This post originally appeared on the author’s blog Pink Tape and is reposted here with permission (NB, disclosure : the author is the Chair of The Transparency Project).

Most of the newspapers carried the story on Saturday: ‘Andrew Griffiths found to have raped his wife’. I represented the applicant journalist, Louise Tickle, in both the High Court and, when the father appealed, in the Court of Appeal. It took Louise and Brian Farmer (Press Association) over a year to be able to write those stories. I was involved for about six months of that period, and Tortoise also backed Louise’s application, because they saw just how important it was to pursue. You can read the judgments at first instance, in the High Court (Tickle v Griffiths [2021] EWHC 3365 (Fam)) and from the Court of Appeal (Griffiths v Tickle [2021] EWCA Civ 1882) here.

This post is an explanation of the process and the law that we had to navigate to get the judgment containing the findings of rape and abuse published, and in particular to get it published with names of both Kate and Andrew Griffiths left in.

Most of the responses I’ve seen to the publication of the judgment are supportive of the information having been revealed. One or two have expressed concern for the child, wondering how the court’s decision could be compatible with its duty to prioritise the child’s welfare as paramount. So I’d like to explain a bit here about the law that does – and doesn’t apply – to this sort of application, for anyone who is interested – whether they are a lawyer or not. Because, it’s not quite as simple as the best interests of the child, the go-to approach for most family lawyers.

When my colleagues heard I was off to the Court of Appeal last month there wasn’t much I could tell them about the case because of the reporting restrictions that were in place whilst the appeal was pending. I could explain that I was acting for a journalist who wanted to publish a fact finding judgment involving serious sexual findings (to which the response was broadly ‘Ok, so what?’), and that the request was to name both parents (to which the response was generally ‘Whaaaat?’). I’d explain that it was very fact-specific and if they knew the identity of the parents and some of the background, including what was already in the public domain about the person findings had been made against, it would all make more sense. But it was clearly hard for most of my family law colleagues to imagine what sort of circumstances might ever be sufficient to persuade a judge to allow this. And, in truth, that was how I felt about it when I first took on the case, too. But things change, sands shift, detail becomes clearer and a route emerges. And the balance tipped. And now it’s all out there, as far as I can see, the prevailing response is ‘Oh, now I see why it was so important’.

And that takes us to the heart of it from a legal point of view : in most cases there will only ever be anonymised publication, but the task of the court when it is asked to decide on a dispute about publication of a judgment is to carry out an intense consideration of the specific facts to see where the balance lies: how important the competing rights of private and family life and freedom of expression / public interest are in the context of this case, if and how they might be met so as to interfere as little as possible with any opposing rights, and where the right balance falls. In many – most – cases the options won’t be as stark, because you can publish the substance without the names, and this allows the court to meet the public interest without a major interference with anyone’s privacy rights. Here the choice was more acute: because of the unique circumstances, and the particular aspects of public interest in the case, I argued on behalf of Louise that the full public interest could only be met with the parents identified. We didn’t argue that there would be no identification of the child or no impact on them – that would have been silly – but we did argue that the impact on the child would be manageable and limited – again, on the specific facts of the case (including the child’s young age). The father argued that the publication of the parents’ names would ‘inevitably’ be ‘catastrophic’ for the child and would potentially cause a termination of the parent-child relationship. Neither the High Court nor the Court of Appeal agreed with that.

This process of close scrutiny of the facts and the rights in play, and of careful balancing and consideration of the proportionality of the various options and how they affect the human rights of all concerned, is set out in a case called Re S from 2004 (Re S (A Child) [2004] UKHL 47). At paragraph 17 Lord Steyn sets out four propositions :

First, neither article has as such precedence over the other.

Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.

Thirdly, the justifications for interfering with or restricting each right must be taken into account.

Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.’

The Articles that Lord Steyn is referring to are Articles 8 (the right to private and family life) and Article 10 (freedom of expression), though in some cases other rights will also be engaged. That test is a crystallisation of a process first articulated in Campbell the same year (Campbell v MGN Ltd [2004] 2 AC 457), a case I’ll come back to.

In a later case, A Local Authority v W [2006] 1 FLR 1, the Court of Appeal cautioned against approaching the Re S exercise on the basis that it was ‘a mechanical exercise to be decided upon the basis of rival generalities’. Instead, what is needed is a drilling down to the specifics, not generalised assumptions about the impact on children of publication or assertions that welfare is just more important. Re S is very clear that neither Article 8 (private and family life) nor Article 10 (freedom of expression) takes precedence over the other. The court starts with a clean slate.

