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Rhubarb* and custody

 

(*Story contains no rhubarb, but was prepared in an environment where there is a risk that rhubarb, rhubarb pollen (?) or rhubarb dust may have inadvertently contaminated the contents )

 

 

A committal hearing in relation to a grandmother who was using electronic media, including Facebook to protest against the adoption of her granddaughter.

 

 

Staffordshire CC and Beech 2014

 

There are two judgments, one being the committal hearing itself, and the second being the sentencing

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B81.html

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B80.html

 

 

Probably the most important thing is said at the very end

 

I conclude the Judgment by making clear to Mrs. Beech that there is no objection to her criticising the court, criticising the judge, the Social Services Department or the family justice system. She has an entitlement to campaign about these matters. What the court will not tolerate is the use of the name of her grandchild or the photograph of her grandchild in connection with this campaign.

 

 

The Court did find that the grandmother had breached the orders preventing her from naming her grandchild and using photographs of her grandchild within the campaign. Part of that had been to ask a wide network on Facebook to circulate the photograph of her grandchild with a view to tracking her down in the adoptive placement and find out where she was.

 

Allegation number 1. Mrs. Beech has a group Facebook page entitled “Stop social services” which has about 7,000 members. This page was compiled before my Injunction Order was granted. The page has photographs of the child and a slogan including her name. The page contains the assertion that the child has been stolen by Staffordshire County Council Social Services. On 24th January 2014 the Injunction Order was served on Mrs. Beech. On that very day she posted additional words on her group Facebook page in terms which represent a flagrant breach of the court order. I read from the relevant posting which is exhibit 5 in my papers: “I have just had court papers handed me. I have been gagged until (the child’s name) is 18 years old. How can this be? They steal my granddaughter, then gag me. Fuck off. You have no chance. I am still fighting for her, you idiots. You cannot bully this nana. The truth hurts and no one will shut me up. I will go to war for my family, you idiots. Please spread the word”. These words were posted alongside photographs of the child and other words and slogans which had been posted long before the Injunction Order was granted. However, I find that by posting these additional words on 24th January 2014 alongside the photograph Mrs. Beech was republishing the old photograph and slogans and so her breach extends not only to the new words but to the old words and the old photograph.

 

Allegation number 2. On 28th January 2014 the B.B.C. website reported my Injunction Order in an article carefully drawn to avoid breaching the terms of the order itself. However, Mrs. Beech on her Facebook page posted a link to the B.B.C. report together with a short extract from it. She accompanied this posting with additional words of her own which constituted a flagrant breach of the Injunction Order. She posted “Just to let you know this is me, Amanda Jane Beech. It’s about my granddaughter (named). Staffordshire Social Services think they can bully me. The truth will be heard.”

 

Allegation number 3. On her Facebook page Mrs. Beech posted more words of flagrant breach, this time accompanied by a photograph. Mrs. Beech claims that the photograph could have been put up by someone else. She says that the photograph was already present on her Facebook page. She says that if another person clicked on the Facebook page to indicate they liked the contents the consequence would be that the photograph came up on this profile page automatically without any intervention on her part. The Facebook page does show that people had clicked the page to show that they liked it. Mrs. Beech raised the same point in relation to allegations 5, 9 and 11, saying in relation to these other allegations that the intervention of others explains the entire posting, not just the posting of the photograph, as she says it does for allegation 3. I have looked closely at these pages. No other name appears. On each occasion the posting appears under Mrs. Beech’s own name. With the exception of allegation number 5 each photograph follows a different form of words for which it is obvious to me that the grandmother, Mrs. Beech, is responsible.

