In December, following the conviction of Sara Sharif’s father and step-mother for her murder, and her uncle for offences associated with her death, the Family Division of the HIgh Court permitted disclosure of documents and information from three family court cases involving Sara or her siblings, which had preceded and then approved her going to live with the father who was later to murder her.
The release of the documents so that the press could report on that history was unusual, although not unprecedented, and it was important to let the public scrutinise if and what went wrong and whether the family court could or should have acted differently.
But at the same moment that the media were empowered to report on that background and to kick start that public debate, the same judge prohibited the naming of the family court judge who had made most or all of the decisions in those cases. This anonymity was unprecedented and the decision is being challenged.
The Court of Appeal have decided the appeal has enough of a basis to give permission for the challenge to proceed, and have listed it for a hearing in January.
The judgment of Mr Justice Williams, the senior Family Division judge who both permitted reporting and restricted identification of the judge, is now available here: Louise Tickle & Ors v Surrey County Council & Ors [2024] EWHC 3330 (Fam).
It is a decision with some unusual features, not least because it appears to offer a view about the validity and reasonableness of the original decisions made by the anonymous judge (or possibly judges), and because it is strongly critical of the media in general and in particular of some of the journalists who had made the application for access.
The appeal is really important because it is likely to consider when – if ever – can the anonymisation of a family court judge be appropriate? and that is likely to involve some scrutiny of the reasons behind the decision made by Mr Justice Williams.
The Transparency Project hope to be in attendance at this appeal hearing (either in person or watching via live link) and we understand it will be live streamed (possibly with a short delay to cater for any hiccups with anonymisation). We have requested sight of any skeleton arguments to help us report the hearing accurately. We would usually expect to be provided with these when we attend as ‘legal bloggers’ in the Family Court, but the rules applicable to the Court of Appeal are slightly different and we are not automatically recognised as observers with a legitimate need for access to documents.
We aren’t going to pre-empt the outcome of the appeal, but thought it might be helpful to summarise the key features of the judgment of Williams J, and to explain why some of its contents are unusual. Whether what we think is relevant will align with the view of the Court of Appeal in due course remains to be seen. We recommend this piece by Joshua Rosenberg on his Substack blog here, but below have tried to give a potted summary of some of the key points and themes in the judgment. We have also linked to some primary materials and resources for those who want to read more.
A potted summary of the issues in the judgment
There are a few key themes we will draw out, but the judgment is quite long and detailed and this is only a summary. We are basing our assessment of the issues which are likely to be important upon our experience in this field and our understanding of the likely shape of the appeal based on the grounds for the permission to appeal application made to Mr Justice Williams which are set out in his judgment. We haven’t seen the appeal grounds themselves, and it may be that in light of the judgment the emphasis or scope of the appeal will change or that the Court of Appeal will show more interest in one are than another. But we’ve done our best to pick out the elements likely to feature on the appeal.
The judge’s views on the risk to the family court judge
There is currently increased concern about the risks to judges in light of a number of attacks on them, some of which are referred to by Mr Justice Williams in his judgment. However, the examples given are of aggrieved litigants taking action, not of the general public taking some sort of vigilante action. Even when aggrieved litigants such as fathers were organising, climbing buildings dressed as superheroes and handcuffing themselves to people and things, judges were not afforded anonymity. Even when semi-permanent protests with tents and banners have been erected outside court buildings, judges have not been afforded anonymity. It isn’t clear from the judgment why this case should be different.
There is nothing in the judgment to suggest there is any direct specific evidence of risk to this particular judge (or a request from them) that might justify anonymity, and Williams J’s concern appears to be founded entirely on the likelihood of a media frenzy and unfettered social media activity. We cannot think of any other case in which Family Court or Family Division judges have been anonymised in this way – even in those cases where there has been a frenzy (for example the cases involving disputes about the treatment of very ill babies and children such as Charlie Gard and the case of Abbasi and Haastrup which are cited in the judgment and are still pending a decision from the Supreme Court following an appeal in April 2024. While it is no doubt unpleasant for judges to be criticised or ‘named and shamed’, such behaviour is not unusual. When Finley Boden was murdered, the magistrates who had approved his return (who are not even paid for their trouble) were named, with the permission of the High Court judge who oversaw the applications from the media, and who appears to have regarded the naming of the decision makers to be obviously right.
