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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Tickle v Father & Ors  EWHC 2446 (Fam) (05 October 2023)
Cite as:  EWHC 2446 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| LOUISE TICKLE
|- and -
(by their Children's Guardian)
The First Respondent represented himself
Dr Charlotte Proudman (instructed by Nelsons Solicitors) for the Second Respondent
Ms Rehana Begum (instructed by Butcher Barlow LLP) for the Third Respondent
Hearing dates: 26 September 2023
Crown Copyright ©
Mrs Justice Lieven DBE :
a. Initially heard argument in relation to Ms Tickle's attendance: this was opposed, unsuccessfully, by the Father and Guardian;
b. Heard an application to adjourn the final hearing made on behalf of the Mother: this application was granted;
c. Heard an application in respect of the Father's costs (framed as an application for 'wasted costs'): this application was granted and an order for costs was made against the Mother summarily assessed in the sum of £7,000 plus VAT; and
d. Heard Ms Tickle's application for the relaxation of reporting restrictions to permit reporting of the hearing: this application was adjourned (a course supported by the Guardian and the Father).
"[12.45] Louise Tickle (Guest)
I would like to make an application to report a) the submissions to and against media presence in court and the judge's decision and ruling plus permission to see the bundle, and b) the substantive matter from this hearing, ie, that the mother arrived at court as an LiP yesterday, discovered that the father was represented which I gather from what I have heard in court today she was not aware of, and this morning made an without notice application to adjourn the hearing. I would like to report the position of father and guardian, the judge's decision to permit the adjournment, plus reasons. Re anonymity: as well as of course no names, schools, there is no need for me to mention anything in relation to the child including any indication of their sex or age, other than that this is a case relating to child contact post parental separation."
a. Ms Tickle was permitted, by the Judge, to pursue her application orally. In the course of those submissions Ms Tickle set out the significant issues of public interest upon which her application to report was based:
i. Continuing practical difficulties arising due to the lack of legal aid provision;
ii. The disruption caused to private law applications concerning children;
iii. Problems for the court system, and other families within the court system, of delays/adjournments where time has to be found for cases;
iv. Issues regarding transparency and media attendance, including the culture of the Family Justice System's interaction with/response to the media, especially in the context of the ongoing Transparency Pilot.
The Judge's Decision
"The reason is this it's context and it's understanding. Having a report of this case, limited to just the things that have happened over the last two days would be on any view incomplete. It would lack context and carry a significant risk of being misleading. We are, as Miss Tickle rightly says, looking at very, very important issues. We're looking at courts, the problems that people have with funding these cases. We are looking at how litigants in person cope with this challenging process.
We're looking at how the courts are coping under the stress of this work. We're looking at the most complex of family circumstances where, as we know, this case involves two outcomes, including one possibility of finding parental alienation, which is a terrible place to find yourself with a family. Or alternatively, we're looking at the loss to a small little [child] of one important parental figure possibly for the whole of [their] childhood. And whilst I'm not going to foreshadow what ultimately my decision will be, together with I'm sure another application to report everything else that's happened.
At the end of the proceedings, I'm going to say that I share the concerns of what has been spoken of. But at the end of the case everything can be put in context particularly from the perspective of the child. And that's my concern. So I am going to adjourn this application until the conclusion of the proceedings when I've heard the evidence and given judgement and we can renew it with any other applications that are made at that moment in time. I don't want anyone to think that this decision foreshadows what the outcome of that will be; it will be determined on its merits at the time. Okay."
" But I'm not restricting you in what you are entitled to report. What you report is what you will report. I will deal with the application, your application at this moment in time and any future ones at one moment in time. At one hearing, and this application is adjourned to that hearing, what you then decide to report, if I give you (permission to) report, if I lift reporting restrictions, is entirely up to you. You can report what happened today. You can report all of it. I will exercise no controls over that whatsoever. And for the sake of eight weeks, which is all we're talking about. That seems to me is the right thing to do.
Because I think from my knowledge of the case, and you may when you've read the trial bundle in detail, perhaps come around to the same view, which is that there are many things in this case that are deserving of reporting And if that is the case, we need to look at it holistically, contextually and completely. And that is best at the conclusion of the case. But I emphasise what you choose to report in the light of any order that I make, assuming I make an order, is a matter entirely within your journalistic discretion."
"7. Ms Tickle's case in short is that I did not properly balance the article 8 and 10 rights of all concerned, balance the risk of harm to the child against the public interest in her publishing what she describes as matters of considerable public interest: the predicament those involves in private law childcare proceedings face following the withdrawal, many years ago, of legal aid and issues concerning press attendance.
8. Ms Wilson for the guardian answers those points in her submissions which are detailed, and which I broadly agree with.
