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Removal of a child from prospective adopter


I have written about a few of these cases since Holman J’s decision in December 2014, but this one is rather out of the ordinary.


RY v Southend Borough Council 2015


Hayden J was dealing with two applications. The first was an application by RY, an approved adopter, to adopt a child who is about 2 1/2, a little girl named SL.  The second was the application by the Local Authority  (Southend) to remove the child from RY’s care, under section 35 of the Adoption and Children Act 2002.

Cases about section 35 are rather rare, and this one raises some unusual issues.

First things first, what does s35 say?


“35 Return of child in other cases

(2) Where a child is placed for adoption by an adoption agency, and the agency –

(a) is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion, the prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency.

(5) Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order (including a Scottish or Northern Irish adoption order), special guardianship order or residence order, or for leave to apply for a special guardianship order or residence order, was made in respect of the child, and

(c) the application (and, in a case where leave is given on an application to apply for a special guardianship order or residence order, the application for the order) has not been disposed of, prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders”.

In plain English, where a Local Authority have placed for a child for adoption, if they ask for the child back, the adopter must hand the child back within 7 days.  UNLESS the adopter has already made an application to Court for adoption, or a Special Guardianship Order or a residence order (Child Arrangements Order), in which case it is up to the Court what happens.

In this case, RY had lodged her application to adopt SL BEFORE the LA asked her to hand the child back, so it was for the Court to decide.

By way of important background, SL was a very ill child.

  1. At birth SL was pale, floppy and had no respiratory effort or heart rate and required intensive resuscitation. Her first gasp was not until 20 minutes into life. Dr. Daniel Mattison, Consultant Paediatrician, identifies that SL had experienced hypoxic-ischaemic encephalopathy. This can result in a wide spectrum of disability and in SL’s case she has been left with a raft of problems. Firstly, quadriplegic cerebral palsy, which means that she has impaired movement and stiffness of all her limbs as a direct result of brain damage to the parts of the brain involved in movement, tone and posture.
  2. Secondly, she has global developmental impairment. Thirdly, she has gastro-oesophageal reflux disease. That is a condition where the stomach contents pass into the oesophagus causing symptoms. The stomach contents are acidic so the symptoms include pain from the acidic contents coming into contact with the oesophagus and the throat. They also include vomiting, feeding difficulties and respiratory problems if the stomach contents irritate the top of the windpipe or if small amounts enter the lungs. Gastro-oesophageal reflux disease is more common and may be more severe in children with severe neuro-disability like SL.
  3. Finally, Dr. Mattison considers that there is visual impairment as a result of the deprivation of blood and oxygen to those parts of the brain involved in vision.

One can see that absolutely anyone would have faced challenges in caring for SL and meeting her needs.

What the Judge found, by careful consideration of the facts, was that the matching process of RY and SL was optimistic.

RY had some considerable issues of her own, having been diagnosed with Ehler-Danloss syndrome, occasionally needing to feed herself through a gastrostomy tube and being in a power chair needing to use hoists to move herself out of the chair.  She also stated that she had been diagnosed with Asperger’s Syndrome when she was 19.

None of that, of course, means that she is excluded from being a carer for a child, or from being an adopter, but it does mean that there were medical issues that needed some careful consideration in the assessment and matching process.

The fact that the assessment process identified that there had been views that RY’s physical problems were emotional or psychological in nature, at the very least ought to have meant that the adopter’s medical records would have been needed to be seen and commented on by a medically qualified professional.

I am not myself at all clear as to why that wasn’t the case.


12…the assessment report more generally – poses a number of questions. Most importantly, it does not address RY’s capacity physically to parent a disabled youngster as the child got older and heavier. It also has to be said that the possibility that RY’s health difficulties might have a psychological component were evident. It is easy, of course, to be wise with the benefit of hindsight, but nonetheless it seems to me that the enquiries made into RY’s physical and mental health were less than satisfactory.

  1. A number of reports were requested, including one from RY’s general practitioner and rheumatologist, but the nature of that enquiry appears to have been very limited and as RY on her own account has had very little recent contact with either in recent years, it is not surprising that little constructive information was forthcoming.
  2. Ms. Frances Heaton QC and Mr. Shaun Spencer, who appear on behalf of Southend Borough Council, absorb this criticism without demure. In their closing submissions they state as follows: ^

    “With regard to its own failure to consider these records, the adoption agency is cognisant of the fact that although not signposted in the regulations, a review of RY’s medical records is likely to have been beneficial during the adoption process”.

  3. They continue:

    “Where an adoption agency has referred a proposed placement to the adoption panel, the panel must consider the proposed placement and make a recommendation to the agency as to whether the child should be placed for adoption with that particular prospective adopter pursuant to regulation 32(1) of the Adoption Act Regulations 2005.

    In considering what recommendation to make the panel, (1), must have regard to the statutory duties imposed on the agency; (2), must consider and take into account all information and reports ^ passage of it; (3), may request the agency to obtain any other relevant information which the Panel considers necessary; and (4), may obtain legal advice as it considers necessary in relation to the case. Thereafter, in coming to a decision about whether a child should be placed for adoption with a particular prospective adopter, the agency decision maker must take into account the recommendation of the adoption panel and have regard to the child’s continuing welfare, pursuant to regulation 34(4) of the Adoption Act Regulations 2005″.

  • 16.Ms. Heaton and Mr. Spencer also identified the most recent Department of Education Statutory Guidance on Adoption, July 2013, drawing my attention particularly to para.4.15, which states:


      1. “Agencies have a duty to satisfy themselves that prospective adopters have a reasonable expectation of continuing to enjoy good health. The medical adviser should explain and interpret health information from the prospective adopter, their GP, and consultants if relevant, to facilitate panel discussion. The opinion of the prospective adopter’s GP and the agency’s medical adviser about the health status of the prospective adopter needs to be given sufficient weight by adoption panels and agency decision-makers. Mild chronic conditions are unlikely to preclude people from adopting, provided that the condition does not place the child at risk through an inability to protect the child from commonplace hazards or limit them in providing children with a range of beneficial experiences and opportunities. More severe conditions must raise a question about the suitability of a prospective adopter, but each case will have to be considered on its own facts …”



That seems to me very clear that an adoption medical of the prospective adopter would be required and that in a case where medical issues arise, the records would be needed.


This next part, for my mind, is the most worrying aspect of the case  – that these important aspects had not been properly considered because of the pressures on Southend (and one assumes other Local Authorities) to move adoptions through the system quickly to satisfy the Government driven statistics. But even more seriously, that where a Local Authority does not properly satisfy the Government as to performance, there are ‘penalties’

I have to be candid, I do work for a Local Authority. I don’t know about penalties for failure to meet the thoughts that Central Government have about performance (and frankly I wouldn’t know how to find out). The common-sense reading of this portion is that there are financial implications for a Local Authority who doesn’t get their adoptions through as quickly as Central Government thinks that they should.  Perhaps that is right, in which case it would be very worrying.  Perhaps someone has got the wrong end of the stick here.

  1. Counsel seek to explain the deficiencies of this agency’s process in these terms, they state:

    “The agency appreciates the strength of an argument that it failed to have sufficient regard to the matters required of it both by the regulations and the statutory guidance. In the context of that argument, the court understands the pressures on agencies quickly to match children with approved adopters as a result of government measures”.

  2. Ms. Heaton and Mr. Spencer say:

    “It is a reality of the situation that adoption agencies are being judged and measured by government departments on the speed of time taken to match children, poor performance leads to penalties”.

  3. They conclude:

    “This adoption agency recognises that these pressures may have resulted in proper scrutiny not being fully implemented in this case. I am offered reassurance that the agency recognises that a request to consider our wide medical records would have been beneficial to the matching process. I have been told that they intend to address this failing for the future by ensuring that the agency is more ready to be resistant to pressures and to identify at an early stage those cases which it considers to be exceptional where a ‘longer matching process is required’.”


The Judge was also perturbed about this :-


  1. I am not in any way in any position to evaluate the explanation proffered in the authority’s fulsome explanation. I was not, for example, aware that government departments were subjected to penalties where there had been too much delay in the time taken to match children, I confine myself entirely to observing what is little more than a statement of that which should be obvious.
  2. Children like SL are profoundly vulnerable. Social services and society more generally must be sedulous in its protection of them. The fact that there may be fewer welfare options available for such children must never mean the criteria for matching carers to them can ever be compromised. On the contrary, the obligations should be seen as even more rigorous. The matching of RY to SL was undoubtedly ambitious.



In any event, things became more serious, because what was asserted was that RY’s care was not merely deficient but actually harmful and indeed that the care of SL had reached the point where significant harm had been caused.

