Dr Charlotte Proudman and Elisabeth Traugott successfully represented a mother in an application to publish the father’s name in a family court case. He is a serial rapist. The father raped the child’s mother on three occasions and coercively controlled her. When he was in the army, he raped a teenage girl and was convicted. He is now on the sex offender’s register for life. Two journalists applied to report his name. The father and Cafcass opposed the publication of his name.
Background:
“The issue before this court is whether the interest of the public outweighs the established rules of anonymity in family proceedings so as to permit the publication of the names of the first respondent father and that he was previously in the armed forces.” [1]
“The applications are brought separately and independently by the two applicants. The applications are supported by the mother but opposed by the father and on behalf of the child. For reasons that I have set out below, I grant the applications.” [2]
“The parents began their relationship in the autumn of 2018 and started to cohabit the following winter. They lived together for about eleven months and their relationship ceased when X was about a month old…In April 2020, the mother’s solicitors wrote to Mr White raising a number of concerns about his behaviour and honesty. He was informed that his contact would only proceed on a supervised basis.” [4]
“The father continued to see X, until a temporary cessation between January to April 2021. This prompted Mr White to apply to the Family Court for defined arrangements to see X. Cafcass identified safeguarding issues and the mother raised serious allegations of domestic abuse against Mr White.” [5]
Findings of Abuse:
“The matter came before the allocated District Judge (the ‘judge’) on 14 and 15 December 2022 for a fact-finding hearing to determine the mother’s allegations.
The judge made a number of significant findings against Mr White that include coercive and controlling behaviour, three occasions of having sex with the mother without her consent and a further occasion of attempting to have sex with the mother without her consent.” [6]
“Thereafter, the judge gave further directions including directions for the filing of a section 7 report by Cafcass. Following some further interim hearings, the matter came before the judge on 12 February 2024 for a final hearing.
In her careful judgment, the judge considered a number of pieces of evidence and concluded that X should have unsupervised contact with the father in the community. Her decision in this regard was overturned on appeal. The matter was subsequently referred to me to consider the present applications for publication.” [7]
Applied Case Law:
“With characteristic clarity Lieven J in Tickle v Griffiths [2021] EWHC 3365 (Fam) provides for a most helpful guidance which was approved by the Court of Appeal. This decision is authoritative and the broad applicable principles therein may be summarised as follows:
a. section 12 of the Administration of Justice Act (1960) places ‘considerable restrictions’ on the publication of information from family proceedings, and
b. section 97 of the Children Act (1989) places a prohibition on the identification of a child who is the subject of proceedings, but the court may ‘relax’ such prohibition, and
c. any easing of the restrictions under section 97 must be in circumstances that is compliant with convention rights and not just demanded by welfare requirements of a child…
d. In this context, the interest of the child is not paramount but the primary consideration which requires the court to assess the impact of the proposed reporting with an ‘intense focus’ on the elements of the claimed rights in each particular case.
e. When Articles 8 and 10 (ECHR 1950) are engaged:
i. neither takes precedent over the other,
ii. a conflict between the two necessitates an ‘intense focus on the comparative rights’ under each article, and
iii. be proportionate.
…
f. The hierarchy of different Article 10 rights include political speech as the top item that it essential to democracy, then ‘intellectual and educational speeches’ that are important to democracy and finally artistic speech, with the latter two being important to the development ‘of individual’s potential to play a full part in society’….
g. Rights to privacy go beyond issues of publication and include access to information by third parties. Furthermore, repetition of information or repetition of disclosure of information as well as repeated publication may constitute further and ‘unjustified’ interference of an individuals’ right to privacy and extends to those with whom he/she is involved. This requires the court to give ‘due weight to the qualitive differences’ in the intrusion and any causal distress…
h. Harm from publication to the subject child must not be assumed, especially where there has already been some publicity and the court must take an objective view about ‘the reasonable expectation of privacy.’…” [3]
Call for Publicity:
“The application for publicity was made orally at the hearing before the appeal judge.” [8]
“Ms Summers and Ms Martin each argue that in the circumstances of this case, the Article 10 rights overwhelmingly outweigh the respondent’s and in particular the father’s Article 8 rights…They submit that much of the information is in the public domain in an anonymised judgment that was published by the judge.
