Griffiths v Tickle & Ors

In deciding whether to permit publication of a family judgment that may indirectly identify a child, the court must apply the Re S ultimate balancing test. Neither Article 8 nor Article 10 has automatic priority. The court must assess, on evidence and by reference to the particular facts, the comparative importance of the rights, the justification for restricting each right, and proportionality.

A child’s best interests are a primary, but not paramount, consideration. A child’s privacy rights are engaged even where the child is too young to understand publicity, but harm must not be presumed. An appellate court will not disturb the resulting evaluative judgment absent an error of principle or a conclusion outside the range reasonably open to the judge.

The father appealed against Lieven J’s order of 30 July 2021 permitting publication, with limited redactions, of a Family Court fact-finding judgment concerning his application for child-arrangements orders under Children Act 1989. The fact-finding judge had made unchallenged findings of domestic abuse against him.

Two journalists sought permission to publish the judgment. The mother, the child’s Guardian and an intervener supported publication. The father accepted publication in principle, but contended that the parents and child had to be anonymised and that further factual redactions were required to protect the child.

The appeal raised whether Lieven J had erred in applying the Article 8 and Article 10 balancing exercise in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, and whether the father could advance for the first time a contrary construction of section 97 of the Act.

1. Appeal dismissed. Lieven J correctly authorised publication of the fact-finding judgment with the child’s name, sex, date of birth and other identifying details redacted. The court also refused the father permission to appeal to the Supreme Court and a stay.

2. The governing approach was the ultimate balancing test in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47. Article 8 and Article 10 have no automatic precedence. The court must focus intensely on the specific rights, consider the justification for restricting each, and apply proportionality to both. The child’s best interests are a primary, but not paramount, consideration.

3. The judge below did not presume that the child’s privacy rights were absent because of the child’s infancy. She properly assessed their objective impact on the evidence. The child’s young age remained relevant to the weight of that impact. The Guardian’s professional assessment, the mother’s support for publication, the limited redactions, the father’s decision not to rely on his own privacy rights, the public interest in open justice, and the need to correct his false public statements were all relevant factors.

4. There was no error of principle in Lieven J’s evaluation and her conclusion was plainly open to her. The father’s arguments impermissibly treated the appeal as a rehearing, assumed harm without evidence, and gave insufficient weight to the mother’s rights and to the Article 10 interests in publication.

5. The father could not raise a new challenge to the construction of section 97 on appeal after having conceded the point below. The discretion to admit a new point is exercised cautiously. This proposed point had substantial legal and practical consequences, could and should have been raised at first instance, and its late introduction would unfairly prejudice the respondents and potentially require further proceedings. The court expressed a provisional view that Re Webster; Norfolk County Council v Webster [2006] EWHC 2733 correctly construed section 97(4), but did not determine that issue.

• Court of Appeal (Civil Division): Dismissed the father’s appeal and upheld Lieven J’s order permitting publication subject to redactions protecting the child: [2021] EWCA Civ 1882.
• High Court of Justice, Family Division: Lieven J, on 30 July 2021, authorised publication of the Family Court fact-finding judgment with limited redactions.
• Family Court at Derby: HHJ Williscroft, on 26 November 2020, made fact-findings in private proceedings under Children Act 1989.