Today, independent journalist and Transparency Project member Louise Tickle took her appeal against a reporting restriction order made by a family judge, to the Court of Appeal. She won.
Louise and others are now able to report the story of a mother’s long battle through care proceedings, and the removal and later return of her child.
Louise was represented pro bono (without charge) on the appeal by Paul Bowen QC and Sarah Phillimore (former Transparency Project member).
Three members of The Transparency Project were at court to listen in on the hearing.
At the outset, the judges gave permission for live tweeting during the hearing with only limited restrictions around identification, and George Julian @georgejulian took the lead on that using hashtag #RROappeal. This in itself is relatively unusual in a family case (although the case was in open court), even more unusual was that Junior Counsel for the Appellant @svphillimore was live tweeting too (impressive multi-tasking).
The Appeal was heard by Lord Justice McFarlane (the President of the Family Division) and Lady Justice King. As the appeal was essentially agreed (all apart from one small but important point of detail) the judgment was delivered today rather than being put off, and we set it out in full below (it’s not a transcript it’s our note so it might have some minor errors in it). We are also able to report some of the more interesting comment and discussion that took place in the course of the appeal hearing.
The judgment of Lord Justice McFarlane (Lady Justice King agreed)
The court has before it an appeal against a reporting restriction order made by His Honour Judge Levey on 19 Oct 18 at the conclusion of care proceedings concerning a young child. The case has a history of some substantial litigation in the Family Court and Court of Appeal : originally His Honour Judge Hess made an order in June 17 which refused the mother’s application to discharge the existing care order and made an order authorizing the local authority to place the child for adoption. That order was the subject of an application for permission to appeal, which was granted, and the full court heard the appeal on 20 February 18 giving full judgment in public, which has been reported on Bailii and subsequently in official law reports and elsewhere.
[We interrupt this judgment, to note that the Court of Appeal judgment is here : M (A Child)  EWCA Civ 240 (20 February 2018) and we wrote about the case at the time here : Mum wins appeal about her child’s potential adoption but still has to pay her own legal costs – why?Sorry, Your Lordship, please do continue, Ed].
As result of the Court of Appeal judgment, the case had to be re-determined by a different judge, and that is the process that was before Judge Levey autumn 18. By then the case had attracted interest in the media and three respected and experienced journalists appeared at court as they are entitled to do under the Family Procedure Rules to observe the hearing. Indeed, prior to the hearing certain journalists had communicated directly with the court to alert the judge of their intention to attend and to apply if they considered it justified, for a variation of the ordinary restrictions on reporting. The hearing took place with journalists attending, they were not legally represented, they flagged the applications they intended to make but as the transcript of the hearing makes plain the issue was dealt with relatively swiftly and the judge made an order which not only restricted reporting, but also had the effect of restricted reporting of information that was already in the public domain as a result of publication of the Court of Appeal judgment.
One of the three journalists, Ms Louise Tickle, lodged an application for permission to appeal which was granted by Lord Justice Jackson. It was set down for a full hearing of one day before this court in March. It has however, come to pass that all the parties involved including representatives of the media are now agreed as to a replacement reporting restriction order, which should stand in place of that proposed by His Honour Judge Levey. With respect to appeal procedures there is no longer a dispute as to what the order should be and the appeal would so far as the terms of the order concerned proceed by consent.
Because a reporting restriction order is against all world it could not be simply dealt with on paper and requires this court to consider the replacement order, which is largely for parties but for the court to determine. A short hearing was established this morning to take stock of process and consider if the full appeal hearing is required. Partly because of the fact that the court needs to make the order, but also because the Appellant Ms Tickle and those representing journalists at the BBC wish to canvas wider issues of principle and practice which are generated by the facts of case, and which go beyond terms of the precise order to be made. We are extremely grateful to Mr Bowen and Ms Phillimore (who previously drafted the Grounds of Appeal and skeleton) for the very full skeleton prepared, which sets out the legal landscape in this somewhat complicated and very important area relating to the transparency of Family Courts. And in particular for the elements he has identified which he submits would justify the court encapsulating in a form of guidance. In addition ,the BBC applied to be joined, that application is not contested and at the beginning of the hearing we granted it. The court has also therefore received written submissions from Adam Wolanski and heard oral submissions from him. Legal funding has not enabled child to be represented, but we have a letter on behalf of the child. We have heard from counsel for the local authority and for the mother.
