FiLiA meets: Louise Tickle
An award-winning freelance journalist, Louise specialises in education and social affairs. She has written extensively on domestic abuse, the effects of poverty on children’s education and child protection.
She has a particular interest in family courts and the care system, and is a member of The Transparency Project which aims to promote greater understanding of family law.
In 2017, Louise was shortlisted for the Orwell Prize for Exposing Britain's Social Evils for her work on the BBC One film Behind Closed Doors and her Guardian reporting on domestic abuse. In 2016 she was also shortlisted for the Orwell Prize for Journalism, and was a joint winner of the Bar Council’s Legal Reporting Award. She has won a number of CIPR Awards for outstanding education journalism, and has twice been winner of the Rosemary Goodchild Award for Sexual Health Journalism run by Brook and the Family Planning Association.
She is joined by FiLiA’s Sally Jackson for a discussion on this podcast and will be speaking at the FiLiA Conference in 2019.
Listen here (Transcript below):
Transcript:
Sally Jackson in conversation with Louise Tickle
S – There was a family case heard in a Portsmouth court which I think is where The Transparency Project stemmed from, is that right?
L – I’ve been involved in family courts for 5 years now. I’m based just outside Bristol. I was writing about domestic abuse in 2014 and had been doing quite a lot of work on that. It was after the legal aid cuts had come in. At that point there were very few situations where women who were alleging domestic abuse could get legal aid. It is still both means and merit tested. The list of how you can get legal aid is greater now but at the time it was very short.
My Editor asked me to go down to a family court and see a litigant in person, a women acting on her own behalf because she couldn’t get legal support, and asking for a non-molestation order to be made. I went down to Bristol. I hadn’t realised there were special molestation days where molestation orders were made. I also hadn’t realised how quite extensive the restrictions were on reporting what went on in family courts.
As a journalist, what you want to do is describe what you’re seeing. What I wanted to be able to do was to describe what women’s charities had told me what the situation was for people who were terrified of turning up and having to represent themselves in a case where they were fighting for an order which would help to ensure their safety at least to some degree.
I wasn’t able to that that day but it pointed out to me that there were really big problems with transparency in family courts because had I turned up on the right day I wouldn’t have been able to report anything.
I then started getting interested in what goes on family courts where the potential is for children to be removed forever from their parents or their access to their children can be severely restricted. I went on to do more work mainly for the Guardian, looking at those situations.
I continued to be interested. The Southampton City Council case that was heard in the Portsmouth court was recent and subsequently led to me to appealing at the Royal Courts of Justice the order on restrictions on reporting in that case where I felt it had been done unlawfully.
S – You would have the assumption that the people in the court would have an awareness of the law yet the protocols were not followed initially when those reporting restrictions were first put in place.
L – That’s right. I think it’s fair to say courts are not familiar with journalists because the parties themselves can make applications for reporting restrictions to be lifted or for them to use their freedom of expression to talk about what’s going on in a family case.
It’s primary legislation that nobody can talk about what goes on a family court. Everyone is terrified of getting it wrong. If you get it wrong, it’s contempt of court. That’s really serious particularly in a children’s case. For the media you can be fined or sent to jail if you get it wrong. So publishers and news outlets tend to be very conservative about what they’re willing to publish from family courts, even if you do get permission.
I think it’s fair to say, everyone is unfamiliar. However, this court had notice that journalists were turning up and that we were going to be applying for reporting restrictions to be lifted. In that situation it’s perfectly reasonable for everyone to be able to expect that the judge knows what he/she needs to do to make a lawful reporting restriction if they’re going to do it or indeed to lift reporting restrictions lawfully if they’re going to do that. The lawyers themselves should be motivated enough to read up on the case law to know what they need to do if they are going to ask for extra reporting restrictions to be added on to what would normally be the case through statute. I think it was the complete failure of all the professionals in the court that day.
The barristers who were asking for the restrictions to be imposed, didn’t provide any evidence as to how the family might be identified if details were published and they didn’t explain how any harm would result if identification did take place. Both those things you have to do, in law, in order for a judge to do the job that they need to do which is balancing exercise. They have to balance Article 8, your right to privacy, the child’s right to privacy in this case, against Article 10 which is your right to freedom of expression. The freedom to impart or receive information.
The judge didn’t just not do that, he didn’t ask for evidence when he didn’t get any and he made the order.
It meant that a really important case where a child could have lost her relationship with her mother forever, thanks to an adoption placement order that the court of appeal had already said had been made on the slimmest of evidence.
