“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 – [….] – 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.”HHJ Mark Haigh, Manchester Family Court, 21 August 2023
Very occasionally, one sees an account of a family court hearing and one’s jaw hits the floor.
It happened when I saw how HHJ Scarratt bullied a young mother alleging domestic abuse, as quoted in the Re H-N conjoined domestic abuse appeal. It happened again when I read the judgment of HHJ Williscroft which made findings of rape, physical and verbal abuse and coercive control against former MP Andrew Griffiths. And now it has happened a third time, reading the transcript of Day 1 of a private law hearing that I attended on Day 2, which led to my recent successful appeal against the Manchester circuit judge HHJ Mark Haigh.
This is going to be a long read, and it’s also going to be something of a ride, so settle in. Because I need to start at the beginning.
Late afternoon on 21 August, I received a call from a journalist I know, Suzanne Martin. She told me she had just been excluded by HHJ Haigh from a family court hearing. That Monday morning at 8.30am she had emailed a request for a link to exercise her entitlement to attend. She also said that attendance might give rise to a later application to report. At around 2pm, after proceedings had been underway for half a day, a link was provided so Ms Martin could advance what the judge and parties clearly considered to be her “application” to observe proceedings in court.
The mother was neutral. The father and Guardian opposed. The judge made a ruling saying she could not attend.
Ms Martin told me she did not believe the judge had applied any of the relevant grounds on which a journalist can be excluded from a family hearing, and she was also greatly disturbed at how the process had been conducted. I was able to shift my work commitments around for the next day, so I said I would email the court and ask for a link to attend Day 2. I was permitted to attend (Suzanne Martin joined the link shortly after) and what happened on Day 2 – which became the subject of my subsequent successful appeal – will be dealt with in another blogpost.
The lead up to my appeal
When the mother’s skeleton argument for the appeal landed on the desk of my pro-bono appeal counsel Chris Barnes and myself the day before the hearing, we were, it’s fair to say, astonished.
The mother’s McKenzie Friend, it turned out, had taken a note of Day 1. And excerpts of that note included in the mother’s appeal skeleton, if accurate, showed (in brief) that HHJ Haigh had:
- Interrogated all the parties as to whether they knew the journalist Suzanne Martin, or knew about her wanting to attend the hearing.
- Said he was “a lone voice against the “Transparency project and that people think it’s a good thing but he was going to tell us why it wasn’t: that technology is advancing and in the future there would be new algorithms and programmes that would be able to use jigsaw technology to identify parties from anonymous reports, and in the future everyone would realise he was right and it would be too late, and that he wouldn’t be around. He said he was protecting [child] and all of us and our interests and we needed to think whether we really wanted to be involved with journalists.”
- Looked up the reporter’s details, and said she, “seemed to be from a film company and doubted the legitimacy /professionalism as he said usually they would be with a named media outlet and have put their application in in advance.”
- Said he had “real concerns” about the journalist’s application, saying “I have a degree of scepticism about publicising proceedings…. I will not open the door to the press. Allow her to renew her application at 2pm if needed.”
The mother’s note of the hearing continued in the afternoon when Ms Martin was allowed into court by remote link. It was briefer than her morning note had been, but it set out how the journalist had been questioned as to what she wanted to research, why she had chosen that particular hearing, whether she knew anything about the case, why she had “applied” to attend so late the day before, whether she was looking “to write an article or a news item”, whether her partner – also a journalist and her business partner – knew any of the parties, and what other journalistic projects she was working on. It also showed how Ms Martin attempted to push back at questions she felt should not have been asked.
The mother’s note then set out that HHJ Haigh re-stated his earlier decision that the journalist should not be permitted to attend.
Reading it was, quite literally, breathtaking.
If it was accurate.
