Andrew James Griffiths v Louise Tickle & Ors.

Information relating to private Children Act proceedings must not be disclosed unless authorised by the court, the statutory regime or the Family Procedure Rules. Disclosure may constitute contempt where the publisher knows that the information concerns private Children Act proceedings. Knowledge of the legal restrictions is unnecessary.

When deciding under rule 81.6 of the Civil Procedure Rules whether to initiate contempt proceedings, the court may assess the extent and consequences of the disclosure, culpability, mitigation and delay. Proceedings should not be initiated where they would be unnecessary and disproportionate. Lawyers must know and observe the confidentiality rules and should seek the court’s permission in cases of doubt.

The underlying appeal concerned whether a fact-finding judgment from private Children Act proceedings could be published without anonymising the parents. Lieven J permitted publication. The Court of Appeal dismissed the father’s appeal in [2021] EWCA Civ 1882.

This separate judgment addressed leading counsel’s unauthorised disclosure of the father’s appeal skeleton argument and a permission order to an intermediary, who forwarded them to the Association of Lawyers for Children. The court considered whether contempt might have been committed and whether it should initiate proceedings under rule 81.6 of the Civil Procedure Rules.

The court also determined a journalist’s application for permission to report non-personal aspects of counsel’s explanatory note, witness statement and skeleton argument.

1. The reporting application was granted. The relevant proceedings had taken place in public, and counsel’s note and witness statement had been deployed in them. Subject to the exclusions proposed for private information and the intermediary’s identity, the ordinary principle of open justice applied. The same conclusion applied to counsel’s skeleton argument for the hearing.

2. The disclosure of the appeal skeleton argument was a significant breach of the confidentiality regime protecting children in private family proceedings. Dissemination to a limited audience can amount to publication for section 12 of the Administration of Justice Act 1960. Although disclosing the mere existence of proceedings was unobjectionable and the permission order was doubtful, the skeleton argument contained extensive information relating to private Children Act proceedings.

3. The disclosure was not authorised by section 12(4) or the Family Procedure Rules. Rule 12.73(1)(iii), concerning disclosure to a professional legal adviser, extends in context only to an adviser representing an existing party. Rule 12.75(1)(a), which permits confidential communication necessary to obtain support, advice or assistance in conducting proceedings, could not cover an attempt to procure a supportive third-party intervention. Court permission should have been sought.

4. A contempt may be established without proof that the alleged contemnor knew about section 12 or understood its legal effect. It is enough that the person knew the information belonged to a protected category. Counsel knew that the information related to private Children Act proceedings. A contempt therefore may have been committed.

5. The court nevertheless declined to initiate contempt proceedings under rule 81.6. The disclosure and resulting harm were limited. The breach was careless rather than deliberate, counsel apologised promptly, substantial mitigation existed, and delay had occurred through no fault of counsel. Further proceedings would therefore have been unnecessary and disproportionate. The public judgment and the requirement that counsel bear his own costs were a sufficient response.

6. Lawyers in Children Act proceedings have a professional responsibility to learn and observe the disclosure rules. Any doubt should be resolved by applying to the court. Discussion with a third party while a draft judgment remains under embargo is unwise, and strict compliance with an embargo is important.

King LJ agreed with the judgment of Warby LJ.

1. Court of Appeal (Civil Division): By the present judgment, the court granted the reporting application and concluded that contempt may have been committed, but declined to initiate contempt proceedings.

2. Court of Appeal (Civil Division): In [2021] EWCA Civ 1882, the court upheld Lieven J’s decision and dismissed the father’s appeal.

3. High Court, Family Division: Lieven J held that the fact-finding judgment from the private Children Act proceedings could be published without anonymising the mother and father. No neutral citation for that decision is stated.