A recently published judgment, Louise Tickle v The Father & Ors [2025] EWFC 160 is helpful in reaffirming journalists’ rights to protect the confidentiality of their sources, specifically in the context of a Family Court case.

This judgment about sources of information and tipping off a journalist about family proceedings was introduced as follows:

At a fact-finding hearing in a private law case last October, journalist Louise Tickle asked the judge to be able to report on an “application” (quote marks used in the judgment) made in proceedings before Ms Justice Henke to disclose who had tipped off the press about a hearing before Mr Justice Francis in January 2024. Louise wanted to able to quote from the “application”, as well as report what had happened in court and how it had been dealt with. Louise told the judge that she could do this without referring to the underlying facts of the case except in very general terms. She asked Henke J to publish a judgment about this specific decision. However, Henke J decided she didn’t need to give any judgment because no formal application had ever been made for that disclosure. Therefore, the judge didn’t hear full arguments or make a ruling. No order in the case was made against Louise or any other journalist and no journalist or any other person had been required by the judge to disclose their source.

In other words, Louise wanted to report on the circumstances of an attempt to make her disclose a source, saying she could do so without having to report details of the case itself. The judge agreed to publish her judgment on this question.

The “application” to make the journalist reveal her source

Apparently, the lawyers for the Cafcass guardian* had circulated to the parties (but not the court) a draft order stating that Louise and Alison Holt, BBC journalist, should file and serve a statement outlining how they first became aware of the proceedings and who they were informed by. The draft was circulated to the parties but never formally relied on. However, the guardian’s barrister filed and served a statement indicating support for the father’s position. His position was set out by his barrister, June Venters KC in a statement on his behalf:

We seek an order that Ms. Tickle (journalist who attended the emergency hearing heard by Mr Justice Francis on 12.01.24) confirm:

1. At what time she received notice of the hearing held on 12.01.24.
2. Who provided that notice.
3. How was it provided.
4. When she was first told that there may be a hearing in that week or a hearing of that nature in this case.
5. Who shared any of that information with her.
6. How was any of that information shared with her.

Henke J set a hearing to allow the journalists to be present at which the mother argued that asking them to reveal their sources was wrong. The judge asked the father’s lawyers to ‘carefully reflect’ on their position and, unsurprisingly, they informed the court that they would not pursue an order against the media.

The law on protecting sources

The law protecting journalists’ sources can get quite complicated e.g. if there are issues about criminal investigations. However, legislation back in 1981 provides that a journalist can’t be forced by a court to reveal a source unless certain exceptions apply (Contempt of Court Act 1981 s 10). This supports the journalist’s ethical responsibility not to reveal a confidential source, enshrined in the IPSO Code for Editors. It’s remarkable that the lawyers for the child and the father thought they could ask the court for such an order.

Louise’s statement set out a number of court judgments, including the leading case of Goodwin v UK, confirming the principles in the 1981 Act to comply with the European Convention on Human Rights article 10 right to freedom of expression.

The judge said about publication:

15. … Ms Tickle asked me to publish a judgment about my decision on the application against the media, how it has played out, and how it has been dealt with. I have, as I said I would, given this judgment. I have done so because it is important that I keep my word. This judgment should not be read as guidance, formal or informal. That is not the intention of this judgment and it should not be read as such. This judgment merely sets out briefly how the issue played out before me and how I dealt with it. I have not given a ruling on the issue in principle because, as I have already set out, the issue was not pursued before me and was not fully argued. I have, however, set out the seminal cases which Ms Tickle cited. They are a powerful reminder of the importance of the protection of journalistic sources for press freedom in a democratic society. They are at the heart of Ms Tickle’s position statement …  

Comment

Even though Henke J didn’t have to consider full arguments for and against an application to disclose sources because she concluded there’d been no formal application on those lines, it’s helpful to see this short Family Court judgment by a High Court judge confirm the high test of necessity that must be met to make a journalist reveal a source.

Louise Tickle has told us that even if she were ordered to reveal a source, she would not do so. That was the position of the journalist, supported by the European Court of Human Rights back in 1996, in the Goodwin case.

Another point mentioned by the judge is that during the fact-finding hearing the guardian asked her to obtain the court file. These records show that the media knew of the original court application by the mother some hours before the father, who only knew of the emergency hearing shortly before it started. Henke J says that as part of the fact finding judgment, she had found that this late notice infringed the father’s right to a fair trial under Article 6. We may write further on this case once that fact-finding judgment has been published.

*Normally, we would describe the lawyers acting for the child as exactly that but in this judgment, Henke J describes them throughout as acting for the guardian. We assume this is because the child is too young to have directly conveyed to his/her lawyers any views on the issue.

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