Successful appeal by Family Law journalist achieves reporting rights

On 5^th October 2023 freelance family law journalist Louise Tickle secured a significant victory in appealing restrictions preventing her from reporting a family law case in Manchester.

Mrs Justice Lieven explained the issue was whether ‘the Judge erred in law in his application of the balance between Ms Tickle’s rights to report under Article 10 European Convention of Human Rights (“ECHR”) and the child and family’s right to privacy under Article 8 ECHR.’

The case is Tickle v Father & Ors [2023] EWHC 2446 (Fam) (05 October 2023 with the ruling available online at: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Fam/2023/2446.html

The case was reported by Press Gazette 9^th October 2023 ‘Freelance journalist wins solo High Court fight to shine light on family courts..’ See: https://pressgazette.co.uk/media_law/freelance-journalist-wins-solo-high-court-fight-to-shine-light-on-family-courts/

The case was described as ‘highly contentious private family law proceedings concerning a child under the age of 5’ where there are ‘there are allegations of domestic abuse and “parental alienation” in the factual mix.’

Louise Tickle agreed to maintain anonymity for the child involved and adult parties, but wanted to report ‘the significant issues of public interest’ which were: 

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.’

At paragraphs 49 and 50 of her ruling Mrs Justice Lieven reiterated: ‘…there is a public interest in the reporting of cases in the Family Courts. This is made clear in the report of the President of the Family Division (Sir Andrew McFarlane) in his report Confidence and Confidentiality: Transparency in the Family Courts (21 October 2021).

At paragraph 22 the President said: “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: …”

The Report goes on to refer to the genuine and legitimate public interest in the Family Justice System for the purposes of gaining public confidence in the system, and greater knowledge and understanding of issues such as domestic abuse, see [30].

In my view it is relevant that because most Family Court cases are held in private and with no reporting, there is less knowledge or understanding of the challenges facing the Family Justice System than those facing the Criminal Justice System. There is a very real public interest in there being greater understanding of the work done by the Family Courts.’

Mrs Justice Lieven said: ‘I conclude that the Judge erred in law. The decision to adjourn the reporting application was a case management decision and as such the Court should ordinarily be very slow to intervene … However, a decision on reporting is rather different from most case management decisions because it interferes with an Article 10 right and in practice may prevent that journalist from reporting at all.’

At paragraph 54 she said: ‘In my view, the Judge here did not apply the Article 8/10 balance in a legally appropriate manner. On the Article 8 side of the balance he did not address his mind to the fact that given the restrictions that Ms Tickle proposed, there was no possibility of the child or parents being identified.

She did not seek to report any of the evidence and any of the factual matrix beyond the greatest of generalities. As such, it put the case well outside the norm of what is sought to be reported. The Judge in his consideration simply did not engage with the scope of the limitations Ms Tickle was proposing. As such, “confidentiality” or “anonymity” did not arise in any meaningful way on the facts of the case.’

In conclusion, the judged ruled: ‘I take the view that this is a case where the Article 8/10 balance, and taking into account any impacts on Article 6 rights, points clearly in favour of allowing report. In very brief summary, there is effectively no risk of the child being identified.

There is a strong public interest in allowing Ms Tickle to report the generic concerns about the Family Justice System which arise. There is no interference in any parties’ Article 6 rights. I will therefore allow the appeal and allow the application.’

The case has been analysed by media lawyer Eloise Spensley for the Hold The Front Page Jaffa Law Column 11th October 2023 ‘No party holds a veto on reporting in the Family Court’ at: https://www.holdthefrontpage.co.uk/2023/news/law-column-no-party-holds-a-veto-on-reporting-in-the-family-court/.

She said: ‘Lieven J. took the view that the judge in the original case at Manchester had failed to carry out the balancing exercise between the rights of privacy and freedom of expression appropriately.

She further stated that it is rarely, though not never, relevant for a Judge to consider why a reporter is seeking to report on a matter.

It is not for the Court to consider the quality or fairness of any coverage. In a statement certain to be welcomed by editors across the nation, the Judge held that “the court is not an arbiter of the editorial content of reporting”.

Ms Spensley added: ‘Lieven J. went on to say that there was a clear and strong public interest in reporting the case and that whilst the father may well identify his own case in a generic report, that did not constitute grounds on which to refuse reporting.’

She underlines how the ruling ‘demonstrates a sign of commitment from the Judiciary to the issue of improved transparency in the family courts and further highlights the importance of the principle of open justice, particularly in relation to the significant public interest in reporting cases heard within the family court.’

In the Press Gazette article reporting her successful appeal Louise Tickle explained: ‘I could tell quickly that this judge and this court were not friendly to journalists.[The judge] tried to find out how I found out about the case. He asked the parties, a separated couple, if they had been in touch with me.

Anybody is allowed to tell a journalist they have a case, but they can’t tell them the details. I told him I was not prepared to answer those questions and there was a rather fractious hearing. I used the chat function on the Teams call to say I was going to make an application to report on the case but the judge said “no.”’

Louise Tickle’s first novel titled ‘Between the Lies’ and described as a thriller which draws on her experience of covering family disputes was published 19^th October 2023.

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