On the 10th of December 2021 the Court of Appeal (Dame Victoria Sharp (P), Lady Justice King and Lord Justice Warby) heard an appeal against the decision of Lieven J sitting in the High Court that a fact-finding judgment in Children Act proceedings should be published with the names of the father and the mother included. The father, a former MP, was the appellant and argued that the interests of the child made it necessary that he, the mother, and the child should not be named and there should be additional redaction of some of the details.
The mother is Kate Griffiths MP, the father, Andrew Griffiths. Their relationship ended and they divorced. The father was dropped by his constituency party after revelations that he had sent over 2,000 sexually explicit texts to two female constituents. The mother put herself forward as the candidate for what had been the husband’s constituency and was selected and elected.
In the course of proceedings regarding the father’s contact with the child of the marriage Mrs Griffiths made allegations against Mr Griffiths. At the end of the fact-finding hearing HHJ Williscroft found that Mr Griffiths had abused and physically hurt his wife when drunk. She found Mr Griffiths had undermined his wife’s self-esteem, threatened her with violence, coerced her into sexual activities she found unpleasant and had raped her when she was asleep.
On 26 November 2020, HHJ Williscroft gave judgment on the application. In February 2021 two journalists, Ms Tickle and Mr Farmer, applied to HHJ Williscroft for an order releasing the judgment to them. This application was supported by Mrs Griffiths, the child’s Guardian and the organisation Rights of Women.
Lieven J heard the applications on the agreed basis her task was to strike a balance between the rights that favoured publication and the right of the child to respect for its privacy and family life applying the principles set out by the House of Lords in Re S (A Child) (Identification: Restrictions on Publication)  UKHL 47.
Lieven J identified four factors which favoured publication under Article 10 ECHR
- The open justice principle
- The father’s role as an MP and Minister
- The inconsistency between public statements the father had made in 2018 and the findings in HHJ Williscroft’s judgment
- The public interest in showing the workings of the Family Court in such a case where a powerful man was held to account of the abuse he carried out on his female partner
Lieven J also noted the mother’s rights included her right to speak to whomsoever she pleased about her experiences. Anonymity would interfere with those rights and the court should be slow to allow itself to be used as a means of allowing one parent control over the other. Lieven J considered the mother’s rights were bolstered by the “very unusual” fact the Guardian also supported publication. She held there is a “significant public interest” in fully informed, open discussion and debate about domestic abuse that would act to redress some of the erosion of public confidence in the family justice system which usually only receives publicity when something has gone wrong.
The applications were granted. The judgment could be published with “only relatively modest redactions”. The child was not to be identified by name, sex, or date of birth but the names of the mother and father could be included.
Court of Appeal
The father was granted permission to appeal the High Court decision and asserted that the whole judgment should be published, unredacted save that all the names in the judgment should be anonymised.
The father argued two main points:
- Lieven J’s approach was wrong in law as she misinterpreted and misapplied section 97 of the Children Act 1989.
- Lieven J’s analysis of Re S was flawed, her approach was ‘wrongly biased’ or weighted in favour of publication and against the interests of the child’
Point 1. The father’s counsel argued the true construction of s97 prohibits the courts authorising the publication of anything likely to identify a child unless it is satisfied the welfare of the child requires publication. This was not only a complete change of position by the father but before Lieven J, the father had expressly conceded this approach was wrong. Several of those appearing argued the father should not be allowed to rely on this new argument. The Father accepted that he would therefore need to first persuade the Court that he should be given permission to rely on this new argument. Having heard the father’s arguments on the merits de bene esse, the Court refused to allow the father to rely on this ground of appeal.
Point 2. The Court dismissed the appeal holding that Lieven J was ‘clearly right’. The Court of Appeal will not interfere with such evaluative exercises unless it is satisfied the judge erred in principle or reached a conclusion which was wrong – neither had occurred here:
‘The father’s criticisms of Lieven J’s decision amount to little more than disagreement with the conclusions at which she arrived.’
The Court found Lieven J had correctly followed the balancing exercise in Re S and the father’s criticisms of the balancing exercise she had undertaken were unconvincing. Decisions of this kind are inevitably case-specific:
‘ 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. We do not think it can fairly be argued that Lieven J’s conclusion, in the unusual circumstances of this case, was wrong. On the contrary, we consider that she was clearly right.’
The father’s application for permission to appeal to the Supreme Court was refused as was his application for a stay pending an application to the Supreme Court for such permission. The applications were late, involved a further change of position, had no real prospect of success, and would represent a misuse of the court process.