Judge erred in blocking reporter
But High Court then publishes full transcript of private family hearing
A circuit judge has said he is “not supportive” of moves to open the family courts to media scrutiny. That policy is not only endorsed by the most senior family judges in England and Wales; it has also been enshrined in law for nearly 15 years.
If you want to know my view on the transparency project, it is not supportive. I have always felt these cases are deeply private and my judgments are there really for the parents — to help them, to help the families. They are not for public consumption or to allow press and journalists to further their journalistic ambitions.
Haigh was sitting as a judge of the family court in Manchester when he made these comments on 21 August. Hearings such as these are not open to the public but audio recordings are made by court staff. In a highly unusual move, a more senior judge ordered the entire day’s recording to be transcribed and then allowed the 62-page transcript to be published. It has been edited to ensure that members of the family involved cannot be identified.
What’s revealed by the transcript was described as “shocking” by the family lawyer who chairs The Transparency Project — not, apparently, what Haigh was referring to in his remarks quoted above. Lucy Reed KC explained that it was not so much the individual errors that that she found so shocking; it was “the combination of so many things gone wrong in one single transcript”.
Mrs Justice Lieven, the High Court judge who allowed publication of the transcript, said the case being heard by Haigh had been “a not unusual example of the kind of intractable dispute that takes place in the family court”. It involved “highly contentious private family law proceedings concerning a child under the age of five”. There were “allegations of domestic abuse and ‘parental alienation’ in the factual mix”.
21 August: morning
On the first day of the hearing, Haigh told the parties he had received a request from Suzanne Martin, a freelance journalist. She was not able to attend court in person but wanted to watch the proceedings on a secure video link, an arrangement that has become increasingly common since the pandemic.
It’s worth explaining at this point that journalists have been allowed to attend proceedings in the family courts for more than 14 years. Rules of court allow “duly accredited representatives of news gathering and reporting organisations” to attend private hearings, although the court can exclude reporters if specified conditions are met. No formal application for permission is required, although of course applicants must show that they are accredited by a news organisation. Normally, a press card is all that’s needed.
In the early days, it was not clear how much of the hearing we were allowed to report. But at the start of this year Sir Andrew McFarlane, president of the High Court family division, launched a pilot project at three court centres. Its aim is “to introduce a presumption that accredited media and legal bloggers may report on what they see and hear during family court cases, subject to strict rules of anonymity”.
Although Martin’s request to attend court had been made at 8.30am, the judge did not deal with it until nearly lunchtime. Even if the request had been granted at that stage, the reporter would have missed more than two hours of the proceedings.
After hearing from the mother and from lawyers representing the father and the child’s guardian, Haigh said he had “real concerns” about an application “from a journalist who has a press card, no question about that, but whose email address was a film company address”.
Haigh then cast aspersions on Martin’s status:
She does not appear to be linked to press organisations. She may have a journalistic interest in this area of law, who knows, but she does not appear to be linked with journalists, with a news organisation.
The judge then appeared not to know that cases may appear on court lists, with very little identifying information, only the night before a hearing — leaving little time for journalists to request a video link.
The timing was very, very unusual. I only saw it, as I said earlier this morning, at a minute to 10, although checking the original email I think it landed in the court building at about 8.30. Now, I would have expected responsible news-gathering organisations, journalists and the like, interested in this particular case or any of the issues arising from this case, to have been rather better prepared than that.
So it is a red flag to me.
Haigh then told the parties just what he thought of moves by successive senior family judges to increase transparency:
I have, as I said before everyone’s submissions, a degree of scepticism about this development within the law. I think everyone is racing towards an elephant trap, underestimating the power of algorithms, social media and computers to penetrate the very careful attempts we make at anonymity in these cases at the moment.
So concerned am I that I am firmly of the view that many of those making these decisions now, including parents, social commentators and the powers that be, may well in ten years’ time have buyers’ remorse. But of course everyone will be gone by then and it will be explained as a mistake made by earlier generations, sadly.
I do not think sufficient attention is given to the effect of all of this upon children, particularly if anonymity is penetrated through jigsaw identification or by developments in algorithms.
He then gave his ruling:
I will give a written judgment in this case. I will hear submissions on whether it should be published. But I am not prepared to open the door to the press.
The judge then paused. Belatedly, two things seemed to have occurred to him. The first was that he had not allowed Martin to hear the ruling he had just made against her. The second was that he had not heard from her before making it.
21 August: afternoon
After lunch, Haigh allowed Martin to “renew” her application by video link. He questioned the journalist about her experience of reporting the family courts and asked why she had wanted to report this particular case.