 

She gave me rather inconsistent evidence about these allegations. She said that she did from time to time re-post material on the Facebook page in order to encourage her campaign. In this context she accepted that some of the postings might be her responsibility but some might be the responsibility of supporters. In the course of her evidence she said that the accompanying words appeared automatically from what she had already recorded herself on other parts of the page. However, on analysis the form of words is different for each of these postings, so I reject this explanation from Mrs. Beech. One of these allegations, allegation number 5, has no accompanying words and comprises just a photograph. However, this posting appears under Mrs. Beech’s name, just like the rest. I have heard her account. I am sure that she posted this and the other postings to encourage others to support her continuing campaign.

 

Allegation number 4. This allegation comprises clear words of breach which Mrs. Beech accepts that she posted on her Facebook page. There was no photograph with this posting.

 

Allegation number 5. I have dealt with allegation number 5 above.

 

Allegation number 6. This allegation comprises clear words of breach which Mrs. Beech accepts she posted on her Facebook page. Again, there is no photograph involved in this breach,

 

Allegation number 7 caused me a moment’s hesitation. This is Mrs. Beech’s Facebook group page. She accepts that she posted on this page a link to a YouTube recording. The new words do not constitute a breach of the terms of the injunction. However, these new words must be considered with the existing words to which they were linked so the effect is a re-publication of the words previously posted. Read together the words refer to the removal of Mrs. Beech’s grandchild into care which constitutes a breach of the injunction.

 

Allegation number 8. Mrs. Beech accepts that she posted the words and photograph which constitute this breach. She makes the point that the photograph was already on the web as part of an online petition that she started long before the Injunction Order was imposed. The local authority accept that the photograph is not new, but on this occasion by posting the link Mrs. Beech brought the old picture back onto her Facebook page again which constitutes a re-publication of the old picture in breach of the Injunction Order.

 

Allegation number 9. I have dealt with allegation 9 above when dealing with allegation number 3.

 

Allegation 10. Mrs. Beech accepts that she posted these words which clearly breached the terms of the Injunction Order. The reference to her partner, Mr. Rogers, is accepted by Mrs. Beech as a mistake. This was a publication to a closed group without a photograph.

 

Allegation number 11 has already been dealt with above when I was dealing with allegation number 3.

 

Overall then, all 11 allegations made by the local authority have been proved so that I am sure of the truth of the allegation and the fact that it infringes the terms of the injunction

 

 

It then adjourned, to give the grandmother the chance to reflect on this, and to get legal advice before the sentencing hearing.

 

At that sentencing hearing the grandmother accepted that she would comply with the injunction, take down those postings and not put up things of that sort in the future.

 

As a result, the Judge gave her a suspended sentence of 56 days, meaning that Ms Beech would not go to prison for her breaches unless she were to breach the order again (in which case the sentence of 56 days would take effect)

 

 

It does raise difficult questions, which I raised in part at the original report of the injunction. If a person campaigns on Facebook without naming their granddaughter, the step to indirect identification is a very short one. It is likely that within the rest of the grandmother’s facebook page are pictures and names of her family, and one could deduce fairly swiftly by the appearance of say “Rebecca” on those photos up until a year ago and then no more photos that it is “Rebecca” who was the child who was removed.

 

The provisions about directly identifying and indirectly identifying a child make decent sense for mainstream press – a newspaper reporting about a child and calling them “Child X” doesn’t identify the child.

 

Moreover, newspapers have editors, and lawyers. They can pause and consider whether they might be in breach of the law by any element of their story.

 

But we are now in a world where anyone with a mobile telephone can become their own publisher, and put things on the internet for all to see. It’s a whole new ball-game, and the law hasn’t quite caught up yet.

 

 

Ms Beech putting on Facebook “My granddaughter, who I can’t name, was stolen by social services” doesn’t directly identify the child, but it must be arguable that it indirectly identifies the child, because you can see that that the author of the post (who is named) is related to the child in question, and probably find on that page other photographs of the child. In a situation like that, proving whether someone made that indirect identification deliberately or by accident or lack of thought is very difficult, especially to the criminal standard of proof required.