Getting hold of the official transcript
As part of my application to HHJ Haigh for permission to appeal, I had requested permission to order a transcript of Day 1. Given that Ms Martin had been refused permission to attend the Day 1 hearing, based on what she told me were in her view, none of the applicable grounds, and because my appeal was attempting to demonstrate that the judge had not correctly applied the law when he banned reporting of Day 2, I felt that a transcript of Day 1 was relevant if only in support of the overall tenor of his attitude to the press.
HHJ Haigh did not agree. And so I had never been able to read an official account of Day 1.
I had however submitted an agreed, approved note of the relevant parts of Day 2’s proceedings to Mrs Justice Lieven, who gave me permission to appeal. She was the judge who dealt with the appeal hearing itself.
On the basis of the mother’s note of Day 1, Chris Barnes and I attempted to amend my grounds of appeal to include those issues. But her skeleton had come in too late to sort out another agreed and approved note. Mrs Justice Lieven said she could not consider the amended grounds of appeal on the day of the appeal hearing without a transcript, and noted that a delay in waiting for the transcript and a new listing might make the appeal academic. And so – in between me sending cross and indignant WhatsApps to Chris Barnes and him explaining that I had a strong case nevertheless – we ploughed on. Thanks to his skilled argument that transcript of Day 1 should be obtained at public expense for us to consider later, the judge was thankfully persuaded to make that order (I could not have afforded to pay for a transcript even with the money left over from the crowdfunder which had paid the fee for applying for permission to appeal). I will always be grateful that she did.
So I submitted the relevant forms, and then we waited. And waited. And waited some more.
The transcript of Day 1 finally landed on 21 October. And this was when my jaw hit the floor. I immediately rang Chris. Then we read through it again together, me faintly gasping as he, on the other end of the phone, explained the legal nuances of why it was worse – so much worse – than even the mother’s note of Day 1 had anticipated.
I knew immediately I wanted to publish not just quotes from the transcript, but the whole kit and caboodle. This was partly because the full effect cannot be appreciated without reading it from start to finish, and partly because I wanted to avoid the charge that I was cherrypicking or quoting HHJ Haigh out of context. It’s vital, I think, that people can see the entire progression of how the judge deals with Suzanne Martin’s communication with the court from the point when she emails asking if she might have a link, to the point at which he finally excludes her. There is also the manner in which he deals with the unrepresented mother in the morning session, which felt oppressive given that she was a litigant in person, and made me squirm.
But of course, in order to publish, I had to apply for permission. This came through on Friday 11 November (some details had to be finalised, and the amended order arrived this afternoon). In case anyone doesn’t have time to read the full transcript – though I recommend it – here is a precis.
- His Honour Judge Haigh comprehensively sticks two fingers up at the President’s transparency initiative. Sir Andrew McFarlane consulted on his Transparency Review for two years, and having been convinced by the weight of evidence and arguments submitted that more openness was required, he then took another year to marshall dozens of experienced legal heads and experts from various stakeholder groups to shape a reporting pilot which is currently – and it would appear, successfully – underway.
- The judge imputes deeply unattractive and self-serving motives to journalists seeking to report on the family court, with no evidence –
- In her absence, and in musings to those assembled in court, he slurs Suzanne Martin, with as he admits, no knowledge of her journalism, or the independent film company she works for, and queries her professionalism on the basis of her “application” for a remote link having been received that same morning –
- Without having admitted Suzanne Martin to the hearing, he excludes her from being able to attend without hearing from her, having repeatedly made clear his personal views that effective anonymisation is impossible and that reporting is not in children’s interests – when she has, at this point, made no application to report –
- On later reopening the question of whether she should be able to attend the hearing at the start of the afternoon session, he treats her request for a link to the hearing as an application to attend, when she is in fact asking for a link to enable her to exercise her entitlement to attend subject to any evidenced objections that are advanced, which must be grounded in the relevant criteria for exclusion –
- He questions the journalist about her sources and her intentions –
- He allows the parties’ barristers to question her about her journalism generally, her intentions regarding this case in particular, and whether her partner in the independent tv production company she works for has ever been in touch with any of the parties –
- He excludes her, an accredited journalist, from a hearing she’s entitled to attend, based on parties’ preferences that she shouldn’t, and based on nothing more than their bare assertions that her mere attendance is not in the child’s best interests.
