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Tickle v Herefordshire County Council & Ors [2022] EWHC 1017 (Fam)

The Court was concerned with an application by a journalist, Ms Tickle, relating to care proceedings. The journalist wished to identify and screen an interview with the mother in the care proceedings, Ms Logan, within a BBC Panorama programme in an unanonymised form. The local authority in the care proceedings, Hertfordshire County Council (“HCC”), opposed this, and made a cross application for a Reporting Restriction Order (“RRO”), prohibiting the identification of employees of HCC.

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The context of the applications was a number of judgments in the Court critical of HCC, and adverse reports by Ofsted.

Lieven J extracted the following four principles from the caselaw on the Court's powers Court to restrict publication of information about proceedings, contrary to the normal principles of open justice for the purposes of preserving the anonymity of the children:

(1) Neither Article 8 nor 10 takes precedence over the other, but the Court must undertake an intense focus on how the competing rights apply in the particular case.

(2) The child's interests, whilst neither paramount nor determinative, are a "major factor" and "very important". The child's interests should be considered first though they can be outweighed by the cumulative effect of other factors.

(3) The Court should not treat it as inevitable that publicity would have an adverse impact on children. In each case the impact must be assessed by reference to the evidence before the Court rather than to any presumption of harm. Although, children do have their own privacy rights independent of those of their parents.

(4) The Court should give weight to a party's right to "tell their own story", so as to vindicate their Article 8 rights.

With regards to the distinct issue of whether any restriction should be placed on the identification of HCC's employees, where there was no suggestion that such identification would impact on the anonymity of the children, Lieven J found that in general, it is not for the Court, certainly not the Family Court, to restrict the media from publishing comment about employees of public authorities or private companies, save in very particular circumstances. There is a very high threshold for the making of RROs to restrict the naming of professionals set in Abbasi v Newcastle Upon Tyne Hospitals NHS Trust [2021] EWHC 1699 (Fam), where the Court granted RROs to restrict the naming of treating healthcare professionals in highly sensitive medical cases concerning children, where the professionals had not been found to be at fault in any manner and there had been evidence of potential vilification and harassment of them.

Allowing the Ms Tickle's application, Lieven J held that the factors militated in favour of allowing Ms Logan to speak openly about her experiences and not to require her to be anonymised:

(1) There is a strong public interest in issues surrounding the local authority's social work practice and children's social care being known and subject to public debate. The number of judgments in the Court critical of HCC, and adverse reports by Ofsted, is in itself a matter of public concern and of wide potential interest.

(2) There is a broad public interest in both the operations of children's services and of the family justice system in being transparent and open so that the public have a greater understanding of what happens in these cases, both in terms of good practice and bad.

(3) There is a considerable difference between the media being able to report on the generality of concerns and being allowed to interview a named and identifiable individual who can tell their own story in an unanonymised form.

(4) Considerable weight should be given to Ms Logan's right to tell her own story, in her own words and as an individual who can be recognised. It is not for the Court to censor an individual's Article 10 rights, or to only permit things to be said in public which the Court agrees with or approves of. What matters should or should not be covered in a broadcast is not a matter for the Court. The Court's role is to protect the best interests of the children. It is not the role of the Court to become a quasi-Press regulator, seeking to judge the accuracy of the material which the media wishes to report. Although this may to some degree become inevitable in undertaking the Article 8 and 10 balance, it is not the focus of the Family Court's consideration.

Balancing against those factors is the potential harm to the children from their mother being identified and it therefore being inevitable that they too will be identifiable. In this case, the harm to the children was relatively limited and therefore the balance lay in favour of Ms Tickle's application:

(1) The children were all at or under the age of 8. Their use of social media was still limited (to a degree) and Ms Logan could act to protect them in a way that would be more difficult if they were older. Their immediate community already knew about the involvement of Children's Services so the programme would not come as a surprise to that immediate community as would often be the case.

(2) Most importantly, this case did not involve the kind of distressing and highly personal information which is sadly common in care proceedings. There were no allegations of sexual or physical abuse, and no psychologically deeply personal matters relating to the children were set out in the court records. Any reference to care proceedings will to some degree interfere with the children's Article 8 rights to private life, but the intrusion here was not of the level engaged in many public law children's cases. If there were such very personal matters, the Court would be much more reluctant to allow any risk of wider identification of the children.

(3) It is inevitable that those in the immediate community would be able to identify the children, and that there would be some risk of wider identification, and there might therefore be some impact upon them. However, this was significantly less than would often be the case. Social media would, to varying degrees, remain on the internet for a very long time. However, it should not always be assumed that publicity and identification of children is harmful to them, let alone is necessarily a barrier to transparency.

(4) There may be benefit in this case for the children in their mother being able to tell her story, feel that she has been listened to, and believe that she is acting for the wider benefit of other children.

Concluding that there was not a justification for anonymity of HCCs employees sufficient to justify the interference with the broadcasters' Article 10 rights, and refusing HCC's application, Lieven J held:

(1) Notwithstanding the problems with the recruitment of social workers nationally and in the Midlands, and the court's acceptance of HCC's evidence that there is a particular issue in Herefordshire, both because of its troubled recent history and the rural nature of the community and the enormously difficult nature of social workers' role, the powers of the Court to order anonymisation in relation to professionals need to be exercised with considerable care. Social workers are employees of a public authority conducting a very important function that has enormous implications on the lives of others. As such, they necessarily carry some public accountability and the principles of open justice can only be departed from with considerable caution.

(2) This was not a situation where the type of vilification and harassment which was raised in Abbasi and has become sadly not infrequent in highly emotionally fraught children's medical cases, is in issue. The social workers here were not being made subject to a campaign of harassment of the type in issue in Abbasi. Therefore any interference in the social workers Article 8 rights was certainly not of the level considered in that case, and was no different to any individual who may be commented upon or criticised in a public broadcast. Ms Tickle and the BBC were undertaking a documentary programme with all the journalistic standards that are applicable.

Case summary by Max Lansman, Barrister, Field Court Chambers

For full case, please see BAILII