In this thought piece, Natasha Davies and Emily Wilson consider the constitutional and human rights issues raised by the anonymisation of the family court judges who made decisions about the Sharif children prior to Sara Sharif’s murder.
Currently, the leading case regarding the anonymity of judges upholds the principle that “where open justice prevails so shall those who do justice be known”.[1]
However, that case was decided in 1987, and the world has changed since then.
The Court of Appeal was asked last week to consider whether this principle still applies in the same way in today’s world, particularly given the rise of the internet and social media, and the seeming inevitability of online trolling and vilification of individuals in public life.
The current appeal arises from a decision in the High Court, which on 19 December 2024 prohibited the naming of the family court judges who sat on historic proceedings which ultimately approved Sara Sharif going to live with the father who later murdered her.
This decision has been received with significant criticism, particularly among the media, and is being challenged by several media organisations in the Court of Appeal, which heard the case on 14 and 15 January 2025. The judgment is expected imminently.
Does justice always need to be seen in order for it to be done?
Those in favour of the appeal consider that the anonymity order flies in the face of existing case law and the principle of open justice (a central feature of the UK legal system).
The High Court judge in the present case pointed to what they termed “the shielded justice environment of the family court” in which statute provides for limitations to the open justice principle in order to protect the privacy of children involved in family court proceedings (in contrast to the open justice environment of the criminal and civil courts).[2] Still, the decision to deliberately and specifically anonymise judges is unprecedented even in family court proceedings.
In fact, the general direction in the family courts is to move towards greater transparency, including recently with the introduction of the Reporting Pilot in several family courts across the country which for the first time made it the default position that the media could report on family cases.
Additionally, in relation to civil courts, the Civil Procedure Rule Committee ran a consultation on proposals to amend the Civil Procedure Rules to make more documents filed at courts available to non-parties without the need to make an application to the Court. Again, this was proposed in the interests of promoting open justice, though progress on the proposals has been paused.
This recent High Court decision is therefore very much at odds with the push towards greater transparency in our court system, which is perhaps why it has been so controversial.
Who holds judges accountable and how?
One of the key reasons why open justice is so important is that it allows the public to scrutinise the judicial system and those who act within it. In other words, it ensures that judges are accountable to the public.
However, there are those who question what “accountability” actually means in this context, or rather what it should mean. Deficiencies in a judge’s decision can of course be appealed through the courts, and complaints about their conduct may be made to the Judicial Conduct Investigations Office. Therefore, there are channels through which to scrutinise the judiciary. In a world where clickbait, ragebait, trolling, and social media pile-ons are everyday facts of life – and have recently contributed to mass unrest such as the Southport riots[3] – must the judiciary always be held to account by being named, even if this leads to the shaming (or worse) of individuals in the press and on social media? Given that information about the judges’ decisions in the cases of the Sharif children is already in the public domain, one wonders what the publication of their names will add to the conversation.
In the context of what many would agree is an overburdened and fragmented social care and family court system, the High Court in the present case also raised the question of why individuals should be held up to public scrutiny rather than the system itself – “Giving names and faces inevitably makes names and faces the focus […] How much more relatable it is to see a face and name and be able to blame them than to look at systems, practices and resource choices”.[4]
To many though, these concerns stray into the realm of questioning the editorial judgement of the press, which is not within the remit of the judiciary who must permit “a wide discretion so far as taste and modes of expression are concerned”[5] if the press is to perform its valuable function of being the public watchdog.
So how do we balance the rights of individual judges with the rights of the press?
This case will ultimately come down to a consideration of various rights under the European Convention on Human Rights. Articles 2 (right to life), 6 (fair trial), 8 (private and family life) and 10 (freedom of expression) are all relevant in this analysis. Articles 2, 3 and 6 are all absolute rights which cannot be taken away for any reason. On the other hand, Articles 8 and 10 are qualified rights, and if these are the only two rights engaged in the analysis then it is necessary to conduct a balancing exercise between the two.
Some, including counsel for the media, say that because judges are carrying out a public function, and because they are expected to be robust “men and women of fortitude” able to be criticised “even in language which is crude, insulting and vulgar”,[6] their Article 8 rights are not engaged when they are sitting. One of the questions that the Court of Appeal will therefore likely have to grapple with in its judgment therefore is the threshold at which Article 8 rights can be engaged when judges are sitting in their professional capacity.
One particular complication in the present case is that the court is being asked to assess the extent to which publishing the judge’s identity would pose a risk to the judge’s safety: in other words, it is being asked to look into a crystal ball. Previous case law on this point is quite clear that “the principles of open justice cannot be calibrated upon the risk of irrational actions of a handful of people”.[7]
Final thoughts
Whatever the outcome of this case, it is striking that the identities of the judges could have been freely published between February 2024 and December 2024, but were not. In making the extraordinary anonymity order, it seems that the High Court has significantly magnified interest in their identities.
If you or your organisation would like advice on any of the issues raised in this blog, please contact either Natasha Davies or Louise Sivey.
You may have noticed that we have omitted the names of all judges quoted in this blog. We wonder whether or not this means that its contents have contributed less value to the public debate.
[1] R v Felixstowe Justices [1987] QB 582
[2] Paragraph 27 of Louise Tickle & Ors v Surrey County Council & Ors, [2024] EWHC 3330 (Fam)
[3] Letter from Dame Melanie Dawes to the Secretary of State, 22 October 2024
[4] Paragraph 69 and 73 Louise Tickle & Ors v Surrey County Council & Ors, [2024] EWHC 3330 (Fam).
[5] Max Mosley v News Group Newspapers [2008] EWHC 1777 (QB)
[6] Harris v Harris [2001] 2 F.L.R. 895
[7] Various Claimants v IPSA [2021] EWHC 2020 (QB)