That said, the welfare of the child is, of course, a really important factor in any case involving a child, because welfare is integral to the child’s right to private and family life – but it’s important to recognise that it still isn’t a trump card. Nor is it the ‘paramount’ consideration under s1 Children Act 1989, which only applies to decisions about the upbringing of a child. This sort of decision is not an ‘upbringing’ decision so s1 is not triggered. However, caselaw confirms that welfare is still ‘a primary consideration’ (ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, [2011] UKSC 4), so it’s going to be a pretty important factor in any consideration of publication, and in many cases it will be determinative. It’s clear from the judgment of Mrs Justice Lieven, that had the child been older it most likely would have been determinative and the scales could easily have tipped the other way, in spite of the particularly strong public interest arguments.

To succeed in our application, we needed a number of factors to align favourably. At the start it was not at all clear whether they would, but by the time of the hearing in the High Court in July everything had come into place to make our case persuasive and difficult to counter. We always said the case rested on its unique facts, and were clear that we did not think naming of parents in fact finding judgments would be justifiable in most cases. So, what were the unusual features of this case that led to this unusual outcome? This is what we said in our skeleton on the appeal :

This application was made on its own very particular facts. There was an unusual convergence of factors which made it one of those rare cases in which publication with names was both necessary and justified. The particular key factors which came together to make this so were:

a. The fact of the findings and the nature of the findings

b. The mothers support and willingness to waive her right to Anonymity

c. The child’s age

d. The particular characteristics i.e. roles of the respective parents as (former) MPs (and Minister),

e. The history of prior media coverage, including material placed in the public domain by the father which was subsequently demonstrated to be misleading in light of the findings,

which, together, added weight to the other elements of more general public interest, and provided the particular need and justification for identification of the parents that would usually not be present in most cases. Moreover, this was not a case where it was possible to fully and accurately convey the dynamics and subtleties of the findings or the father’s conduct without reference to the parents’ former and current roles, which would inevitably render them identifiable in any event.

The Court of Appeal in its judgment saw it this way :

Decisions of this kind are inevitably case-specific. The critical factors in this case included

(1) the father’s decision not to invoke any Article 8 rights of his own but to rely exclusively on the rights of the child;

(2) the very young age of the child;

(3) the Guardian’s professional assessment, in favour of publication;

(4) the mother’s support for publication; and

(5) the extent and nature of the information about the father that was already in the public domain.

We do not think it can fairly be argued that Lieven J’s conclusion, in the unusual circumstances of this case, was wrong. On the contrary, we consider that she was clearly right. (para 14)

I’ll draw out four particular elements of our case here :

Firstly, the public interest in the case. Although a more granular analysis of the public interest in the case was set out in our skeleton argument before Mrs Justice Lieven, the Court of Appeal sum it up nicely :

Ms Tickle identified three main aspects of the public interest as supporting publication to the extent indicated.

The first was the public interest in transparency for decisions of this kind. She suggested that coercive control was not yet well understood in society. She described the judgment as a model of how a court should approach allegations of that kind. She submitted that publication would facilitate informed public discussion of the issue, and public understanding of how the courts reach decisions on such matters.

Second, Ms Tickle pointed to Mr Griffiths’ role as a politician. He had been an MP at the time of the behaviour identified in the judgment, and when the Domestic Abuse Bill was going through Parliament. In addition, she argued that it was in the public interest for voters to know that Mr Griffiths had abused his elected office by using it to pressurise and threaten his wife.

Third, Ms Tickle argued that Mr Griffiths had deceived the public about the state of his family life, and his own behaviour. He had used a media interview to tell the public that his conduct in the 2018 sexting scandal was an isolated incident that flowed from abuse he had suffered in childhood, and occurred in the context of his having had a mental breakdown. It was now apparent from the judgment that his sexting conduct went back to 2011. There was a public interest in correcting the record.

Secondly, to look specifically at our request to correct the public record. Andrew Griffiths had chosen to put material into the public domain which was, according to the findings, plainly inaccurate. Here we relied upon the Campbell case, where the House of Lords had placed some substantial weight on the right of the media to correct the record where a public figure (there a celebrity not a politician – in our case what mattered was not celebrity but public office and power) had placed inaccurate information in the public domain. Mrs Justice Lieven agreed – she said that, in light of the conflict between the material in the public domain and the findings,

There is a strong Article 10 right in the media being able to set the public record .straight. There are considerable similarities in this regard to the reasoning in Campbell. However, in my view, the facts here are much more strongly in favour of publication than in Campbell, given the role of the Father as an MP, the fact that his earlier inconsistent and untrue statements were made to protect his political career, and the gravity of the facts that the Judge found.

I also consider that there is a broader public interest in the publication of the Judgment, including the identification of the parties. There is a well recorded concern that victims of domestic violence, and particularly women and girls, are often unwilling to come forward to the courts. The fact that Family Court proceedings almost always take place in private; that very few judgments are published; and that many of the judgments that are published are ones where something has gone wrong, all give rise to a public concern about the workings of the family justice system.