 

 

 

 

[The original injunction judgment is here

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B1.html

 

and my post at the time about it is here

 

http://suesspiciousminds.com/2014/01/24/transparency-and-facebook/   ]

 

 

 

 

 

 

“Rubric’s cube”

Anonymity and human interest stories. And Re K – part 3

There’s an interesting new judgment up on Bailli  - Re K (A Child: Wardship: Publicity) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B11.html

I can’t write much about the case because of a tangential involvement, but it raises some interesting principles, particularly given where we are with the President’s consultation on transparency and publishing anonymised judgments as a matter of course. So, I’ll be discussing the issues in the case, rather than the merits of what the parents were arguing.

I wrote about the care proceedings here

http://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/  

And a later follow-up on the Court of Appeal decision that Wardship was the right answer for the child, not the Care Order made at first instance.

http://suesspiciousminds.com/2012/12/31/the-case-i-am-most-pleased-about-this-year/

Keeping things very short, the parents in the case obtained a judgment that was very very critical of the Local Authority and the way that the Local Authority had treated them.  The parents say that this has continued, even after those damning judgments. This was obviously something that the press were interested in, and because the judgment was reported and available on Bailli in an anonymised transcript, the press could legitimately report the facts of the case;  PROVIDED that they did not name or take steps that would lead someone to be able to identify the true names of the people concerned.

So far so good. But of course, the Press are more interested in the human element of the story, and it becomes a more interesting story if they are able to report and the readers are able to read, how the mother and father in that case felt about their experiences – what was it like to be in that position, how did it feel, how did they have to struggle . The bare facts, without any human element to bring those bare facts to life is a less compelling story.

We are people, and we are interested in people, not merely bare facts. If you are Holly Willoughby (and if you are, I love your work, ma’am) then discussing this case on “This Morning” is a damn sight more interesting and compelling if the parents in the case are on the sofa next to you, or even in a video-link as silouhettes that you can interact with.

 So, in this case, the parents were keen to campaign about their experiences, whilst preserving anonymity, and spread what many people might consider to be a vital two pronged message about family justice – 1. That professionals can get things badly wrong and 2. That by fighting your case properly you can nonetheless achieve justice through the courts. And even, the third – that doing that can be exhausting, draining, expensive and it takes many many months before the truth is reached. 

If that can be done whilst preserving the anonymity of the child, that would be a good thing. These parents have a judgment setting out the facts and they in essence won their case and it is no longer an argument about how the Local Authority behaved but an established fact that they behaved badly towards these parents.

Now, in order to disseminate that message, the parents really need to be able to speak out, to give interviews, to give comments, to give statements. Can they do that, on the existing law, provided that they don’t identify the child ?

I’m going to use the analogy of Bruce Wayne and Batman here, to make it a bit easier to follow.  Bruce Wayne can never go on television and say that he is Batman. Batman can never go on television and say that he is Bruce Wayne. But Batman can go on television and talk about what it is like to be Batman – PROVIDED he doesn’t say that he is Bruce Wayne.  (I’m sorry if you don’t know who Bruce Wayne or Batman are, the analogy won’t help you at all. Think instead, that the parent wants to be on tv saying “I am Mr X, from this particular case about Mr X”  but that he doesn’t want to say “I am [My real name]  and I am also Mr X, from this particular case about Mr X”)

In this analogy, the published judgment is all about Batman, and talks about Batman and never mentions Bruce Wayne, the identity of Bruce Wayne is completely concealed in the judgment and cannot be disclosed.

So, can a parent go on television and say “I am the parent in this reported case, here’s my story – I AM BATMAN” as long as they do so as Batman, and don’t mention that they are Bruce Wayne?  If they would be recognised from a visual image, they might have to be dressed as Batman  (metaphorically – some element of disguise that stops them being readily identified)

That all seems to hinge on what is called the ‘rubric’  - that is effectively the basis on which the anonymised judgment is made public. In this case, it said this :-

‘The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.’

