have been resolved. The mother no longer seeks to have her McKenzie friend ask questions on her behalf, but the question then becomes how will questions be asked and what participation directions should be made. The judge notes that both parents have previously ‘carved up’ allegations of domestic abuse by each agreeing they were each a victim and a perpetrator of abuse towards the other, and there is discussion of the use of screens, with the judge pointing out the disadvantages to the mother of being behind a screen. The Guardian, through her barrister, expresses scepticism about whether the use of screens is justified – her barrister says she ‘does raise an eyebrow at it, the timing of it’. The judge concludes that there will be some use of screens and the mother can put questions through him if she has any, once the Guardian has asked her questions, though he tells her it is not very satisfactory.
At page 38 of the transcript, the judge moves back to considering ‘the request by our friend from the press’. He takes submissions from the parties’ advocates. There is a request to be permitted to ask questions of the journalist about her sources, intentions and credentials. The judge expresses some views about the risks of identification and some further views about what he terms ‘the transparency project’:
I say to adoptive families in adoption cases, if you think in ten years time anonymisation is going to protect the anonymity and privacy of the people concerned, including the children, from algorithms and the developments in social media, you are living in cloud cuckoo land. That is what I say to them. Whether they believe me — I mean, who knows?The transparency project is galloping forward apace, best thing since sliced bread. Whether everyone is going to get a severe case of buyer’s remorse in ten years time, when everyone’s private details are there on the internet for everyone to pour [sic] over and gloat, is another matter.
I will be long gone, I promise you, it will not be my problem. I have said my piece to anyone who will listen to me about the transparency project. I have listened to what the children’s … The Youth Justice Team have said about this. And been ignored. By people who are driving this forward. And I speak as a virtual lone voice. But I strongly hold this view, it is my strongly held view.
I think we are failing children by putting all this stuff on the internet, and I am very unconvinced about the motives of some of the journalists. Do not forget what they do: They sell copy. They have careers to pursue. And all journalists, understandably, latch onto certain issues, things of public importance that they think exist, can see that as part of their future and development. So, everything they do on this, on this transparency debate, is entirely understandable, I get that.
What I think everyone is missing is the consequences for the family and the children if the attempts at anonymity which we have now are penetrated. And I am as convinced as I can be that they will be in the next decade — you think of how — you think of where we were with Facebook with algorithms — I mean, I do not think anyone had even spoken the word algorithm ten years ago, had they? It is now going to take all our jobs, mine included. Just think where we will be in ten years time. But it is your choice, your lives. (Pause). But do not say I did not warn you. How do you feel about it.
The mother expresses the view that based on her knowledge of how journalists work, she doesn’t object to the journalist observing, though would like to understand more about the request to lift reporting restrictions.
At page 41, the barrister for the children via the Guardian raises the applicable rule with the judge, and pauses whilst he looks it up (FPR 27.11). Submissions on behalf of the Guardian are made that the case is ‘particularly sensitive and complex’, ‘confidential’ and raises unspecified concern about motivation for the journalist’s application, concern ‘about the reasons for this particular application in this particular case’.
The judge then says:
The conclusion that I have come to is that whilst accredited press representatives of news gathering organisations or reporting organisations are an exception to attendance at hearings that are otherwise private, I have real concerns about the application that has been made here. And I have to be satisfied before I exclude their attendance, because they are entitled to attend — I have to be satisfied that it is necessary in the interests of the child.
Why do I think so here? First, this was an unusual application. It was made or filed at the court 8.30 am this morning, the first day of the hearing. From a journalist who has a press card, no question about that, but whose email address was a film company address, I think from memory it was Primate Films. She does not appear to be linked to press organisations, she may have a journalistic interest in this area of law, who knows, but she does not appear to be linked with journalists, with a news organisation. The timing was very, very unusual. I only saw it, as I said earlier this morning, at a minute to 10, although checking the original email I think it landed in the court building at about 8.30. Now, I would have expected responsible news gathering organisations, journalists and the like, interested in this particular case or any of the issues arising from this case, to have been rather better prepared than that.
So, it is a red flag to me. Particularly as both parents, when I asked them this morning, expressed surprise about the contact: Father surprised to the extent of opposition to it, his position is that I should not — or rather his position is that I should exercise my power to exclude the press officer requesting. Mother’s position was a little different, less surprised, and in terms of excluding her or giving her permission to be here and seeing the bundle she has not expressed a view one way or the other.
As the parents know, this case involves me looking carefully at allegations of emotional harm through parental influence, described as parental alienation or, looked at from mum’s perspective, whether father has failed to engage, connect with, and care for his [child], and is by accident or design himself responsible for the apparently traumatised relationship that exists between himself and his [child].
Both parents know that is the issue, and the consequence is deeply serious, not just for the parents but for [child], serious for [child] because either scenario, as I have said this morning, carries emotional harm in its wake, which they both know, but it is not just for them, it is for the parents as well, because I will have to make findings on those allegations, and it is not going to be a comfortable or easy process for either of them.
