Thread by @GeorgeJulian

#RROAppeal sitting in front of President of the Family Division Sir Andrew MacFarlane and Lady Justice King judiciary.uk/you-and-the-ju…

@paulebowen of @brickcourt and @SVPhillimore of @StJohnsChambers for @louisetickle

Emily Boardman @bho_llp and Lawrence Messling of @3PBChambers acting pro bono for the mother

Adam Wolanski of @5RB for @bbc

Sarah Earley of Pallant Chambers for @SouthamptonCC

Children's Guardian not present and not represented #RROAppeal

AMcF: We accept it would be very helpful to the system as a whole and to journalists for their to be greater clarity as to the process to be adopted when journalists attend family courts that have been conducted in private #RROAppeal

AMcF: At a hearing such of this only limited contributions are made by parties represented before the court, if the guidance is to be of greatest value it probably needs to be as a result of consultation with wider community #RROAppeal

AMcF: We would propose to tease out the detail with you and deal with the appeal by way of a short RRO... but deal with guidance by sending a draft for consultation sent by me as President in due course, which would [remove] the need for further hearing #RROAppeal

PB: There's unanimity needs to be some practice guidance and my Lord's proposal wld meet that issue; these are issues that the other parties aren't clamouring for the court to resolve and wld be helpful if you cld indicate whether you'd deal with those in guidance #RROAppeal

LJK: the Section 97 issue needs to be resolved

PB: This would provide a vehicle by which this would be resolved

Section 97 legislation.gov.uk/ukpga/1989/41/… #RROAppeal

This relates to presumption against publication in children proceedings, or whether, properly read, privacy is merely a starting point and in subsequent balancing exercise the scales stand empty, no priority is given either to publicity or privacy <paraphrase> #RROAppeal

PB raises issue of recent guidance on anonymity from the President judiciary.uk/publications/p…

PB: If some risk, outweighed by public interest, that detail may need to be published; we're concerned that if anonymised would go too far #RROAppeal

LJK: There is a related concern whether jigsaw identification... one has to step back, look at the level of harm and conduct a balancing exercise, not just assume reporting restrictions #RROAppeal

PB: Which comes back to our starting point, those who seek to raise issue of identification must do so with evidence, and if so, then there is a question of harm. You can't presume harm if a child is identified, since then Brophy (?) research has had influence on this #RROAppeal

PB: This has in some respects shifted the balance in the other direction.. question is whether the shift is too far in the other direction.

My Lord, My Lady these are matters that cld be addressed by guidance... but this is a vehicle in which issues cld be determined #RROAppeal

PB: ...some of these issues might be dealt with in guidance, but you wouldn't have the benefit of submissions.

AMcF: It wouldn't be possible to determine the balance starting point <paraphrase>

#RROAppeal

PB: My Lord I dont seek to persuade you, only raise the question whether would answer all the questions

AMcF: You're right to do that and not all the points would be encapsulated in guidance #RROAppeal

PB: You can't deal with the issue of paramountcy, but the presumption in favour of transparency was rejected.... you said it was to the contrary... that could be dealt with in guidance.... case law says the scales stand empty at the outset at neither value has primacy #RROAppeal

PB: The only issue that cld not be resolved in paramountcy, I'm not seeking to suggest this is the only case that cld resolve these issues

We do nevertheless have to reach some conclusion about how to resolve the #RROAppeal and we've reached a more substantial level of agreement

PB: I accept as matter of principle that if there is a risk of harm for Article 8 purposes the court has the right to restrict further reporting, but I'll leave that to Mr Messling

LJK checks all working to same version

PB: Yes thats latest until Mr Messling makes his outlines

PB: Ms Earley for @southamptoncc did not wish for the judgement to be called unlawful, but is happy with wrong

LJK: Yes I was happy with unlawful, but it is wrong

PB: I'm speaking as a public lawyer but yes, we're happy with wrong #RROAppeal

AMcF discussion about wording relating to date of birth

PB: I was a little foxed by this.... we'll have to include some flexibility

LJK: Yes if you were to put the actual date when they were 18 then that is pretty much giving the jigsaw piece #RROAppeal

PB: We would not want the hearing to end without acknowledging Emily Board @bho_llp and Mr Messling appearing pro bono for the mother #RROAppeal

AMcF: All this wk I've been sitting in this court.. 8 counsel in the room and 6 of them were appearing pro bono.

Here you are. I think the bar is not thanked often enough, the public dont realise how public spirited the bar is in providing its expertise in these cases #RROAppeal

Discussion about the mother's position

PB: She is in this difficult position, the last thing she wants is her child to be identified, but she also wants her voice to be heard about what happened to her

#RROAppeal

LJK: We don't want to create any hostages to fortune

PB: I think its worth repeating this is a family where a child has been moved from what the Court of Appeal described as the slimmest of evidence of harm to the child #RROAppeal

PB: ..she then needed to appeal with her own resources, £60k to overturn care order and then returned and @SouthamptonCC agreed it cld be overturned which raises a number of public issues

This particular LA area has highest rate of adoption of children in the country #RROAppeal

AMcF: It shows also a lot of applications for permission to appeal are made by litigants in person, it just shows.... how vulnerable the system is to the litigant in person not actually being able to appeal... #RROAppeal

AMcF.... and how crucial it is that the Court of Appeal sees the validity of any appeal and takes it up, its a very fragile pathway given the stakes involved.

This case shows the order has changed from the child being placed for adoption to going home #RROAppeal

LJK: Its for that reason that applications to appeal only go before a specialist Lord or Lady Justice because they have the expertise to tease out and read between the lines of the litigant in person's arguments #RROAppeal

PB: Its my respectful submission that they should have access to public funds

LJK: ...I'm just sharing what Elastoplast we have in place #RROAppeal

Discussion about the agreements of the new reporting restrictions order #RROAppeal

PB: One of the issues of practice it would be helpful if you could address in your practice guidance, is that a journalists applying to lift an RRO should not be liable for the costs of doing so #RROAppeal

PB: We've seen for the purposes of this appeal that the risk of cost orders are such that some journalists are not able to appeal due to their concerns about costs but Ms @louisetickle went ahead bravely anyway #RROAppeal

PB: My Lord, if in your guidance you could make it clear that a journalist seeking to vary an order should not be liable for costs, or indeed for the appeal if they are successful in doing so

{I think.... got lost a bit there} #RROAppeal

LJK: There would need to be some caveat, I think reprehensibly was the word used?

PB: Yes, unless they've acted reprehensibly #RROAppeal

Discussion about whether should be discussed in the process of the (original) case.

PB: Once its clear there needs some restriction going beyond the case, there's a reporting restriction issues as well as variation issue, which is why parties shd sit down and draft #RROAppeal

LJK: Initially it was intended that if a journlist attended a hearing in the family court, their credentials would be checked and a discussion would happen at the start, it so rarely happened this fell away #RROAppeal

PB: I think there is practice guidance for people to object to their presence but not the other way #RROAppeal

LJK: Yes

Discussion about legal bloggers

AMcF: The legal bloggers pilot has been interesting in some respect, they tend to be barristers in a different guise, they can spot things in the process that a journalist attending court wouldn't necessarily spot #RROAppeal

PB: The professionals that would be named are those that are already named in the court judgements and the only names redacted were...??

SE: Previous foster parents and medical professionals who continue dealing with the family #RROAppeal

AMcF: logically Mr Wolanski it should be you next

Adam Wolanski for the @BBC #RROAppeal

AW: What happened in this case is indicative of what can go wrong if the procedure for applying for RROs is not complied with. The real problem here as it seems to us, the issue of reporting come up #RROAppeal

AW: ... no-one said to the judge here's the draft order that outlines the restriction we feel is needed and why its needed

It's understandable why it didn't happen in this case, nobody planned to come to court and make an application for a RRO #RROAppeal

AW: ... so its understandable why no-one thought to comply with the practice note, however, having arrived at court, one can see from the transcript

...its obvious that the problems materialised because nobody was focused on the RRO #RROAppeal

AMcF: It was a very short hearing that went at some speed

AW: No-one could agree what they were talking at, people were talking at cross purposes #RROAppeal

AW: That's our first point about what gave rise to these problems and why this court should remind those practicing about the dangers that emerge from not following practice guidance #RROAppeal

AW: There's guidance on reporting restrictions that exists for Section 12(2) of the Human Rights Act that opposes an obligation on anyone applying for an order restricting freedom of expression without first putting those affected on notice #RROAppeal

AW: There is not the same for relaxing reporting restrictions... the way it usually comes up is that a journalist will be in court and say 'excuse me I'd like to report this, what can I report please' it's framed as a question

AMcF: Clarification #RROAppeal

AW: But it is in fact an application

If this court were to give practice guidance, and we'd very much encourage it to, then its necessary to bear in mind any additional formalities may give rise to problems for journalists in that situation #RROAppeal

AW: it's not practical to expect them to fill in form, pay fees, for the way in which these applications are made... we agree with the submissions made by Ms @louisetickle #RROAppeal

AMcF: The process, where a judge has decided to lift reporting restrictions, shouldn't be held up... journalists are in the room because they're an accredited journalist, the process shd move on, we shdn't be putting in additional hurdles with relation to transparency #RROAppeal

Discussion about relaxation

LJK: We need to be a little careful about that submission.... the danger for a journalist is that they may inadvertently put their foot on a landmine and be in breach of the original order #RROAppeal

AW: Your Ladyship is right. A judge will often say you can report everything you've heard in court today but not the names, or the following 5 points but nothing else #RROAppeal

AW: ... that's normally quite straight forward and the journalists who cover these cases will find it quite easy to comply with that relaxation, but if its a reporting restriction its more, because precision is needed because of the intent #RROAppeal

LJK: I'm saying the same danger lies for the journalist if you're not precise about the extent and form of the relaxation

AMcF: There's probably more risk in the relaxation, unless you're precise about quite where does it go too #RROAppeal

AW: Question of paramountcy is not easy and is possibly more complicated than @paulebowen has explained, buried within it is question... as a matter of general approach the paramountcy test is applicable in cases where freedom of expression issues are being dealt with #RROAppeal

AW: Additionally, issue whether Section 97(4) introduces a different test, and if so how does that test relate to the paramountcy test. That is another question it may be necessary for this court to deal with on another occasion #RROAppeal

AW: The final matter Mr @paulebowen raises about the most recent guidance nad whether it may need to be changed, we agree that it perhaps needs some further attention for the reasons he gives #RROAppeal

AMcF: It judiciary.uk/publications/p… was subject to consultation during Mr James Munby's time but I don't think these issues were thrown up, and we need to get it right, we may offer the opportunity for submission on existing guidance #RROAppeal

AMcF: Ms Earley for @southamptoncc is there anything you wish to add?

SE: The local authority are pleased this is resolved... whether you deal with this as practice guidance or not, I'm conscious of the need to involve @MyCAFCASS in future guidance #RROAppeal

SE: Sir what is perhaps not known is the judge may have dealt with 8 or 9 cases that day, its in that context that applications from journalists must be dealt with

AMcF: I'm aware of that... we must be aware of what should have happened, without being unaware of that #RROAppeal

Lawrence Messling for the mother

LM: My client's primary concern is for her family... however she is aware that her story has wider application and her sympathy for that story to be published so long as her confidentiality and that of her family is maintained #RROAppeal

LM: My Lord as I understand it I believe there is sympathy among the parties for that level of specificity to be maintained

[I'm going to tweet light at this stage so don't share information that may later be withheld] #RROAppeal

AMcF discusses details in public domain

LJK: Its King Cnut issue {??}

AW: A slightly more prosaic image, the toothpaste is out the tube.... my Lord while it might not be possible to get back in the tube, it might be possible to avoid it getting on the toothbrush #RROAppeal

LJK: You said the probability of identification, I think you meant the risk, if the court was satisfied there was a probability then....

AW: My Lady I stand corrected, its about the risk #RROAppeal

Discussion about the details of the proposed new reporting restrictions order

#RROAppeal

LJK: A journalist is writing a piece about what happened, they may wish to use quotes from the judgements.... are you saying, while you accept those judgements can not be redacted, if they are seeking to quote from those they are to redact them #RROAppeal

LM argues might be able to redact first judgement

LJK: That's nonsense, you can't redact the earlier judgement and then not the later Court of Appeal judgement #RROAppeal

Discussion continues about redaction of judgements #RROAppeal

Discussion about extent of redaction and issues of identification of child concerned #RROAppeal

Agreement that it's a matter of drafting

AMcF: We see the merit of what you're trying to do... whilst there's drafting going on the numbering in para 3 is off. Right, good.

Discussion continues

AMcF: So journalists can reference Court of Appeal hearing, but not provide the link?

LW: I thought they ought to be permitted reference to, or providing the link

AMcF: They're allowed to report the details but not provide reference to it?

#RROAppeal

#RROAppeal

LJK: I really dont want to be difficult and want to give the mother and child as much protection as possible, but how is any journalist expected to do what they want with this case and not provide a link to the Court of Appeal judgement, they just cant...

LJK: How could we agree to something where they couldn't refer or link to the judgement?

Discussion continues about detail within the Court of Appeal judgement that Lawrence Messling is trying to amend #RROAppeal

LM: Suggestion that referring to/providing link can be done but repeating the detail within the report itself can not be done

Discussion about readership of the Court of Appeal judgements versus media coverage #RROAppeal

PB: We have every agreement with point Mr Messling is making, Ms @louisetickle had agreed to it initially... but regretfully the court can not make the order

AMcF: No, we're left to the professional judgement of journalists about whether they shd

Case law discussion #RROAppeal

PB: In relation to Mr Wolanski's submission that there's a distinction between applying an RRO or relaxing reporting restrictions.... the reality is that once the court grapples with this issue, they must grapple with both #RROAppeal

PB: We can't have situation where as soon as its clear something additional is requested by one party an adjournment happens... what's required is a pragmatic approach of all parties, including journalists, identify what is sought and that is put before the court #RROAppeal

PB: While I accept what Ms Earley says about busy judges... these are hugely Draconian orders being made by judges

Discussion about Transparency in the Family Court by @julie_doughty @familoo and @Maggotlaw and its usefulness to the court l shar.es/amo9wD #RROAppeal

#RROAppeal we're adjourning for a short break while Sir Andrew MacFarlane, President of the Family Division and Lady Justice King confer

#RROAppeal and we're back in

AMcF: The Court has before it an appeal against a reporting restrictions order made in October 2018... {continues}

#RROAppeal

AMcF: Initially an order was made to place the child for adoption, an appeal was granted and heard which has been reported elsewhere.... case attracted interest in the media, 3 respected journalists appeared at court to observe the hearing, as they're entitled to do

#RROAppeal

AMcF: The transcript of the hearing makes plain the issue was dealt with relatively swiftly and the judge made an order that restricted reporting, including restricting information already in the public domain

One of the journalists Ms @louisetickle appealed

#RROAppeal

AMcF: Ms Tickle was granted leave to appeal by Lord Justice Jackson.... with respect to the reporting restriction order, agreement is now reached, it could not be dealt with on paper

AMcF: so it was for this court to determine and the court established this hearing to take stock of the process and consider whether a full hearing was required... Ms @louisetickle and the @bbc wished to canvas broader issues #RROAppeal

AMcF: The court is very grateful to Mr @paulebowen and Ms @SVPhillimore for the skeleton arguments set out...

the @bbc asked to join this appeal, that's not contested, the Court heard oral submissions from Mr Wolanski #RROAppeal

AMcF: Unfortunately legal funding is not available for the child to be represented.... the court has heard from representatives for the child's mother and @SouthamptonCC #RROAppeal

#RROAppeal

AMcF: It is a matter that requires full consideration, but this case is now constituted {??} so no party wishes to argue against the representations the media make

My Lady and I decline the invitation to maintain the fuller hearing in March

#RROAppeal

AMcF: It's asserted the judge gave no evidence, failed to consider case law in relation to family court, finally and crucially he failed to undertake the necessary balancing exercise between Article 8s and 10 of the EU Convention of Human Rights

AMcF: This court has sympathy for any judge faced with an application such as this, it also has sympathy for the journalists involved who often have no legal representatives

#RROAppeal

AMcF: There is currently no guidance or route map for how such determinations should be resolved; it is my intent as President to issue guidance at the earliest opportunity.

#RROAppeal

AMcF: I propose outside these proceedings to develop a draft set of guidance and then consult with the various interested parties and bodies with a view to issuing it in due course #RROAppeal

AMcF: The Appeal is allowed because the order made was wrong, the order therefore in relation to the appeal, will record that the @BBC has joined and that the appeal was allowed and the order made by Judge Levey will be set aside.

#RROAppeal

Discussion moves on to fact a further RRO will be made and discussion on contentious detail within previous judgement

AMcF: It would be wrong; for us to take any step to prevent linking with the Court of Appeal judgement; I'm not persuaded the Article 8 rights are compromised to a degree that would warrant any other course, so I reject Mr Messling's application #RROAppeal

AMcF: If my Ladyship agrees, the appeal is allowed.

LJK: I agree #RROAppeal

PB suggests that parties will draft an agreed argument and share with court

AMcF requests Mr @paulebowen skeleton argument electronically and gives his thanks to Ms @louisetickle for raising the issue