RSS Feed

Tag Archives: transparency

“The pages of the most extravagant French novel…”

 

 

Rapisarda v Colladon 2014 – new areas of transparency, journalism and Monarchs trying to protect public morals – it has it all.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1406.html

This is a very quirky case, decided by the President. It arises from divorce and ancillary relief proceedings. In particular, it arises from an application by the Queen’s Proctor, to dismiss a large number of divorce petitions, and to set aside a number of decree absolutes and decree nisis.

(Who the heck is the Queen’s Proctor, you may be asking – well, he or she, is the person who is authorised to intervene in litigation on behalf of the Queen, i.e when there’s some heavy issue at stake. For divorce, that all flows from s8 of the Matrimonial Causes Act 1973)

This case is described by the President in his opening paragraph as being

what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale

Vexingly, for me, the judgment doesn’t give chapter and verse on what on earth was going on here.

The issue that the judgment is principally concerned with, is whether the Press could report what the Court was uncovering. At the moment, they are prevented from reporting details from divorce cases (not, as you might imagine to protect the confidentiality of the individuals but to protect public decency)

That allows the President to do two of his favourite things – (a) to test where the boundaries of transparency are and whether they could be expanded; and (b) to give a history lesson as to how the current framework came to be.

For a law geek like me, (b) is really rather absorbing, and I have to say that few people have ever been as skilled as the President in doing that sort of exercise.

So, what prevents the Press reporting about what happens in divorce or ancillary relief proceedings? * (As to whether any of this applies to ancillary relief proceedings, having analysed it very carefully, the best we can do is “It might”)

It is the Judicial Proceedings (Regulation of Reports) Act 1926 (from now on in this piece “The 1926 Act”

3. Section 1 of the 1926 Act is headed “Restriction on publication of reports of judicial proceedings”. As amended, it provides as follows:
“(1) It shall not be lawful to print or publish, or cause or procure to be printed or published –
(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.
(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding level 5 on the standard scale, or to both such imprisonment and fine:
Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act.
(3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General.
(4) Nothing in this section shall apply to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
So, in normal language –

1. the Press can’t report anything arising from Court proceedings which might injure public morals (I’m not convinced that is routinely adhered to, thinking of the many sexual abuse celebrity crime reporting, or the level of detail that was published arising from evidence in murder trials – the murder of Lee Rigby springs to mind, and the Press have hardly been sparing in the Oscar Pistorius details)

2. The Press can’t report anything arising from the evidence given in divorce proceedings or PROBABLY ancillary relief proceedings (they can report things in broad summary, but not chapter and verse). And if they do, they can be prosecuted.

3. That does not stop the reporting of bona fide LAW REPORTS
The President explains how the 1926 Act developed. In effect, at around the same time as the law banned Obscene Publications the Press started publishing fairly routinely the juicy and salacious details from divorce cases to titillate and/or shock their audience.

8. Kate Summerscale, in her recent retelling in Mrs Robinson’s Disgrace: The Private Diary of a Victorian Lady (Bloomsbury, 2012) of the remarkable case of Robinson v Robinson and Lane (1859) 1 Sw & Tr 362, notes (at page 187) what one can only think of as the delicious irony that in the summer session of 1857 “Lord Palmerston’s government had pushed through the Matrimonial Causes Act, which established the Divorce Court, and the Obscene Publications Act, which made the sale of obscene material a statutory offence.” Both, she opines, had identified sexual behaviour as a cause of social disorder. But, she continues:
“A year on … they seemed to have come into conflict: police officers were seizing and destroying dirty stories under the Obscenity Act, while barristers and reporters were disseminating them under the Divorce Act. ‘The great law which regulates supply and demand seems to prevail in matters of public decency as well as in other things of commerce,’ noted the Saturday Review in 1859.” – The author, she suggests, was James Fitzjames Stephen, later Stephen J – “‘Block up one channel, and the stream will force another outlet; and so it is that the current dammed up in Holywell Street flings itself out in the Divorce Court.'”
9. Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (Viking, 2013), comments (at page 45), that:
“Born at the same moment, the Divorce Court and the mass-circulation press were made for each other. The Divorce Court got the publicity to humiliate moral reprobates. The newspapers got the fodder they needed to power a gigantic leap into the mass market.”
This state of affairs even led Queen Victoria to become involved, and she caused this letter to be written

