UK: Court of Appeal to consider the idea of the anonymous judge

Via the Transparency Project

In December, following the conviction of Sara Sharif’s father and step-mother for her murder, and her uncle for offences associated with her death, the Family Division of the HIgh Court permitted disclosure of documents and information from three family court cases involving Sara or her siblings, which had preceded and then approved her going to live with the father who was later to murder her.

The release of the documents so that the press could report on that history was unusual, although not unprecedented, and it was important to let the public scrutinise if and what went wrong and whether the family court could or should have acted differently.

But at the same moment that the media were empowered to report on that background and to kick start that public debate, the same judge prohibited the naming of the family court judge who had made most or all of the decisions in those cases. This anonymity was unprecedented and the decision is being challenged.

The Court of Appeal have decided the appeal has enough of a basis to give permission for the challenge to proceed, and have listed it for a hearing in January.

The judgment of Mr Justice Williams, the senior Family Division judge who both permitted reporting and restricted identification of the judge, is now available here: Louise Tickle & Ors v Surrey County Council & Ors [2024] EWHC 3330 (Fam).

It is a decision with some unusual features, not least because it appears to offer a view about the validity and reasonableness of the original decisions made by the anonymous judge (or possibly judges), and because it is strongly critical of the media in general and in particular of some of the journalists who had made the application for access.

The appeal is really important because it is likely to consider when – if ever – can the anonymisation of a family court judge be appropriate? and that is likely to involve some scrutiny of the reasons behind the decision made by Mr Justice Williams.

The Transparency Project hope to be in attendance at this appeal hearing (either in person or watching via live link) and we understand it will be live streamed (possibly with a short delay to cater for any hiccups with anonymisation). We have requested sight of any skeleton arguments to help us report the hearing accurately. We would usually expect to be provided with these when we attend as ‘legal bloggers’ in the Family Court, but the rules applicable to the Court of Appeal are slightly different and we are not automatically recognised as observers with a legitimate need for access to documents.

We aren’t going to pre-empt the outcome of the appeal, but thought it might be helpful to summarise the key features of the judgment of Williams J, and to explain why some of its contents are unusual. Whether what we think is relevant will align with the view of the Court of Appeal in due course remains to be seen. We recommend this piece by Joshua Rosenberg on his Substack blog here, but below have tried to give a potted summary of some of the key points and themes in the judgment. We have also linked to some primary materials and resources for those who want to read more.

A potted summary of the issues in the judgment

There are a few key themes we will draw out, but the judgment is quite long and detailed and this is only a summary. We are basing our assessment of the issues which are likely to be important upon our experience in this field and our understanding of the likely shape of the appeal based on the grounds for the permission to appeal application made to Mr Justice Williams which are set out in his judgment. We haven’t seen the appeal grounds themselves, and it may be that in light of the judgment the emphasis or scope of the appeal will change or that the Court of Appeal will show more interest in one are than another. But we’ve done our best to pick out the elements likely to feature on the appeal.

The judge’s views on the risk to the family court judge

There is currently increased concern about the risks to judges in light of a number of attacks on them, some of which are referred to by Mr Justice Williams in his judgment. However, the examples given are of aggrieved litigants taking action, not of the general public taking some sort of vigilante action. Even when aggrieved litigants such as fathers were organising, climbing buildings dressed as superheroes and handcuffing themselves to people and things, judges were not afforded anonymity. Even when semi-permanent protests with tents and banners have been erected outside court buildings, judges have not been afforded anonymity. It isn’t clear from the judgment why this case should be different.

There is nothing in the judgment to suggest there is any direct specific evidence of risk to this particular judge (or a request from them) that might justify anonymity, and Williams J’s concern appears to be founded entirely on the likelihood of a media frenzy and unfettered social media activity. We cannot think of any other case in which Family Court or Family Division judges have been anonymised in this way – even in those cases where there has been a frenzy (for example the cases involving disputes about the treatment of very ill babies and children such as Charlie Gard and the case of Abbasi and Haastrup which are cited in the judgment and are still pending a decision from the Supreme Court following an appeal in April 2024. While it is no doubt unpleasant for judges to be criticised or ‘named and shamed’, such behaviour is not unusual. When Finley Boden was murdered, the magistrates who had approved his return (who are not even paid for their trouble) were named, with the permission of the High Court judge who oversaw the applications from the media, and who appears to have regarded the naming of the decision makers to be obviously right.