9. A decision to adjourn an application is a case management decision. It is not a final decision. I made clear that it would be properly considered at the conclusion of the proceedings with what had been intimated by Ms Tickle was a further application to be made at that stage to report the final hearing.
10. Case management decisions unlike decisions made at a final hearing carry a margin of discretion, particularly those in which an application is simply adjourned in contrast with ones in which the case management decision is a final on the issue. For an appeal to be successful an appellant must show that the decision made is outside the reasonable and wide bounds of a discretionary case management decision. I do not believe this decision was.
11. I recall considering expressly (or by inference within the reasoning) and balancing the article 8 and article 10 rights of all parties including the child and in the case of article 10 the APR's.
12. This is a terribly sad case in which a [ ] child faces either the loss of a relationship with a father who professes to love [them], probably for the whole of [their] childhood, or in the event of the evidence of parental alienation by mother the possibility of seeing a primary attachment with mother being severed. Each outcome carries with it the risk of emotional harm.
13. I think I acknowledged that it was very likely at the conclusion of the final hearing a judgment would be published and that it may be appropriate for some form of relaxation of reporting restrictions. Much would turn on what emerged from the evidence, the courts conclusions, and full holistic evaluation of the engaged rights of all.
14. I was clear that partial reporting in advance of the evidence being heard would likely be prejudicial to all the parties, the forensic process at the final hearing, and through that carry with it a significant risk to the welfare of the child. I felt it carried a significant risk of conveying a distorted and incomplete picture which would only be clear when all the evidence had been heard.
15. I do not agree with the proposition that it is a matter for the media rather than the court when information concerning a private law children case is to be reported. That is inconsistent with the rules and statutory provisions. If reporting restrictions are relaxed however I agree it is then a matter for the press, subject to compliance with rules on anonymity, to decide what they wish to report. That is legitimate journalistic discretion.
16. Concerning the two decisions initially to withdraw but then refuse to withdraw rights of attendance this is not a significant point. Between the two days the facts had changed. So the decision did: mother's position shifted from being neutral on press attendance to strongly supporting it. Day 2 was very different to day 1."
The Law to be applied
"3. The short answer is that 'necessary' means necessary. It is, after all, an ordinary English word. It is a familiar expression nowadays in family law, not least because of the central role it plays, for example, in Article 8 of the European Convention and the wider Strasbourg jurisprudence. If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, paras , . This court said it "has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable." "
"Article 6 Right to a fair trial
1. In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Article 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10 Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"27. The right to freedom of expression, protected by Article 10 of the Convention, encompasses a right to speak to others, including the public at large, about the events and experiences of one's private and family life. As Munby J (as he then was) pointed out in Re Angela Roddy  EWHC 2927 (Fam),  EMLR 8 [35-36] this is also a facet of the right to respect for private and family life:
" 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 ".
28. Corresponding to the right of an individual to impart information about his or her private and family life, without interference by a public authority, is the fundamental right of others to receive such information, without such interference. That is a right enjoyed by the media parties here, as well as the general public.
34. Other considerations may come into play when information is disclosed or ascertained in the course of legal proceedings. The court is directly involved and in control of the process. It has the ability and the right to control the flow of information. As a public authority it has a duty to do so in a way that is compatible with the Convention rights - which in this context include the fair trial rights guaranteed by Article 6 as well as those protected by Articles 8 and 10. But the firmly established starting point in the domestic jurisprudence is the principle of open justice. The general rule is that proceedings are held in public and what is said, including the names of the parties and witnesses, can be observed and reported. In a case which involves the "determination" of criminal liability or civil rights and obligations, Article 6 confers on each party to litigation the right to a public hearing and a public judgment. Publicity for what goes on in court may be embarrassing and painful for those involved and third parties who are indirectly and incidentally affected but in general, "the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public": Khuja v Times Newspapers Ltd  UKSC 49,  AC [34(2)].
35. The open justice principle and the related rights under Articles 6 and 10 are all subject to exceptions, but these are narrow and circumscribed and their application in an individual case requires strict justification. The category of exception that is relevant here is the need to protect private and family life rights, including in particular the rights of children. This was to the fore in Re S, where a mother was charged with the murder of one of her children. S, aged 5, was the brother of the deceased. The Guardian of S, concerned that reporting of the criminal trial would be seriously detrimental to S's welfare, sought an order for the mother and both children to be anonymised in any such reporting. The application was ultimately refused by the High Court, and appeals were dismissed by this Court and the House of Lords.
36. The House held that the jurisdiction to restrain publicity to protect a child's private and family life was now founded upon the Convention Rights. In a case where the child was not a party or witness and the interference with his Article 8 rights was indirect there was no justification for creating any new category of exception to the normal rule of open justice or otherwise interfering with free reporting of the trial. At , Lord Steyn famously identified four key propositions as to how the court should address a conflict between Articles 8 and 10. The passage is very familiar, but because it is so important to the present appeal we cite it:
"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."