Lord Steyn would turn in his grave
Family law professionals may baulk at the strong terms in which I am going to express my opinion of HHJ Haigh. I have never gone so far in nine years reporting and commentating on the family justice system. And I think it worth noting the words of Sir James Munby in his written evidence submitted in 2021 to the President’s Transparency review, which sets out the problems caused by S12 Administration of Justice Act (1960), which provide a level of secrecy for poor practice from which no other part of the judiciary benefits. Sir James postulates a journalist or legal blogger attending a hearing in private, at which they are
dismayed – perhaps appalled – by what the judge has said, or indeed by what they observe of his non-verbal conduct or of the interactions and dynamics in the courtroom, as indeed, let us suppose in our hypothetical example, would be the vast majority of right-thinking family practitioners and members of the public. What is the journalist or blogger to do? Ask the judge who is to be criticised to authorise publication? Many, and not only the most cynical, might understandably baulk at the very idea.
There is a profoundly important, if very simple, question: how could publication of this material in totally anonymised form (except for the identity of the judge) possibly damage anyone other than the judge? The answer is obvious – it could not – unless it is to be said that it would damage public confidence in the family justice system. To that objection, the answer is equally obvious: how is confidence in the system maintained by concealing the truth, however disagreeable, embarrassing or even career-damaging? Quite the reverse.
Is section 12 a necessary protection or an objectionable obstacle? The answer is clear. If it is said that my example is fanciful, I need only refer to the recent judgments in notorious appeals: JH v MF  EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings)  EWCA Civ 448.
What this illustrates, I have to suggest, is:
- The chilling effect of section 12 and just how serious an obstacle section 12 is to publishing the truth about what is going on in the family courts and to achieving proper accountability.
- That there are cases – who knows how many, but I fear too many – where the only person being protected by section 12 is the judge – not the family, not the children, nor other lay participants – a person who, in the public interest, ought to be held to account.
- The irrefutable truth of the Benthamite proposition that only constant exposure to the public gaze keeps judges up to the mark.
I say unequivocally that in my view the Day 1 transcript shows HHJ Haigh demonstrating rank bias as he exercises the powers of the court, a bias I consider carried through to influence his decision-making on my application to report on Day 2. The barristers in the hearing should also think hard about their dismal contribution to the debacle that can be seen unfolding as the transcript is read through.
Frankly, this episode has led me to wonder what the hell is going on behind closed doors in hearings up and down the country when journalists are not in attendance, unable to secure transcripts after the event, and not allowed to read transcripts secured by parties themselves for fear of everyone being held in contempt. Plenty of mothers and fathers contact me and other journalists every day to tell us about abuses of power in the family courts; having read this transcript, and having also observed HHJ Haigh’s conduct of and decision-making on Day 2 of the hearing, I am very much more inclined to credit their accounts.
But… just imagine if that mother had come to me trying to explain what had happened in the hearing? First of all, under the rules, she could not have told me. Even if she had obtained a transcript, she would not have been allowed to show it to me, and nor could I have published. If I’d made an application to publish, well, who would have heard the application but the very judge whose own words show him such a terrible light? It’s a ludicrous situation. And… how could I have applied to publish it anyway, given that this would have exposed the mother to the likelihood of being accused of contempt?
Knowing what I do now, of course it does not surprise me in the least that HHJ Haigh did not want me to have access to the transcript of that Day 1 hearing. I imagine he thought he could keep it secret, as so much that is wrong that goes on in the family court is kept secret. But for a judge to allow his own preferences to win out over the law is both atrocious and outrageous. It is of enormous concern in respect of all the other cases this judge has presided over, and in respect of the people over whose lives he exerts the power of the court. He should be thoroughly ashamed.