There were many issues in this regard, and the Judge was also critical that the document provided to RY that set out what portions of parental responsibility she was allowed to exercise and what she was not was a stock document and was ambiguous


  1. What is contemplated here is the granting of some but not all parental rights. The focus is on the child with the objective of permitting the prospective adopter to take day-to-day decisions in the sphere of health, education, religion, holidays and social activities. Here this local authority, in common with many others, I am told, issued a standardised pro forma document.
  2. In relation to health issues, it permitted RY to consent to emergency medical treatment. It did not permit her to consent to treatment including operations that require anaesthetic. It did permit her to take decisions in relation to any prophylactic treatment, including immunisations, decisions in relation to involvement in counselling or therapeutic services, agreement to school medical appointments and decisions in relation to dental treatment. It also provided for her to have decision making responsibility across a range of issues relating to education, day-care, religion, holidays and contact, had that been relevant. I need not look at those wider issues and I concentrate entirely, because it is in focus here, on the provisions relating to health. I have, to say the least, been greatly exercised by them. They are not to my mind a model of pellucid clarity.
  3. There has been much confusion by the professionals as to what the scope and ambit of RY’s parental responsibility powers in fact were. Having read the document I am not surprised. This document, particularly if it is, as I am told, issued widely, really requires refinement. Again I am reassured that Ms. Heaton has this in her sights. She submits that the adoption agency recognises that on reflection and with the benefit of hindsight, (a recurrent phrase) the use of this local pro forma document was not suited to the facts of this case. It is now, she says, recognised that what was required – and is likely to be required in cases such as this concerning any child with complex care needs – is “a bespoke s.25 parental responsibility document tailored to the individual circumstances and needs of the child being placed.”
  4. She goes on to offer the reassurance that in the light of this acknowledgement this Adoption Agency intends to review its own practices and procedures in relation to the identification of appropriate restriction on parental responsibility and to introduce bespoke PR documents in appropriate cases. It also intends to raise the issue with the British Association of Adoption and Fostering so that other adoption agencies may benefit from learning from the experience of this case. I would add to that my own view that the standardised document is itself lacking in clarity. The first two requirements permitting consent for emergency treatment and refusing to bestow consent to treatment including operations are not immediately capable of easy reconciliation and generate, to my mind, inevitable confusion. As I have said, they require some refinement though, of course, I recognise, in many cases, issues such as this will simply not arise.



The crux of this case was as to how RY behaved whilst SL was in hospital, which sadly given SL’s considerable health needs was something that happened often and would be likely to happen in the future. It was asserted that she was obstructive about the child’s feeding, resistant to medical advice, over-reporting of medical concerns, requested sedation for the child, adminstered oxygen when she was not trained to do so and discharged the child against medical advice.


  1. The local authority’s schedule posits six findings and four supplemental findings. The first is that during SL’s hospital admission, which commenced on 26 September 2014, RY repeatedly refused nursing observations such as taking blood pressure or temperature. The second is that RY repeatedly refused to allow medical advice in relation to SL’s dietetic requirements. The third is that RY repeatedly stopped or refused medication and treatments. The fourth is that RY demonstrated an inability consistently to accept medical advice. The fifth is that RY repeatedly requested treatments of her own motion or insists on treatment methods. And the sixth is that due to RY’s anxieties, she tends to focus her attention on unnecessary medical procedures or extreme outcomes.
  2. The four additions are that RY suctioned SL unnecessarily too vigorously and in an inappropriate manner. Secondly, that she repeatedly requested sedation medication for SL despite being told by at least two health professionals, Dr. Court and Sally Deever, that such may compromise her breathing. The third is that RY gave SL oxygen unnecessarily and inappropriately when she was not trained to do. And fourth, that SL suffered harm in RY’s care and was likely to do so if she were to return to her care. That last finding being essentially a composite of the earlier allegations.
  3. As I have already said, it is really a very striking feature of this case that so much of what is set out in that schedule is factually uncontentious. It is the gloss or interpretation that is put on it that has become the focus of disagreement during this case. In, for example, the first finding, namely that during SL’s hospital admission in September 2014 RY repeatedly refused nursing observations, there is agreement that she did indeed make such refusals.



Most of the factual matters, being supported by the medical reports provided by the hospital treating SL, were not in dispute. What was disputed was the interpretation to be placed on them, or whether they amounted to harmful behaviour rather than just genuine concern about a child who was undoubtedly very unwell.

  1. RY told me that she derived some satisfaction from the preparation of the food for her daughter that it was instinctive to her to want to do that and that I certainly understand, but as time passed it became all too clear that this preferred method of nutrition not only was unsatisfactory, it was falling manifestly and demonstrably short of meeting SL’s needs. The doctors and nursing staff and dieticians were plainly highly agitated that SL should have good quality calorific and nutritional food, particularly when recovering from her operation, and RY undoubtedly resisted it in the face of her own obviously inadequate regime long after it would have become obvious to the reasonable carer that this was simply not meeting this little girl’s needs.
  2. So obvious was it that, in circumstances which I really find to be truly extraordinary, the hospital required RY to sign a waiver abdicating their responsibility to her for providing SL’s proper nutrition. What I find so deeply alarming is that in this instance and in the other instance that I have just looked at, that is to say the failure to let nurses take temperature, blood pressure, routine tests, et cetera, how it was that RY’s will prevailed to the extent it did. I can only assume that her behaviour was as described so bizarre that it caused confusion in the ward and led to poor clinical judgments to be taken contrary to SL’s interests.
  3. Ms. Heaton put to RY directly on this point, “In those circumstances, how could RY be said to be putting SL’s interests first?” And to that, in my judgment, RY had no satisfactory answer. I simply do not believe that she has understood or is now able fully to understand why it was she behaves in that way, but there is no satisfactory explanation when properly analysed for this failure to meet that most basic of SL’s needs, her need for nutrition.
  4. As I have said, I do not find it necessary to work through each of the many examples contended for in the Scott Schedule of, for example, RY’s refusing medication and treatments, chiefly again because it is not disputed. One such example which stood out to me in the evidence was RY’s refusal to permit SL to take oramorph when moved onto the ward when in the intensive care unit. Oramorph, I was told, is a morphine-based medicine the objective of which was to downscale gradually the pain relief from the higher dosage that she hitherto had been receiving.
  5. RY told the hospital – and indeed told me – as Ms. Walker emphasises in her closing submissions, that SL “didn’t need anything for break-through pain”. It is one of a number of responses that causes Ms. Walker to comment on what she contends to be RY’s arrogance towards medical staff for how, says Ms. Walker, could RY possibly have been in a position to gainsay the medical advice and to assert from the basis of no medical knowledge at all and in a highly specialised area of medicine that this little girl did not need anything for break-through pain. Once again it was RY’s wish and not that of the doctors that prevailed. I agree with Ms. Walker that the evidence in relation to this can properly be described, as she does, “overwhelming”.
  6. I would also like to highlight the incident set out in the unchallenged statement of Ms. Leanne Mulholland, who is a Senior Sister at the Paediatric Emergency Department at the Royal Manchester Children’s Hospital. In her statement of 7 May 2015, Ms. Mulholland tells me that she was the nurse in charge on the early shift of 14 July. Four areas of concern were handed over to her from the night staff.
  7. Firstly, there was the transfer of SL to the Paediatric Emergency Department in RY’s car directly contrary to the advice of the paramedic. A process which in and of itself caused a significant delay in admission as Mr. Unwin emphasises as a convenient forensic illustration of harm. Secondly, on arrival there was concern that RY simply refused initially to allow a full respiratory assessment to be performed. I am still unclear why that was, but it was ultimately completed as it manifestly needed to be. There was reported to Sister Mulholland a concern about the ambit of parental responsibility, which I have already looked at.
  8. Then there was the final area of concern; active discharge from the hospital against medical advice. That RY should do this at all, that she should feel knowledgeable and empowered enough to do it, even before she had been granted the Adoption Order and full parental responsibility, is profoundly troubling. This episode illustrates to my mind that RY had gone beyond behaviour that was merely capable of being categorised as bizarre but had, in truth, spiralled out of control. I find her judgment and her behaviour, was irrational, unstable and she had become, I am truly sad to say, a real risk to SL



There really was no way that Hayden J would have been able to grant RY’s application for adoption. He is very kind in his conclusions


  1. Ultimately, balancing what I have sought to identify as some really clear, captivating and obvious strengths that RY has and balancing those against the harm I have just outlined in summary, does not present to me a remotely delicate balance in determining the future for SL. The way ahead for her, whatever it may hold, is clear. The risk RY presents of harm or significant harm to SL is so real and serious and the potential consequences so grave that I find them to be wholly inimical to her welfare. It points clearly and determinatively in support of the local authority’s application under s.35(2) in effect refusing return to RY’s care. It follows, therefore, that I dismiss her application for adoption.
  2. In my lay view, RY has plainly some real emotional and psychological issues to address. I hope she is able to do so. I hope her family are able to help her to do so. In the meantime, it would not be safe, in my judgment, for her to be involved in the care of any child or vulnerable adult with disabilities.





Hayden J recognised that this was a case, where the system had not worked as it should and that a very vulnerable child had been exposed to more harm in the adoptive placement that had been intended to meet her needs, and there was thus a public interest in the case being reported


Cases of this kind generate real public concern and rightly so. In the past a judgment such as this would not have entered the public domain. It is hardly surprising therefore that public understanding of the Family Court process and confidence in it’s system had begun to erode. The Practice Guidance of the 16th January 2014 was intended to and has achieved immediate and significant change in practice in relation to publication of judgments in the Family Courts and the Court of Protection. In April 2013 Sir James Munby P issued a statement, View From the President’s Chambers: The Process of Reform, [2013] Fam Law 548 in which he identified transparency as one of three central strands of reform which the Family Justice System is currently undergoing. This is an ongoing process in which a balance between freedom of expression, protected by Article 10 ECHR and the rights of vulnerable children to privacy and security, protected by Article 8 is often a delicate one.