These first two points were known features of the case from the outset, but in themselves they were not enough. They were only one side of the scales. What we were less sure of at the start was how much weight would be placed in the scales on the other side.

So, thirdly, by the time of the hearings the application had the support of both the mother and the child’s court appointed Guardian. However, at the outset we hadn’t known what the mother’s position would be, and before she knew the mother’s position, the Guardian had come out stating her opposition to the application – in truth she had probably fallen into the ‘rival generalities’ trap, but quite rightly later made a more fact specific analysis. That is not a particular criticism – instinctively most people would say of course this is not something that is in the child’s welfare interest. But instinct is not enough – and the Guardian was right to adjust her position once the mother’s position was known, and in light of the important but conflicting human rights in play. Realistically, we could not have succeeded in the unusual application we made without the mother’s support, not least because of her right to anonymity (whether or not technically the statutory right of anonymity had been triggered it would clearly have been wrong to publicly identify a woman as a victim of rape without her support and my client was clear she would not have wished to do so), and the Guardian’s support on behalf of the child was also an important factor that added weight to our arguments.

Fourthly, we argued that it was essential to disaggregate the distress that would be caused by :

a. [the child] coming to know about [their] father’s behaviour towards [their] mother (as found in the family court);

b. [the child] coming to know about such of [their] father’s behaviour as is already in the public domain;

c. from any distress or harm caused by media reports relating to a.

We argued, and the mother and Guardian agreed, that this child would in due course have to learn about their father’s behaviour towards their mother in any event. We argued that the child might also come across the existing material in the public domain in any event. The Guardian took these points on board when concluding that she should support the application, noting that the majority of the harm this young child would likely suffer would be down to the father’s own conduct rather than the additional publicity occasioned by this application.

The father’s team put forward a number of arguments against publication, all based on the child’s Article 8 rights. The father, perhaps surprisingly, explicitly disavowed any reliance on his own Article 8 rights. His team argued that Re S didn’t apply (though ultimately they conceded it did, but subsequently on appeal they said it had been applied wrongly by the Judge – the Court of Appeal disagreed). They argued the case was analogous to ECHR caselaw on adoption and termination of contact because of the inevitably disastrous consequences of publication, so a very stringent welfare justification was required. Not only did the court disagree that the impact on the child would be anything nearly so serious as that contended for, but this caselaw related to decisions directly about upbringing where welfare is paramount. Re S and Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 11 make the distinction between decisions about upbringing (welfare paramount) and decisions about publication (welfare a primary consideration) clear.

Later, on appeal, the father’s team argued that the judge was wrong to have interpreted s97(4) Children Act 1989 so as to permit publication of the judgment based on the outcome of her Re S balancing exercise. In fact the judge had adopted this approach because all parties agreed it was the correct one, based on Norfolk County Council v Webster [2007] 1 FLR 1146, which says (based on Clayton) that s97(4) must and can be read so as to be ECHR compliant, using s3 HRA. For those not familiar with this provision, it allows a court to relax the statutory ban on publishing information likely to identify a child as the subject of proceedings where the welfare of the child ‘requires’ it. Webster says the power under s97(4) is ‘exercisable not merely if the welfare of the child requires it but wherever it is required to give effect, as required by the Convention, to the rights of others’. Were that not the case, the Re S exercise would be undermined – but because of the fact that s97 only has effect whilst the case is ongoing, only where proceedings are live.

Although argument was heard on the point, the Court of Appeal ultimately agreed with our argument that the father should not be allowed to rely on this ground of appeal, given that he had expressly conceded it below. Moreover, just as they had done in the Al M (Children) [2020] EWCA Civ 283 case last year, when another prominent father had sought to challenge the interpretation of this provision in order to prevent publication of findings against him (he also raised the point for the first time on appeal), the Court of Appeal expressed a ‘strong provisional view’ that in fact Webster was right in any event (A key difference by the way between the Al M case and ours, was that there the publication was positively in the child’s welfare interests, which meant that the publication fell within the wording of s97(4) (i.e. the child’s ‘welfare require[d] it’, without needing the court to ‘read in’ additional words, as suggested in Webster). And when, in our case, an application for permission to appeal was issued (late) on the sole ground that the father wanted another run at the s97(4) arguments, the Court of Appeal not only refused permission but certified the application as being totally without merit. It also, unusually, refused to grant a stay to enable the father to ask the Supreme Court itself for permission before the cat was out of the bag.

So, for the time being at least, Webster remains good law, and any further consideration by the Court of Appeal or Supreme Court of its correctness will have to wait for a case in which the point is properly live and run at first instance. For my part, having thoroughly researched and responded to the ground of appeal on this point I take the view that Webster was rightly decided, but I will be interested to read any judgment in future where it may be given closer scrutiny. As the Court of Appeal indicated in their judgment in our case, if this matter is to be considered, and if the contention that Webster is wrong were to be shown correct, that would have really significant ramifications (for instance, it would potentially mean that s97(4) would have to be declared incompatible with the convention).