Adoption placement orders should only be made on the most robust of evidence. The idea that a court made it on the slimmest of evidence was an outrage.
The mother told me she had to pay £60,000 to be able to appeal and get her daughter back.
We couldn’t tell that story because we couldn’t report some of the details that were in fact already public. They were restricted and that’s a very unusual thing to do.
S – Outside of the domestic abuse bubble there’s a naivety almost around what the public thinks happens in courts and huge amount of trust placed into the system. So if a judgement has been made in the court, there’s an assumption that all angles would have been considered and the right judgement will have been made.
L – The public interest is huge. The child was in foster care for 3 years so there’s all of that damage to her relationship with her parents, in this case it was just her mother. There’s an enormous cost to the public purse when these things are got wrong and there’s a huge public interest in us knowing how these decisions are made.
I don’t remotely suggest all the decisions made by family courts are erroneous, unlawful or wrong. The fact that they happen in private, which to all intents and purposes, is in secret because even though journalists go in, we can’t report a word of what happens in front of the judge so nobody can know.
S – Most people would understand the need for some privacy like protecting a child, at the same time if we don’t know and can’t share what’s happening, how do we possibly improve it?
L – It’s a really difficult balance. I would never argue that a family should be identified because there are all sorts of reasons why that could be extremely damaging for the child, their siblings and the wider family too.
Family courts don’t deal with pretty, fun stuff. People are often in deep distress, they’ve had incredibly difficult lives, they’ve been harmed, they are traumatised, people sometimes behave badly. Just because you behave badly doesn’t mean your child should be removed. There are really good reasons for privacy but when confidence in a legal system is being questioned to the extent confidence in the family law system is being undermined now, I think there are very strong social reasons for there to be an acceptance that openness is of benefit.
What everybody wants is the best decisions to be made for children. The most robust ones, the ones that we can really have confidence in.
When you read judgements, and there are very few published compared to the number of family law cases that go through the courts every year, the judges who do publish and some publish relatively often. They show human rights abuses going on.
There were 3 horrific cases describing what had gone on in Herefordshire by Mr Justice Keehan, the High Court Judge in the West Midlands. Clearly he was horrified by the cases coming to him from Herefordshire and the enormous damage the state had done to those children who were supposed to be in their care. He publishes. And because I can see that I also know the vast number of other cases, I have to ask – what are we not seeing? What are we not able to scrutinise? How can we do that better?
It is a dilemma because there needs to be mechanisms in place to protect the privacy of families because if you don’t, you cause further damage.
S – Southampton has an above average rate of adoption for a local authority and there well may be really good reasons for that. But without some kind of scrutiny we don’t know if that is because good judgments are made in an increased number of difficult cases that come before the court or if it’s around their decision making process which perhaps need to be investigated. How do we balance that with other local authorities? How do we measure one against the other to see whether it’s a fair system?
L – That’s why it’s really important, when journalists ask whether to report, judges take it very seriously and apply the law properly. Southampton had been shown through academic research to have had the highest rates of adoption of children in a cohort aged under 5 when the research was published early last year.
So if you have an area, which is not by any means, the most disadvantaged in the country, adopting at the highest rate of anywhere in the country and then you find an appeal court judgement that says that one placement order had been made on the slimmest of evidence and that is a quote. Really serious questions need to be asked and we need to scrutinise and investigate it.
One of the things I found most difficult as a journalist is that: people come to me daily now by direct messages on Twitter and by email mostly, telling me of the terrible things that have happened to them in family courts. I can make no assessment about whether terrible things have happened to them in family courts. I absolutely know they are distressed. The reason I can’t assess is that I can’t investigate. I’m not allowed to look at the papers or to test their accounts. I would never just believe what somebody said. I would want to interview everybody involved. I would at least want to look at the evidence put forward in submission as to what they have said they had done and ask them about it. That’s just what a journalist does, we test what people say to us. I can’t do that because I’m not allowed.
It is chilling and because it’s chilling it discourages journalists generally from even being willing to look. I know, I get these accounts and sometimes I barely read them because I know I can’t do anything about this. It becomes really overwhelming to keep getting these accounts of peoples’ very painful, anguished experiences of a system that makes it so very difficult for me to hold it to account.
S – It is really difficult to know that information and hold that information and be powerless to do anything about it.
L – I think that’s an issue for everybody who works with traumatised people. Psychologists have sessions with their own therapists, social workers will have time to be able to discuss things and journalists don’t. But it’s the least of the problems.