 

So, the parents in the case manifestly and plainly can’t go on television and say “Hello everyone, I am Bruce Wayne, and I am also Batman”  ( I am the Father in the celebrated case of X, and my real name is  whatevertherealnameis).

But can they go on television and say “I am the father in the celebrated case of X, where the father is referred to as Batman. I am Batman”

The parents sought clarification from the Court as to what was acceptable, of course not wanting to breach any confidentiality or commit contempt of Court. From the point of view of statutory law, them going on television as Batman, to talk about being Batman was fine.

The whole notion of the rubric is a bit perplexing. It of course isn’t a creature of statute, although it borrows the words and the concepts of those pieces of statute that provide a cloak of anonymity to the identity of the true names and identifying information about the parties and more importantly the child. So, is the rubric anything more than just words – does it have any effect in law?

This is what the President said in a reported case, which touched on what the legal standing of the rubric was :-

The legal effect of this rubric is uncertain. That is an issue that was considered by Munby J in Re B, X Council v B and Others [2008] 1 FLR 482. At para [12] he said:

‘Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.’

 

[I admire that chutzpah of identifying that there is an important issue and then without drawing breath deciding not to consider that issue]

That therefore, is that, for the time being. Where a judgment is published on the basis of a rubric, those wanting to make use of the information contained in the judgment are bound by it.  (I wonder idly, whether once the Presidents changes come in, and judgments are routinely published, whether rubrics will still be issued – it will no longer be a situation of the Court generously agreeing to publish the judgment on the basis of a rubric, but a blanket assumption that all judgments would ordinarily be published)

But that still leave us, and more importantly, the parents, in doubt  as to whether they can speak as Batman, and wearing Batman’s cloak of anonymity, providing they do nothing that lets slip that they are REALLY Bruce Wayne.

The LA in this case were arguing that the parents were prohibited from declaring that they were Batman, and that they could give interviews saying that they had been involved in A CASE but could not point towards them being the parents in THIS CASE  (which of course would be an insanely dull interview)

. It is worth also reading the judgment for the issue of the child’s very strong views that publicity of any kind about her case was not something she wanted and considered would be damaging.

I have to say, that the judgment could be plainer towards the end, but it seems to me that the Judge comes down in support of the parents being able to declare that they were Batman  (i.e that they were the parents in THIS CASE and could talk about THIS case, as long as they did so in that character, and not using their real identities or anything that might identify them)

 

·  So far as concerns the actions of this local authority, in my earlier judgment I set out a catalogue of poor social work practice, of failure to engage appropriately with these parents, of failure to keep them informed, of arriving at hasty, ill-informed and flawed judgments about them and of marginalising them. Against that background, not only do the parents have a legitimate interest in telling their story, the public has a right to hear their story.

·  The case also raises wider issues of equal if not greater importance, particularly when seen in the context of the current public debate about delays in adoption and the shortage of prospective adopters. As I noted earlier these wider issues include, for example, the importance of providing prospective adopters with full, detailed and relevant information about a child’s background before placing her for adoption, the level of post-adoption support available to adopters of children with complex needs and challenging behaviours, the vulnerability of late adoptions to placement breakdown, the significance and impact of RAD on a child’s behaviour and the therapeutic support required by such children. These are all issues which are of genuine and legitimate public interest.

Conclusions

·  In A v Ward at para [133] Munby LJ made the point that “The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 and something which…has to be brought into account as a very weighty factor in any application of the balancing exercise.” In this case I am in no doubt that the balance comes down in favour of allowing the parents to discuss the case with the media.

·  Miss Moseley seeks to persuade me that I should attach conditions to any permission I grant to the parents. I have given that careful consideration. I have come to the conclusion that the rubric set out at the beginning of my earlier judgment is sufficient. That rubric makes it plain that in any media reporting K, her parents and her adoptive sisters may not be identified by name or location. The additional requirement that “in particular the anonymity of the children and the adult members of their family must be strictly preserved” means that the media must take particular care not to report information not contained in the published judgment if that information may lead to the identification of K and her parents.

