A decision made in the Family Division of the High Court, upheld by the Court of Appeal at the end of last year (Griffiths v. Tickle) has provided a useful insight into the approach of the courts to determining how much, if any, of a case involving children can be reported.

Though very fact-specific, the case lends further support to the view that the Family court is opening itself up to a more transparent approach.

Within the course of proceedings relating to a father’s application to spend time with his young child, a fact finding hearing took place which explored allegations of serious and sustained domestic violence carried out by the father against the mother, ex-wife, over a period of 10 years during their marriage.

The father was former Conservative Minister and MP Andrew Griffiths.  The mother, his ex-wife, is MP Kate Griffiths.

The hearing and delivery of the judgment were held privately, as is the norm for findings of fact in such proceedings.  However, two very experienced family court journalists applied to publish details of the judgment, including the identities of the parties, primarily to “set the record straight” as both parties were, and are, high profile individuals in the UK, and the image presented of the father in public was inconsistent with the findings that had been made.

Mr. Griffiths initially sought to resist the application based entirely on the Article 8 rights to privacy of the child.  However, he later changed his position, instead arguing that whilst details of the judgment should be published, the identities of the parties should remain confidential.

In making her ruling, Mrs. Justice Lieven identified four key factors which favoured publication of the judgment under Article 10:

1. The principle of open justice;
2. Griffith’s high profile professional role;
3. The inconsistencies in the image of him that had been presented to the public in the media previously as compared to the matters determined in the fact-finding hearing; and
4. The public interest in shining a light on the inner workings of the Family Court, particularly in a case where the participants were high profile individuals.

Lieven J. also noted that Mrs. Griffiths had a right to tell her story, a right which she would have been denied were the judgment to remain unreported.  Both she and the Guardian of the child were supportive of the media’s application to publish the details of the judgment.

Following the judgment, Mr. Griffith appealed to the Court of Appeal, where he argued first, the Judge’s approach had been wrong as a matter of law, because she had misinterpreted section 97 of the Children Act; and second, the judge had relied too heavily in favour of publication and against the interests of the child.

The Court of Appeal dismissed his appeals, and determined that the original judge had correctly identified the well-established principles to be applied; had taken account of all relevant matters; and had not take account of anything that was immaterial.  The appeal court decided that the judge’s reasoning had been correct, and considered that Mr. Griffith’s  criticisms were in reality a disagreement with the conclusions that the Judge had reached.

Mirroring the reasoning of Lieven J., the Court of Appeal said that the key factors were:

1. the father’s decision not to invoke his own Article 8 rights but to rely exclusively on the rights of the child;
2. the very young age of the child;
3. the mother’s support for publication;
4. the Guardian’s professional assessment, in support of publication; and
5. the wide ranging information about the father which is already in the public domain.

The issue of transparency in the Family court received further attention last week, when the President of the Family Division, Sir Andrew McFarlane, gave evidence to the Justice Select Committee, which is inquiring into open justice and court reporting in the digital age.

Sir Andrew told MPs that it is “not tenable” for reporting of family proceedings to be effectively prevented by automatic statutory reporting restrictions, saying that “there must be a way of allowing openness … yet maintain the anonymity of the individuals involved”.

The hearing was part of the Select Committee’s review following the publication (last October) of a report by Sir Andrew on transparency in family proceedings, in which he said openness should be regarded as ‘the new norm’.

The President also called for “a major shift in culture” in order to increase transparency and confidence in the family justice system.  Presumably, he had in mind the oft-repeated criticism that the Family Court operates in secret.

Continuing his evidence to the Select Committee, Sir Andrew continued by saying:

“It is not tenable to say, “well, solely to protect the identity of the individuals involved, everything has got to be kept out of the public gaze and cannot be reported.  There must be a way of allowing openness so that people can see what we do, understand what we do, how we do it, why we make the decisions and yet maintain the anonymity of the individuals involved, but that is the tricky bit: to achieve that confidentiality whilst being open.  I don’t pretend it is easy at all”.

Clearly, both in terms of judicial decisions and policy developments, there is a drive underway to make it easier for journalists to report the decisions of the family courts.

However, before court reporters get carried away, it is worth noting that Sir Andrew’s observation concerning the conversion of ideas into reality:

“I am in the easy seat at the moment, having got to the big ideas.  How we do it is really tricky and that is why I have got this transparency implementation group up and running, but I don’t pretend it is easy at all”.