There’s no other subject where if I was getting this volume of despairing contacts from people, you wouldn’t be investigating. This is how journalists find the stories we’re interested in. You take the temperature of what’s happening in society, you try and investigate and tell the stories of what is happening after doing an investigation which involves testing people’s accounts. In this situation it’s just very hard.
S – Have you looked around in other countries for ways of dealing with this. One of the things that strikes me is we tinker around the edges trying to do something about making the family court a bit better like with the Domestic Abuse Bill, no longer will perpetrators be able to cross examine survivors in the family court, which is a positive move. Sometimes tinkering is not enough and we need to look for a different system.
L – In terms whether a wholesale reform is needed, that’s a very big question and that would require a willingness from people in the justice system to go and look at what is happening in other countries. In America (USA) there are different ways of dealing with minors in their courts which are much more problem solving. In this country we have the drug and alcohol courts. It is still a court setting but it’s meant to be supportive and where resources are wrapped around a family who are at risk and on the edge of losing the children to care. Resources are wrapped around the family for significant amounts of time.
I went to see a court operating in Gloucester a few years ago and it was really fascinating. One of the reasons people lose their children to care and adoption is because services that might have supported them to be able to look after that child safely at home are decreasingly available.
Social workers rack their brains to what they can do to mitigate the risk to a child because the services they could put in place potentially quite early before things got dangerous or difficult, are no longer commissioned because of the cuts and that is where austerity has taken us. People are losing their children and children are losing their parents because services are not there that would enable them to live safely together.
S - We see that in all sorts in working with domestic abuse. We’re losing services, particularly specialist services.
You did a trip to Dublin to look at the courts there?
L – It was a really interesting trip. It was a trip I made to find out how Irish family courts were held to account. They are not doing anything radically different in terms of the process but it is radically different in terms of what is known about what happens in court.
Whereas in this country the starting point is – we may not say what goes on in family courts – in Ireland an amendment was made in law which allows the media to report: subject to objections and restrictions that might be made in order to help anonymisation of the family be affected. Journalists can go to court and they can report. Not that many do because resources are still intensive. Not many reporters go to criminal courts in this country because the media has been decimated and limited with what it can spend on this sort of thing. But it is possible and in some cases it is done.
The other thing that happens in Ireland is that the State actually funds the scrutiny which in some ways is problematic but in other ways, depending on the people running the system, is actually really good because to run proper scrutiny you need proper resources. They have Dr Carol Coulter who used to be the legal editor of the Irish Times, a hugely respected journalist.
She now runs The Irish Child Care Law Reporting Project where a variety of rapporteurs, a mixture of lawyers, journalists and academics are commissioned to go around the family courts, they have the right to sit in and they write descriptive accounts of what is going on. These are not published instantly in any newspaper or broadcast on any media. Reports are compiled every 6 months and the media tends to cover the themes that result from those reports, quite extensively.
I was there on the day the report was published and Dr Carol Coulter was being interviewed extensively on local and national news and in fact that report was about the ridiculously long court lists that family judges were having to deal with. Their cases were having to be dispensed with in rapid fire succession so that’s a question about access to justice.
She had previously made a report on highly contested and contentious family law cases and that had been extensively covered.
There are different methods of holding the State to account and that was a really interesting one and we could probably learn from.
S – Sounds like it would need resourcing but could be implemented fairly swiftly. Importantly the learning from that start informing changes to the system.
L – The way it was described to me in Ireland, by lots of people besides Dr Coulter, was that they were going in to describe what was going on rather than any kind of agenda to write some sensational stories, which often, to be fair, is what the media do. It’s not an edifying prospect in many cases. There’s a real risk of family cases being mined for salacious detail that sells newspaper copy. It was a respected system, the people cooperated with it, they felt it was impartial and objective and fair and it was taken seriously.
When you have that level of approval and initially the people in Ireland had been quite suspicious of it and no identification of families had occurred as a result of the projects reporting. I think that’s potentially very positive.
S – Presumably that sort of system would then be able to pick up, for instance, if there was a particular region that were making judgements that were particularly harsh or particularly lax. That sort of system would note that and be able to pick that up fairly quickly.
L – It depends on the resourcing and the scope and how many cases you’re able to go into. I think there’s a place for academic research which would be very rigorous to look at that but it’s all to do with funding. Journalism can do a job in highlighting something egregious in a particular subject area.