There remain gray areas, and this will become more and more pressing once judgments are routinely available.

What if, whilst giving their interview in the cloak of Batman, a neighbour recognises their voice or their style of speech? What if that neighbour comes up to them and says “Hey, Bruce Wayne, I saw Batman being interviewed on tv today – that was you! You’re Batman”

Is it a breach of the rubric for  the parent to say “Yes, you’re right, that was me, I am Batman?”

Is it a breach if the neighbour then tweets “Hey everyone, you know that bloke who was on This Morning – the Batman guy. He’s really my neighbour Bruce Wayne”?

[My last substantial law blog was about defamation, and here's an interesting one, which ties into the next one I'm going to write. If I, or someone like me, writes about a person named as Mr X in a published judgment, and I say things about Mr X which go further than the judgment, those things are capable of being defamatory. But they are only defamatory if some of the readers know who Mr X is. Given that he is anonymous, am I only defaming the legal creature of Mr X, rather than the real human being who lies behind that pseudonym, whose true identity is not known to anyone? Can the real Mr X sue me for defamation? Is he breaching the rubric by sending me a solicitors letter saying "Our client Bruce Wayne, who is the Mr X you refer to in your article, is of the view that your words about him were defamatory" ?        Is all hypothetical, since I don't go further than the judgments, but I of course do have my own opinion when I join the dots of the judgments as to what sort of person Mr X might be, I just don't voice it.  I do wonder though, whether it is possible for me to defame Bruce Wayne by what I say about Mr X, when nobody knows that Bruce Wayne and Mr X are the same person]

Fear of Commitment

Following the recent media outrage (or mock outrage, or manufactured outrage,  or slow news day outrage or perfectly appropriate outrage, depending on your standpoint) , there is now a practice direction on Commital for Contempt of Court, which, it makes plain, applies to Court of Protection cases too.

 The starting point is to try to do the committal hearing in public if at all possible, if there are sensitive matters, to deal with those by making a proper order about what can and cannot be reported, but if a case ABSOLUTELY has to be heard in private, there should be nonetheless a public notice  and a declaration in a public Court, stating the name of the person, broadly why they have been committed, and what the punishment is, and a suitably anonymised judgment published, put on Baiili, and available at reasonable expense to any interested party who asks for it.

 

All perfectly reasonable and sensible proposals. 

 

 

COMMITTAL FOR CONTEMPT OF COURT

 

PRACTICE GUIDANCE

 

issued on 3 May 2013 by

 

LORD JUDGE, LORD CHIEF JUSTICE OF ENGLAND AND WALES

and

SIR JAMES MUNBY, PRESIDENT OF THE FAMILY DIVISION and

PRESIDENT OF THE COURT OF PROTECTION

  1. It is a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court.
  1. This principle applies as much to committal applications in the Court of Protection (rule 188(2) of the Court of Protection Rules 2007) and in the Family Division (rule 33.5(1) of the Family Procedure Rules 2010) as to committal applications in any other Division of the High Court.
  1. The Court of Protection and, when the application arises out of proceedings relating to a child, the Family Division, is vested with a discretionary power to hear a committal application in private. This discretion should be exercised only in exceptional cases where it is necessary in the interests of justice. The fact that the committal application is being made in the Court of Protection or in the Family Division in proceedings relating to a child does not of itself justify the application being heard in private. Moreover the fact that the hearing of the committal application may involve the disclosure of material which ought not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order.
  1. If, in an exceptional case, a committal application is heard in private and the court finds that a person has committed a contempt of court it must state in public (rule 188(3) of the Court of Protection Rules 2007; Order 52 rule 6(2) of the Rules of the Supreme Court 1965):

(a) the name of that person;

(b) in general terms the nature of the contempt of court in respect of which the committal order [committal order for this purpose includes a suspended committal order] is being made; and

(c) the punishment being imposed.