The fundamental argument was as to whether RY’s name should be reported.  Unlike a case where identification of a parent who has harmed the child inextricably identifies the child as well, and thus should not happen, here RY and SL did not share a name and identifying RY would not also identify SL.

The Court had come very close to identifying RY in the judgment, and the single factor which mitigated against it was RY’s intention to seek help for her own problems.

  1. I have already expressed my clear view that the link between publication of the identity of the carer and any adverse impact upon the child subject to these proceedings is tenuous. However, I think RY’s entitlement to the opportunity of therapeutic support, in private, which gives the process much greater prospects of success is so manifestly in both her own interests and those of society more widely that it weighs heavily in the parallel analysis of competing rights and interests in which the starting point is ‘presumptive parity’.
  2. In my judgement the need to protect RY’s privacy while she embarks on what I have no doubt will be a difficult and challenging therapeutic process is to recognise an important aspect of her own autonomy and dignity



That does obviously raise the prospect that in a similar case, where the adopter’s conduct was not as a result of psychological difficulties or there was not a recognition of those difficulties and an intention to seek help, that an adopter who harmed the child could be publicly named in a judgment. There would be reasonable arguments that this would be the right thing to do.

Couple “too old” to look after their granddaughter

I saw this case break in the Telegraph   where the line was that grandparents who were able, willing and capable of looking after their grand-daughter were turned down on the basis of their age and the child would be adopted.


That immediately didn’t sound right. It had the immediate ring of “I think that you’ll find its a little bit more complicated than that”.   [If you do find yourself being outraged and appalled by a case and you haven’t actually read the judgment, that’s usually a safe answer.  Of course, there are cases where reading the judgment actually does appall you at the scandal that’s gone on, but at least you are now being appalled on an informed basis]


That would fall extremely short of the legal tests involved, and you can see from the Telegraph article that they do include the comment from the Social Services department involved, who said flatly that age was not the deciding factor in the case.


The judgment is now available and people can see it for themselves


Re C 2015


You can see that the grandparents made an application to Court, to challenge the assessment done of them that did not recommend that they could care for the child. The Court heard from them, including hearing evidence from the grandfather (who sounds like a thoroughly nice man, to be honest).  The Court then applied the statutory tests and the case law guidance to whether they should have that application granted and whether the child could live with them, or whether adoption was the right way forward.


Additionally, you can see that whilst the Judge does mention the age of the grandparents, it is mentioned in passing rather than being the reason for the decision.


The reason for the decision, very simply, was that the mother had considerable mental health difficulties, including cutting herself in front of the child, that the mother had a very difficult relationship with the grandparents and that they were not going to be able to shield the child from these things.


The main concern however it seems to me is the fact that this family would be in my judgment completely unable to cope with the triangular relationship of C, M and the grandparents. Mr G expressed in evidence that he hoped that his daughter was going to recover her mental health, that she had had some recent treatment that over the next four years might lead to her mental health recovering. I very much hope that that is the case and it may well be right, but he was very clear that he was going to continue his relationship with his daughter and indeed he is to be commended for that. He said he saw her yesterday. I just cannot envisage how the triangular relationship can possibly work. Dr Martinez in her report expresses the concern that mother is unable to bring up C because she is likely to expose C to extreme behaviours – ‘scary situations’ is the word she uses – and she is referring to the incident in January when M in front of C self-harmed, cutting herself, and C was clearly in a scary situation witnessing her mother bleeding. That is exactly the type of situation which Dr Martinez envisages recurring and which puts C at the risk of significant harm if she were to be placed with her mother. If I were to envisage C being placed with her grandparents it seems to me that it is only a matter of time before C is put in that situation again. This is because of the conflict which the grandparents will experience in their meetings with their daughter, who they will not be able to turn away and in the conflict that is likely ultimately to create and which C is inevitably going to experience. Their personal circumstances are not ideal but ultimately it is that relationship which it seems to me makes it impossible for their application to succeed. Given the disruption to the local authority Care Plan against the likelihood of success of their application, I am afraid that I have no hesitation in saying that that application should therefore be dismissed.


Now, you may agree or disagree that this is a valid reason for saying no to these grandparents; but it certainly isn’t a decision that was made because of their age.

I don’t fault the grandparents at all for this – Courts can be confusing and scary places, and Judges use language and concepts that aren’t commonplace for ordinary people. Add to that, that of course this was an emotionally charged hearing and it is little surprise that the grandparents left not completely understanding all the reasons why the Judge said no to them, and that they got the wrong end of the stick.

Nor do I blame the journalist  – if the judgment had borne out what the grandparents said, that a Court had ordered that the child be adopted purely because the grandparents were too old, that would be a miscarriage of justice and a scandal worth reporting.  Of course, the journalist did have the clear rebuttal from Social Services that the case wasn’t about age, but also they had the comments from the solicitor engaged to represent these grandparents in an appeal  (which I doubt has any legs at all).  So it is not the flaw we often see in the Telegraph of the story having a single source – the journalist here did try to get multiple sources and to stand the story up.

You could make a criticism that the journalist didn’t try to get the judgment from the Court or wait for it on Bailii, but I think that’s to confuse the worlds of law and journalism.  Firstly, news stories are time sensitive. If the Telegraph waited for it to be published, they could have missed the scoop element that they had. And secondly, given that most lawyers can’t get an answer out of the Court service, what makes you think a journalist enquiring about “there’s been this case, I don’t have the case number, but can I have an anonymised copy of the judgment” is going to get any better response.

So I think it was okay for the Telegraph to run the story.  The problem, however, is that the Telegraph’s version of the story – that social workers and Courts rule people out just based on age, is the one that fluorishes and replicates and spreads, and the actual truth that the reasons for the decision were based on a Judge’s assessment of their ability to keep the child safe from mother, won’t get out there.

It is really important in care proceedings that family members who are able to help out, support the parents and ultimately offer a home if the parents can’t do it, come forward and aren’t put off. So, the story here spreads a myth that simply isn’t true.

I do appreciate that newspapers don’t exist solely as a vehicle to communicate the truth. They have to sell copies, they have to get clicks on their articles, they have to exist as a commercial venture. If they print articles that are factually accurate but that nobody wants to read, then the advertisers who want to sell their conservatories, plates with Princess Diana on them,  safes disguised as baked-bean tins, and mustard coloured polyester slacks*, won’t be placing those adverts.

I can’t actually work out a sexy way for the Telegraph and other news outlets to tell this story and correct the myth.  The best I can do is “Family Courts do still screw up from time to time, but they didn’t on this occasion. Sorry”   – and even I probably wouldn’t read that article.

[* Other products are, I’m sure, advertised in the Telegraph , and that’s just the sort of flippant generalisation and stereotyping that I would criticise them for when writing about social workers wearing corduroy trousers and knitting their own muesli.  It was just a cheap gag…   – now,  if you want to find “cheap gags” in the advertising section of a publication you are looking for something in the newsagents on an entirely different shelf to the Telegraph]

Minnock judgments (part 2) and a different judicial approach

Well, firstly, I’m pleased that the child has been found. And I’m not going to speculate about the future outcome of the case.


But I thought that people who have been interested might like to see the next four judgments.


They are the bottom four (beginning 12th June)

The 12th June judgment is unusual, in that it doesn’t read as a case where the Judge was being asked to decide an issue or make an order. Rather, he is helpfully setting out for those involved that if there is a commital application (where a person might get sent to prison) they are entitled to free legal advice and representation and what the magic words are. He then goes on, largely for the benefit of the Press and public to set out how the Courts make decisions about where a child lives, what factors come into account, the representation that the parents have had, and what factors the Court would take account of in the future, stressing that what the Court wants is to make sure that the child has a proper relationship with both parents. It is almost a judicial press release.  I’ve not seen that happen before, but I think in a case with so much media attention and public interest, it is actually a really sensible thing to have done and I hope that future Judges consider it.  If you wanted to understand what the legal background was to the case, it is all there.

The next judgment is describing that the child is safely returned, and explaining that the mother’s plan in the case was to use the Press to gain sympathy for her cause and to thwart the decision of the Court.  People may have their own view as to whether she was justified or not, but if you have a strong view, I’d recommend that you read that judgment to see if it remains the same. The really remarkable thing about this judgment is that at the end, the Judge allowed members of the Press to ask him questions directly and answered them.

I’ve never seen that happen in a family case before, but it seems to me a remarkably sensible approach. It must surely result in more responsible, balanced and nuanced reporting that the Press had the chance to ask questions directly of the Judge.  I applaud it.

The third (private hearing 15th June) sets out that the future decisions in the case need to be made without public spotlight, although a judgment will be published after the case is over, and allowing father to provide a short statement to the press.


And the fourth (and so far final) is a purge of contempt (by the partner of the maternal grandmother) for his part in the press campaign and more importantly in lying about the child’s whereabouts. For non-lawyers a purge of contempt is where a person who has been sent to prison for breaking court orders goes before the same Judge to express remorse and regret and ask for his sentence to be reduced or ended. In this case, the man was released from custody.


The Judge did ask, in his judgments, for the Press to refrain from speculation about where the child might live and whether mum would get to see him again and how that would work, and I’d therefore ask people to do the same in comments.

