Griffiths v Tickle & Ors

This appeal concerned whether a fact-finding Family Court judgment containing findings of domestic abuse should be published with the names of the parents included and only limited redactions to protect the child. The court applied the Re S balancing exercise between Article 8 and Article 10 Convention rights, considered the specific statutory regime governing children’s anonymity (notably section 97 of the Children Act 1989 and section 12 of the Administration of Justice Act 1960), and the relevant Family Procedure Rules and Practice Guidance on transparency and anonymisation.

The Court of Appeal dismissed the appeal. It held that (1) it would not permit the father to raise for the first time on appeal a submission that section 97 requires publication to be authorised only where the welfare of the child positively requires identification (a point the father had conceded below); (2) the High Court judge’s Re S analysis was not legally flawed and did not misapply the primary principles; and (3) on the facts (including the child's very young age, the Guardian's professional assessment in favour of publication, the mother’s support, the father’s decision not to invoke his own Article 8 rights, and the extent of information already in the public domain) Lieven J was entitled to conclude that publication with names, subject to limited redactions to protect the child, was proportionate.

This appeal arose from an application by two journalists for permission to publish a Family Court fact-finding judgment delivered by HHJ Williscroft on 26 November 2020 in proceedings commenced under the Children Act 1989 by the father for contact with his child. The fact-finding judgment contained findings of coercive and sexual abuse by the father against the mother. The hearing and the judgment were in private but accessible to accredited media under the Family Procedure Rules.

The reporters applied to the High Court for an order authorising publication of the judgment. Lieven J heard the applications on 13–14 July 2021 and, applying the approach in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, concluded that publication should be authorised with names, subject to redaction of the child’s identifying details and limited other redactions to protect the child. The judge balanced Article 8 and Article 10 rights, taking into account the public interest in open justice and correction of the father’s earlier public statements, the mother’s wish to speak about her experiences, the Guardian's assessment in favour of publication, and the particular circumstances of the child.

The father appealed. His primary contentions were (i) that section 97 of the Children Act 1989 should be read as permitting identification only where the welfare of the child requires publication (a construction that would make the child’s welfare determinative); and (ii) that Lieven J’s Re S balancing exercise was legally flawed and, in any event, wrong on the facts.

The Court of Appeal refused to allow the father to advance the first point on appeal because it had been expressly conceded below, because the point was of legal significance which ought to be first determined at first instance, and because permitting it would cause prejudice and potentially require further procedure. On the second point the court reviewed Lieven J’s reasoning and concluded that she had correctly applied the Re S framework. The court emphasised that the interests of the child are a primary consideration but not necessarily decisive, and that detailed, evidence-based assessment of the likely impact on the child (including the professional view of the Guardian) is required. Having regard to those factors, the Court of Appeal dismissed the appeal.

Nature of the relief sought: orders authorising publication of a Family Court fact-finding judgment and permitting reporting which would identify the parents (subject to redaction of the child’s identifying details).

Issues framed by the court: (i) whether section 97 of the Children Act 1989 should be construed as permitting identification only when the child’s welfare requires it; (ii) whether the High Court judge correctly applied the Re S balancing exercise between Articles 8 and 10; (iii) whether, on the facts and evidence (including the Guardian’s assessment), the conclusion in favour of publication with names was proportionate.

Reasoning: the court exercised restraint in permitting new points of law to be raised on appeal where they had been conceded below and where deciding them would be tantamount to sitting as a court of first instance or cause prejudice. On the merits of the Re S balancing exercise, Lieven J’s analysis was within the range of reasonable conclusions: she identified relevant Article 10 factors (open justice, correction of public misstatements by a public figure, the mother’s interest in telling her story, and public interest in transparency) and measured the likely impact on the child against evidence including the Guardian’s professional assessment. The appeal was dismissed as the judge’s evaluative exercise disclosed no error of principle or conclusion outside the ambit of reasonable conclusions.

Appeal dismissed. The Court of Appeal refused to allow a new construction point on section 97 to be run for the first time on appeal and held that Lieven J correctly applied the Re S balancing exercise; having conducted an evidence-based assessment (including weight to the Guardian’s professional view) she was entitled to authorise publication with names subject to redaction of identifying details for the child as proportionate and consistent with Articles 8 and 10.

Appeal to the Court of Appeal (Civil Division) from the High Court, Family Division (Lieven J) (Case No. DE19P00318). The fact-finding judgment was delivered by HHJ Williscroft in the Family Court (Derby) on 26 November 2020. Applications to publish the judgment were heard by Lieven J on 13–14 July 2021, her order and reasons dated 30 July 2021. Permission to appeal was granted by Baker LJ. The Court of Appeal heard the appeal on 4 November 2021 and handed down judgment on 10 December 2021 ([2021] EWCA Civ 1882).