The judge’s surprise that the anonymity decision was controversial

In his judgment, Williams J expresses apparent surprise and bafflement at the late emergence of this issue, and it appears that he had thought that references by the Guardian to the anonymisation of ‘third parties’ obviously included the original judge(s). In fact that wasn’t the case at all, as acknowledged later at paragraph 15 of the judgment where the judge admits that he made an error and that the Guardian’s proposed wording highlighted ‘social workers, experts, guardians and other child protection professionals or similar’ for anonymisation and ‘NOT the judiciary’.

Although the judge refers to the Abbasi case in support of his decision to anonymise the judge, that case didn’t consider the position of judges at all – in fact it wasn’t even a case that directly dealt with the position of social workers, who are used by Williams J as a comparator in this case. Abbasi was a case about the position of treating medical professionals, and it is quite possible that a court tasked with considering the position for judges specifically might distinguish the position of treating medical professionals (and social workers) from that of judges, because although each of those types of professionals and judges may be exposed to ill-informed or hostile media or social media comment, and sometimes to harassment and threats, judges are in a very different position as independent decision makers who themselves scrutinise the work of the other professions, and who hold significant power. Abassi also drew a distinction between generic information and specific threats and made clear that where an order was made it should usually be time limited (and as far as we are aware the judicial anonymity here was not so limited).

Although there are circumstances in which professionals such as social workers or doctors might be afforded anonymity, the idea that a judge should be afforded anonymity is in an entirely different category. Williams J was aware of the Finley Boden case and of Mrs Justice Lieven’s decision to permit naming of the judges (Magistrates) – he says he disagrees with it – but even if he thought that Mrs Justice Lieven had got it wrong, that recent decision should have been an obvious red flag that anonymising the judge here in very similar circumstances was unlikely to be a restriction the press would be expecting to be imposed or that they would be happy to accept.

It is surprising to us that Williams J was himself surprised at the reaction of the media to finding out that he was prohibiting the naming of the judge in the case. It is entirely unsurprising in our view that they would challenge it, and that they would have wished to argue the point had they anticipated such an unusual step was in the judge’s mind.

As pointed out by retired judge Wendy Joseph on Radio 4 (See Joshua Rozenberg’s piece which contains a quote), IF anonymity is to be permitted, it is likely that there would need to be a specific and immediate threat. It doesn’t appear that is the case here (if there was we would expect to see that explained in the judgment), although further information may yet emerge.

The judge’s views on the media

Joshua Rosenberg describes the judgment as ‘offer[ing] a cynical but deep-felt observation on the media’. He tells us that Williams ‘responded to what he regarded as misreporting of his own decisions’ (note the journalist distancing himself from the judge’s perception).

Particularly notable is the judge’s criticism of two of the journalists who had sought disclosure and then permission to appeal the anonymisation ruling, for what he saw as misreporting – when they described the postponement of the application for permission to appeal as a refusal. If this was misreporting, it was on a deeply technical level – on one view the adjournment of a request for permission to appeal on a matter which is both time-sensitive and of obvious high and current public interest is as good as a refusal and the choice to make a point of this sort of ‘misreporting’ in a judgment whose purpose was to explain why the judge should be anonymised may well be the subject of comment or attention in the Court of Appeal, particularly since it is a direct (and likely unanticipated) attack on the professional integrity of two of the applicants before the court (Hannah Summers and Louise Tickle).

Joshua Rosenberg wrote:

As stated in case law, “news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”

The error has been promptly corrected, and it is difficult to see what relevance this sort of minor and corrected error could have had on the decision to protect the identity of the judge.

Williams J goes as far as to draw a comparison between the journalists and Andy Coulson, a journalist who was convicted of criminal offences in relation to phone hacking, which on any view is of an entirely different order to misdescribing a knockback from a judge as a refusal rather than an adjournment.

These passages raise two issues which we expect the Court of Appeal to consider:..