I’ve been wanting to report on how family courts deal with domestic abuse for 3 years. The resourcing has not been available for me to go and sit in on 3 or 4 different cases and follow them to the end but if the resourcing was there that could be something that journalism did.
I would say the rapporteur type of project was something where you could draw out themes. It would depend on how it was designed.
I am at the moment trying to plan an Open Family Court Reporting Project. It doesn’t mean open as in public. That would scare the horses and be counterproductive. I mean open in terms of attitude, open to the idea that scrutiny is a good thing and that maybe 2 or 3 court centres around the country were willing to cooperate with news organisations to allow reporting of details of what happens in family cases, subject to people objecting and those objections being upheld by a judge, it might or might not happen, and also subject to specific restrictions being imposed on identifying detail because for instance, if you have a Somali family living in Norfolk, that’s quite identifying, there won’t be many of them. But if you were talking about a Pakistani family living in Bradford then that wouldn’t be particularly identifying at all so it would depend on your context.
S – A side effect of that sort of system would be a slightly improved public awareness of some of the issues that go through the family court. Because it’s so private I think the public don’t realise the extent to which there are issues within the families, be it domestic abuse or others.
L – That was one of the most interesting things about the Irish trip. People said to me that they felt the public were more aware now of the level of abuse that was happening in some families. Ireland, as we do, have gradually uncovered a level of abuse they weren’t aware was happening. That was quite an interesting thing. The other thing I think is really interesting is, families end up in family courts, it doesn’t need to be public law cases where a child might be removed, it might be family breakdowns or separation where there’s a dispute between the parents. If you go into that completely without knowledge, then it’s even more frightening.
The public education about how family courts work and the level of proof they require and the powers they have and how the hearings work. I think that would be of enormous benefit because it is so secret now that everybody who turns up in a family court, I think, turns up petrified. I have spoken to people outside family courts and they have been shaking like leaves, men as well as women. The strain is immense, the fear is huge and I think familiarisation can only be good.
S – For so many of them it will be the first and only time they have ever been in a court building.
L – Yes, absolutely because people who go to family courts are not criminals, they are people who have got really difficult family circumstances. They or their children might be at huge risk or they or their children might be in a situation where there’s a dispute between the 2 parents that has become intractable and upsetting and there’s no violence involved but it is still hugely upsetting and a drawn out process. So yes, if you’ve not been in court before it’s not a place you want to turn up to without any knowledge and given that most people will not be eligible for any legal aid, if you can’t afford your own lawyer then you’ll be turning up there on your own.
S – The cuts to legal aid is such a huge issue. I think the courts are generally supportive and helpful to people who are representing themselves. It’s added strain and worry that women don’t need at that time.
L – When I’ve been watching people in court and ready to go in without a lawyer, it’s really evident how disadvantaged you are. That would be men or women. I have seen both. It’s a situation where you are very powerless. You have very little knowledge almost certainly no experience. Enormous decisions can be made about your and your children’s lives.
I think it’s true judges are very tolerant and helpful to anybody who is a litigant in person. If, for instance, you were a mother who turned up in court and hadn’t been able to afford a lawyer and your ex-partner was in court with a lawyer because they could afford a lawyer, that’s a really scary and painful position to be in.
S – Reading the response to the Domestic Violence Bill today, I’m hopeful there’s opportunities perhaps for representation to be provided by the State in the future if that happens but because there’s a resourcing issue attached to that, I’ll wait and see if that happens in reality.
L – Are you talking about if a cross examination is going to take place where there could be a legal representative to do that cross examination?
S – Yes
L – The cuts to the legal system have been so enormous, I don’t think people really understand the level of cuts, they are vast. To court staff which means it’s difficult to get hearings in private cases, the funding to judges which means trials have to be put off or are massively delayed so I will believe it when I see it.
S – The system is under enormous strain but we have to do the best we can do to get access to justice for families who do find themselves in a position of having to work within it.
L – I wouldn’t minimise the fear that people have of there being more openness of the family law system but I do take account of the women who have come to me and some men too, saying their experience had been so appalling and they have been so shocked by the process they have been forced to undergo, the lack of due process, the unfairness they say they have experienced, that they are willing to risk the loss of their anonymity in order to get the system more scrutinised and more accountable and to make better decisions for people.
S – We hear of tragic circumstances around access like children being murdered by the person the mother has been trying to prevent contact with. There’s a lot to fix. Hopefully we’re starting to attack some of those issues now and maybe by opening out that transparency would be a really good way to scrutinise.
L – Yes, if you can’t see something, you don’t know what’s wrong.