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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Griffiths v Tickle & Ors  EWCA Civ 1882 (10 December 2021)
Cite as:  EMLR 11,  2 FCR 126,  EWCA Civ 1882
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mrs Justice Lieven
Strand, London, WC2A 2LL
B e f o r e :
(President of the Queen's Bench Division)
LADY JUSTICE KING
LORD JUSTICE WARBY
| ANDREW JAMES GRIFFITHS
|- and -
|(1) LOUISE TICKLE
(2) BRIAN FARMER
(3) KATE ELIZABETH GRIFFITHS
(4) 'G' (A CHILD) THROUGH THEIR GUARDIAN
|- and -
(1) RIGHTS OF WOMEN
(2) ASSOCIATION OF LAWYERS FOR CHILDREN
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
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 2pm on Friday 10 December 2021.
DAME VICTORIA SHARP, P:
The proceedings so far: an outline
The grounds of appeal and our conclusions
The proceedings below
The Williscroft judgment
The positions adopted by the parties at the hearing before Lieven J
The legal and procedural framework
"… amongst the rights protected by Article 8 … is the right, as a human being, to share with others – and, if one so chooses, with the world at large – one's own story…".
"… if a person wishes to reveal publicly information about aspects of his or her relations with other people, which would attract the prima facie protection of privacy rights, any such revelation should be crafted, so far as possible, to protect the other person's privacy"
 EWHC 3003 (QB),  EMLR 10  (affirmed  EWCA Civ 1714,  QB 73 [50-51]). But that is not what this case is about. Here, the relevant relationship is that between the mother and the father. Although the father's privacy rights are engaged, he does not invite the court to attach any weight to them. As an adult with capacity and legal advice, his decision is to be respected. The only privacy rights at issue here are those of the child, and the child has played no part in this "story", which is about the father and the mother.
"Freedom to report the truth is a basic right to which the law gives a very high level of protection … It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another's right to personal safety. The right to report the truth is justification in itself. That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential. But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person's intention."
"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
"There are undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life."
Proceedings about the welfare of a child
Section 12 of the Administration of Justice Act 1960 ("AJA")
Section 97 of the Children Act
"(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—
(a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act … may be exercised by the court with respect to that or any other child; or
(b) an address or school as being that of a child involved in any such proceedings.
(4) The court … may, if satisfied that the welfare of the child requires it …, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order."
"The court has power both to relax and to add to the "automatic restraints". In exercising this jurisdiction the court must conduct the "balancing exercise" described in In re S … and in A Local Authority v W …. This necessitates what Lord Steyn in Re S, , called "an intense focus on the comparative importance of the specific rights being claimed in the individual case". There are, typically, a number of competing interests engaged, protected by arts 6, 8 and 10 of the Convention. I incorporate in this judgment, without further elaboration or quotation, the analyses which I set out in Re B (A Child) (Disclosure)  EWHC 411 (Fam);  2 FLR 142, at , and in Re Webster … at . As Lord Steyn pointed out in Re S, , it is "necessary to measure the nature of the impact … on the child" of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) …."
The judgment of Lieven J
Was the Judge's Re S analysis legally flawed or wrong?
(1) On the first point, the Judge began the relevant section of her judgment by expressly acknowledging that neither Article 10 nor Article 8 has precedence, as such. The argument runs that the conduct of the father – which gives rise to the arguments in favour of disclosure – does not relate to the child, which ought not to be subjected to detriment on account of the conduct of its parent. On one view, this is an attempt to create a rule or principle that prioritises the rights of children over the rights of others in such circumstances. There is no authority for such an approach, which would be contrary to Re S. Alternatively, this is a contention that the Judge placed the wrong weight on the competing rights in this individual case, which cannot qualify as an attack on the lawfulness of her approach. In our judgement, the Judge was loyal to the established principles, and we can see no merit in this part of the father's argument.
(2) The core submission on the second point is that the Judge approached her task on the legally incorrect footing that the fact that the child, as an infant, is unaware of what is presently going on and accordingly has no relevant Article 8 rights. We can see no justification for that criticism. The Judge rightly approached the matter on the footing that the child's rights were engaged, (PJS v News Group Newspapers  AC 1081 ) but not weighty enough in all the circumstances to outweigh the competing considerations. The legal principles are clear from Clayton and Weller, both of which were cited by the Judge. The fallacy in the father's submission is clear: the fact that an objective approach is taken to the privacy rights of a child does not mean that the fact that the child is an infant is to be altogether ignored.
(3) The third point is, on analysis, a complaint about the extent of the disclosure approved rather than a criticism of the decision to allow publication as such. The criticism is that the Judge nowhere specifically addressed the potential impact on the child's welfare of the potential disclosure of this particular facet of the fact-finding judgment. In our judgement, it is clear that the Judge had all these matters firmly in mind. The father did no more than to assert the likely harm that is now relied on. The Guardian made an expert assessment which was to different effect. The Judge made an assessment, on the basis of the evidence and argument before her, that cannot be impugned on the basis now advanced.
The new point on s 97 of the Children Act