She explained that it appeared from the length of time allocated to the hearing — four days — that it might be of interest. But without knowing what the case was about, she could not be sure whether she would be reporting it.
Haigh seemed suspicious and asked her whether she had been tipped off by anyone associated with the case. She had not.
Counsel for the father then asked the journalist whether the case might be reported as news story or as a broader article.
This was a “highly unusual” question, Martin replied. How could she know at that stage?
After further questions, the judge delivered a formal judgment. As he explained, the court can exclude a reporter “where satisfied that this is necessary in the interests of any child concerned in, or connected with, the proceedings”.
My responsibility is to the child. I do not consider that any of the welfare issues that concern this case are a matter of press or public interest. They concern this family and the particular concerns, anxieties and worries of this family.
I bear in mind the age of this child, who has no say in what is being asked of by all the adults in this case in this application. And I remember and recognise [the child’s] right to privacy.
I bear in mind everything that Suzanne has said about anonymity. I simply lay this marker down: anonymity works at the moment, there or thereabouts. It is vulnerable to jigsaw identification but it just about works.
Question: with the development of algorithms and the development of IT and social media, will the answer to that question be the same in ten years’ time, or will the anonymity provisions of reporting of children cases be penetrated and their private details then freely available on the internet?
I think there is a very significant risk that that will happen and that those who support this development will be unable, impotent, to prevent that happening. And it will be a tragedy for all those concerned — not just the adults, whose privacy will be there invaded for all to see, but also the children, who are sadly innocent of all this.
I have to remember that possibility, and I have to think of the issues in this case, and to think in a way that Suzanne cannot, because she does not know the issues, whether there is anything that really could help her and the research interest that she has expressed in Hague Convention cases, removals, and the like, and I do not believe there is. And I believe there is a strong interest in this child retaining the privacy of these proceedings, free from the prospect of press involvement.
So, for those reasons I am satisfied that subsection (3)(a)(i) of 27.11 of the Family Procedure Rules is engaged, and that the application in this case is refused.
At that point, Martin left the hearing. But she didn’t let matters rest. She contacted another journalist, the formidable and highly experienced family specialist Louise Tickle. After hearing what had happened, Tickle asked for a link to the resumed hearing on the following day.
initially heard argument in relation to Tickle’s attendance — an application that was opposed, unsuccessfully, by the father and the child’s guardian;
heard an application to adjourn the final hearing made on behalf of the mother — an application that he granted;
heard an application in respect of the father’s costs; and
heard Tickle’s application for permission to report the hearing — an application that he adjourned, which was what the child’s guardian and the father had wanted.
Martin was also allowed to join the hearing shortly afterwards. Like Tickle, she could watch but not report anything at that stage.
Tickle wanted to appeal against the judge’s order to adjourn her reporting application. Permission to appeal was refused by Haigh but granted subsequently by Lieven.
Lieven then held an oral hearing on 26 September, which I attended remotely.
At the hearing, Tickle’s counsel applied to amend the grounds of appeal to cover what Haigh had said on the first day of the hearing. No journalist had been allowed to attend the main part of the hearing but the mother’s counsel had provided a note of what she had been told by her client. Some of this was disputed by the father.
Lieven said, entirely reasonably, that she could not consider any submissions based on the opening day of the hearing without having first seen a transcript. Obtaining one would have meant delaying Tickle’s appeal for some months.
Tickle’s counsel withdrew his application to rely on what had been said on 21 August, basing his argument only on the second day’s proceedings. But he persuaded Lieven to order a transcript of the first day’s hearing at public expense.
Giving judgment on 5 October, Lieven noted that Tickle’s application to report both days of the hearing had been based on:
continuing practical difficulties arising due to the lack of legal aid provision;
the disruption caused to private law applications concerning children;
problems for the court system, and other families within the court system, of delays and adjournments where time has to be found for cases;
issues regarding transparency and media attendance, including the culture of the family justice system’s interaction with, and response to, the media — especially in the context of the current transparency pilot.
The High Court judge said
it will rarely, but not never, be appropriate for the court to inquire as to why the journalist is seeking to report, or how s/he became aware of the hearing. In general… this will be a matter for the journalist, who would not be expected to reveal a “source”.
However, if the judge becomes concerned that one party is seeking to use reporting as a litigation strategy, particularly in the context of issues around coercive control, the judge may wish to inquire into the background to the application to report. This can only be considered on a case-specific basis.