Really, what all these attempts on behalf of the father boil down to, was an effort to persuade the court to treat welfare as a trump card and to get around the Re S balancing exercise. There could never be any serious argument that the public interest was anything other than very high and broad (and my skeleton argument set out the multiple aspects of the public interest in detail and explained why some of those aspects could not be fulfilled without names), and so the focus of the father’s submissions were on persuading the court itself to focus on welfare. The problem was, as the Court of Appeal judgment makes clear, the arguments made focused on welfare as a generality rather than on the impact of this publication at this time on this child or invited the court to give precedence to Article 8 right from the off. The judgment being appealed properly considered the impact on the child, and the conclusions reached by Mrs Justice Lieven weren’t susceptible to challenge. Ultimately, this decision reaffirms the long established proposition that Re S is the relevant authority, as read through the lens of ZH (Tanzania), i.e. with welfare as a primary (but not paramount) consideration.

The other important application we made was for permission to publish all the skeleton arguments relied on before Mrs Justice Lieven and the Court of Appeal. Although the Court of Appeal hearing had been in public, there had been reporting restrictions in place until the delivery of judgment, in order to ensure that the point of the father’s appeal was not defeated. The court had also made a direction that skeleton arguments should not be provided to the media at the time of the hearing as they usually would be in the Court of Appeal, for similar reasons. At High Court level the case was heard in private (as is usual) and so again the skeleton arguments were also private. Realising in the course of preparing for the appeal that there were elements of the skeleton arguments that were in themselves of public interest, and which were important in helping to explain the twists and turns of the litigation, and the changing attitudes and positions of the parties, we sought in our skeleton argument for permission to publish all the skeleton arguments subject only to limited redaction (essentially the same facts and features redacted from the fact-finding judgment). The Court of Appeal agreed we could do this and so, in January, when my client Louise publishes her podcast about the case, Tortoise will also publish those skeleton arguments.

You can read Louise’s article published shortly after the judgment was made public here and listen to an audio preview here.

Look out in January for the submissions made by Rights of Women which contain some important arguments about informational self-determination, picked up on by Mrs Justice Lieven and described as the mother’s ‘right to tell her story’. Those were not our arguments primarily to run, but of course they added to the public interest in the case because one of the aspects of concern around family court privacy is the effective silencing of victims and the use of the process as a continuing vehicle for control. I’ll let those submissions speak for themselves. They are powerful.

One interesting aspect of the case picked up on by the Court of Appeal in their judgment is a point which I made before Lieven J but which didn’t gain much traction before that tribunal – essentially, that this story is primarily the parents’ story, not that of the child, and that there must be a limit to how far the child’s interests can bear upon the right of an adult to tell their own story. The Court of Appeal reference a tort authority (O (A Child) v Rhodes) to make what I think is an analagous point, at paragraphs 30-34 of their judgment:

The case appears to show that outside the context of family proceedings a child will rarely if ever have any civil right to object if a parent chooses to make a true disclosure about an aspect of the parent’s own life which did not involve the child. The parent’s right to disclose, if he chooses, will prevail. That appears to be the right of which Mr Griffiths himself took advantage in 2018, when he told readers of The Times about his own experiences of abuse in childhood and his own poor mental health.

Other considerations may come into play when information is disclosed or ascertained in the course of legal proceedings. The court is directly involved and in control of the process. It has the ability and the right to control the flow of information. As a public authority it has a duty to do so in a way that is compatible with the Convention rights which in this context include the fair trial rights guaranteed by Article 6 as well as those protected by Articles 8 and 10. But the firmly established starting point in the domestic jurisprudence is the principle of open justice. The general rule is that proceedings are held in public and what is said, including the names of the parties and witnesses, can be observed and reported. In a case which involves the “determination” of criminal liability or civil rights and obligations, Article 6 confers on each party to litigation the right to a public hearing and a public judgment. Publicity for what goes on in court may be embarrassing and painful for those involved and third parties who are indirectly and incidentally affected but in general, “the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public”: Khuja v Times Newspapers Ltd [2017] UKSC 49, [2019] AC [34(2)].

This is most likely to have relevance to future cases where a victim wishes to be able to identify themselves as a survivor of domestic abuse based on findings made by the Family Court. But in any such case there will still need to be a rigorous balancing exercise to decide where the balance lies. In cases without the ‘correction of the public record’ point, the public interest is likely to be less compelling, but in the absence of the parents having similar public profiles and status, any corresponding media coverage and thus potential impact on the child is likely to be said to be less significant. Each case will, as ever, turn on its facts.

The judgments (all three of them) and the press summary can be found here (the fact find and High Court judgments seem not to have made it to Bailii yet).

Feature pic : RCJ Thanks To Simon Ross @shrossy.