Allison Wolfreys
Lecturer in Law
The Faculty of Business & Law
The Open University Law School
The Law School
https://www.open.ac.uk/research/people/amw568
In Griffiths v Tickle & Ors [2021] EWCA Civ 1882 (10 December 2021) (bailii.org) an infant child was at the centre of the dispute and careful reasoning was applied in considering the effect of publication on the child’s right to privacy. In this case the privacy that the child’s father had raped and abused the mother.
Crucially, the Guardian appointed for the child changed her view, and supported the application made by Tickell and Farmer to publicise the judgment.[1] To do so, in the Guardian’s view would
“ promote transparency within the Family Court system and shine a light on how the Family Court approaches the difficult area of coercive and controlling behaviour and sexual abuse in a civil-law context. Having considered the likely impact on the child both immediately and in the future when the child was much older, the Guardian was eventually drawn to the conclusion that publication would involve a limited and proportionate interference with the child's privacy.”
Limited reporting.
Transparency by publishing judgments is important not just for building confidence in the family court. There have been attempts to have more transparency in the family court for years. Yet published judgments in the family court continue to decline in numbers (Bellamy’s The Secret Family Court published in 2020 focuses on the very few publications of judgments since 2015[2]).
The practice guidance on family court reporting has not been followed consistently. During a five-year period between March 2014 and March 2019 the number of judgments in the family court has dramatically decreased. In fact, during that same period 82 Circuit Judges did not publish a single judgment.
What we are allowed to know about judging in the family court can be obtained from the limited number of judgments released, or perhaps by some engagement in research by the judiciary.
Reading judgments that have been released, you could be forgiven for thinking that only the rich get divorced. The coverage of the family court still exists, yet can be limited to the protection of business interests, such as those of Sir Fred Barclay, the high profile owner of the Telegraph newspaper Barclay v Barclay [2021] EWFC 40 (05 May 2021) (bailii.org) or where child protection failings are revealed C (Children), Re [2021] EWFC B72 (28 April 2021) (bailii.org)
Very few people see themselves or their own relationships in these cases and their reports and the current state or reporting does not serve as a guide to understanding what the family court would do, should they choose or be able to access it.
Appetite for change.
Attempts have been made over many years to make the family court more open, including the Transparency project and later the Transparency review to see what had gone wrong and to try to set out how to strike the right balance. In October 2021, however, the rate of change regarding transparency in the family court was described by the President of the Family Division as “glacial” Confidence and Confidentiality: Transparency in the Family Courts (judiciary.uk) Questions and difficulties surround what may be reported and the procedure for journalists wishing to report and take up by journalists has been therefore cautious. Knowing more about the family court rests with judges and whether they fully engage in thinking about transparency and balance out the interests at play and public interest.
Identification and reality.
The reality is that most family law cases involving coercion and control are not publicly reported. This case was exceptional and relied upon determination of the journalists, support of the victim and insights by the child’s guardian. Whether or not reporting in each unique case should happen should be carefully considered. Yet judges should remember that releasing judgments is a powerful tool not only for confidence in the family court system. A story of coercion and control well told in a judgment, will enable those experiencing such abuse to see the unacceptability of such conduct.
[2] Para 25 of the judgment he child's Guardian was initially opposed to any publication which could lead to the identification of the child. By 5 July 2021, however, the Guardian had signalled her intention to support the applications. Having considered the likely impact of publication on the child's home life with its mother, the Guardian accepted Mrs Griffiths' assessment of her ability to protect her child from any adverse effects arising from publication. The Guardian had focussed on the impact that publicity would have on the child's relationship with Mr Griffiths, assuming for this purpose that the child's name, age, and sex would be redacted. The Guardian considered that the child would have to be told the facts in due course; and there would have to be conversations in due course with the child about the parents' relationship, their separation, and the reasons for it. The Guardian felt there was a firm argument in favour of publishing the findings to promote transparency within the Family Court system and shine a light on how the Family Court approaches the difficult area of coercive and controlling behaviour and sexual abuse in a civil-law context. Having considered the likely impact on the child both immediately and in the future when the child was much older, the Guardian was eventually drawn to the conclusion that publication would involve a limited and proportionate interference with the child's privacy.
[3] Doughty, Twaite and Magrath, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people
2020 Bellamy the Secret Family Court
Allison Wolfreys
Lecturer in Law
The Faculty of Business & Law
The Open University Law School
The Law School
https://www.open.ac.uk/research/people/amw568
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