Lieven explained that the parties had the right to a fair hearing under article 6 of the human rights convention. In deciding whether it was “necessary” to exclude a journalist from a family hearing, the court had to balance the family’s right to privacy under article 8 of the convention against the journalist’s right, under article 10, to freedom of expression.
As she explained:
There may be an important distinction between cases such as the present, where the reporter is seeking to report wholly generic and systemic matters, and [cases] where the reporting is of the facts and evidence in the case, where the risk of identification of the child is much greater. The experience of the transparency pilot currently under way is that anonymity of the child can be effectively preserved by the use of a detailed transparency order.
She recalled that McFarlane, the senior family judge, had observed in 2021 that
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.
There was a very real public interest in people having a greater understanding of the work done by the family courts, Lieven added. “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.”
As we have seen, Haigh had not refused Tickle’s application to report the hearing; he had merely adjourned her request. But, said Lieven, “adjourning the decision is itself an interference with the reporter’s article 10 rights”. A reporter might not be able to return on a future occasion.
Haigh had “erred in law”, Lieven ruled. “He did not apply the article 8/10 balance in a legally appropriate manner.”
And it was not for a judge to consider the quality or fairness of a reporter’s work, she said. “The court is not an arbiter of the editorial content of reporting.”
Nor, of course, are the parties:
To the degree the judge was concerned that the parents, or in particular the father, might be upset or antagonised by reporting and that would impact on a fair trial, that approach comes very close to giving parents a veto over reporting, which plainly would not meet the… requirement for an intense focus on the competing rights. In any event, there was minimal or no evidence to support such a position.
Normally, a case such as this would have been sent back to the lower court for a fresh decision on reporting. In these circumstances, Lieven explained, this was a decision she could take herself.
For the reasons that I have set out above, 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[ing].
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 party’s article 6 rights.
I will therefore allow the appeal and allow the application.
Its was on 21 October that Tickle received the transcript. She rightly considered it important to publish the entire document, subject only to the necessary redactions. But of course she needed the court’s permission to report what would otherwise have been a private hearing. She made a written request for this.
Lieven’s order allowing publication of the edited transcript arrived last Thursday afternoon. Tickle immediately published her response on the Transparency Project website, together with the transcript itself. She did not pull her punches:
I say unequivocally that in my view the day one transcript shows HH Judge Haigh demonstrating rank bias as he exercises the powers of the court, a bias I consider carried through to influence his decision-making on my application to report on day two. The barristers in the hearing should also think hard about their dismal contribution to the debacle that can be seen unfolding as the transcript is read through.
Frankly, this episode has led me to wonder what the hell is going on behind closed doors in hearings up and down the country when journalists are not in attendance, unable to secure transcripts after the event and not allowed to read transcripts secured by parties themselves for fear of everyone being held in contempt. Plenty of mothers and fathers contact me and other journalists every day to tell us about abuses of power in the family courts; having read this transcript, and having also observed HH Judge Haigh’s conduct of — and decision-making on — day two of the hearing, I am very much more inclined to credit their accounts.
But just imagine if that mother had come to me trying to explain what had happened in the hearing. First of all, under the rules, she could not have told me. Even if she had obtained a transcript, she would not have been allowed to show it to me and nor could I have published [it].
If I had made an application to publish, well, who would have heard the application but the very judge whose own words show him such a terrible light? It’s a ludicrous situation. And how could I have applied to publish it anyway, given that this would have exposed the mother to the likelihood of being accused of contempt?
Knowing what I do now, of course it does not surprise me in the least that HH Judge Haigh did not want me to have access to the transcript of that day one hearing. I imagine he thought he could keep it secret, as so much that is wrong that goes on in the family court is kept secret.
But for a judge to allow his own preferences to win out over the law is both atrocious and outrageous. It is of enormous concern in respect of all the other cases this judge has presided over and in respect of the people over whose lives he exerts the power of the court. He should be thoroughly ashamed.
Given what Tickle described as “the level of hostility, ignorance and poor process” that she and Martin had encountered in that Manchester courtroom, Tickle thought it necessary to restate what she regarded as the absolute basics of family court reporting:
Journalists have a right to attend hearings like this one and do not have to make an application to do so.
They can be excluded only if exclusion is “necessary”.
It is wrong for judges or advocates to ask journalists why they wish to attend; how they have come to hear about the case; whether they have been in contact with a party; and what they propose to report. The appropriate response from a journalist is: “I am entitled to be here unless excluded. I should not be asked such questions and decline to answer them. I am well aware of the limitations on what I can report and, at the right time, will if necessary make an application to report anything for which I need permission.”