This is mandatory; there are no exceptions. There are never any circumstances in which any one may be committed to custody without these matters being publicly stated.

  1. Committal applications in the Court of Protection or the Family Division should at the outset be listed and heard in public. Whenever the court decides to exercise its discretion to sit in private the judge should, before continuing the hearing in private, give a judgment in public setting out the reasons for doing so. At the conclusion of any hearing in private the judge should sit in public to comply with the requirements set out in paragraph 4.
  1. In every case in which a committal order or a suspended committal order is made the judge should take appropriate steps to ensure that any judgment or statement complies with paragraphs 4 and 5 and that as soon as reasonably practicable:

(a) a transcript is prepared at public expense of the judgment (which includes for this purpose any judgment given in accordance with paragraph 5 and any statement given in accordance with paragraphs 4 and 5);

(b) every judgment as referred to in (a) is published on the BAILII website; and

(c) upon payment of any appropriate charge that may be required a copy of any such judgment is made available to any person who requests a copy.

 

Silence is golden, justice is blind

 

 

 

An imaginary judgment, dealing with section 98 of the Children Act 1989 and rights to remain silent….

 

The Court is dealing today, I was sorely tempted to begin this judgment with ‘we are gathered here today’ given the themes of the case, with a vexed preliminary issue prior to the determination of a finding of fact hearing.

 

The bare facts of the case are simple. The Court is about to embark upon a finding of fact hearing. Serious allegations of physical abuse are made against the mother and the father, and the Court must establish firstly whether these allegations are proven on the balance of probabilities, and then move on to determine whether it is possible to identify the perpetrator, or exclude either parent. 

 

The father has made it plain that he does not seek to care for the children, he and the mother having separated, and his role in the proceedings is limited to the factual determination of the finding of fact hearing. For his part, he denies that the injuries were non-accidental, and if the Court is against him on that, he denies that they were perpetrated by him.  He does not go so far as the mother, who actively asserts that the father caused the injuries.

 

The factual allegations are detailed and involve multiple injuries over multiple dates and the factual enquiry into this will without doubt involve a great deal of detailed cross-examination and forensic discussion. There will need to be exploration of the accounts provided, and how these tally with both the medical explanations and any previous accounts.

 

This is complicated by the father’s current position. He, having left the family at the outset of these proceedings, has undergone something of a religious conversion, and is now living in a monastery and has become a Trappist monk.  It is asserted on his behalf, that a fundamental part of his religious beliefs and practice is to maintain a complete vow of silence. Evidence has been filed , necessarily in writing, from those at his monastery to confirm that (a) the father is living there (b) that he has undertaken the necessary conversion to become a Trappist monk, albeit in a more accelerated process than is usual, (c) that the vow of silence is indeed a legitimate and indeed mandatory form of his religious expression  and (d) that having taken that vow, he is bound by it and cannot relinquish it.  The necessity to speak and give oral evidence does not countermand his vow of silence, so far as his religious practices are concerned.

 

 

I am advised that a rudimentary form of finger signing is permitted, but an inspection of this shows that it would be substantially short of the ability to communicate the level of detail that would be required. Equally, it is apparent that it would be permissible for father to reduce his answers to writing, and for these to be read aloud by another.  I muse that this must be an acceptable method of dealing with the need for oral evidence in a case where the witness is physically incapable of speech, for example where they are mute.

 

It is submitted on behalf of mother, and supported by the Local Authority, that giving his evidence by way of written answers affords the father a tactical advantage. Clearly his answers would not be as instant as those given by someone answering aloud; the process of writing them renders both an opportunity for thinking time and indeed the opportunity to avoid ‘stumbling into an answer’  because he would have the ability to correct a remark that he wished he had not made and substitute it for a more polished answer before the written answer is finalised and shown to the Court / read aloud by an usher. 