But what do people think about the Judge’s approach to openness in the case ? Very fast publication of the judgments, allowing the Press to come in, delivering a judgment that explained all of the balancing factors and principles, and allowing the Press to ask him questions? I think it is all very new, and the law is generally terrified of innovation, but we may come back to look on this case as a watershed in the family Courts not merely paying lip-service to the idea of transparency but really engaging in the process of explaining to the Press and public what is happening.  And balancing that with keeping really private things private.


An argument about publication of a judgment


Wigan Borough Council v Fisher and Others 2015

Again, Mr Justice Peter Jackson

I think this is the first reported authority on how to deal with transparency and publication of a judgment where one party objects, following the President’s transparency guidelines. The first and most important thing to say is that the High Court held this:-The question of whether a judgment should be published is an integral part of the proceedings from which it arises and I consider that where a party is legally aided, any work that is necessary to contribute to the court’s decision on publication should normally be covered by the party’s legal aid certificate.There were care proceedings about a little girl named A, who was in foster care but eventually went back to live with her mother. The central theme of those proceedings was the very tragic death of A’s sister Evie.

  • The proceedings arose because of the death of A’s sister Evie at the age of sixteen weeks on 21 February 2013. During her short life, she had sustained a number of serious injuries.
  • My fact-finding judgment was given on 6 December 2013 at the end of a hearing lasting eight days, during which each parent blamed the other for Evie’s injuries. My conclusion was that they had been caused by the father and that the mother should be exonerated. There was no appeal and the proceedings ended.
  • Mr Thomas was then prosecuted for causing grievous bodily harm to Evie. On 29 October 2014, he was acquitted by a jury at Liverpool Crown Court. The trial was reported in the press.
  • On the day of his acquittal, Mr Thomas gave an interview to a journalist in which he said “All I ever wanted to do … was to prove my innocence and now I have done that.” This interview, illustrated with a photograph of Mr Thomas holding a photograph of Evie, was published in the Wigan Observer and in the Daily Mail.
  • On 9 December 2014, a Coroner’s inquest reached an open conclusion, formerly known as an open verdict


The issue of whether the fact-finding judgment should be published was therefore an important and live one. Firstly, the name and face of the father was known to the media, as was Evie. Secondly, there was public interest in what had happened to Evie. Thirdly, the combination of the care proceedings (which remained confidential), a criminal trial (which was in the newspapers) and an inquest (which had been reported) might lead people to erroneously conclude that if the father had not hurt Evie then mother must have done.  Equally, however, father who had put himself in the public domain after having been found Not Guilty in a jury trial would obviously not want a finding of fact judgment which held that he was responsible for Evie’s death coming into the public domain.


  • To avoid the risk of prejudice to the criminal proceedings, I had deferred a decision on the publication of the fact-finding judgment. In November 2014, when those proceedings had ended, the parties referred the matter back to me. They initially suggested that an anonymised version of the judgment could be published, edited in such a way as to protect A’s identity.
  • I did not consider that this was realistic. The criminal trial and the Coroner’s inquest had taken place in public and substantial information about the family and the surrounding events had appeared in the press. This information was to all intents and purposes the same as that considered in greater detail in the family proceedings, except that this court’s conclusions were not reported. It would therefore be impossible for an anonymised fact-finding judgment to be published without it immediately being linked with this family. I therefore asked the parties for further written submissions by 13 January on the following possibilities:


(a) That the judgment should not be published at all.(b) That it should be published in an un-anonymised form.

(c)  That it should be published in an un-anonymised form, accompanied by a reporting restriction order preventing the identification of A (in which case an application would have to be made and the media notified in accordance with the Practice Direction).

(d) That it should be published in an anonymised form with workable accompanying directions that could be understood by the media. 


The Judge discussed the transparency guidance and the purpose of it


  • A salient purpose of the guidance is to promote understanding of and confidence in the proceedings of the Family Court. But beneficial though that goal is, it is not an end in itself. Rather, it is part of a necessary process to ensure that the rights of individuals and the public, referred to above, are properly balanced. That cannot happen if confidentiality in the proceedings of the Family Court, a public body, is allowed to trump all other considerations. A balance has to be struck in each case, using the guidance as a valuable aid. There will still be cases where, notwithstanding the guidance, publication is not permitted, and other cases where the judge will authorise wider publication than that contemplated by the guidance.
  • The guidance has had a marked effect. In 2014, its first year, over 300 judgments at High Court level were posted on the Bailii website, together with 160 judgments by other judges. These numbers are a very substantial increase on previous levels of publication, particularly in relation to judgments in local family courts. As a result, there is a very considerable body of material available to anyone who wants to better understand the way in which our proceedings are conducted.



I will set out the parties respective positions – the LA wanted the judgment to be published, as did mother. The father opposed publication. The Guardian supported publication but sought safeguards.


  • The local authority supports the publication of the judgment in an un-anonymised form, except that the surviving children A and B should not be named. It submits that there is good reason to publish the judgment and no compelling reason to the contrary:
  • The fact that an infant has been seriously injured and has died in unusual circumstances is shocking and rightly becomes a matter of public concern. Questions are asked – Why? Who? How? Could the death have been prevented? If so, is someone to blame?
  • The mass of publicly available information is noted. It includes Evie’s name, details of her injuries and death, the names of both parents, their locations, ages and photographs. Any privacy and confidentiality has long since been breached. The only remaining confidentiality attaches to A, who has not been publicly identified.
  • Conclusions have now been reached in the criminal court, the Coroner’s court and the Family Court about the events surrounding Evie’s death. The outcome of two of the three is now known, but not the third.
  • Neither A nor her mother are likely to be unduly affected or destabilised by further publicity.
  • Knowledge that the mother has been exonerated could assist her and A.
  • A’s identity is not likely to become more widely known. There is no evidence that the press has done other than respect her privacy, and a reporting restriction order is not necessary.
  • Publication would show the rigour with which the Family Court investigates the death of and injuries to a child and how it arrives at its conclusions.
  • Where, as here, there is criticism to be made of professionals, it is in the public interest to know of this in the hope that lessons will be learned.
  • Anonymisation of the judgment would be utterly pointless, except insofar as the surviving children’s names are concerned. It would lead to confusion and questions as to why the Family Court was seeking to withhold information that is already public knowledge.
  • The mother supports publication of the judgment and does not seek any other protection beyond that suggested by the local authority, namely the withholding of the children’s names. She contends that there is a clear public interest in publication for these reasons:
  • The information already in the public domain is very extensive, as demonstrated by a collection of press clippings from the Internet.
  • She has been placed in a difficult position by the father’s acquittal and the publicity he subsequently sought. Given that Evie was undoubtedly assaulted, the result has been to cast suspicion on her. She has been approached by the media to tell her side of the story, but has refused. Following the Coroner’s proceedings, the Daily Mail report posed the question in the title to its coverage: “Father with battered baby daughter’s handprint tattooed over his heart was cleared of beating her. So how did Evie die?” The article goes on to state that the father sought to blame the mother during his criminal trial.
  • The Family Court proceedings are the missing piece from a jigsaw of information. The other processes have been reported. The mother feels strongly that somewhere within the public domain there should be an accurate report of what happened to Evie. In time it will be of value to A that the truth is known. She also feels that the publication of the judgment would help to bring matters to a close for the family.
  • The father opposes publication, for these reasons:
  • The guidance states that the names of family members will not normally be used. The metaphorical opening of the doors to the Family Court is aimed at exposing the family justice system, not the families who pass through it, to the light of publicity.
  • Identification of the perpetrators of crime is the purpose of the criminal courts, not the Family Court.
  • The reasons for care proceedings to be conducted in private continue to be sound. The care with which the courts protect the rights to privacy, even of those who are found guilty in the criminal courts, is shown in a number of authorities, to which detailed reference is made. A careful balancing exercise must always be conducted.
  • Any attempt to publish the judgment in an anonymous form is doomed to fail, as the family would inevitably be identified. Since an anonymised judgment cannot be published, there should be no publication at all.
  • Identification of the family would breach its right to respect for private and family life and would be fundamentally wrong. Naming the father would be an unwarranted interference with his rights. Publication may destabilise A’s placement with her mother.
  • Just because the father involved himself in media coverage is not a reason to stir matters up again. Republication can be as harmful as publication.
  • There is no wider public interest, such as may exist in cases of failures by statutory agencies.
  • The Children’s Guardian does not argue that there are compelling reasons for publication not to occur. She notes that
  • There has already been a great deal of publicity but that A has not been named, though reference has been made to “another child”.
  • Her primary concern is that the mother and A may be exposed to unwelcome scrutiny and distress as a result of publication that reveals the disparity between the outcomes in the criminal and the family proceedings.
  • She supports as many safeguards as possible being implemented to reduce interest in this matter. She would oppose publication that identifies A or further identifies Ms Fisher, or refers to the inherited condition Treacher Collins syndrome. Any reference to the Wigan area and the local authority should be removed , and the names of solicitors deleted.


Note that the Local Authority was in favour of publication even though professionals were criticised in the judgment.


The Judge decided that the judgment would be published, and will appear in 28 days (thus allowing the parties time to prepare themselves, and for any appeal).  I think that it must be right that where a father has gone to the Press and insinuated that mother was responsible for the death of a child, that the judgment showing why she was fully exonerated from blame ought to be out there. I suspect it won’t get the same exposure in the Mail as the previous story, I hope to be proven wrong.