The judge’s surprise that the anonymity decision was controversial
In his judgment, Williams J expresses apparent surprise and bafflement at the late emergence of this issue, and it appears that he had thought that references by the Guardian to the anonymisation of ‘third parties’ obviously included the original judge(s). In fact that wasn’t the case at all, as acknowledged later at paragraph 15 of the judgment where the judge admits that he made an error and that the Guardian’s proposed wording highlighted ‘social workers, experts, guardians and other child protection professionals or similar’ for anonymisation and ‘NOT the judiciary’.
Although the judge refers to the Abbasi case in support of his decision to anonymise the judge, that case didn’t consider the position of judges at all – in fact it wasn’t even a case that directly dealt with the position of social workers, who are used by Williams J as a comparator in this case. Abbasi was a case about the position of treating medical professionals, and it is quite possible that a court tasked with considering the position for judges specifically might distinguish the position of treating medical professionals (and social workers) from that of judges, because although each of those types of professionals and judges may be exposed to ill-informed or hostile media or social media comment, and sometimes to harassment and threats, judges are in a very different position as independent decision makers who themselves scrutinise the work of the other professions, and who hold significant power. Abassi also drew a distinction between generic information and specific threats and made clear that where an order was made it should usually be time limited (and as far as we are aware the judicial anonymity here was not so limited).
Although there are circumstances in which professionals such as social workers or doctors might be afforded anonymity, the idea that a judge should be afforded anonymity is in an entirely different category. Williams J was aware of the Finley Boden case and of Mrs Justice Lieven’s decision to permit naming of the judges (Magistrates) – he says he disagrees with it – but even if he thought that Mrs Justice Lieven had got it wrong, that recent decision should have been an obvious red flag that anonymising the judge here in very similar circumstances was unlikely to be a restriction the press would be expecting to be imposed or that they would be happy to accept.
It is surprising to us that Williams J was himself surprised at the reaction of the media to finding out that he was prohibiting the naming of the judge in the case. It is entirely unsurprising in our view that they would challenge it, and that they would have wished to argue the point had they anticipated such an unusual step was in the judge’s mind.
As pointed out by retired judge Wendy Joseph on Radio 4 (See Joshua Rozenberg’s piece which contains a quote), IF anonymity is to be permitted, it is likely that there would need to be a specific and immediate threat. It doesn’t appear that is the case here (if there was we would expect to see that explained in the judgment), although further information may yet emerge.
The judge’s views on the media
Joshua Rosenberg describes the judgment as ‘offer[ing] a cynical but deep-felt observation on the media’. He tells us that Williams ‘responded to what he regarded as misreporting of his own decisions’ (note the journalist distancing himself from the judge’s perception).
Particularly notable is the judge’s criticism of two of the journalists who had sought disclosure and then permission to appeal the anonymisation ruling, for what he saw as misreporting – when they described the postponement of the application for permission to appeal as a refusal. If this was misreporting, it was on a deeply technical level – on one view the adjournment of a request for permission to appeal on a matter which is both time-sensitive and of obvious high and current public interest is as good as a refusal and the choice to make a point of this sort of ‘misreporting’ in a judgment whose purpose was to explain why the judge should be anonymised may well be the subject of comment or attention in the Court of Appeal, particularly since it is a direct (and likely unanticipated) attack on the professional integrity of two of the applicants before the court (Hannah Summers and Louise Tickle).
Joshua Rosenberg wrote:
As stated in case law, “news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”
The error has been promptly corrected, and it is difficult to see what relevance this sort of minor and corrected error could have had on the decision to protect the identity of the judge.
Williams J goes as far as to draw a comparison between the journalists and Andy Coulson, a journalist who was convicted of criminal offences in relation to phone hacking, which on any view is of an entirely different order to misdescribing a knockback from a judge as a refusal rather than an adjournment.
These passages raise two issues which we expect the Court of Appeal to consider:
- the sharp personalised criticism of the journalist litigants appearing before the judge. The criticism was not just of the media in general – it included some pointed criticism directed at two individual journalists, who were parties to the decision with Article 6 (fair trial) rights of their own.
- the editorialising nature of the criticism, in light of a substantial body of case law which suggests this approach is impermissible and simply not the court’s function.
For instance, take this passage from Sir James Munby in the case of Re J [2013] EWHC 2694 (Fam) (Paras 37-38), beginning with a quote from Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 :
“A judge can assess what is lawful or unlawful, a judge in the Family Division may be called on to assess whether some publication is sufficiently harmful to a child as to warrant preventing it. But judges are not arbiters of taste or decency … It is not the function of the judges to legitimise ‘responsible’ reporting whilst censoring what some are pleased to call ‘irresponsible’ reporting […] And […] the freedom of expression secured by Art 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. […]a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public.”