 

Equally, the mother submits, that in comparing and assessing the evidence of two parents who are under the spotlight of suspicion, the Court hearing tone, manner, demeanour, facial expression and cadence of one witness and merely the written answers of another is ‘comparing apples and oranges’ and that mother’s right to a fair hearing may well be prejudiced if the two parties under scrutiny are not competing on a level playing field.

 

It is certainly right that all of the factors mentioned by mother’s counsel are matters which a judge properly brings to bear on an assessment of a witness’ evidence. It is not merely, as she asserts, “what is said, but the way it is said’ that is important.

 

I accept, that it would be better, if at all possible, to hear from the mouths of both witnesses, their evidence; and that alternative methods such as communicating in writing should be done only if unavoidable.

 

 

We turn, therefore, to the issue of whether the father can legitimately be compelled to give oral evidence, irrespective of his religious convictions.

 

I am referred to section 98 of the Children Act 1989

 

98 Self-incrimination.E+W

(1)In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a)giving evidence on any matter; or

(b)answering any question put to him in the course of his giving evidence,

on the ground that doing so might incriminate him or his spouse [F1or civil partner] of an offence.

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [F1or civil partner] in proceedings for an offence other than perjury.

 

 

 

 

It is submitted on behalf of father, quite properly, that this relates to the principle that a person is not excused from giving evidence or answering questions in evidence on the grounds that it might incriminate him, or his spouse.  In effect, that in care proceedings, there is no “Fifth amendment” right to ‘refuse to answer that question on the grounds that it may incriminate me’   or, adopting the UK terminology in the criminal process, the  right to remain silent.

 

He asserts that he  (a) is not refusing to answer questions, but is unable to do so and (b) that if he is ‘refusing’ it is not on the grounds that it may incriminate him, but on religious beliefs.

 

The other parties assert that it is clear from the reading of section 98 that there is no reason that a witness in care proceedings can refuse to give evidence.

 

He is a competent witness, applying the principles of  the Youth Justice and Criminal Evidence Act 1999, section 53  –  “all persons are competent to give evidence unless  they don’t understand the questions put to them, or they cannot give answers to those questions which can be understood”    – although those principles strictly apply to criminal trials, I am satisfied that they are an appropriate measuring stick and that father is competent (and thus compellable) on that basis.

 

If a witness summons is issued, compelling father to attend and give oral evidence, what powers, if any, does the Court have if he is asked to swear the oath, or to answer a question and not a syllable passes his lips?

 

 

I am helpfully pointed towards the decision of the criminal courts in

R v Montgomery 1995, which sets out that refusal to give evidence can constitute a contempt of court.

 

 

 

R v Montgomery (1995) 16 Cr.App.R.(S) 274

• An immediate custodial sentence is the only appropriate sentence for contempt

unless there are wholly exceptional circumstances.

• There is no rule or established practice that states higher sentences should be

imposed in cases of interference with for example jurors, than in the case of a

witness refusing to give evidence.

• Although the maximum sentence for failing to comply with a witness order is 3

months, this does not mean a longer sentence cannot be imposed for blatant contempt by refusing to testify.

• The following factors were determined to be relevant to the sentencing of contemnors:

(a) the gravity of the offence being tried;

(b) the effect upon the trial;

(c) the contemnor’s reasons for failing to give evidence;

(d) whether the contempt is aggravated by impertinent defiance to the judge;

(e) the scale of sentences in similar cases, albeit each case must turn on its own facts;

(f) the antecedents, personal circumstances and characteristics of the

contemnor; for example, whether for the contemnor this would be his first time to prison or is institutionalised.

 

It is notable, that the father, faced with the possibility that his decision not to give oral evidence might result in a custodial sentence, possibly in excess of three months, has not waivered from his position that he is unable to give oral evidence.

 

The fact remains that ultimately, whether I find the father in contempt of court I cannot compel him to utter a word in the witness box. I can compel him to get into the witness box, and punish him for not answering, but no more than that.