  • Having given due consideration to all of these matters, I am in no doubt that the fact-finding judgment should be published and that the only restriction that is necessary is that the actual names of the children referred to as A and B (another child associated with the family) are not to be revealed. The rubric attached to the judgment is sufficient to achieve this restriction. There is no need for a reporting restriction order. The media can be relied upon not to identify young children gratuitously in circumstances of this kind.
  • I find that the relevant considerations point very much in the same direction.
  • The first consideration is that it is generally in the public interest for accurate information to be made available in such a serious case. The need is particularly pressing when the information now in the public domain is incomplete and distorted.
  • The second consideration is that the mother supports publication and it is only fair that she should be able to rely on the judgment to show that she was not responsible for Evie’s injuries. Non-publication would be an injustice to her.
  • The third consideration is that publication is unlikely to destabilise A and her mother. On the contrary, it is likely to improve their situation in the long run. It is clearly in A’s interests to grow up on a true footing, knowing that her mother was not responsible for her sister’s death and that her relationship with her father is as it is because of what he did. Any short-term disturbance that might possibly arise from publicity is greatly outweighed by the long-term benefits of the truth being known.
  • The final consideration is that the rights of the father carry little weight in the overall balancing exercise, given his conduct and his attempts to misrepresent the position to the mother’s detriment. If his submissions were correct, the law would be a screen to hide the truth. There is instead a public interest in the findings about the father being made known. The fact that they have been reached according to the civil standard in the Family Court as opposed to the criminal standard in the Crown Court makes no difference in this case. to prevent the truth being seen.
  • These conclusions are, as it happens, in keeping with the guidance. Paragraphs 16 (public interest) and 17 (serious fact-finding) are both engaged. Insofar as the naming of the family members departs from the normal approach, this is warranted under both limbs of paragraph 9 (party’s wish to refer to exoneration and public interest in identification of a person against who findings have been made).
  • I agree with the local authority that it would be futile to seek to remove identifying information in an effort to dissociate the Family Court’s conclusions from information already on the public record. The court should not stultify itself and any attempt to publish anonymously could only lead to bewilderment about what could and could not be reported. The Guardian’s submissions were made before the mother’s position was known, but were they to remain unchanged, I would prefer the positions of the local authority and the mother.
  • I do not agree with the father’s analysis of the purpose of the guidance. As I have explained, it is not narrowly concerned with the image of the Family Court but with the wider goal of achieving a proper balancing of all the rights that arise in these cases.
  • The fact-finding judgment, and this judgment, will be placed on the Bailii website 28 days from now, to allow time for all interested parties to prepare themselves and for any rights of appeal to be exercised.



Reporting restriction orders and anonymisation


This Court of Protection case raised, and answered, an important question that was causing people doubts, in relation to Reporting Restriction Orders. It has broader implications than just Court of Protection cases.

A Healthcare NHS Trust and P 2015


A Reporting Restriction Order is just as you might guess, an Order of the Court saying that the Press can’t report some details on a particular case.  When the Court decides whether to make one, it is balancing up the article 8 right to privacy of the people involved (particularly if they are vulnerable people who can’t consent for themselves) AGAINST the article 10 right to freedom of expression (the concept that the Press ought to be free to report stories of public interest, or that are just interesting to the public)

What you might not know, if you haven’t made an application of this type, is that when faced with a story that you don’t want the Press to run, the procedure to obtain an RRO is to contact the Press and tell them all that there’s a really juicy story that you don’t want them to run.


That is so that the argument about article 8 v article 10 can be run with the Press being present and represented.  It does mean that you need to think carefully about whether stamping out a small fire (a newspaper wanting to run a story) by applying for an RRO might mean you accidentally starting a forest fire (by shouting “Fire, fire” to the rest of the media)


It is also worth noting that the transparency guidelines are that any application for an RRO, whether granted or not, should have an anonymised judgment published  – so RROs in practice are really going to be about ensuring that the NAMES of the people involved do not become published.

So, when the Press are told about the application for an RRO, should the real NAMES of the people involved be used, or should they be anonymised?

  1. It is submitted by the Press Association that pre-notification anonymisation appears to becoming a practice amongst claimant lawyers, who appear to be under the erroneous misapprehension that not only would they be committing a contempt but that by identifying the parties to a claim to the media means that the media will or may publish the material before the Court has had the opportunity to consider and possibly prohibit publication. It also suggests that the assumption is being made that the applicant’s right to privacy under Article 8 of the ECHR outweighs the media and public’s rights under Article 10. That approach by lawyers representing applicants seeking reporting restrictions or injunctions in refusing to identify the parties involved in a case involves restricting the media’s rights even before the Court has had an opportunity to consider the matter. That, it is said, leaves the media unable to take advice or make sensible and informed decisions as to what approach, if any, to take in a particular case.
  2. When the Press Association raised the question of identification of the parties with the applicant’s solicitors in this case, the response apparently was that the solicitors would be committing a contempt of court by disclosing the information; the argument put forward today by Mr Sachdeva QC is altogether different.
  3. The short issue of course is whether there is an obligation subject to paragraph 15-17 of the Practice Direction 13A to disclose information.


If there is an obligation to provide the real names of those involved as part of the application process, then there’s no issue of contempt of Court in complying with that obligation. And this is the issue that the Court had to decide.

On the one hand, the argument is that giving out the real names might be a contempt of Court and might breach privacy and might pose a risk of the names accidentally leaking out. On the other, if you tell the Press that they aren’t allowed to write about person X, but you don’t tell them who person X is, how can they really know whether they might have already been approached by X about the story, or even whether they would want to run the story.

  1. The questions therefore seem to be as follows. On the one hand the arguments in favour of revealing the parties’ identity to the Press before such an order is made include Practice Direction 13A requiring that the application notice (COP 9) be served with the media notification. The COP 9 has the parties’ names on it as of course does the witness statement (COP24). It is in accordance with open justice to allow the media fully to consider whether to object. It is pragmatic, otherwise the media would have to attend every case to learn the parties’ identity. Arguably no harm is done by notification because the media cannot report the parties’ identity despite no RRO being yet in place without being in contempt and the media will learn the parties’ names once the RRO is made in any event.
  2. Against the proposition is the assertion that the Practice Direction (which is a practice direction, not a Rule of Court) does not require the draft order to be served on the media (as noted by Baker J in Re M). However, he was considering the issue in relation to the identities of a considerable number of people who would be covered by the anonymity order. More directly than that it is simply unnecessary for the media to know the identity of P before forming an opinion on the terms of the RRO being sought, the issues being the centre of interest. Relevance is also placed on the absence of prohibitive order prior to hearing, a breach of which it is said is not clearly a breach of confidence or contempt of court.

Mr Justice Newton marshals the law and principles very well here, and it would be a good source for any RRO research in future cases.

To skip to the conclusion – the Judge was satisfied that the Press having the real names on the application form would not result in those names being published before the Court considered the RRO and that there were a number of safeguards to ensure that would be the case, even if there were to be one maverick or rogue player:-

  1. I am therefore completely satisfied that a number of factors come together preventing the media from revealing the parties’ names, because

    1. It would be a statutory contempt.

    2. It would be a contempt of common law.

    3. It would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect).

    4. It would be a breach of confidence.

  2. In the interests of transparency, the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names. I therefore order the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if they wish to do so.



The statutory contempt of court bit is interesting, particularly in relation to publication of information whilst the proceedings have not been concluded.

  1. Section 1 of the Contempt of Court Act 1981 provides:

    “In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”

    Section 2 of the Act sets out the scope of strict liability. The following must be established to the criminal standard:

    a) publication addressed to the public at large, as any sections of the public;

    b) publication which creates a substantial risk that the course of justice in the proceedings in question will be severely impeded or prejudiced;

    c) publication occurs at a time when the proceedings are active.

    So there is a double test, there has to be a risk that the proceedings in question will be affected at all and if affected, the effect will be serious.

  2. Anything that has a deleterious impact on the conduct or outcome of proceedings is prejudicial to the course of justice (I have had regard to the definitions in Arlidge, Eady and Smith on Contempt (citing Re Lonhro 1990 2 AC 154 and AG v Times Newspapers Times 12/2/83).


What about common law contempt?

  1. In the unlikely event that statutory contempt is not established common law contempt (under section 6(c) of the Act) could clearly be established. The actus reus and mens rea both have to be established. Lord Bingham in A-G v Newspapers Publishing plc [1997] 1 WLR 926 at 936B-D set out the actus reus to be established:

    “We do not accept that any conduct by a third party inconsistent with an order of the court is enough to constitute the actus reus of contempt. Where it is sought to impose indirect liability on a third party, the justification for doing so lies in that party’s interference with the administration of justice. It is not our view necessary to show that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice. Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way should expose a party to conviction for contempt.”

