Andrew James Griffiths v Louise Tickle
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp, P |
| Judgment Date | 10 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1882 |
| Docket Number | Case No: CA-2021-000713 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1882
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mrs Justice Lieven
Case No. DE19P00318
Royal Courts of Justice
Strand, London, WC2A 2LL
Dame Victoria Sharp
(President of the Queen's Bench Division)
Lady Justice King
and
Lord Justice Warby
Case No: CA-2021-000713
and
Richard Clayton QC, Victoria Edmonds and Kate O'Raghallaigh (instructed by Griffins Law) for the Appellant
Lucy Reed (instructed by direct access) for the First Respondent
The Second Respondent in person
Dr Charlotte Proudman (instructed by Nelsons) for the Third Respondent
Deirdre Fottrell QC and Timothy Bowe (instructed by Moseleys Solicitors) for the Fourth Respondent
Caoilfhionn Gallagher QC, Chris Barnes and Charlotte Baker (instructed by Rights of Women) for the First Intervener
Denise Gilling QC, Victoria Roberts and Lucy Maxwell (instructed by TV Edwards LLP) for the Second Intervener
Hearing date: 4 November 2021
Approved Judgment
This is an appeal against a decision of the High Court that a fact-finding judgment in proceedings under the Children Act 1989 (“the Children Act”) should be published with the names of the father and the mother included, and only relatively modest redactions, primarily aimed at mitigating the impact of publication on the couple's infant child. The appellant is the father, against whom findings were made. He accepts that the judgment can be published but contends that the interests of the child make it necessary that he, the mother, and the child should all be anonymised and that there should be additional redaction of some details.
This is the judgment of the court.
The proceedings so far: an outline
The judgment at issue was delivered by HHJ Williscroft on 26 November 2020, in the Family Court at Derby, in the course of proceedings initiated by the father. He was seeking orders under s 8 of the Children Act to allow him to spend time with the child. His application was resisted by the mother. The Judge held a fact-finding hearing at which she considered evidence in the form of documents, photographs and a video recording, and heard the mother and father give oral evidence. In the judgment, which runs to some 10,000 words, the Judge made findings of domestic abuse against the father which we will summarise later. The father has not sought to appeal against those findings. The hearing and the judgment were in private, but open to accredited media representatives, as is the norm for proceedings of this kind under Rule 27.11(2)(f) of the Family Procedure Rules (“FPR”).
No media representative did attend, but in February 2021 two reporters, Louise Tickle and Brian Farmer, each applied for an order authorising the publication of the judgment. The applications were heard in the High Court by Lieven J, on 13 and 14 July 2021. They were supported by the mother. The applications were also, eventually, supported by the Guardian appointed to represent the interests of the child. The organisation Rights of Women (“RoW”) was given permission to intervene. It also supported the reporters' applications.
The father resisted the applications. His final position was that he did not oppose publication of the factual content of the judgment as such. But he opposed the inclusion of any matter that would lead to the identification of him, the mother, or the child. He said they should all be anonymised. He also opposed publication of some of the detail of the factual findings. He did not assert any privacy rights or other countervailing rights of his own. His case was that these restrictions on publication were necessary in order to protect the child, whose rights and interests outweighed any competing factors.
By an order dated 30 July 2021 Lieven J granted the applications to the extent we have indicated. She set out her reasons in her judgment of the same date. She approached the matter on the agreed basis that her task was to strike a balance between rights that favoured publication and the rights of the child to respect for its private and family life, applying the principles set out by the House of Lords in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593 (“ Re S”). She conducted a fact-sensitive scrutiny of the competing considerations. She considered and evaluated various factors that tended to favour publication. She listed and considered various aspects of the rights and interests of the child. Balancing these factors against one another, and applying a proportionality test to each, she concluded that the balance came down in favour of publication with names. Lieven J directed that the judgment of HHJ Williscroft should be published in redacted form on condition that the child must not be identified by name, sex, or date of birth and that the redacted parts of the judgment must not otherwise be published.
Permission to appeal was granted by Baker LJ on the footing that although an appeal had only limited prospects of success, there were compelling reasons for an appeal to be heard, within the meaning of CPR 52.6(1)(b). We heard the appeal in public, but to ensure that this did not defeat the entire purpose of the appeal we made an anonymity order in respect of the father, mother and child, to prevent public disclosure of identifying information until after we had given judgment. We heard oral argument on behalf of the appellant father, Ms Tickle, the mother, and the Guardian, and from Mr Farmer in person. Prior to the hearing of this appeal, RoW were given permission to intervene, as were the Association of Lawyers for Children, a national association of lawyers working in the field of children law. The interveners did not appear by Counsel at the hearing, but provided written submissions.
The grounds of appeal and our conclusions
The father's five grounds of appeal can be reduced to two main points.
The first is that Lieven J's approach was wrong in law because she misinterpreted and misapplied section 97 of the Children Act. On its face and on its true construction, section 97, so it is said, prohibits a court from authorising the publication of anything likely to identify a child as being the subject of proceedings under the Children Act unless it is satisfied that the welfare of the child requires such a publication. Put another way, the father's contention is that the statute provides for the welfare of the child to trump any other consideration.
This represents a complete change of position by the father. Before Lieven J he expressly conceded that, as earlier decisions had held, this is not the correct way to interpret and apply s 97 of the Children Act. This meant that Lieven J's legal approach to this issue was one that by the end of the hearing before her, was agreed on all sides to be correct. In the circumstances, it was argued before us, by several of those appearing, that the father should not be allowed to rely on this new argument in this appeal. The father accepted that, as a first step, he had to persuade us to allow this. The Court can allow a new point to be argued on appeal even where it was expressly conceded below, but this is a discretion to be exercised cautiously. We heard the father's argument on the merits of this point de bene esse. Having reflected on the matter, we decline to allow the father to rely on this ground of appeal.
We set out our reasons for this conclusion in more detail later on in this judgment. In summary, however, in our view there is no good reason why the construction argument, if sound, should not have been taken before the Judge, and if it had been, it is inevitable that the proceedings below would have been conducted differently. The point moreover is of some legal and practical importance, and is one on which it would be undesirable for the Court of Appeal to sit (in effect) as the court of first instance. The father's challenge, if sound, might lead to a conclusion that section 97 is incompatible with the rights of others, guaranteed by the European Convention on Human Rights (“the Convention”); and if we were to permit him to mount this challenge before us, at least one further hearing would be needed. In all the circumstances we are clearly of the view that it would be unfair to the respondents and contrary to the interests of justice more generally to allow the father to rely on the new point.
The father's second main point is that, in the alternative, the Re S analysis conducted by Lieven J was legally flawed. It is said that in various ways her approach was wrongly biased or weighted in favour of publication and against the interests of the child; that her approach to the evaluation of the child's best interests was fundamentally wrong; and that she should have found that those interests prevailed. These criticisms of the judgment below are disputed by the journalists, the mother, the child's Guardian, and RoW. We reject these various criticisms on their merits. Again, we will expand on our reasons later on in this judgment, but in summary, they are these.
This court will not interfere with an evaluative exercise of this kind unless it is satisfied that the judge erred in principle or reached a conclusion that was wrong. Neither criterion is satisfied here. The father's criticisms of...
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