I have, as I said before everyone’s submissions, a degree of scepticism about this development within the law. I think everyone is racing towards an elephant trap, underestimating the power of algorithms, social media and computers to penetrate the very careful attempts we make at anonymity in these cases at the moment. So concerned am I that I am firmly of the view that many of those making these decisions now, including parents, social commentators and the powers that be, may well in ten years time have buyer’s remorse, but of course everyone will be gone by then, and it will be explained as a mistake made by earlier generations, sadly.
I do not think sufficient attention is given to the effect of all of this upon children, particularly if anonymity is penetrated through jigsaw identification, or by developments in algorithms. My focus, as I hope these parents now clearly know, if they did not already, is on the welfare of [the child]. Has not asked for this. [ They are age]. My duty is to protect [them].I will give a written judgment in this case, I will hear submissions on whether it should be published. But I am not prepared to open the door to the press.
I do not think it is in [their] interests to do so, quite the contrary. I think it is in the interests of [the child] for her not to be in this case.
Not because there is any fear of the court process or the issues in this case, that will all be covered comprehensively in a written judgment, and you will understand my decision, whether you like it or you dislike it. And, if you want, you can consider appealing it, that is what the Court of Appeal is there to do, if you wish.
(Pause). Okay. So, we will communicate with the press representative, and say that I have made a decision to exclude them.
And immediately following…
What I will probably have to do is give them an option to renew their application in fact at court, because of course I have not heard from them….
And it would be wrong to make a decision without hearing from them.
That is the decision I have made with you now, but they should be given the opportunity to present the application orally at court. I am going to assume they are some distance away, so I will say if they want to make it in person, 10 o’clock tomorrow morning?
The judge then considers whether it is ‘too much’ to make the journalist attend in person (they had been wanting to join by link), and he decides in fact to join her to a hearing link at 2pm that day.
do not assume I am not capable of changing my mind when I hear from other people, I am. But I think you all ought to have heard what I have to say about it before we bring her in. That okay?
Nobody objects to this approach. At this stage, the judge is reminded the parties have not seen the communication from the journalist. It’s page 46. The judge breaks for lunch.
The journalist first appears on page 46, presumably at or around 2pm. There are some technical issues, so things don’t get going till page 48. The judge introduces everyone and begins asking questions of the journalist.
what I was curious just to really understand from your perspective are these things: It may be that others have questions that they might have, I do not know, but these are the ones that cross my mind:
- You said in your email that you were wanting to observe, research and ascertain factual information. What is the research on? The journalist obligingly gives a bit of background about her work.
- Out of the 3,000 odd cases that drift through the Manchester court, why court 34 on Monday morning? The journalist explains she saw the case on Courtserve and it was listed for 5 ½ hours
- So are you saying to me it was just a … pure coincidence? The journalist says it was. She says ‘Without knowing what this case presents, I can’t say whether this is something that I would be looking to publish anything.’ Having been told the case is actually listed for four days she confirms she would like to observe all four days (or to send a colleague).
- And you know nothing about the case? She confirms again she doesn’t.
- And have had no communication with any of the parties? She confirms not with the parties or anyone acting for them.
- Why so late? I mean, the email came in at 8.30 this morning? the journalist explains that Courtserve lists don’t go up until the day before. ‘Without observing, we cannot know what is possibly going on in these — such hearings. And if you have a spare couple of days, which I certainly have this week, then it’s worth sitting in and listening to what’s happening and gaining insights of court’
The judge then permits the barristers to ask the journalist questions. Counsel for the father asks,
You have outlined to the court that you have undertaken research in the last few years, you have been following courts in relation to issues like removal of children, fabricated illnesses. Could you help me please with outlining whether you are looking into writing an article in respect of family matters, or is this something which you would wish to be looking to publish as a news item?
The journalist observes that
it is quite — highly unusual to be asked what your intentions are, regarding a news outlet, or where I intend to publish or not publish. As you know, at the moment, I can’t publish anything, and I am simply sat here observing. I don’t currently have plans to publish anything around this case because I don’t know the substance of the case, and it may not fit any of the matters that I am -or any of the projects that I’m working on, currently.
Ms Shield asks if another journalist (who she has told the court is her partner), might have had contact with the parties, She says that this is not the case, and that whilst they are a couple they work independently, are not joined umbilically and he doesn’t even know what she is doing today.
Ms Wilson (for the child) asks this:
You just mentioned to my learned friend that you do not currently have plans to publish anything, it may not fit anyway with any of the projects you are working on. Are you able to give any assistance in terms of what areas those projects are focussing on at the moment?
Ms Martin (the journalist) objects to this by saying,
That would be in all honesty quite inappropriate for me to say what projects I’m working on, given that it’s a … you know … It’s just — this is a very …strange question for me to be asked as a journalist, as we keep things very close to our chests. However, not knowing the substance of this case, I won’t (inaudible), until I hear the case, if I am allowed to, whether it fits anything that I’m working on.