I am only going to include one excerpt from the transcript in this blog. It comes at the end of the morning’s hearing, is lengthy, and must be quoted in full to grasp why what unfolds is quite so very bad.
JUDGE HAIGH: ….So, that leaves us with the final issue, unless someone is going to tell me there is one I have forgotten about, which is the request by our friend from the press.
MS SHIELD: Your Honour, I would, if I may begin on behalf of [the father], submit that obviously we have not seen a written application on behalf of this journalist, but if an
application is to be made, and I have had previous cases where this has happened, I would request that the journalist makes her application orally, and that we understand
how she has come to find out about this case, if she has, or whether she has just gone through the lists and thought that this was a family case that —
JUDGE HAIGH: Well, how would she –
MS SHIELD: — is four days long.
JUDGE HAIGH: How would she ever — I mean, that is like putting a pin in …
MS SHIELD: It is, and why she wants to see the bundle, and why she wants to observe the case, and, your Honour, I —
JUDGE HAIGH: So, you are wanting to hear from her orally?
MS SHIELD: Yes, I would like to —
JUDGE HAIGH: Yes.
MS SHIELD: — see what her grounds are for her application. And in particular, on behalf of [the father] , I was somewhat alarmed at the suggestion that at the conclusion there may be an application for reporting restrictions to be lifted, that has caused great alarm to [the father].
JUDGE HAIGH: Okay, so, that is dad’s position. What is — ([the mother] conferring aside) – do you need some time just to think about it?
[MOTHER]: I was just clarifying what —
JUDGE HAIGH: Yes, you talk –
[MOTHER]: — the reporting restrictions lifted application meant. Did that mean naming parties or does that just mean to report on …
JUDGE HAIGH: Well, it can mean lots of different things. Without seeing the application –
JUDGE HAIGH: — I do not know what she has got in her mind. At the moment, when children cases are reported, they are anonymised.
JUDGE HAIGH: So, people are given letters instead of names, and I say to them, when they do that, as 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 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 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?
[MOTHER]: Well, I’ve seen cases being covered in news articles, and I’ve seen how they anonymise and —
JUDGE HAIGH: Yes —
[MOTHER]: — it’s usually about —
JUDGE HAIGH: — yes, yes.
[MOTHER]: — appeal hearings —
JUDGE HAIGH: Yes.
[MOTHER]: — and I know that there are courts now that journalists can just go into, and sit and report as they —
JUDGE HAIGH: Yes, yes, yes.
[MOTHER]: — would other courts, so I kind of have a basic knowledge of how it works and, based on that, I don’t have any objection, because –
JUDGE HAIGH: Do you support it –
[MOTHER]: — unless the application — well, I haven’t seen the application.
JUDGE HAIGH: Are you like counsel then? You would like her to come and make the application, and understand what she is up to, if I can put it like that?
[MOTHER]: Well, is the application — when it’s — when it says lifting reporting restrictions, does that mean on …
JUDGE HAIGH: Right, I think that comes — [MOTHER]: Is — (overspeaking) — does it?
JUDGE HAIGH: That probably comes later, I think –
[MOTHER]: Right, okay.
JUDGE HAIGH: — we are just dealing with whether she is present, and has access to the bundle.
JUDGE HAIGH: That is what we are dealing with at the moment.
[MOTHER]: Erm –
JUDGE HAIGH: She wants to be present via Teams.
[MOTHER]: Right, okay.
JUDGE HAIGH: Which suggests that she is probably in Cornwall or Durham or somewhere like that.
[MOTHER]: Okay. No, I don’t have any — I don’t have an objection —
JUDGE HAIGH: Do you support it?
[MOTHER]: (Confers aside). Yes — I’m fairly neutral, I guess, yes.
JUDGE HAIGH: Okay. (Pause). And what is the Guardian’s view?
MS WILSON: Your Honour, the Guardian is very concerned by the application of the journalist. TheGuardian has considered rule27.11,paragraph(3)ofthe–
JUDGE HAIGH: Just let me catch it, hang on —
MS WILSON: Family Procedure Rules.