37. The "intense focus" must be brought to bear on the particular facts of the case. As Sir Mark Potter, P, memorably put it, the Re S approach "is not a mechanical exercise to be decided on the basis of rival generalities": A Local Authority v W  EWHC 1564 (Fam),  1 FLR 1 .
38. The four propositions distilled by Lord Steyn in Re S were derived from the earlier decision of the House in Campbell v MGN Ltd  UKHL 22,  2 AC 457. There, the House explored the interplay between Articles 8 and 10 in the context of a complaint about press disclosure of the claimant's drug taking and rehabilitation. In the course of so doing, the House affirmed a principle of relevance to the present case. The claimant had falsely denied taking drugs. As Lord Hope put it at , "where a public figure chooses to make untrue pronouncements about his or her private life, the press will normally be entitled to put the record straight". (See also, to similar effect, Lord Hoffmann at  and Baroness Hale at : "The press must be free to expose the truth and put the record straight"). The reporters rely on this principle as providing a public interest justification for the disclosure of at least parts of the judgment of HHJ Williscroft.
39. Campbell is also important for what it says about the hierarchy of different kinds of speech. As Baroness Hale said at :
"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."
40. Another factor relevant to the assessment of the comparative importance or weight of the specific rights in play in a Re S balancing exercise is the extent to which the information, the disclosure of which is under consideration, has or is about to become available to the public. Section 12(4)(a)(i) of the Human Rights Act 1998 ("HRA") requires the court to have regard to this factor, when considering whether to make an order which affects the right to freedom of expression, in proceedings that relate to journalistic material. This will be a relevant factor in decisions about publication of a judgment, whether or not the statutory wording is strictly applicable. It is obvious that where disclosure of the same information has already taken place, or is imminent, the case for keeping the judgment private is weakened."
"71. The critical question, therefore, is whether the best interests of the child, treated as a primary consideration, are weighty enough to justify maintaining that fetter, during the course of the proceedings under s 97(2) Children Act, and indefinitely as a consequence of s 12 AJA. Put another way, do the child's best interests make it necessary and proportionate to impose those restrictions on the Article 8 and 10 rights relied on by the applicants and the mother? "
"81. The application for permission is therefore totally without merit. It is in these highly unusual circumstances that we have addressed the application for a stay. A stay would be a further interference with Article 8 and 10 rights, requiring justification. We consider it wholly unarguable that such an interference could be justified."
"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 (Identification: Restrictions on Publication)  UKHL 47,  1 AC 593,  1 FLR 591, and in A Local Authority v W, L, W, T and R (by the Children's Guardian)  EWHC 1564 (Fam),  1 FLR 1. This necessitates what Lord Steyn in Re S, para , 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 Articles 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 para , and in Re Webster; Norfolk County Council v Webster and Others  EWHC 2733 (Fam),  1 FLR 1146, at para . As Lord Steyn pointed out in Re S, para , 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) v Secretary of State for the Home Department  UKSC 4,  2 AC 166, para ."
a. Where a reporter has attended a hearing pursuant to FPR r.27.11 an application to vary the automatic statutory reporting restrictions "can be made orally, whether or not notice has been given in advance to the court that is hearing the case. Although such notice is encouraged it can, for example, be given by way of an email to the court office or the judge's clerk, which has been copied to the parties" [8(b)];
b. Court should "be astute to assist reporters seeking to attend a hearing, or to relax reporting restrictions, and should provide them with relevant contact details of the court office, the judge's clerk and the parties where requested (unless there is good reason not to do so)" [8(d)]; and
c. Where agreement cannot be reached on varying reporting restrictions "the reporter should be invited to make oral submissions. The court, and any advocate appearing for parties to the proceedings, should provide assistance in terms of the relevant law and procedure to be followed. Any party opposing the application may then make submissions. The reporter should then be given an opportunity to reply" 
"Now, Louis Brandeis, US Supreme Court Justice, famously noted over a century ago now that 'Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.' This is usually shortened to the pithier 'sunlight is the greatest disinfectant'. Where court proceedings are concerned, he was without doubt correct. Open justice may not often be thought of as one of the most important principles that underpins fair trials and the proper administration of justice. The focus is on the right to due notice, to an adversarial process, and equality of arms. It is on the right to submit and test evidence and to participate effectively in proceedings. But the ultimate guarantee of all these principles is open justice. Without it they would not last long as meaningful principles. Nor would our courts and judiciaries maintain public confidence and legitimacy. Open justice is a necessary foundation of the rule of law. That is why we should all give very careful thought in the years to come, as technology continues to reshape our justice systems, to maintaining and, more importantly, enhancing how we give effect to open justice."
"The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects. In short, the reasons for this conclusion are as follows: "