But I can say that I have researched section 46 including a case that was heard at the Manchester Civil Justice Centre recently around FII. I am looking at child abduction cases, and foreign jurisdictions, and Hague cases, for another project. I don’t know whether this case fits into any of those things, and essentially the way, you know, the court is working, it’s all– you know, we are not (inaudible) the information, it’s only if we sit in at the beginning, “Now, hang on a minute, this probably fits this”, and —
But, as I say, it would be highly unusual for me to say exactly, you know, what I’m working on, but I have … Yes, I have a number of cases that are quite different, but again, as I say, I don’t know what this case is about, all I know is it’s a family court hearing, and I don’t currently have any plans. That could change over the course of this week, though, if I ask for the reporting restrictions to be lifted, but right now I don’t have any (inaudible) — it is simply to observe, and to understand and follow the case, as a matter of research.
And sorry, might I add that of course obviously the parties are anonymous, should I ever ask for anything, and the — it is paramount to me, as a journalist and somebody who works with some of the most vulnerable people and gives them a voice, you know, I would absolutely go — you know, there is absolutely no way I would do anything to identify a child in proceedings. And I fully understand my obligations as a journalist around that.
There are no interjections from the judge to stop these questions. The journalist does not appear to be aware of the prior discussions summarised above (i.e. pages 1- 46). The judge moves straight to judgment, saying from page 54:
This morning at about 8.30 Suzanne Martin, who is an accredited press representative, member of the press, I have seen the card, there is absolutely no issue about that, applied to the court to participate by attending through Teams an attended final hearing in a case that is listed before me today until Thursday. It is a private law case, involving a single child where the dispute is essentially between the parents on a number of issues.
When I drew this request to the attention of all the parties this morning, and canvassed their view on it, the positions of the parties were that in the case of mother she was neutral about it, neither supported it nor opposed it; in the case of father he opposed it; and in the case of the Guardian, who represents the interests of the child, they opposed it.
I therefore listed the application to be heard this afternoon, as it has been, inviting Suzanne to join us through Teams, which she has done, and she has very helpfully explained her position, and that is this: She has a research interest in family law generally, not this case, or indeed the issues in this case because, as she frankly said to me, she has no idea what the issues in this case are. But she has an interest in family law generally, and has spent at least some of her time, as she is entitled to do, as an accredited representative, listening to the family law cases.
When she was asked specifically whether she intended to publish any articles or other means of communication, she said that this was something that she had not been asked before, and felt it was inappropriate to answer. I have to say that is not entirely consistent with the transparency project, but I understand how journalists wish to protect the work that they may be conducting at any moment in time.
The rule that is engaged on these applications is rule 27.11 of the Family Procedure Rules 2010, and that sets out firstly that these hearings are private. Why are they private? Because they concern people’s personal lives, and people have a legitimate expectation to a right of privacy. All private law children applications have immense sensitivities, as this one does, involving children who sadly are involved in these proceedings, through no choice of their own. Sadly, as so often happens, they are the unwilling participants.
And that is the essential reason why these proceedings are private. I know it is fashionable to describe the family court as a secret court, it is not secret. Everything that happens in this court is seen, heard, and considered, openly and transparently by all the relevant people who need to know, and the professionals. And insofar as errors, if they do occur in this court, they are corrected by the Court of Appeal.
And so, I do not accept the proposition that the family court is somehow a secret court. It is a private court that deals with the most intimate and sensitive aspects of the lives of the people who have the misfortune to use it, and we must always remember that.
The rules provide, in subparagraph (2) of 27.11, as to who shall be present, and they include the parties, professionals, and, it must be said, duly accredited press representatives of which Suzanne is one, and so the starting point is that she is entitled to attend.
But the starting point is not the end point. What the court has to do in every case is to consider, as is required in subparagraph (3), whether it should direct that any of the persons mentioned in subparagraph (2) should not attend the proceedings, if it is satisfied that it is in the interests of the child concerned so to order, and I do in this case.
My responsibility is to the child. I do not consider that any of the welfare issues that concern this case are a matter of press or public interest. They concern this family and the particular concerns, anxieties and worries of this family. I bear in mind the age of this child, who has no say in what is being asked of by all the adults in this case in this application. And I remember and recognise [their] right to privacy. I bear in mind everything that Suzanne has said about anonymity. I simply lay this marker down:
Anonymity works at the moment, there or thereabouts, it is vulnerable to jigsaw identification, but it just about works. Question: With the development of algorithms and the development of IT and social media, will the answer to that question be the same in ten years time, or will the anonymity provisions of reporting of children cases be penetrated and their private details then freely available on the internet?
I think there is a very significant risk that that will happen and that those who support this development will be unable, impotent, to prevent that happening. And it will be a tragedy for all those concerned, not just the adults, whose privacy will be there invaded for all to see, but also the children, who are sadly innocent of all this.
I have to remember that possibility, and I have to think of the issues in this case, and to think in a way that Suzanne cannot, because she does not know the issues, whether there is anything that really could help her and the research interest that she has expressed in Hague Convention cases, removals, and the like, and I do not believe there is. And I believe there is a strong interest in this child retaining the privacy of these proceedings free from the prospect of press involvement.
So, for those reasons I am satisfied that subsection (3A)(i) of 27.11 of the FPR is engaged, and that the application in this case is refused. Okay.
The remaining pages of the transcript (57-62) deal with other issues. The journalist has by this stage left the link.