JUDGE HAIGH: Let me just get to it please.
MS WILSON: Of course, your Honour. (Pause). For the benefit of — your Honour, whilst you are bringing that up in front of you, perhaps for the benefit of the father, although I acknowledge he is represented, but also the mother: Paragraph 27.11 deals with attendance at private hearings, of course this is one of those, and the rule applies when proceedings are held in private. A number of exceptions are listed, but those do not apply in this case. When this rule applies, no person shall be present during a hearing, other than: And then, it gives a list, and of course one of those is a duly accredited representative of newsgathering and reporting organisations, or a duly authorised lawyer attending for journalistic purposes.
It would be (f) that would apply, in my submission, in this case. And subparagraph (iii), your Honour, as the court will be aware, says this: “At any stage of the proceedings the court may direct that persons within paragraph 2(f)”, that I have just highlighted, “shall not attend the proceedings or any part of them where satisfied that (a) this is necessary, firstly in the interests of any child concerned in or concerned with the proceedings, for the safety or protection of a party or witness in the proceedings or a person connected with such a witness, or for the orderly conduct of proceedings, or that justice will otherwise be impeded or prejudiced”. I have of course discussed that particular rule with my client the Guardian, who had already expressed some concern without specifically being referred to that provision.
The concern is this: This is a particularly — firstly, this is a private case, so that rule applies. This is a particularly sensitive and complex case, your Honour, involving allegations or an allegation by the father of alienating behaviour by the mother, an application for change of residence by the father. The Guardian’s position is that certainly for the parties the next few days will be particularly — I use the phrase “emotionally charged” for both parents. I acknowledge that the father now has legal representation, the mother does not. The Guardian has considered the welfare of the child in this matter, which is of course the court’s paramount concern here. The Guardian is concerned for [child]’s general wellbeing, now but in the future as well, in terms of a journalist reporting, potentially reporting on this matter. And the journalist as well having access to the bundle in this case, that is of a concern to the Guardian. There are expert reports within that bundle. There is of course – by its nature it is confidential information.
The Guardian is concerned about the potential for harm in the future to [child] if such an article might be written that [they] may have access to, despite anonymisation.I say despite anonymisation because of course certain details will still be written about. It is a concern to the Guardian the very last sentence — whilst perhaps the court is not aware of precisely what the journalist in question means, but the last sentence earlier referred to, that the initial request is in anticipation of an application to lift the reporting restrictions also causes the Guardian some concern about perhaps the reasons for this particular application to this particular case. As I say, the Guardian would have some concern with the journalist having access to the bundle as well, with the statements from the parties, and all the information that is contained therein. It is of course a different sphere to a judgment being prepared by this court of course with consideration by this court being given to its decision and what is being written. Perhaps the risk is more for the future in respect of [child], given [their] age at this point, but those are the observations on behalf of the Guardian I make, your Honour, having considered the court’s powers under 27(11).I hear what my learned friend for the father says, I do not have anything particular to add to that at this stage. Can I assist you further?
JUDGE HAIGH: No, thank you. (Pause). 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.
Immediately afterwards, HHJ Haigh says that he will need to give Suzanne Martin an option to “renew her application”. It is clear he has just realised he’s on thin ice having excluded the journalist in her absence and without hearing from her. His precise words are, “It would be wrong to make a decision without hearing from them.”
He’s right. But he just did it anyway.
In carrying out his bizarre and unwarranted lambasting of the media, the judge also blithely stated his personal views on transparency, on journalists in general and on Suzanne Martin in particular, then made a decision based on his prejudices.
And so it is hardly surprising that the afternoon’s “application” by Ms Martin to attend – NB no application is required, although the judge kept using that word, as well as “request”, when I fetched up the next day, and he did not like it at all when I pointed out his error – became a procedural and legal car crash of even more epic proportions.