“to ask the Lord Chancellor whether no steps can be taken to prevent the present publicity of the proceedings before the new Divorce Court. These cases, which must necessarily increase when the new law becomes more and more known, fill almost daily a large portion of the newspapers, and are of so scandalous a character that it makes it almost impossible for a paper to be trusted in the hands of a young lady or boy. None of the worst French novels from which careful parents would try to protect their children can be as bad as what is daily brought and laid upon the breakfast-table of every educated family in England, and its effect must be most pernicious to the public morals of the country.”

Obviously the comparison between lurid French novels and the details of divorce reports in the English newspapers was a popular one, because the metaphor was still going in 1922, when King George V caused this correspondence to be written

12. Despite all this, as Cretney records, every attempt to remedy matters by legislation failed until the notorious Russell divorce case (see Russell v Russell [1924] P 1, [1924] AC 687, and, for the eventual denouement, The Ampthill Peerage [1977] AC 547) was opened before Sir Henry Duke P and a jury on 8 July 1922. On the fourth day of the hearing, the King’s Private Secretary, Lord Stamfordham, wrote to the Lord Chancellor, Lord Birkenhead:
“… the King is disgusted at the publication of the gross, scandalous details of the Russell divorce case. His Majesty doubts whether there is any similar instance of so repulsive an exposure of those intimate relations between man and woman which hitherto through the recognition of the unwritten code of decency indeed of civilisation have been regarded as sacred and out of range of public eye or ear. The pages of the most extravagant French novel would hesitate to describe what has now been placed at the disposal of every boy or girl reader of the daily newspapers.”
So for all of our modern obsession that Prince Charles has been exercising influence behind the scenes and pulling strings, it is nothing new.
The King wasn’t done there, and had another try later on

14. The final catalyst seems to have been the newspaper reporting in March 1925 of Dennistoun v Dennistoun (1925) 69 Sol Jo 476. King George V returned to the point, Lord Stamfordham writing to the Lord Chancellor, now Lord Cave, in striking terms:
“The King feels sure that you will share his feelings of disgust and shame at the daily published discreditable and nauseating evidence in the Dennistoun case. His Majesty asks you whether it would not have been possible to prevent the case coming into Court, either by a refusal of the Judge to try it, or by the joint insistence of the respective Counsels to come to an arrangement, especially when, apparently, the question at issue was one of minor importance.
The King deplores the disastrous and far reaching effects throughout all classes and on all ranks of the Army of the wholesale press advertisement of this disgraceful story.”
And so the 1926 Act came about, to protect those delicate flowers that were serving in the British Army, and the vulnerable working classes from having to read such filth (the upper class could of course, afford to buy the most extravagant French novels, and get their filth that way)

 

 

[I began pondering just how juicy Dennistoun v Dennistoun was, the case that changed the law and remains law ninety years on, and which got a King so disgusted and ashamed that he wrote letters complaining about it. So I had a look  - the salacious details from the trial are all here

http://alminacarnarvon.wordpress.com/2012/04/01/lady-almina-scandal-the-dustbin-case-dennistoun-v-dennistoun/

 

after two pages, the strongest I found was that the wife had been having an affair, her paramour nicknamed Tiger, and he called her "Brown Mouse"   -  it rather pales in comparison to what we know Prince Charles said to Camilla when they were both married to other people]
The major decision about the 1926 Act, prior to this case was Moynihan v Moynihan 1997, which coincidentally, also dealt with an application by the Queen’s Proctor to set aside a decree of divorce obtained by fraud. Sir Stephen Brown P heard the case and considered that section 1 was mandatory and did not give the Court a discretion to waive it in certain cases.