Mr White is already identified and reported in the media for his convictions that include the rape of a teenage girl for which he served a custodial sentence. This illustrates that his behaviour is not limited to a domestic setting and public interest demands that he is identified.
Furthermore, there appears to be a possibility that he has used different names which lends greater weight to the arguments for him to be publicly identified. Whilst he is no longer in the army, at the time of the rape of the teenager, he was in the armed forces and this lends further substance to the public interest arguments. Mr White is also in a relationship with another woman.” [9]
“Turning to X’s interest, they each recognise that this is the court’s primary consideration and submit that X is young and will not have an awareness of the issues. They submit that X’s mother, who is supportive of the applications, is best placed to address these issues in an age-appropriate fashion when this becomes more relevant to X.” [10]
The President’s Calls for Transparency:
“…the applicants argue that there is now a greater recognition of the said Article 10 rights in the Family Court whose approach must be ‘within the spirit’ of the President of the Family Division’s guidance which is set out in Confidence and Confidentiality: Transparency in the Family Courts (28 October 2021) where the President highlights the importance of transparency, what this means in the Family Court, the need for greater openness going forward and the framework for doing so.” [11]
CAFCASS’ Opposition
“The mother joins the above submissions and makes additional observations about the position of Cafcass who oppose the application on behalf X. The mother submits that she has successfully appealed the judge’s decision on the issue of contact as her decision was in the main informed by a woefully inadequate assessment by the allocated Family Court Adviser.
She has lost trust in Cafcass’ capacity to adequately represent X and the issue is exacerbated by Cafcass empowering the father to shield behind X’s Article 8 rights without any proper regard for the father’s behaviour and the consequences for his victims.” [12]
“Mr White vehemently opposes the applications.” [13] “The Guardian recognises that Mr White poses an ‘increased risk’ to women and children but there is already information in the public domain that makes any further publication unnecessary and disproportionate.” [15]
Judgment (Future Risk):
“Some of the details of the case and Mr White’s criminal behaviour have already been published. The anticipated risk to X cannot not be assumed. It is common ground that the mother is best placed to manage X’s understanding of her father’s behaviour towards her mother and others.
In my judgment this is an important fact that must be weighed into the balance which is capable of addressing some the existing risk and potential future risk to X.” [18]
“I accept that the publication of the father’s name is also likely to cause distress and harm to those who are outside but close to the parameters of these proceedings…Extending the point further, there is also a clear and strong public policy argument in preserving the identity of the victims of abuse in the Family Court.
It is essential that victims are not discouraged from making relevant complaints for fear of identification or reprisals. Thus further emphasising that each case must be decided on its own individual facts.” [19]
“In my judgment, the facts of this case demonstrate a compelling public interest argument that prevents the abuser shielding behind his/her rights or those of a child which prevent him/her from being publicly identified.
This consideration gains greater importance where there is an established course of conduct that may expose individuals outside the confines of the case to a risk of harm and to limit if not extinguish their ability to protect themselves or their loved ones.” [20]
“After balancing the competing factors that I have summarised above, I am satisfied that public interest demands that Mr White is fully identified by his full names. To do so, is in my judgment, in pursuance of a legitimate aim, necessary, proportionate and in accordance with the law.
The second element of the application concerns Mr White’s previous connection with the armed forces. Having had the benefit of reading the previous articles about his convictions, I note that this information is clearly in the public domain and at the time of his sentencing he had already left the army. In so far it is required, without hesitation I permit the publication of this fact.” [21] Read the judgment here, and Ms Hannah Summers news report here.