The issues we have to determine this morning are narrow – one however is of general importance – whether the appeal hearing should be retained in the diary to determine what priority the welfare of child is to have when the court is determining what, if any, relaxation of the automatic reporting restrictions is to be allowed, or whether any additional reporting restriction is to be proposed. Neither Mr Bowen nor Mr Wolanski press the idea of holding a hearing in this case solely on that topic with any force. Rightly in our view. It is a matter that undoubtedly justifies full consideration, but this case is now constituted so that no party to proceeds wishes to argue against the propositions the media would otherwise make. Mr Wolanski in particular submits that this case may not be the right vehicle for that important process. We agree and therefore decline invitation to maintain the full hearing in March solely for that purpose. It follows that the hearing will be vacated and the appeal determined today.
Before turning to further issues it is right I record the process leading to the appeal being allowed. In short terms the grounds assert that the judge gave no reasons for his failure to refer to the existing Court of Appeal judgment, secondly that he failed to consider existing case law concerning transparency and the determination of issues which may or may not restrict reporting, and finally crucially that he failed to undertake necessary balancing exercise between Articles 8 and 10 of the European Convention on Human Rights which is to be undertaken in any case such as this. This court has sympathy for any judge at the current time faced with an application such as this. It also has sympathy for journalists who inevitably often appear without any legal representation, who make such applications. That sympathy arises from the fact at present there is no detailed guidance or route map for how such apps are to be determined. It is therefore my resolve as President to issue such guidance at the earliest opportunity. There is no great controversy as to the elements of guidance that Mr Bowen has put forward, I therefore propose outside these proceedings to develop draft guidance and then consult with various interested parties and bodies upon that, with a view to issuing it in due course.
A reading of the transcript however indicates the basic grounds of appeal would be made out. The appeal is not contested and therefore if My Lady agrees, the proposal is that the appeal should be allowed on basis the order made by HHJ Levey on 19 Oct 18 concerning reporting restriction orders was wrong. The reason was from procedural irregularities that I have done no more than highlighted by reference to the Grounds of Appeal. The order in relation to the appeal in addition to recording of the BBC being joined as 2ndappellants, is that the appeal is allowed and the order made by HHJ Levey set aside. A fresh reporting restriction order is to be made in accordance with the terms of the draft which will be further amended before being attached to the court order.
The element of controversy that remains with the draft takes me to submissions by the mother. It is the case that country of origin of the mother is stated plainly in the Court of Appeal judgment given in February 18. There is common ground between all parties that if possible there should be no reference to the M’s country of origin. The question is whether the new reporting restriction order should encapsulate that, by imposing a restriction on repetition of the country of origin in any reporting and in particular by in some way distancing any report from a direct reference to the case name / neutral citation or link on Bailii.
My Lady and I heard counsel for the mother’s clear submissions on this point and understand the importance the mother places on this particular piece of info. The court does not however have any detail as to what detrimental impact there would be on the mother where that is to stand as the Court of Appeal judgment is available and journalists are otherwise freely able to connect it to the information that will now be put in public domain as result of new reporting restriction order. The court has to approach this by balancing the Article 8 rights of the mother and child against the freedom of publication encapsulated in Article 10. In my view given that the info under consideration, the name of country, is already out in the public domain in the Court of Appeal judgment it would be wrong for this court now to take any step that prevents the ordinary linking and mention of the Court of Appeal judgment with all it contains with the present process that is to be undertaken in terms of publication at this hearing, and earlier hearings in the lower court. I’m not persuaded that the mother or child’s Article 8 rights are compromised to a degree that would justify any other course. I refuse counsel for the mother’s application to amend prop draft to achieve that which he and his client desire.
I think that deals with all the matters before the court on that basis on that basis the appeal is allowed with order as described by the court in due course after further drafting changes to be approved.
So what’s important in this judgment, then?
Apart from the fact that Louise’s appeal has succeeded, meaning she can write her news story, the judgment is also important because :
- It confirms that the Judge’s failure to conduct a balancing exercise was wrong (although the Court of Appeal don’t go into much detail about what precisely was wrong with the process they did accept the broad ‘headlines’ in the Grounds of Appeal.
- It also confirms that the President will be doing some further work to produce guidance on the process for making applications to relax reporting restrictions.
This second point in particular, is good news. We wrote to the Court of Appeal asking them to consider looking at the issue and whilst they appeal is not going to deal with them, we are really pleased that the President himself has taken the issue on board and has publicly committed to doing some further work on this topic.
