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February 18, 2019updated 20 Feb 2019 10:27am

Judge to issue new guidelines on challenging reporting restrictions in family courts after journalist’s appeal win

By Charlotte Tobitt

A senior judge will issue new guidelines for journalists who want to overturn reporting restrictions in the family courts after a freelance journalist’s landmark Court of Appeal win last week.

Louise Tickle (pictured) led a fight to lift reporting restrictions in a case last October that she described as a “real exemplar” of a local authority using “weak evidence” to put a child into adoptive care.

She crowdfunded £2,300 to help towards the cost of the appeal and was given permission to proceed with it in December. The BBC joined the appeal in January after its reporter Sanchia Berg spoke up in court against the original order.

Tickle described the plan for new guidance as a “really big step forward”.

She said she has reported from family courts for four years and told Press Gazette it is “always very hard” – in part because there is no set process for journalists to make submissions over reporting restrictions.

Tickle said reporting restrictions had stopped the publication of details including any ages, professionals involved in the case, and the ethnicity of the family, which was relevant to claims made in court.

But, she said the details had already been made public in an earlier Court of Appeal judgment in which a judge allowed the mother’s appeal against an order to put the child into care and sent the case back to a lower court.

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“So we had this option: we could either report the earlier Court of Appeal judgment or we could report the outcome of the case, but we couldn’t link the two… so we were completely stymied.

“The reason I was so angry that the judge made this order restricting this information was that he did it without undertaking the lawful process that a judge must do when he or she decides to restrict an important human right, which freedom of speech is.”

Tickle said the balancing exercise between Article 8 (privacy) and Article 10 (freedom of expression) in the European Convention on Human Rights, looking at the risk of identification to the family and any risk of harm that might follow versus the public interest, was not properly carried out.

None of the parties involved – the local authority, the mother’s barrister or the child’s guardian at the time – put forward any evidence on the risk of identification, Tickle said, only that they were worried they might be identified.

“That’s absolutely not enough,” she went on. “And they then didn’t say anything to show that there would be harm arising.

“So the judge didn’t probe them for that, didn’t understand the process he needed to do. The frustrating thing to me is this has been explained many times by very senior judges, what should be done. This is not a new, unusual, rare thing.”

She added: “It’s not nothing that the state decides to remove a child for adoption on very poor evidence -it’s awful.

“It’s not nothing that journalists report this. We don’t do it for our own benefit, we do it because it’s vital that the public knows what’s being done in its name, and when things go very badly wrong it’s the only way, given that family courts sit in private, that the judiciary and local authorities can be held to account.”

Tickle also told Press Gazette the case was important because recent research showed Southampton City Council, the local authority involved, had the highest rate of children being placed for adoption by the age of five in the country.

“And yet here was a case, a real exemplar of the fact that the local authority had brought really very weak evidence to adopt a child,” she said.

Tickle received free legal support from human rights lawyer Paul Bowen QC, family lawyer Sarah Phillimore, and law firm Simons Muirhead and Burton, in pursuing an appeal against reporting restrictions in the case.

Judge Peter Jackson decided there was a real prospect of success on at least five grounds, including that “the established procedure for applying for a reporting restriction order does not appear to have been followed at all” and that “the judge does not appear to have carried out the necessary balancing of the rights of the family to privacy and the rights of the media to report”.

New guidelines at ‘earliest opportunity’

Sir Andrew McFarlane, president of the Family Division of the High Court, allowed the appeal on Friday.

The BBC – which had joined Tickle’s appeal – has now been able to fully report the case as: “The mother who lost her daughter over an Epipen”, revealing she had spent £60,000 on legal fees in the custody battle.

Sir Andrew also told the court he believed new guidance would help journalists raise future objections to reporting restrictions.

The judge indicated he would stage a consultation exercise before issuing guidance at the “earliest opportunity”. The guidance would also assist judges sitting on such cases.

Tickle said: “I thought guidance was really badly needed so that journalists had confidence in making their applications, that they had a right to make an application, they had a right to be heard…

She added that she hoped having guidelines would help judges who have rarely had to deal with this situation because of the “catch 22” that “not many judges are asked to do this because not many journalists go to family courts, and not many journalists go to family courts because we can report almost nothing of what goes on in them”.

Berg said: “It’s a great result. It should avoid similar problems in future.

“The only thing is that there are ‘vanishingly few’ journalists reporting the family courts, according to the Court of Appeal – and this at a time when there are record numbers of children in care, and it can be hard for parents to get legal aid.”

A Southampton City Council spokesperson said the authority was “pleased that the main issue in this appeal has been settled with the agreement of all parties,” after it agreed to allow the child to return to her mother.

“We also welcome the fact that the president of the Family Division intends to consult and give further guidance as to how courts, practitioners and journalists should approach the reporting of private cases involving children and their families.”

Picture: Louise Tickle

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