[…]Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. A much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism.
In any event, how does criticism of the media help to justify the anonymisation of a judge? It appears that in the mind of Williams J that this is because of the likelihood that the family court judge will be subjected to unwarranted criticism, as to which see below.
Named judge marking anonymous judge’s homework
Unless a judge is hearing an appeal, it is not usual for judges to review or comment on the validity of decisions of other judges. Here, the judge was not hearing an appeal, and although the judge in question is anonymous to us, s/he was not anonymous to Williams J.
Family Court Judges are under an enormous amount of pressure, both in terms of workload and subject matter, and because their role is quite isolating – they cannot comment in public on their decisions or defend themselves directly when unfairly criticised. It is quite right that senior leadership judges like Williams J should seek to protect the junior judges under their guidance. However, the tools which they have to do so are typically by mentoring and informal support, through invoking various welfare and protection systems provided by the judiciary / MoJ and which are available to all judges when the need arises, and sometimes by ensuring that the Judicial Press Office is able to field enquiries and provide statements. Pre-emptively defending the work of a more junior judge in a published judgment as happened here, is most unusual. Whether the judge in question asked for, knew about, or welcomed such support, remains unknown.
As such, the lengthy passages which appear to amount to a pre-emptive defence of the judge in the original proceedings are a notable feature of the judgment. The decisions in those proceedings are described as ‘well within the parameters of proper practice’ and not ‘unusual’ or ‘unexpected’.
Which rather begs the questions: is this ‘normal’ mode of operation one that we accept is good enough? And can it be changed? Even if the judge did what any other judge in their place would have done, would we want them to be in a position to make different decisions next time around and how might that be achieved? All questions we can’t answer on the current level of information.
Williams J also suggests that due to the deception by the step mother, it was likely that the perception of her (by the social worker) as a protective factor in 2019 was reasonable on the face of it. He suggests that in fact the judge probably had no realistic alternative but to make the orders at the end of each of the three sets of proceedings (two supervision orders and then an order confirming that Sara should live with her father).
Williams J goes on to directly compare judges and social workers to the lookout on the Titanic and the foot soldiers at the Somme, suggesting that it is not them at whom criticism should be directed. The idea that the judge is just a foot soldier without decision-making power is pretty startling.
At the same time as saying that such things are not for him to comment on, Williams J does say this:
If there is to be a debate about whether children’s services and courts should investigate and conduct fact findings in all cases where there are allegations of physical abuse or domestic abuse to ensure that no one falls through the net that I accept is a question of legitimate public interest and it brings with it questions of resourcing such a system and political priorities which are plainly not a matter for me to comment on.
The judgment appears in most places to be saying that there is ‘nothing to see here’, but here the judge seems to acknowledge one legitimate area of inquiry – should there have been a fact-finding hearing at some stage? This, he says, is a ‘question of legitimate public interest’. Instead of ‘nothing to see here’, the judge now seems to be saying ‘you’re looking in the wrong place – look at the people who hold the purse strings’. Which, even if Williams J says he can’t trespass on political territory, is (we think) a political comment in and of itself. Also, if the answer lies with resources, does that mean that resource constraints are impairing the integrity of the process and hampering proper assessment of risk? And if so, why are decisions about fact-finding hearings being justified using the language of necessity and proportionality? Now those ARE questions of proper public interest and ones which should be debated openly and frankly.
We note that although the judge has permitted publication of a number of documents, none of them has yet reached the public domain for us to scrutinise (perhaps they are being anonymised), and all we have are the highlights and summaries produced by the media in their reports. We’ve no reason to think them inaccurate but it would be useful to be able to see those primary documents so that a lawyer can analyse them and try to understand just how typical and explicable the decisions in the Sharif case really were – and we intend, if time and resource permits to apply for access to the materials ourselves.
It may well turn out to be that the decisions made were – on the evidence before the judge – entirely commonplace, expected etc – but if that is so, what is to stop another judge on another day making a similar decision, equally well intended but with similarly tragic consequences? These are questions which have potential to undermine confidence in the family court. Against that backdrop, the anonymisation of the individual judge apparently based upon the preconception of a senior judge that any criticism would be both unfair, unbalanced and aimed at the wrong target (i,e. fear of a media witch hunt), seems likely to undermine rather than support public confidence that the system is open to scrutiny, is able to reflect and learn and that the individuals who wield power do so with an appreciation of their role and influence.
