In a case highly dependent on its very unusual facts, the Court of Appeal in Griffiths v Tickle ( EWCA Civ 1882) confirmed (in dismissing an appeal) that a mother and father involved in Children Act 1989 proceedings can be identified. It agreed that a previous fact-finding judgment[pdf] by Her Honour Judge Williscroft at Derby County Court in November 2020, in relation to allegations of serious sexual abuse, coercive and controlling behaviour, and violence, perpetrated by the husband on his ex-wife over a 10 year period, could be published (with relatively modest redactions relating to family members and the identity of the child).
The husband was former Tory Minister and MP Andrew Griffiths. His ex-wife is current MP Kate Griffiths
The application to publish was brought by 2 very experienced family court journalists – Louise Tickle (on behalf of Tortoise Media), and Brian Farmer on behalf of PA Media. Normally, the “findings of fact” in cases in the family court remain secret and it is a contempt of court to speak about what happens in a private family hearing. The application was transferred to the High Court and was heard over 2 days in July 2021 by Mrs Justice Lieven. The parties included counsel for Louise Tickle (Lucy Reed), Brian Farmer represented himself, Dr Charlotte Proudman for Mrs Griffiths, Richard Clayton QC for Mr Griffiths, and Caoilfhinn Gallagher QC intervening on behalf of Rights of Women, a charity helping women navigate the law, and Timothy Bowe, counsel for Guardian of the child.
The application was supported by Kate Griffiths and Guardian for the child, as well as Rights of Women.
In the run up to this hearing, Andrew Griffiths had disavowed his own Article 8 rights, basing his arguments solely on the Article 8 rights of the child. He opposed the judgment being published at all, even anonymously. Then, his position switched. He said that every detail in the judgment should be published – even the few, particularly intimate details that his ex-wife had requested be redacted. His only condition was that all names, including his own, should be removed. The High Court judge did not agree and permission was granted to publish the original Williscroft judgment ( EWHC 3365 (Fam) [pdf]).
Lieven J identified four factors favouring publication under Article 10 and which had been argued variously by the Applicants, Mrs Griffiths and Rights of Women: (1) the open justice principle (2) the father’s role as an MP and Minister (3) an inconsistency between public statements he had made in 2018 in the Sunday Times and findings in the judgment of HHJ Williscroft gave the media a strong Article 10 right to set the record straight, and the case was stronger than Campbell given the father’s role as an MP, the fact that his untrue statements were made to protect his political career, and the gravity of the facts found and (4) the public interest in showing the public the workings of the Family Court in a case where a powerful man was held to account in respect of abuse of his female partner
The Judge then turned to the mother’s rights. She noted that the mother had a right to speak to whomsoever she pleased about her experiences (“the right to tell her story” as she put it). The Judge considered the mother’s rights were bolstered by the “very unusual” fact that the Guardian also supported publication and the “unusual” fact that those supporting publication wanted to use the case as an example of good handling by the Family Court. There was a “significant public interest” in the last point.
Addressing the rights of the child, she first considered the direct impact of publication and any consequent media or social media interest. The child’s very young age meant the child had no access to social media and any comments at nursery were likely to pass the child by completely. Any media storm would pass fairly quickly. Explanations would have to be given in any event, at an age-appropriate time. The impact on the child’s relationship with the father could be “appropriately controlled”. The findings themselves would have a material impact on contact and the ongoing relationship.
The application to publish the judgment of HHJ Williscroft was allowed, subject to the agreed redactions.
But then Andrew Griffiths appealed, and permission was granted with limited prospects of success but on the basis that it may be an opportunity for the Court of Appeal to review current guidelines and law on the interplay between Article 8 & Article 10 rights and Children Act proceedings. The appeal was based on two grounds:
- Judge’s approach was wrong in law, because it involved a misinterpretation and misapplication of section 97 of the Children Act and that on its true construction section 97 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.
- In the alternative, the Judge’s analysis was legally flawed in relation to Re S – the leading case on how competing rights should be considered by the courts – because it was wrongly biased or weighted in favour of publication and against the interests of the child.
The matter came on as an expedited hearing on 4 November 2021, before Dame Victoria Sharp, Lady Justice King and Lord Justice Warby. This was a year after the application by the journalists had been made to publish the information.
In summary, the court roundly rejected the appeals, finding that Lieven J had: correctly identified the well-established principles she had been invited to apply, took account of all relevant matters, and did not take account of anything that was immaterial. Her assessment of the weight to be given to the specific rights in play involved no error of principle and was legitimate. The father’s criticisms of her decision amounted to little more than disagreement with the conclusions at which she arrived.
The Court of Appeal confirmed that the substantive and procedural law that applies to this particular case was clear, and was correctly applied by Lieven J, and they did not consider it necessary to provide any further guidance.
The court emphasised that decisions of this kind are inevitably case-specific and found that the critical factors in this case included: (1) the father’s decision not to invoke any Article 8 rights of his own but to rely exclusively on the rights of the child; (2) the very young age of the child; (3) the Guardian’s professional assessment, in favour of publication; (4) the mother’s support for publication; and (5) the extent and nature of the information about the father that was already in the public domain.
Just hours before the Court of Appeal’s judgment was to be handed down, Mr Griffiths applied for permission to appeal to the Supreme Court, and for the judgment (and therefore publication of the Williscroft fact-finding judgment) to be stayed. Very unusually, the Court of Appeal immediately refused both permission and any stay, finding that the application had no real prospect of success and would represent a misuse of the court process and was therefore ‘totally without merit’
Adam Glass is a partner in Lewis Silkin LLP and represented Louise Tickle & Tortoise Media