How do the family courts balance the competing considerations of:
- Open justice – ensuring legal processes are conducted openly so that the public can see that the courts and judges are doing their jobs properly; and
- Privacy – people turn to the family courts to resolve the most private of matters, including the failure of their relationships and consequential issues such as the future arrangements for their children and the resolution of their financial matters?
Whilst this balancing act raises complicated issues, you might be forgiven for thinking that the law would nonetheless be clear. After all, the law (and family law in particular) is no stranger to needing to weigh up difficult issues of principle. We have clear laws about the obligations created by marriage and about reproductive technology, to pick a couple of examples, despite these issues being less than straightforward. You would also hope that judges would be aware of and in agreement as to what the law is.
That is, unfortunately, not always the case.
Instead, what happens in the family courts when it comes to whether a reporter is allowed into a hearing, what documents the reporter is allowed to see, and whether the parties will be permitted to remain anonymous in any press (or judicial) reports is a matter of practice. The answer might depend on geography, the level of judiciary involved or even which individual judge hears the case.
This is, to a large extent, a result of our common law system. Laws are not, like they are in many other countries, contained in a single and unified 'code'. There is a certain amount of codification in the form of legislation, but there is then a further body of case law which involves the courts following and applying principles to be found in previous court decisions. So even judges sometimes have to look quite hard to find the law!
The latest illustration of this isTickle v Father and others[2023] EWHC 2446 (Fam), reported this month. Proceedings concerning children in the Family Court are ordinarily heard in private, as the hearing before the Judge was. Louise Tickle, a journalist with a particular interest in family law, had sat in on the second day of a highly contentious 4-day hearing about the arrangements for a 5 year old child. She applied to the judge to report some elements of what she had observed on that day. She made it clear that her aim was to report procedural and systemic issues, including: the culture of the Family Justice System's interaction with the media; practical difficulties arising due to the lack of legal aid provision; and problems being caused by cases being delayed/adjourned with more time needing to be found for them at a later date. Importantly, she did not wish to report any of the substantive issues. She did not wish to identify the parties, the child's school or indeed anything at all about the child. The judge nonetheless refused to allow Ms Tickle to report anything at this stage, saying it carried a significant risk to the welfare of the child.
Ms Tickle appealed to the High Court. The High Court said that the first judge had been wrong in law. He had essentially slipped up by giving the child's welfare the function of an automatic veto over any reporting. What was instead necessary was an intense focus on the competing interests of respect for the particular family's private life on the one hand; and Ms Tickle's freedom of expression (including the specifics of what she wanted to report) on the other. A judge should not conduct this exercise mechanically on the basis of rival generalities.
Ms Tickle was therefore allowed, after her appeal, to report what she had observed, but a month after she had observed it.
This case has changed nothing about the law. Reporters in no way had or now have carte blanche to publish gossip or tittle tattle about people's private family lives, in particular about children who have little or no say about whether their parents turn to the family courts. One of the rationales behind the decision of the High Court was that there was no possibility that the parties could be identified and the journalist was clear that this was not her objective.
The case confirms that reporting should be allowed, particularly where there are public interest considerations. It is important to note that Ms Tickle wanted to specifically report on the procedure in the family courts and the issues arising out of the increasing lack of legal aid. These are genuine wider issues of public interest - not idle celebrity gossip. Furthermore, appropriate restrictions on what can be reported are essential in order to maintain the integrity of privacy within the family court system and to prevent the press from being used as a reputational battlefield between parties. The widely known principle that the courts should not require a journalist to reveal its sources was reaffirmed. Interestingly however, the High Court implied some limitations including that it may wish to inquire into the background to an application to report, if it becomes concerned that one party is seeking to use reporting as a litigation strategy. It will be interesting to see how this is tested in the future.
There is currently a "reporting pilot" in Cardiff, Leeds and Carlisle which allows some children cases to be reported, while preserving the anonymity of the child through a court order known as a Transparency Order. It is hoped that experience of the pilot may lead to clearer rules and a better understanding of them.
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