  2. At 936H-937A, Lord Bingham set out what had to be established in respect of the necessary mens rea:

    “To show contempt, the [A-G] must establish, to the criminal standard of proof, that: ‘the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire …’

  3. The publication of material contained in an application for reporting restrictions prior to the hearing to determine those restrictions is likely to amount to a contempt of court at common law. It is likely to have a significant and adverse effect on the administration of justice by thwarting the very purpose of the application, thereby making the application for reporting restrictions redundant. Intent to impede or prejudice the administration of justice is likely to be inferred from the context that the publisher will be aware of the context of how the information was received, the purpose for which it was received and the likely restrictions sought in the application.



child abduction and child abuse

The case of Neustadt v Neustadt (child abduction) 2014 is an interesting and desperately sad one


The bare bones of it are that there were two boys, Daniel aged 8 and Jakob aged 6. Their father, who was Russian, took them to Russia on Christmas Day 2012 and it took 2 1/2 years for the mother to get them back, including having had to litigate in the Russian Courts.


The wider aspect of the case is probably in the name of it – although the case relates to child abduction and a state of affairs by the father which the Judge described as child abuse and brainwashing, the family’s real name is published.

That is unusual, and many readers might well be wondering why it is okay to do that in this case, but children’s names have to be anonymised in other court cases.

  1. The above judgment was handed down to the parties on 26 November, with a request for submissions on the question of publication. The response of the mother and the Children’s Guardian, represented by CAFCASS Legal, is to support publication in un-anonymised form. The father does not oppose publication in all circumstances, but suggests that the issue should be deferred until welfare decisions about the children have been made. He argues that there is a high likelihood of an adverse impact of publication on the fairness of the proceedings and on the children’s welfare and that the issue would be easier to judge at the end of the proceedings.
  2. I agree with the submission for the mother and the Guardian that there is a public interest in the true circumstances of this case being known, for these reasons: (i) The parties’ accounts of events have already been widely published in England and in Russia. The true facts should be known, particularly where misinformation has been published by one party.

    (ii) This is apparently the first case under the 1996 Hague Convention. It shows the importance of the Convention, the willingness and ability of the courts of the Russian Federation to apply it, and the results that can be achieved when lawyers work together across jurisdictions.

    (iii) Knowledge of the outcome in this case may encourage the adult victims of other child abductions and deter potential child abductors, especially if the latter know that they might be publicly named.

  3. Like the Children’s Guardian, I do not consider that any serious or lasting disadvantage will come to the children from further publication. The existing publicity does not seem to have had any adverse effect on them.
  4. It is clear that an anonymised judgment cannot be published as the identity of the family would immediately be obvious.
  5. The only remaining question is whether publication should be delayed, as the father suggests. I understand the general argument that in some situations publicity could put pressure on professional assessors, or even on the court, but I do not accept it on the facts of this case. The welfare assessment that will now take place will be carried out by experienced professionals. The court’s welfare decision will not be influenced by publicity. The British media has reported the case responsibly and in my view nothing is to be gained from postponement. On the contrary it is in the interests of the family that its time in the public eye begins, and thus ends, as soon as possible.
  6. Accordingly, this judgment can be published as it stands.


There were some dreadful details in this. One theme which kept emerging was the father taunting the mother in a very literary way.

On 22 January, the father e-mailed a poem by Nietzsche to the mother. It is entitled “Vereinsampt” [“Alone”]. The mother correctly interpreted this as the father crowing



On 7 March, the father ordered a book online that was delivered to the mother a few days later. This was “Glory” by Nabokov, which describes a Russian émigré who re-enters Russia secretly and succeeds in keeping his whereabouts unknown from family and friends.


I don’t think I have come across a case before where the menacing communication was by way of literary allusion, and a set of Cliff study guides would have been of assistance

The father had gone to extraordinary lengths with these children

The children lived in these bizarre and unlawful circumstances between November 2013 and June 2014. The only reliable source of information about how they were treated comes from their later accounts to their mother. They have told her that there were many rules of life. They were told that they were being hunted by violent “bandits” who were trying to kidnap them and that she was in the gang. They could only go outdoors one at a time so that no one would see both boys together. They were not allowed to go out on the same day. They were not allowed to look out of windows. On one occasion they had to crouch down in a car. They were given different names. They could not go to school. They were coached to say why they did not want to live with their mother.




  • 90The mother says that the protracted collection was “horrific”, despite what she describes as the very professional approach of the authorities. The father was out and the grandmother, who had stayed with the children, did everything she could to obstruct the process. Her behaviour included:
    • Refusing to open the door until the bailiff started to drill off the locks.
    • Grabbing the children and inciting them to panic by shouting phrases that the children repeated in a monotonous drone: “No, no, no! Mummy is bad!” “They don’t want to go to England, they want to stay in Russia!” The children later told their mother that they were doing what they had practised.
    • Refusing to release the children and smacking the mother’s hand when she tried to touch and reassure them.
  • Refusing to hand over the children’s passports.



On 4 July, the father wrote an article in a Russian online newspaper, describing the children’s “forcible seizure” and saying that:

“There are about 15 people in plainclothes who took part in the taking away of the children, among them were foreigners dressed as members of a US-centric religious organisation, as well as a bailiff brought by them, who refused to produce any documents for the removal of children, but explained that he was contacted by the USA Embassy and ordered to use force. … The persons who broke into the flat used force towards the children and dragged them away by force, parting them from their father and grandmother against the children’s will. The children resisted in every possible way, cried, screamed that they wanted to live in Russia with their father and would never agree to leave for the USA or England. The children, who think of Russia as their Motherland, were irremediably traumatised by such fascist punitive squad’s methods.

The children are Russian citizens; they are fully integrated in Russia, their only native language is Russian … My children and I are Russian citizens, who legally returned to Russia in 2012. … There were numerous offers of amicable settlement suggested to the foreign party, but they were fully ignored under the pressure of Russophobe milieu of the children’s mother. The father is the only legal representative of the children in Russia, and children love Russia and the Russian culture very much.

I am requesting that all mass media, Russian authorities and human rights activists should assist in the immediate search for and discovery of children’s whereabouts … in prevention of children’s isolation from their father and their removal to the USA via England. In case of such removal and full isolation from their father in the foreign-speaking environment, the children will suffer another psychological trauma which will haunt them their entire life.”


The Judge’s findings were powerful and moving


  1. My findings
  2. These three children have been habitually resident in England and Wales since January 2011. After their parents’ separation, the arrangements for them to live with their mother and spend time with their father were carefully negotiated by the parents and approved by the court.
  3. The father’s removal of the children was an abduction, not a retention. I reject his evidence that he only decided to keep them after they arrived in Russia. When he took the children from London, he had no intention of returning them. He had planned it for months, lulling the mother into a false sense of security so that she would agree to the holiday he proposed.
  4. The father’s characterisation of Daniel Jakob and Jonathan as Russian children is a self-indulgent delusion. Of course they have a Russian parent, albeit he himself has lived most of his adult life elsewhere. But until December 2012, when they were aged 6½ and 4½, the boys had always lived in Switzerland and England. They had never even visited Russia. Their Russian heritage is important, but it has been played upon by the father because it is the one thing that he can offer that the mother cannot.
  5. Having successfully got hold of the children, the father set about strengthening his position by engaging in a series of cynical manoeuvres, delaying tactics and deceptions that he knew the mother would be powerless to oppose. He was only willing to accommodate her in the children’s lives if she came to live in Russia, where she would be under his control. When she would not agree, her access to the children was strictly limited, and then stopped altogether. In doing this, the father counted on his legal position in Russia being secure. I find that he intended to keep the children indefinitely, and was only frustrated by the determined actions of the Russian authorities.
  6. The father claims that his actions were influenced by Russian legal advice. I do not accept that he ever genuinely considered his position to be legitimate. He is a man who relies on advice that suits him and ignores advice that does not. He flouted every order of this court and when faced with orders of the Russian courts, he went underground. His excuse for this (danger from unidentified persons) is a bogus invention, but the children were not to know that. They were brainwashed into believing that they were being pursued by dangerous bandits, including their mother. The seriousness of this is not only measured by the length of the separation created by the father, but also by his willingness to root the mother out of the children’s lives. This was not just child abduction, it was child abuse.
  7. One of the father’s strategies has been to politicise the children’s situation for his own ends. He took to the Russian media in an attempt to whip up domestic political sentiment by means of deliberate lies, and he delayed the children’s return by obtaining a travel ban. He pursued his goal of keeping control of the children in every legal and illegal way he could devise.
  8. The children and their mother have been profoundly affected by these events. For a year and a half, their lives were turned upside down. The boys were separated from their mother and brother. They were forced to live a bizarre clandestine life, surrounded by lies and cut off from normal existence. It will take a long time for them to come to terms with these experiences.
  9. At this hearing, the father had the opportunity to show regret and insight. Unfortunately, by his written and oral evidence, his questioning of the mother, his submissions, and his decision not to attend the hearing in person, he showed that he has little appreciation of the impact of his actions on anyone else, including the children. The only person he seemed to be really sorry for was his mother. Throughout his evidence he was pedantic, unreliable and untruthful. When confronted methodically with the clearest evidence, his reaction was to misrepresent, prevaricate, minimise, extenuate and contest. There was no sign of any real remorse. So far, his apologies are no more than a means to an end, motivated by disadvantage and the failure of his grand plan. The mother’s perception of him, recorded above at paragraph 112, is in my view justified.
  10. Anyone meeting these parents without knowing the family history is liable to be misled – misled into underestimating past events by the mother’s extraordinary serenity and dignity, and misled into underestimating future risks by the father’s outward appearance of intelligence and courtesy. Given the sustained ruthlessness of his conduct, the risk of further alienation or abduction is high.
  11. The collusion by the father’s family increases those risks. The children’s uncle could have used his influence for good, but instead has chosen to support the father throughout. The grandmother’s conduct can only be described as unworthy of a grandparent.
  12. The next stage of these proceedings concerns the children’s future welfare. However harmful their father’s behaviour has been, he is an important figure for them. Unfortunately, he set about teaching them that they do not need two parents. It will take them time to unlearn that lesson.


