The Court of Appeal has confirmed that the parents involved in Children Act 1989 proceedings in a case involving a current and a former MP can be identified in journalistic reporting, even if this will tend to identify the child. The court considered important issues around balancing the right to privacy under Article 8 of the European Convention on Human Rights and the right to freedom of expression under Article 10.
The Griffiths v Tickle case aligns with the general direction of travel for greater transparency in family proceedings, although its particular facts were key to the court’s decision. Our Media Disputes and Divorce and Family teams jointly consider the judgment.
The case at the heart of this application was that of former MP Andrew Griffiths and his ex-wife and current MP Kate Griffiths. Following a hearing in the Family Court, the judge made serious findings of fact against Andrew Griffiths, namely that he perpetrated domestic and sexual abuse against Kate Griffiths. The judge chose not to make the findings public to protect the former couple’s young child.
Two journalists, Louise Tickle and Brian Farmer, then made an application for publication of the fact-finding judgment, including the names of both parents but not that of the child, the wider family or certain intimate details. This would mark a departure from the usual position whereby findings of fact in Family Court cases often remain behind closed doors. The journalists’ application was supported by Kate Griffiths, the guardian appointed to represent the child’s interests and the non-profit organisation Rights of Women, which specialises in providing legal advice to women experiencing or are at risk of experiencing violence.
Before the hearing, Andrew Griffiths based his objection to the application solely on the child’s rights under Article 8 rather than his own. This would prevent the court from doing anything that might identify the child and protect the child’s relationship with him. At the hearing, Andrew Griffiths changed his position. He argued that every detail in the judgment should be published (even the few intimate details that Kate Griffiths had requested be redacted) so long as all names, including his own, were redacted.
The High Court judge disagreed and granted the journalists’ application. Mrs Justice Lieven identified four factors favouring Article 10 and publication, which had been argued by the applicants and supported by Kate Griffiths and Rights of Women. Namely:
- The open justice principle.
- Andrew Griffiths’ role as an MP and minister at the time of many of the allegations.
- Inconsistencies between public statements Andrew Griffiths made in 2018 and the fact-finding judgment gave the media a strong reason to ‘set the record straight’, especially given his role as an MP. Plus, the fact that his untrue statements were made to protect his political career and the gravity of the facts found.
- The public interest in showing the workings of the Family Court, particularly in a case where a man with power and influence was held to account in respect of the abuse of his female partner.
There are some interesting takeaways from the High Court judgment:
- The child’s best interests were plainly a primary consideration but not the primary consideration. Regarding the child’s Article 8 rights, the judge considered the direct impact on the child of publication and any media interest that might follow. She concluded that if the child were older and likely to be on social media or engage with press coverage, she would be very concerned. However, the child’s very young age meant the child had no access to social media and would not have for some time. She considered that explanations would have to be given to the child at an age-appropriate time. In any event, the father’s previous sexting scandal meant some of his behaviour was already in the public domain.
- The mother had “the right to tell her story”, and the mother’s rights were bolstered by the “very unusual” fact that the child’s guardian also supported publication.
- The judge held that there is a “significant public interest” in fully informed, open discussion and debate about domestic abuse and how it is dealt with by the Family Courts. It is usually only those cases in which something has gone wrong that are published. That leads to an erosion of public confidence in the family justice system, which is hugely detrimental to the public interest. The unusual features of this case meant that it offered an opportunity “to slightly redress” that problem.
- The court also considered the point made by Rights of Women that women who do not seek the support of the Family Court are relatively free to speak out about their experiences, subject to the laws of defamation. However, those engaged in Family Court disputes concerning their children are likely to be more restricted about the degree to which they can share information, including within their own support networks. As an MP, Kate Griffiths could speak about these matters in parliament with the protection of parliamentary privilege in any event. She should not otherwise be “silenced” by the court because of Andrew Griffiths’ opposition. Being prevented from speaking publicly due to his opposing publication would be another example of his coercive control.
The Court of Appeal
Andrew Griffiths was granted permission to appeal, although he had limited prospects of success as this was an opportunity for the Court of Appeal to review the current guidelines and law on the relationship between Articles 8 and 10 rights and Children Act proceedings.
The court concluded that his five grounds of appeal could be reduced to two main points.
- That the High Court judge misinterpreted and misapplied section 97 of the Children Act. This was on the basis that its true construction prohibits a court from authorising the publication of anything likely to identify a child as being the subject of proceedings under the Children Act unless it is satisfied that the welfare of the child requires such a publication; and
- In the alternative, the judge’s analysis was legally flawed in relation to Re S (A Child) because it was wrongly biased or weighted in favour of publication and against the child’s interests.
The court disagreed with both these points and concluded that the first instance judge “was clearly right”. In its judgment, the court emphasised the unusual factual circumstances of this case involving two MPs and matters of genuine public interest.
As to point two specifically, in Re S (A Child), the House of Lords considered the balancing exercise to be carried out in relation to Articles 8 and 10. Lord Steyn articulated the following four principles:
“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.”
The Court of Appeal confirmed that the law applicable to this case was clear and had been correctly applied by the High Court judge. The court did not consider it necessary to provide any further guidance. It said:
“Decisions of this kind are inevitably case-specific. The critical factors in this case included:
- The father’s decision not to invoke his own Article 8 rights but to rely exclusively on the rights of the child
- The very young age of the child
- The guardian of the child being in favour of publication
- The mother’s support for publication, and
- The extent and nature of the information about the father that was already in the public domain.”
The general position in the Family Court, in which a reporter can attend a hearing but not automatically report on the proceedings, has a sound policy basis behind it. However, this case demonstrates why this approach can also have an impact on public policy matters such as domestic abuse and the public’s confidence in the justice system.
There is a greater move towards transparency in the Family Courts, particularly following Sir Andrew McFarlane’s ‘Transparency in the Family Courts’ report, and this case aligns with that sentiment. However, it cannot be understated how unusual and important were the facts at the heart of this case. Lord Steyn’s balancing exercise will be carefully conducted on a case-by-case basis. This case is a helpful reminder of this; there should be no one-size-fits-all.
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