I have only ever once been excluded from a family court hearing, for reasons that I did not like, but ultimately did not see how the judge could resist without opening up the possibility of an appeal. He took, I think, a reasonable view that my exclusion was “necessary”. So, a single time in goodness knows how many hearings I’ve attended, over a period of nine years since first attending a family court. This is despite very regular objections, which are almost never grounded in any of the relevant criteria, and when they are, are accompanied by no real evidence, but only generalised worries, that my attendance could harm a child.
So when Suzanne Martin rang me up on the afternoon of 20th August, I was really surprised that she had been excluded, but also wondered to myself whether (sorry Suzanne) she had misunderstood something relevant to the judge’s decision. I could not have imagined – nor did Suzanne know – exactly what had transpired in the morning of Day 1. But my own experience of HHJ Haigh and the advocates’ attitudes when I logged in the next morning rapidly helped me realise that this was a situation that had gone badly off the rails.
In my appeal skeleton, I exhibited the email showing how HHJ Haigh had approached my message to the court asking for a link to attend:
Good morning everyone,
The e mail below is self-explanatory.
Yesterday an application was sent by email to the court arriving just after 8:30 in the morning and just before the start of a four-day final hearing. It was from Suzanne Martin an accredited press representative asking to attend remotely.
I asked the parties whether they were surprised by this development, both said they were and neither had invited it. I asked because it was their case, their family and concerned their privacy.
I listed the matter for a hearing at 2pm to try and better understand. I enquired of Suzanne how firstly the request came to be made and why it was so late. She told me she did not know the parties or any of the participants or indeed anything about the case. She had simply seen the court list in what was for her a quiet week. This case was listed as a final hearing (presumably with many others ) and as part of her research into the family court wished to observe. Of the participants two, father and the Guardian on behalf of the child, were opposed to the application. Mother neither supported or opposed it. After considering all the representations I came to the conclusion that it was not in the interests of the child for the press to attend and engaging rule 27.11(23)(a)(i) FPR 2010 refused the application, giving a short judgement.
The information in the e mail below that the case starts at 9am must have been provided by one of the parties (Susanne’s application had finished long before the start time was decided). Unless provided by the court. The e mail does not suggest this nor the timing of it. It led me to think that of the three answers given by the parties earlier today one might not have been an accurate reflection of what they really wanted.
If this is being encouraged by any of the parties or if the views they expressed to me yesterday do not reflect what they really feel may I ask please that today I have complete honesty from everyone. I will be asking similar questions and would like honest and truthful replies please.
I am listing this request / application for hearing at 8.45 so please be in the court building at 815 for all prehearing discussions to be concluded before a prompt 8.45 start. We have already lost a day with all the prehearing applications and that is not in anyone’s interest least of all the child. The case itself must start on time at 9 please.
My clerk Richie will send out the teams invites
Thank you all.
I was alarmed by this. I knew nothing about this case except that it was a parental dispute about access to a child. But for obvious reasons to do with press freedom – and for extremely serious reasons to do with increasing the risks to parties alleging domestic abuse and who may indeed have asked a reporter to attend – I do not believe judges should be quizzing parties or media about – in the words of one high court judge to me – “how you chose this particular case.”
I used to worry about how to reply to judges who asked this question – it is, frankly, none of their business, but how on earth to say so? – but after being placed in too many such invidious situations, I now tend to respond in clear and direct terms. So I replied as follows:
Many thanks for your email.
My email yesterday is not a request or an application to attend. No request or application is necessary as media are entitled to attend this type of family court hearing. We can come in at any time during a hearing, and this is the practice in other courts I have attended. As I am unable to attend in person, I asked for the link. This too is common practice, and I have never to date been refused online or telephone attendance in a family case.
The manner by which a journalist becomes aware of a hearing in a family case, as in any court case, is no concern of the court. It is oppressive to both the media and to parties to ask this question, and it is one that ethically I cannot and will never answer.