What’s in a name?
One argument that may be made is that public debate and scrutiny can happen just as well without naming. One one level that may be so. So far quite a lot has been written about the case without the naming of the judge. However, the media are unlikely to agree with any suggestion that the name doesn’t matter, and will argue that names really matter in news reporting and other journalism – and they have a lot of caselaw behind them on that point.
Nonetheless, sometimes names are legitimately withheld if the risks of harm are sufficient to outweigh the public interest in reporting – but it is likely to be argued that the anonymisation of a judge would require especially strong justification. It is likely to be argued that any decision to anonymise must rest on specific evidence of threat / risk of harm – absent we think in this case – and that questions of whether the judge got something wrong or the fact that sometimes the media may make harsh criticism that Williams thinks would be unwarranted are not good reasons to anonymise.
Assuming all relevant information about risk is in the judgment, the logical conclusion of Williams J’s approach to this case could easily be extrapolated to suggest that judges should be anonymised in any case where a child has died following family court intervention, or perhaps even in any case where there is particular media attention or public concern. If judges can take into account their own view of the soundness of the decision in question (which, by the way will often be their own decision, unlike in this case) or the soundness of the reporting of particular media applicants, might we not end up with a situation where transparency can be stymied at the whim of the court?
It is worth remembering that the anonymity and privacy that is afforded to children and families via the Administration of Justice Act 1960 and Children Act 1989 is granted to ensure that the privacy and welfare of the families is preserved, but also to preserve the integrity of the process – the administration of justice. In the case of proposed judicial anonymisation, it is not just the media’s Article 10 rights to freedom of expression that are engaged, and (depending on the facts – potentially) the judges’ own Article 8 rights, but also basic principles around fair trial, the administration of justice and the rule of law.
If judges were anonymised because of generalised concerns about social media then such practice would likely become routine – and then criticisms of the court for operating in secret and without accountability really would gain strength and force.
So, we think it is likely to be argued – with some force – that, even if some public debate and scrutiny can take place in an individual case where there is a degree of necessary anonymity, such anonymisation is very rarely going to be justified in the case of the judge in charge, and generalised concern about media frenzies and social media abuse are insufficient to justify judicial anonymisation.
The Streisand effect?
The irony of all this is that the grant of anonymity has potential to make the identity of the judge a bigger issue, and the prompting of an appeal to extend the half-life of the story. Moreover, the High Court judge himself has become the subject of media criticism (legitimate) and attack, including calls for the Attorney General to ‘review’ his position i.e. sack him (both unjustified and constitutionally wrongheaded).
Can you help us cover this case?
We will be attempting to attend and live tweet this hearing in January. We also hope to gain access to the primary materials released to the media. Both those efforts require time and applications to the court. If you can make a small donation to defray any costs associated with these efforts (travel and subsistence, any court fees etc) it would really help us a lot. You can either make a general donation via our Justgiving page below. Any funds not used for work on this specific case will be applied to our general charitable purposes, which you can read on our website here.
The basic materials
You can read the judgment of Williams J dealing with anonymisation of the judge, here:
Louise Tickle & Ors v Surrey County Council & Ors [2024] EWHC 3330 (Fam)
The earlier June judgment referred to at paragraph 3 is still not published (it’s being anonymised).
The case tracker information for the appeal can be found here.
The Court of Appeal live stream page lists the appeal like this, and provides a link through to the live feed for Court 71 where the appeal will be heard:
By Appellant’s Notice lodged on 16 December 2024, on behalf of Louise Tickle and Hannah Summers (journalists), this is an appeal from an order made by Williams J, sitting in the High Court Family Division on 9 December 2024 (perfected on 11 December 2024), regarding the historic family court cases involving Sara Sharif.
In particular, the appellants challenge the decision to restrain the naming of “any Judge who heard the historic proceedings” concerning Sara Sharif and her siblings.
Commentary from Joshua Rozenberg can be found here and here.
The Times Leader criticising Mr Justice Williams’ anonymity ruling is here (paywall).
Some media coverage links:
https://www.tortoisemedia.com/2024/12/18/sara-sharif-was-singled-out-because-she-was-a-girl
https://www.tortoisemedia.com/2024/12/20/top-judge-approves-appeal-against-anonymity-in-sharif-case
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