Happy families are all alike; each unhappy family is unhappy in its own way

Habeas corpus

If you see the words “habeas corpus”, you know that one of three things is happening :-

(a) you are reading a very old law report or doing a constitutional law exam

(b) you are reading a Perry Mason novel

(c) this is a misconcieved application drawn up by someone who has read some law but doesn’t actually practice it.

Justice for Families Limited and Secretary of State for Justice 2014 is not a Perry Mason novel, nor is it a very old piece of caselaw.


Although it is therefore the latter of the three options, I can see the mischief that it was aimed at tackling.  [In effect, a writ of habeas corpus, if granted, is a legal order meaning that whoever is holding person X must release or produce them]

It involves John Hemming MP, though this time in the form of a Director of a Company, Justice for Families, and the Court of Appeal.


Mr Hemming and no doubt the company also, have been concerned for a long time about the people who are imprisoned for breach of family law orders or contempt of court. In this case, they had learned of a woman who had been sent to prison for 28 days, and found that the judgment had not been published on Bailii, which was of course a breach of the guidance that all committal applications should be published.


Mr Hemming, in his capacity as an MP had learned that this was not a rare blemish, but a regular occurance, and had issued this writ as a method of focussing attention upon it.

“It is known from statistics provided by the Ministry of Justice in response to a written parliamentary question asked by myself that there are of the order of 5 people a month imprisoned for contempt for whom there is no published judgment in accordance with the practice direction jointly issued by the President of the Family Division and the Lord Chief Justice on 3rd May 2013 [this is a reference to Practice Guidance (Committal Proceedings: Open Court) [2013] 1 WLR 1316]. Hence these people should be properly described as secret prisoners. This is not supposed to happen. It should not have happened on 11th October 2013. The applicant is hoping to obtain an authority from the court of appeal which would assist in preventing this from continuing to happen in the future by making it clear that such imprisonments are unlawful and that an application for a writ of Habeas Corpus must be granted whosoever applies for such a writ and that release from imprisonment would then be expected to follow.”


I think, like the Court of Appeal, that the writ was misconcieved, but it is surely wrong that people should be locked up and the judgment explaining why not published. Obviously, one expects some sort of time lag (the tape has to be sent to transcribers, the transcript done, the judge then approves the transcript and it gets put up) but as we have a practice direction saying that all such judgments must be published, it is wrong that so often they are not.  I have some sympathy with Mr Hemming, and whether the application was misconcieved or not (it was), it was an approach that (a) got the case before the President (b) got the President to reinforce that such judgments must be published and (c) will probably get some publicity.


He also highlighted that the Official Solicitors role in reviewing committal cases and searching for injustice seems to have fallen by the wayside, and I think he is right to say that too.  [the duty got discharged in November 2012, but what safeguards remain? It seems to be an important function that has ended and not been replaced]

  1. The latest figures from the Ministry of Justice of receptions into prison for contempt of court, show that in the twelve months from April 2013 to March 2014, a total of 116 contemnors arrived in prison (monthly totals 15, 11, 8, 13, 14, 7, 12, 7, 6, 8, 7, 8). These figures are broken down into County Court (aggregate total 36), Crown Court (5), Magistrates (4), High Court (5) and “Not recorded” (66). Mr Hemming’s point, which appears to be borne out by an analysis he has conducted for us of the committal cases which appear on BAILII, is that for a very large number of these committals there is no judgment to be found on BAILII. This, if true, and every indication is that unhappily it is true, is a very concerning state of affairs.
  2. Analysis of the problem, and location of responsibility, is not of course assisted by the surprising fact that the available statistics record the type of committing court in less than 50% of the cases: in 66 out of 116 cases the committing court is not recorded.
  3. Mr Hemming, as we have seen, draws attention to the fact that the Official Solicitor no longer has any responsibilities in relation to contemnors. He suggests that some additional protection is needed for what he calls the secret prisoner, who is at present, he says, insufficiently protected.
  4. The duties of the Official Solicitor in relation to contemnors had their informal origins even before 1842, when they were put on a formal, albeit non-statutory, basis following the appointment of J J Johnson as Solicitor to the Suitors Fund (as the Official Solicitor was then called). They were put on a statutory basis by the Court of Chancery Act 1860. From 1963 they were to be found spelt out in a Direction to the Official Solicitor issued by Lord Dilhorne LC on 29 May 1963, requiring the Official Solicitor to:

    “review all cases of persons committed to prisons for contempt of Court, … take such action as he may deem necessary thereon and … report thereon quarterly on the 31st day of January, the 30th day of April, the 31st day of July and the 31st day of October in every year.”

    That Direction remained in force until revoked by the Lord Chancellor on 5 November 2012. Accordingly, as I understand it, the Official Solicitor no longer has a role to play in relation to committal orders which result from contempt of court.


I have said, therefore that I can see that this was a very real problem that John Hemming was attempting to highlight and get the Court to deal with, and that I think it achieved its aim, but it is a drizzy Monday morning, and I think some of my readers might also like to read the interesting exchange when the application was being made.


In particular, enjoy Collins J saying something breathtakingly cool and rude and true all at the same time (underlined for your pleasure)

The application came before Collins J on 6 November 2013. He dismissed the application. He gave no judgment, but the reasons for his decision appear clearly enough from the transcript of the proceedings, which begins with the following exchange:

“MR JUSTICE COLLINS: Can I see if I’ve understand this correctly? You’ve had no contact with the wife, the woman concerned?

MR HEMMING: That’s correct.

THE JUDGE: You don’t even know her name?

MR HEMMING: That’s correct.

MR JUSTICE COLLINS: You don’t even know if she is still in custody?

MR HEMMING: I’m going by press reports that she was given 28 days, but she might not still —

MR JUSTICE COLLINS: Yes she was, Of course, in any contempt proceedings, the contempt can be purged.

MR HEMMING: Of course.

THE JUDGE: And in this case it could be purged by … indicating where the children were.

MR HEMMING: Of course.”

A little later there is this exchange:

“MR JUSTICE COLLINS: … She refused to disclose their whereabouts or told untruths about where they were, and that is what led to the judge deciding as she did. Now there is no question but there is jurisdiction to impose a penalty, including imprisonment, for contempt of that nature because it is a contempt which is an interference with the administration of justice. And, of course, the whole background to this was the protection of children who otherwise would be at risk. Habeas corpus in these circumstances is an entirely misconceived remedy. There is a right of appeal. She was represented, she had legal aid, and she automatically will, even despite the government of which your party is a member and the removal of legal aid in many circumstances, still legal aid exists for an appeal against a committal order because liberty is at stake. So it is difficult to see what really you are doing here.”

Mr Hemming then explained the basis of his application. Collins J responded:

“MR JUSTICE COLLINS: … there is no possible remedy through habeas corpus because habeas corpus only goes to whether there is a lawful sentence and there is a lawful sentence. And there is a right to appeal, an absolute right to appeal.


MR JUSTICE COLLINS: For which legal aid is granted. She was represented by counsel and solicitors at the hearing before Mrs Justice [Theis]. You come along without any instructions, without having contacted her, without even knowing who she is —

MR HEMMING: Without the ability to contact her. That’s right.

MR JUSTICE COLLINS: You know nothing about the background to the case. And I am afraid this is an interference which is totally unnecessary because her interests are protected by her representation. She may have purged her contempt for all I know.

MR HEMMING: Yes, we don’t know, do we.


MR HEMMING: And that’s the difficulty of the situation of people in prison in secret —

MR JUSTICE COLLINS: You could easily have got a copy of the committal order from the clerk of the rules.

MR HEMMING: So that’s what you recommend, basically.

MR JUSTICE COLLINS: Well, you can get it but I am afraid habeas corpus is hopeless –“



The Court of Appeal do not disagree with Collins J on the merits of the writ of habeas corpus


  1. There are, in my judgment, two very simple reasons why this appeal is quite hopeless. Each provides a complete answer to the appeal, just as each provided a complete answer to the application before Collins J.
  2. In the first place, and as Collins J correctly explained, habeas corpus does not lie to challenge a sentence of imprisonment imposed by a court of competent jurisdiction. The proper remedy in such a case is appeal: see ex p Hinds [1961] 1 WLR 325, Linnett v Coles [1987] QB 555 and West v HM Prison Bure [2013] EWCA Civ 604. As Lord Goddard CJ said in Re William Oswald Featherstone (1953) 37 Cr App R 146, 147:

    The court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say, persons who are serving sentences passed by courts of competent jurisdiction. Probably the only case in which the court would grant habeas corpus would be if it were satisfied that the prisoner was being held after the terms of the sentence passed on him had expired.”