It was a matter of enormous concern, Tickle added, that 14 years after the law had been changed to entitle journalists to attend court there should continue to be such ignorance of the rules:
This case is also — like too far many others — extremely revealing of the problems (whether founded in defiance, as here, or in ignorance) that the president of the family division is faced with in pursuing the reforms which are necessary to allow much, much more all-too-evidently-needed sunlight to stream into into the family courts.
Reed, the KC who chairs The Transparency Project, thought from her reading of the transcript that Haigh was not the only person who had been at fault on the first day of the hearing:
Nobody refers the judge to the relevant practice direction — [which] has been around for donkey’s years and makes clear journalists must be permitted to make representations as to attendance and access to documents — or the guidance issued in 2019, brought in specifically to help lawyers and judges find a proportionate and fair process in response to applications for permission to report.
Had [Martin] been given an opportunity to articulate her position, I dare say she might have referred the judge to these pieces of guidance. Nobody referred the judge to the relevant case law on the article 8/article 10 balancing exercise, implicit in the rules, flagged by the word “necessary” and clearly signposted in the practice direction and guidance.
Spurious submissions were made — I don’t know whether they were on advice or contrary to it — on behalf of the child and father about the justification for refusing the “application”, which was somehow lumped altogether as a big amorphous scary application to see and reveal all and which seemed to amount to a fear that the journalist might have malign motivations and do something bad that would compromise the child’s welfare (which was said to be paramount — that is wrong in law).
That fear was predicated on a lack of clarity about the journalist’s proposals. It was only by about 3pm, after the judge had determined [Martin’s] “application” in her absence — in fact, the father and guardian’s application to eject her, which she should have been party to and permitted to respond to — that the journalist was able to reiterate that she had not yet decided whether to apply for permission to report but had simply been doing the court the courtesy of flagging it as a possibility.
That the application for permission to report was merely a potential application is apparent from the summary given by the judge of the “application” at the outset of the day. But this seems to get lost over the course of the closed part of the hearing, as anxiety about the perceived lack of clarity as to the parameters of the request to report snowballs over the course of the morning.
Tickle added some personal reflections of her own:
Bringing an appeal was stressful and time-consuming. It would have been expensive too, except that the fee for asking the High Court for permission to appeal was covered by many individual contributions to a crowdfunder, for which I am immensely thankful.
HH Judge Haigh’s ruling was a case management decision. This meant I was on a seven-day deadline to seek permission to appeal. I had no option but to do so in the middle of a family summer holiday, during which I spent anxious nights and early mornings filling in the application, and working up and then co-ordinating the other parties’ agreement to a note of the day-two hearing. I also had to write my own witness statement and consult on my skeleton argument, all in the middle of trying to give my kids a break and not put too much on my partner at a time when we both really needed a holiday.
I was navigated through all the barriers by my excellent and expert counsel Chris Barnes, who thought of everything and missed nothing to give me the best chance of winning. He did it all for free. He gave me many thousands of pounds-worth of skilled and experienced legal advice as we worked closely to prepare everything required to allow Mrs Justice Lieven to grasp what had happened in HH Judge Haigh’s court that day.
At the appeal hearing, he represented me adroitly and skilfully to get the best possible outcome. It is down to him that this appeal succeeded, allowing me to report what took place on day two; secure the day-one transcript; and then gain permission to publish it.
It is also down to him that there is now case law which should, in all but exceedingly rare circumstances, prevent judges demanding that journalists and parties tell them how come the media has turned up in court.
I could not be more grateful.
As a family division liaison judge, Lieven has worked extremely hard to ensure the success of the reporting pilot. Comments like those made by Haigh cannot be helpful.
As things turned out, no other judge has had an opportunity to comment on Haigh’s views. But Lieven has ensured they are now widely known.
Haigh is right to suggest that greater publicity increases the risk that children will be identified as the subject of family proceedings. But it’s not “algorithms” that are to blame — it’s usually judges who leave identifying details in judgments that they release for publication. Far from trying to thwart anonymity orders, journalists often spot and rectify these judicial oversights.
Judges are independent of each other but senior judges can overturn decisions taken by more junior judges. The most senior judges of all can make rules and issue practice directions that must be respected by everyone below them in the hierarchy. It is extraordinary to see a circuit judge arguing against changes in law and practice that are clearly binding on him.
But, as I say, Haigh was not expecting us to be reporting his opinions. That is why transparency in the courts is so necessary. Lieven is to be commended for lifting a corner of the veil.
A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.