24. To return to Moynihan v Moynihan, Sir Stephen continued as follows:
“The point is made by counsel for the Attorney-General that this is a statute which is mandatory in effect; it does contain a criminal sanction and therefore must be construed restrictively. No point arises, as I have already said, as to the merits of any reporting of details likely to be made public in the course of the evidence. It is merely a question as to how that will be achieved.
The matter is of importance because the representatives of the press and the media are entitled to be clear as to what their duties are and what restrictions apply to them, and I have a great deal of sympathy with their position. For that reason the question has been raised at the outset of these proceedings. However, it seems to me that the court simply cannot construe the statute in a way which is contrary to the language of the statute itself. I have to rule that the Judicial Proceedings (Regulation of Reports) Act 1926 does apply to these proceedings. The Attorney-General has through counsel indicated that he would not be very anxious to institute criminal proceedings if by some oversight there was a breach of the strict letter of the law. That is not a matter which is before me, but it seems to me that until or unless Parliament were to intervene the Act does apply in this instance.”
25. Sir Stephen concluded with these words, which I read out in the present case to the journalists present in court:
“However, having said that, it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.”

26. Sir Stephen seems to have been unenthusiastic about the application of the 1926 Act to the proceedings before him but concluded that section 1(1)(b) did apply. With equal lack of enthusiasm I am driven to agree. The logic of the analysis propounded in turn by the Law Commission Report, by the LCD Review and, finally, by Sir Stephen is, in my judgment, irrefutable.
That would seem to be problematic  in authorising the reporting of a case where transparency would be in the wider public interest, such as here. If there has been fraud on an industrial scale about obtaining divorces, then the Press ought to be allowed to tell us about it. But there’s no judicial discretion to relax s1(1) (b) of the 1926 Act.

But our President wouldn’t be the President if he didn’t have a sharp mind, and if there’s someone who is going to find a way on transparency, it is going to be him.

Firstly, he suggests that Parliament need to look long and hard about the 1926 Act – in our modern era, we are hardly short of titillation and scandal and we really don’t need to be mollycoddled and protected from things that might shock us from divorce proceedings. And particularly when the hearing itself is in Open Court, it seems a nonsense to prohibit the Press reporting the case. The days when one needed to go to either the tabloids or Soho if you wanted a fix of smut are long gone.
27. Though driven to this conclusion by the words Parliament chose to use in 1926, and reiterated in 1973, I find it almost impossible to believe that this is an outcome intended by Parliament. No doubt it is some imperfection on my part, but I do not begin to understand how the protection of public morality and public decency, or indeed any other public interest, is facilitated by subjecting the reporting of proceedings in open court of the kind that Sir Stephen Brown P was hearing in Moynihan v Moynihan and that I am hearing in the present case to the restraint imposed by section 1(1)(b) of the 1926 Act. On the contrary, this restraint would seem to fly in the face of the “fundamental, constitutional rule” (Scarman LJ’s phrase in In re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, 93) previously articulated in Scott v Scott [1913] AC 417.
28. This is not, I venture to suggest, the only reason why Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book is justified

But even in the absence of that, a way has been found. We can publish, we will publish, we must publish…

36. Pending any review of the 1926 Act by Parliament are there any legitimate means of avoiding the impact of section 1(1)(b)? The answer is clear: only as allowed by one or other of the express provisions of section 1(4).
37. For convenience I set out section 1(4) again, but inserting additional lettering and creating subparagraphs for ease of reference:
“Nothing in this section shall apply
(A) to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or
(B) to the printing or publishing of any notice or report in pursuance of the directions of the court; or
(C) to the printing or publishing of any matter
(i) in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or
(ii) in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
In the context of the present proceedings it is quite clear that neither (A) nor (C) can avail the media generally. But what of (B)?
38. This is not something which Sir Stephen Brown P considered in Moynihan v Moynihan. As I have already noted, he made no reference at all to section 1(4). Indeed, so far as I am aware, there has never been any consideration of the point.
39. The language of (B) is quite general. It excludes from the ambit of the 1926 Act the printing or publishing of “any notice or report in pursuance of the directions of the court”. Although I agree with Sir Stephen that section 1(1) is mandatory and confers no discretion, section 1(1)(b)(iv) plainly leaves the judge free to include in or exclude from his judgment whatever material he thinks fit. In that sense the judge has a discretion – and, in my judgment, a discretion which is fettered only by the dictates of the judicial conscience. As the Law Commission Report put it (para 17):
“The prohibition on publishing the evidence in divorce and similar cases, though it protects the public from being titillated by morning and evening accounts of the salacious details brought out in evidence, does not prevent it from learning those details in due course if the judge thinks it necessary or desirable to review the evidence in full in his judgment or summing up.”