If the hearing at 8.45 on the matter of press attendance is to hear argument, I will be pleased to attend and advance my own submissions. I will be asking for permission to report what takes place at that short hearing.
with best wishes
At least, I suppose, HHJ Haigh did not suggest that the parties’ barristers cross-examine me as to my reasons for wanting to attend the hearing, as he had permitted when Suzanne Martin logged on the previous afternoon. I was allowed to stay though nothing relevant had changed between 21 and 22 August.
But as anyone who followed my successful appeal against his later ruling that I should not be permitted to report on the procedural matters that I observed that day, it will be clear that I regarded his attitude to, and decision-making on, scrutiny of his court by two independent journalists to be miles away from what the law demands as a minimum.
Given the level of hostility, ignorance and poor process that Suzanne Martin and I encountered in that Manchester courtroom, I unfortunately now think the absolute basics need restating.
- Journalists have a right to attend hearings like this one, and do not have to make an application to do so.
- They can be excluded only in the circumstances set out in Practice Direction 27B, and the test is that exclusion must be “necessary”.
- It is wrong for judges or advocates to ask a journalist why they wish to attend, how they have come to hear about the case, whether they have been in contact with a party and whether, and what, they propose to report. The appropriate response from a journalist is: “I am entitled to be here unless excluded. I should not be asked such questions and decline to answer them. I am well aware of the limitations on what I can report and, at the right time, will if necessary make an application to report anything for which I need permission.”
I would add that It is a matter of enormous concern to me that, fourteen years after the law was changed in 2009 to entitle journalists to attend, there should continue to be such astonishing ignorance of the rules by judges and advocates of what ought to be well understood by all family judges and practitioners.
This case is also – like too far many others – extremely revealing of the problems (whether founded in defiance, as here, or in ignorance) that the President of the Family Division is faced with in pursuing the reforms which are necessary to allow much, much more all-too-evidently-needed sunlight to stream into into the family courts.
This has been a very long blogpost, and I will write more about the appeal itself later, as well as reflecting on how HHJ Haigh dealt with the mother on both Day 1 and Day 2, when he made a costs order against her.
I will say now though that bringing an appeal was stressful and time-consuming; it would have been expensive too, except that the fee for asking the High Court for permission to appeal was covered by many individual contributions to a crowdfunder, for which I am immensely thankful. HHJ Haigh’s ruling was a case management decision; this meant I was on a 7-day deadline to seek PTA. I had no option but to do so in the middle of a family summer holiday, during which I spent anxious nights and early mornings filling in the application, and working up and then co-ordinating the other parties’ agreement of a note of the Day 2 hearing. I also had to write my own witness statement and consult on my skeleton argument, all in the middle of trying to give my kids a break and not put too much on my partner at a time when we both really needed a holiday.
I was navigated through all the barriers by my excellent and expert counsel Chris Barnes, who thought of everything and missed nothing to give me the best chance of winning. He did it all for free. He gave me many thousands of pounds worth of skilled and experienced legal advice as we worked closely to prepare everything required to allow Mrs Justice Lieven to grasp what had happened in HHJ Haigh’s court that day; at the appeal hearing he represented me adroitly and skilfully to get the best possible outcome. It is down to him that this appeal succeeded, allowing me a) to report what took place on Day 2, b) secure the Day 1 transcript and c) then gain permission to publish it. It is also down to him that there is now case law which should in all but exceedingly rare circumstances prevent judges demanding that journalists and parties tell them how come the media has turned up in court. I could not be more grateful.
Scrutiny from an independent press is a normal, standard part of every other part of our justice system. The reason access to the courts is imperative is so that there are no “closed doors” where biased and unlawful judicial practice can take place unseen and unchecked. There should be no place for prejudiced judges in family courts. And what this transcript shows is that no matter how uncomfortable it may be for the family justice system, and this judge, to face up to the hot mess of this particular hearing, journalists are needed in our family courts – and should be welcomed.
You can read the full transcript here: