Calling time on secrecy in the family court - the Williscroft judgment

First published in 2022 here Lecturer in law, Allison Wolfreys writes about the need for transparency in the family court.

Andrew Griffiths, former Conservative MP, raped his wife Kate Griffiths, MP, made her submit to sexual demands, spat at her, and threatened to make her homeless. These incidents formed part of a pattern of abuse, coercion and control exercised by Mr Griffiths upon his wife and were just some of the findings of fact made by Judge Elizabeth Williscroft on 26^th November 2020 during proceedings in the Derby family court. Griffiths v Griffiths fact finding judgment (judiciary.uk)

On 10th December 2021, the findings became public knowledge, by a Court of Appeal decision allowing two journalists to report on the family law case Griffiths v Tickle & Ors [2021] EWCA Civ 1882 (10 December 2021) (bailii.org). 

Louise Tickle and Brian Farmer had applied for an order allowing them to publish the details of the family court judgment. Kate Griffiths, waiving her right to anonymity, supported the journalists in their application. Mr Griffiths unsuccessfully opposed the publication, wishing the judgment to be anonymised.

In his expectation for privacy, Mr Griffiths was not swimming against the tide. Most hearings that take place in the family court are private, despite attempts by some members of the judiciary, transparency in the family court remains elusive. Mr Griffiths had started his case in the family court to allow him to spend time with his child. If he had not done so, then Kate Griffiths would have been free to speak publicly about the abuse. In any event as an MP she could speak about the abuse in Parliament with the protection of parliamentary privilege. She was not prepared to be silenced by the court at the insistence of the father.

Findings of fact made in the family court are made on the balance of probabilities, and not to the criminal standard of beyond reasonable doubt.  However, this still means that the evidence has been tested, challenged and findings made. This particular fact-finding judgment is powerful. It paints a picture of pattern of coercion and control in a relationship, without the court finding that each and every allegation made has been proved.

Why is it important for us to see and understand how the family court makes decisions?   Many women do not recognise their relationships to be abusive or controlling. Instead, individual incidents of abuse often give pause for reflection. However, a holistic view of the  overall picture of power and control are often absent. The reality is that love and affection are present in  relationships alongside the abusive behaviour and often counter negative reflection upon an individual example of abusive behaviour.

Telling the story by building a picture is something that family law practitioners often do well in statements. This case and the release of the judgment provide an opportunity for many to see the realities of coercion and control and perhaps identify with it in a way that they would not do for victims in criminal proceedings.

Restrictions on reporting in the family court

Knowing how decisions are made should provide for confidence in the system and open justice for all. Theoretically, family proceedings are open to be reported by accredited media representatives ( Rule 27.11(2)(f) of the Family Procedure Rules ("FPR")..

Journalists and families might seek to publicise proceedings but in addition to the proceedings themselves being conducted in private, s 12 (1) of the Administration of Justice Act 1960 and the Children Act 1989 s 97 ( 2) lay down automatic restrictions on reporting and publication on cases involving children. The High Court also has power to limit what may be reported using its inherent jurisdiction by the making of reporting restriction orders.

Transparency in the family court - a good thing?

Perhaps these restrictions exist for good reason. Arguably, to publicise salacious details of personal and sexual lives of others is pure voyeurism and should be prevented at all cost. Importantly, children and their privacy should also be protected. Yet this should not be used as a blanket reason in all cases to prevent reporting.

Protection and reality

In Griffiths v Tickle & Ors [2021] EWCA Civ 1882 (10 December 2021) (bailii.org)  an infant child was at the centre of the dispute and careful reasoning was applied in considering the effect of publication on the child’s right to privacy. In this case the privacy that the child’s father had raped and abused the mother.

Crucially, the Guardian appointed for the child changed her view, and supported the application made by Tickell and Farmer to publicise the judgment. To do so, in the Guardian’s view would

“ promote transparency within the Family Court system and shine a light on how the Family Court approaches the difficult area of coercive and controlling behaviour and sexual abuse in a civil-law context. Having considered the likely impact on the child both immediately and in the future when the child was much older, the Guardian was eventually drawn to the conclusion that publication would involve a limited and proportionate interference with the child's privacy”

Limited reporting

Transparency by publishing judgments is important in order to build confidence in the family court. There have been attempts to have more transparency in the family court for years. Yet published judgments in the family court continue to decline in numbers Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people -ORCA (cardiff.ac.uk)

The practice guidance on family court reporting has not been followed consistently. During a five-year period between March 2014 and March 2019 the number of published  judgments in the family court has dramatically decreased. In fact, during that same period 82 Circuit Judges did not publish a single judgment.

What we are allowed to know about judging in the family court can be obtained from the limited number of judgments released, or perhaps by some engagement in research by the judiciary.

Reading judgments that have been released, you could be forgiven for thinking that only the rich get divorced. The coverage of the family court still exists, yet can be limited to the protection of business interests, such as those of Sir Fred Barclay, the high profile owner of the Telegraph newspaper Barclay v Barclay [2021] EWFC 40 (05 May 2021) (bailii.org) or where child protection failings are revealed C (Children), Re [2021] EWFC B72 (28 April 2021) (bailii.org)

Very few people see themselves or their own relationships in these reports and the current state or reporting does not serve as a guide to understanding what the family court would do, should they choose or be able to access it.

Appetite for change

Attempts have been made over many years to make the family court more open, including the Transparency project and later the Transparency review to see what had gone wrong and to try to set out how to strike the right balance. In October 2021, however, the rate of change regarding transparency in the family court was described by the President of the Family Division as “glacial” Confidence and Confidentiality: Transparency in the Family Courts (judiciary.uk).

Questions and difficulties surround what may be reported and the procedure for journalists wishing to report and take up by journalists has been therefore cautious. Knowing more about the family court rests with judges and whether they fully engage in thinking about transparency and balance out the interests of the parties and the wider public interest.

Identification and reality

The reality is that most family law cases involving coercion and control are not publicly reported. This case was exceptional and relied upon determination of the journalists, support of the victim and insights by the child’s guardian.  Whether or not reporting in each unique case should  happen should be carefully considered.  Yet judges should remember that releasing judgments is a powerful tool not only for confidence in the family court system. A story of coercion and control well told in a judgment, will enable those experiencing such abuse to see the unacceptability of such conduct.

Allison Wolfreys

Allison Wolfreys is a Law Lecturer. Formerly a Solicitor in practice, her interest lies in family law and specifically children’s rights. She holds a degree in Literature and Social Science from Manchester University.

She has published in leading family law journals such as Child and Family Law Quarterly. With a particular interest in cases concerning parental child abduction, her work was cited in a recent European Parliamentary publication. She also published the first empirical study that focuses upon the participation of children in Hague parental child abduction proceedings heard in England and Wales through data collected from legal practitioners and Cafcass staff. Allison has continued her role as author and Module Team Chair of W230 Family Law from production to presentation.