 

 

 

 

All that I could do would be to witness summons him to give evidence, and commit him to prison if he refused to do so, and then, as our American cousins say “lather, rinse, repeat” whilst we test which of us has the greater patience – the father in spending three months in prison following each time he comes to court or myself in whether I am prepared to keep adjourning the case indefinitely should he remain steadfast.

 

And of course, I must bear in mind that throughout this theoretical exercise of brinkmanship where I would test whether the father’s determination to not speak would exceed my own determination to have his evidence heard, the child would be in limbo and waiting for a determination. The principle of no delay I think, drives me, not to embark on a futile course of action that would cause delay for the crucial decision to be determined.

 

So, as far as the father is concerned, I can potentially  punish him for not speaking, but I cannot compel him to speak.

 

 

 

 

 

 

 

Given that the father’s defence to any application for contempt would be that he is not refusing to give evidence, but is unable to do so as a result of his religious convictions, I must turn now to the Human Rights Act 1998 and in particular, the right to religious expression; to consider whether in law, I could actually punish him at all for exercising his religious beliefs, inconvenient as they may be for the Court.  

 

 

  ARTICLE 9
  FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
      1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
 
      2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

 

 

Regardless of the assertion by the Local Authority and the mother that I should treat the father’s religious conversion as a convenient device for the purpose of side-stepping the need to give oral evidence and that the Court can make inferences in that regard, perhaps even so far as making inferences that this is as a result of a guilty conscience,  I am troubled that this would be a step too far.  The father has the right to adopt a religion and to change it.

 

The Court can look to an extent, at whether this is genuine or a device, but cannot peel off too many layers of that particular onion.  

 

If he merely asserted that he was now in deep sympathy with the principles of Trappist monks and had taken a vow of silence, and had taken no steps whatsoever to adopt any other elements of their religion,  the Court would be justifiably sceptical; but this father has actually moved into a monastery and undergone the conversion process. There is no evidence to suggest that since doing so, the father has not adhered to their practices, and as indicated early, much evidence to the contrary.

 

One of the essential facets of faith is that it can be a lifelong deeply held belief, or a sudden conversion, as a person encounters a situation or comes to a revelation that there is another facet to the world than the merely physical and that they wish to take steps to embrace the sense of religious wonder or responsibility that they feel.

 

 

It may be that the connection with the Trappist monks and their vow of silence is  a helpful device (or as mother puts it ‘a get-out-of-jail-free card’, it may be a  merely coincidental happenstance, as father asserts. Without prima facie evidence that his religious beliefs are not genuine, I am not entitled to delve too deeply into this.

 

Regardless, he is legitimately entitled to change his religion to that of a trappist monk if he wishes, and legitimately entitled to follow their religious practices unless there are limitations to this prescribed by law.

 

 

I could legitimately issue a witness summons against him, but it must be questionable whether I could legitimately commit him for contempt for not answering a question once he gets into the witness box. That being the case, and given that the father has made it plain through those who represent him (who have had more than the usual volume of written notes passed to them during these proceedings) that he is willing to attend the hearing and step into the box, one wonders whether there is any value in issuing a witness summons.

 

 

 

The best I can do, in this difficult and vexed situation, and I am sure that this is a solution that will earn me a great deal of displeasure from my usher, a person whom I depend on for smooth running of my daily working existence and a person who I offend at my peril, is for both parents to give their evidence on the same footing.

 

Therefore, both mother and father may, if they desire, give their evidence by writing their answers on a pad of paper. When the answer is finished, they will hand the answer to the usher, who will read it aloud.  It is not ideal, but it avoids the risk of comparing apples and oranges that the Court must be alive to.

 

Counsel are asked to keep their questions as concise as possible, in order that answers can be likewise, and to avoid the nested and tiered questions of which so many advocates are fond these days.

 

I will now rise for lunch, and I suspect that I may need to be treating the usher to something substantial and possibly lavish, so I will begin the case at 3 o’clock.

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