The Court of Appeal was not persuaded that the question of whether welfare is paramount when judges are deciding these issues (as opposed to important) should be dealt with through this appeal. We expect the judges were well aware that the appeal from Mostyn J in this case is highly likely to squarely raise this issue, and that it will be fully argued there – because nobody agrees about it! That is probably a better vehicle for correctly deciding a really tricky and important issue because the court can be sure to hear arguments from all perspectives, whereas in this case no party had a particular case to put against the position that the press will likely adopt (that it isn’t paramount). This is where the adversarial nature of court hearings can be helpful – it makes sure things are properly thrashed out rather than nodded through. Counsel for the BBC in this appeal (Adam Wolanski) is also counsel involved in that other case (though in that case he does not act for the press).
Huge credit should be given to Louise and her team for having the guts and stamina to bring this to the Court of Appeal and ultimately nudging the powers that be into grappling with these issues – especially as an independent journalist and at her own financial and professional risk (Louise crowdfunded to pay the court fees for the appeal but could have ended up with a costs bill for the other parties’ costs if things had gone very wrong).
Encouragingly, the two judges who dealt with today’s hearing seemed very alive to the practicalities and genuinely open to finding ways of making these processes clearer (but hopefully not more complicated!). The tone of the hearing was respectful and open and the importance of transparency and Article 10 fully acknowledged.
What didn’t make it into the President’s short ex tempore* judgment were remarks made in the course of the hearing about the recently published anonymization guidance, which took some polite criticism from counsel for the Appellant. There was an interesting exchange between counsel for the Appellant and the President, concerning the risk that the recently published Anonymisation Guidance drawn from draft guidance produced by Dr Brophy went too far in suggesting certain pieces of information should not be published unless there was ‘no risk’, and that such guidance might lead judges into error through imposing restrictions without evidence of actual risk or without conducting the necessary balancing exercise. The President suggested that guidance on these issues about reporting restrictions and relaxations might be able to correct any such problems, apparently acknowledging the point that the very polite complaints made on behalf of Ms Tickle might have some force. It will be really interesting to see what the guidance says.
Based on the submissions made and the judge’s responses, the mother’s objection to the republication of certain potentially identifying information was ultimately unsuccessful for two main reasons : firstly the toothpaste was already out of the tube as the information was in the Court of Appeal judgment (the mother had been represented in the Court of Appeal and this wasn’t raised as an issue at the time) – it’s really unusual to ban the repeating of information that is already out there. Secondly, there was no actual evidence that the information really was likely to lead to identification at all – only assumption. There are a number of cases in which attempts to restrict the publication of information based on assumptions of risk or of harm have failed because there is no evidence or analysis underpinning those assumptions. This is a further reminder of the need for specific evidence and analysis if any party wishes to justify imposing a restriction on information that would otherwise be publishable.
We also noted that in the course of the hearing, and in the skeleton arguments, there were a number of references to legal bloggers as well as to journalists and to the similar but different role they (we) can play in. The President said that the Legal Bloggers Pilot had been informative in that the eyes of legal bloggers were attuned to the court process, but sitting in a different seat to the judge was useful as they might spot flaws in the process.
We will publish links to any news items or other coverage of this case as and when we see it. Here’s what we’ve seen so far :
- You can listen to Louise Tickle and the mother of the child being interviewed about this case on BBC Radio 4 PM (listen on catchup).
- Guardian Leader : The Guardian view on family law : transparency is in the public interest (we’ve asked for the Guardian to correct the reference to an appeal against an adoption order, as the order appealed was in fact a placement order – now corrected – thanks!)
- Sanchia Berg’s online piece about for the BBC: The mother who lost her daughter over an epipen.
*(that’s Latin for on the hoof)
Since we first published this piece, a number of write-ups of “Tickle’s Triumph” have emerged.
Firstly, Louise’s own piece in The Guardian, published on the 19th of February on why she fought for the right to open up family courts to greater scrutiny. You can read that here.
The second is from Emily Boardman, who acted pro bono for the mother in these proceedings after Louise contacted her requesting assistance. Emily, a partner at BH&O LLP, has written in more detail about the mother’s experiences prior to this Appeal hearing here.
George Julian live tweeted the appeal, and also wrote up the case here.
Feature pic : Louise Tickle being interviewed by BBC journalist Sanchia Berg for BBC PM.