  3. Secondly, and as I have already pointed out, the mother had been discharged from prison on the expiry of her sentence before the application for habeas corpus was made. Since the only issue on an application for habeas corpus is to determine the legality of the detention, habeas corpus will not lie if the detention has already been brought to an end: Barnardo v Ford [1892] AC 326, and (an authority supplied by Mr Hemming) In re J M Carroll (An Infant) [1931] 1 KB 317, 327. As Lord Watson put it in Barnardo (page 333):

    “The remedy of habeas corpus is … intended to facilitate the release of persons actually detained in unlawful custody … it is the fact of detention, and nothing else, which gives the Court its jurisdiction.”

  4. Mr Hemming’s response to the first point is that the hearing before Theis J on 11 October 2013 was not a hearing by a court of competent jurisdiction. In support of this surprising contention he makes two submissions: first, that the court did not have “jurisdiction” because Theis J was acting both as prosecutor and as judge; secondly, that the court was not “competent” because the hearing was not listed.
  5. As elaborated in his skeleton argument Mr Hemming asserts – perhaps, more accurately, assumes – that, as he put it, the “court” had “moved a motion for committal” and that the court was “sitting in judgment on a motion of its own initiative.” This is simply wrong as a matter of fact. The matter was brought back to court following and because of the arrest of the mother by the Tipstaff. Theis J was sitting to determine whether or not, as reported to the court by the Tipstaff, the mother had breached the collection order and thereby committed a contempt of court. To be fair to Mr Hemming, as soon as we had explained the process in relation to collection orders, he readily accepted that there was no substance in his complaint that the court lacked jurisdiction. Quite plainly, in my judgment, Theis J had jurisdiction on 11 October 2013 in the sense in which Lord Goddard CJ was using the word.
  6. Mr Hemming supports his alternative complaint that the court was not “competent” by reference to Article 6 of the Convention. The argument, in my judgment, is quite hopeless, whether or not bolstered by reliance upon Article 6. The fact is that Theis J was, as the expression was used by Lord Goddard CJ, sitting on 11 October 2013 as a court of competent jurisdiction. She was sitting in public. The mother was present and represented. The submission that an otherwise competent court was not competent because the hearing was not listed is, with all respect to Mr Hemming, devoid of all merit. I should add that I would have come to precisely the same conclusion even if, contrary to the facts, the hearing on 11 October 2013 had been held in private when it should have been in public: see McPherson v McPherson [1936] AC 177, where the fact that a divorce case which should have been heard in open court was heard in private rendered the resulting decrees nisi and absolute voidable only and not void.

I add one final observation. I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound.


The Court of Appeal judgment tackles a number of important points.


The first is the ability of a third party (ie someone who is not being held captive or prisoner themselves) to seek a writ of habeas corpus

Evidently, there is some provision for a third party to do this, otherwise miscreants could prevent the captive from getting legal remedy by simply holding them so closely that they could not apply. But how close does the relationship between imprisoned party and third party have to be, and what is required?


  1. In the nature of things, the court must be willing, where circumstances require, to hear an application for habeas corpus brought not by the prisoner but by some third party. For if the court refused to hear such a third party application, a prisoner unable to instruct someone to act for him would be denied a remedy and left to languish in what might be unlawful confinement. As is said in The Law of Habeas Corpus, 237, “If third parties were not allowed to initiate proceedings, a captor acting unlawfully would only have to hold his prisoner in especially close custody to prevent any possibility of recourse to the courts.”
  2. Thus it is clear that it is possible for a third party to make an application for habeas corpus even though acting neither as the agent of the prisoner, nor on his instructions, nor, indeed, even with his knowledge: see, for example, The Case of the Hottentot Venus (1810) 13 East 195, In re Price (1860) 2 F&F 263,[1] and Re Antoni Klimowicz (1954) unreported,[2] to each of which Mr Hemming helpfully referred us. But as the old case of Ex p Child (1854) 15 CB 238 shows, the right of a stranger to apply for habeas corpus is necessarily kept within bounds. As Jervis CJ said:

    “A mere stranger has no right to come to the court and ask that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas to be discharged from restraint. For anything that appears, Captain Child may be very well content to remain where he is.”

    And it is to be noted that the unsuccessful applicant was there ordered to pay the costs of the respondent who had been brought “fruitlessly and unnecessarily” to court.

  3. The principle in Ex p Child is now to be found stated in RSC Order 54, rule 1, as set out in Schedule 1 to the CPR:

    “(2) An application for [a writ of habeas corpus ad subjiciendum] …, subject to paragraph (3) must be supported by a witness statement or affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.

    (3) Where the person restrained is unable for any reason to make the witness statement or affidavit required by paragraph (2) the witness statement or affidavit may be made by some other person on his behalf and that witness statement or affidavit must state that the person restrained is unable to make the witness statement or affidavit himself and for what reason.”

    Mr Hemming’s witness statement failed to comply with the latter requirement.

  4. In what circumstances, then, is a third party application appropriate? Given the vital importance of the remedy and the infinite variety of possible situations – as the facts of each of the four cases I have just referred to so strikingly illustrate – it would be unwise to be too prescriptive. The court must be flexible. That said, I would expect most cases where a third party application is appropriate to be either (as in Price and Klimowicz) cases where the prisoner is incommunicado or (as in The Hottentot Venus) cases where, to quote the language of The Law of Habeas Corpus, 238, “the impediment preventing the prisoner from acting [is] ignorance or disability rather than close physical custody.”
  5. In the present case neither principle applies. The mother was not held incommunicado. There was no impediment to her acting: she had counsel. Collins J was fully justified in expressing himself as he did. Mr Hemming’s complaint that the mother was being held, “incommunicado”, as a “secret prisoner” whose name was not known, was true only in the sense that neither the appellant nor Mr Hemming had made any effective attempt to discover her name


To be fair to Mr Hemming, he encountered a problem that many others will have encountered – an inflexibility with bureacrats to provide information without the Code or Reference number, and an inability to know the Code or Reference number because the judgment giving it had not been published.

  1. As Collins J correctly observed, Mr Hemming could have obtained a copy of the committal order on application to the Clerk of the Rules. FPR 29.12(2) provides that:

    “A copy of an order made in open court will be issued to any person who requests it.”

    Mr Hemming’s account of his attempts to obtain a copy of the committal order is vague and lacking in detail. He says that those acting for the appellant “spent some time wandering around the Royal Courts of Justice visiting the Family Division registry and talking to inter alia Jimmy in the Urgent applications court and the clerk to Justice Theis.” He insinuates, without asserting in so many words, that he was unable to obtain the committal order because he knew neither the case number nor the names of the parties to the case.

  2. As to that I propose to say only this. Plainly the court cannot be expected to embark upon an extensive and time-consuming trawl of its files to identify an order where the applicant is unable to identify what it is he is seeking. But here, Mr Hemming knew both the date of the committal order and the name of the judge who had made it. An applicant seeking a copy of the order, to which, I emphasise, he is entitled under FPR 29.12(2), should not be sent away empty-handed merely because he does not know the number of the case or the names of the parties. The court can, and should, supply a copy of a committal order, even if the applicant cannot provide those details, where the applicant is able to provide sufficient details of the case to enable the order to be located by the court without undue difficulty, for example, as here, the date of the order and the name of the judge.
  3. I add, for the avoidance of doubt, that when I refer to the court in this context I mean the court office. Applications under FPR 29.12(2) should be directed to the appropriate court office and not to the judge or judge’s clerk.


The other tangled issue the Court tackle is that of right of audience. Mr Hemming is not a lawyer and does not have rights of audience to present the case to Court. There was quite a clever device to get around this – Mr Hemming was effectively being a litigant in person through the vehicle of being a director of a company that has been set up in part for the purpose of tackling injustice in family cases (as can be seen through its name)

  1. CPR 39.6 provides that:

    “A company or other corporation may be represented at trial by an employee if –

    (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and

    (b) the court gives permission.”

    Paragraph 5.2 of CPR PD 39A provides that:

    “Where a party is a company or other corporation and is to be represented at a hearing by an employee the written statement should contain the following additional information:

    (1) The full name of the company or corporation as stated in its certificate of registration.

    (2) The registered number of the company or corporation.

    (3) The position or office in the company or corporation held by the representative.

    (4) The date on which and manner in which the representative was authorised to act for the company or corporation, e.g. _19_: written authority from managing director; or _19_: Board resolution dated _19_.”

  2. The letters dated 4 November 2013 and 18 February 2014, signed, it is to be noted, by Mr Hemming, are inadequate. Neither complies with paragraph 5.2(4). Each is, in reality, no more than an assertion by the signatory that he is acting with the agreement of the board, an entirely self-serving statement unsupported by any independent evidence that he does indeed have that authority. CPR PD 30A, para 5.2 is there to be complied with. There is no excuse in the present case, where the court had specifically directed attention to it. As a matter of indulgence we agreed to hear the appeal. Our indulgence on this occasion is not to be taken as any precedent.
  3. We have not overlooked the principle, explained in The Law of Habeas Corpus, Farbey and Sharpe, ed 3, 2011, 238-239, that applications for habeas corpus are usually required to be made by counsel (now, a qualified advocate with higher court rights). Our agreement to hear Mr Hemming in this case is not to be taken as in any way weakening that long-established practice.


We shall wait and see whether the President’s words here make any difference to the publication of committal judgments – I would be surprised if Mr Hemming does not doggedly pursue (and rightly so) whether this problem has been resolved or whether despite the Practice Direction and the President’s words, committals continue to take place without transparent judgments being published.




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