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May 9, 2019updated 30 Sep 2022 7:45am

Judge publishes draft guidelines to help journalists challenge family court reporting restrictions

By Charlotte Tobitt

New draft guidelines have been published for journalists who want to overturn reporting restrictions in the family courts.

The guidance was produced after freelance journalist Louise Tickle won a landmark Court of Appeal fight in February to lift reporting restrictions in a case she described as a “real exemplar” of a local authority using “weak evidence” to put a child into adoptive care.

The BBC – which had joined Tickle’s appeal – was subsequently able to report the case as: “The mother who lost her daughter over an Epipen”.

In his judgment on the case, Sir Andrew McFarlane, president of the Family Division of the High Court, announced plans to produce his own guidelines, taking into account recommendations submitted by Tickle (pictured) and her pro bono human rights lawyer Paul Bowen QC.

Sir Andrew has now published a draft version of the guidance, with a consultation running until 30 June.

He said Tickle’s case had “demonstrated that there remained a need for greater clarity and guidance in relation to applications by journalists to vary/lift statutory reporting restrictions”.

Tickle told Press Gazette Sir Andrew had “taken on board pretty much everything” from her submissions, which had been informed by difficulties experienced by both herself and other journalists in the family courts.

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“Hopefully it will mean that court staff are more familiar with applications and what they need to do to help journalists,” she said, adding that staff are currently “not terribly helpful”.

The guidance sets out nine steps on how to apply to lift reporting restrictions in the family courts, including setting out how and when journalists can make their case.

This makes clear for the first time that oral submissions are an accepted alternative to the expense of a written application.

It also states for the first time that a court can adjourn to allow a journalist to discuss their application with the other parties to see if they can come to an agreement, and that if no agreement is possible, the journalist should be invited to make oral submissions and then have an opportunity to reply to the other side’s points.

Tickle said the latter part of this was “really important”, especially for a journalist making an application and standing up in court without a lawyer, which she said can be “very anxiety-making”.

“When you don’t know if you’ve got the right to reply this would give you the right, which is really interesting and good,” she added.

The guidance also states journalists “should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or has taken an unreasonable stance”.

Tickle said this was “great” because it can be daunting to undertake even an oral application without knowing if it will end up with costs running into tens of thousands of pounds due to opposition from the other side.

She added: “I will be interested to see the consultation responses. Obviously there will be people who don’t think it should be easier or more simple for reporting restrictions to be relaxed because they don’t particularly want journalists to report what goes on in family courts.

“I don’t think it’s the complete answer. I think it’s a step on the way to getting proper scrutiny in family courts.

“It takes some of the risk away, a lot of the opacity away, and it should in lots of cases perhaps take that very long-winded time element away and it gives the media more agency in court.”

Details on how to submit responses to the consultation on the draft guidance are available online.

Separately, Sir Andrew has also announced a review into the transparency of family courts and whether “the current degree of openness should be extended” from the current standard where journalists can attend any hearing but normally not report on its substance.

Picture: Louise Tickle

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