40. So too, limb (B) of section 1(4) confers a similarly unfettered discretion enabling the judge to give “directions” in relation to any “notice or report”. The word “directions” is quite general; it is neither defined nor circumscribed. In my judgment it embraces any direction of the court, whether a direction that something is to be published or a direction that something may be published. Likewise, the other words are quite general; they are neither defined nor circumscribed. Although the word “report” will no doubt include such things as a medical or other expert report to the court, whose publication the judge then authorises, I see nothing in the 1926 Act to limit it to such documents. In my judgment, the word “report” is apt to include a report of the proceedings.
It follows, that limb (B) of section 1(4) recognises a discretion in the judge to make a direction authorising the publication by the media of a report of the whole of the proceedings, as opposed to the concise statement, allowed by section 1(1)(b)(ii), of the charges, defences and countercharges in support of which evidence has been given
So, having devised a judicial discretion, with some creative thought, to allow a Judge to authorise the publication by the media of a report of the whole of the proceedings, is the President going to exercise this discretion in this case? (If you think that the answer is “No”, then I would like to talk to you about a bridge you might be interested in buying)

42. Should I exercise that discretion? In the circumstances of the present case there can, as it seems to me, be only one answer. Publication by the media of a report of the proceedings before me does not, given the nature of the proceedings, engage the mischief at which the 1926 Act is directed. On the contrary there is, in my judgment, every reason why the media should be free to report the proceedings – proceedings which, to repeat, were conducted in open court and related to what, as I have said, was a conspiracy to pervert the course of justice on an almost industrial scale.
43. I shall, therefore, make a direction that there be liberty to the media and others to publish whatever report of the proceedings which took place before me on 9 and 10 April 2014 they may think fit. I make clear that this direction is, and is to be treated as, a direction within the meaning of limb (B) of section 1(4) of the 1926 Act.

44. On the assumption that the 1926 Act perhaps applies to ancillary relief (financial remedy) proceedings, judges may in future wish to consider whether to exercise discretion in such cases under section 1(4).
We should, therefore, get chapter and verse on this whole story from the Press soon. I am a bit miffed that they get to know, in breach of a ninety year old act, whereas I, as a member of the legal profession who could legitimately get to know all the details by way of a published law report am in the dark, but such is life.

 

journalist’s right to private and family life with her source

A very interesting decision by the President sitting in the Court of Protection in Re G (an adult) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

 

This is the 3rd judgment in relation to this 94 year old woman in the last two months. I’m going to try here, not to get too far into the controversy (I’m sure the comments will descend into that, but let’s TRY to focus on the principles and issues in THIS judgment)

THIS judgment relates to the application by the Daily Mail news group (ALN) to be joined as a party to the Court of Protection proceedings, to have an input into the questions to be posed to the expert, and ultimately to have the chance to cross-examine everyone. That’s a unique application, and the reasoning behind the decision is therefore interesting.

We do need SOME historical context though, so we need to know that the decisions being made by the Court of Protection are controversial, that G is 95 and that C her live-in carer is very actively campaigning about the controversial decisions and unfairness, part of that campaign includes involving the Press (the ubiquituous Mr Booker, and this time Ms Reid of the  Mail on Sunday). G has talked to those journalists, and at times been very keen to tell her story, at other times it is said that she finds the press involvement intrusive.  The Press want to report on the injustice that G and C may have suffered, and want to report as much as possible. In the second judgment, Cobb J ruled that there were doubts about G’s capacity to talk to the Press and that there needed to be an assessment of that and in effect a cease-fire on the Press talking to G until it could be established whether she (a) had capacity to do that and (b) if not, would it be in her best interests to do so.

 

If you want to skip to the chorus, it is HEARING THREE heading

 

Hearing one

The first judgment, 26th February 2014   was decided by Russell J.  http://www.bailii.org/ew/cases/EWCOP/2014/485.html

That case was brought by the Local Authority, who had become concerned about the influence that C (the carer) was having over G, and particularly that G was being influenced to change her will to the benefit of C.  (These allegations are all disputed by G)

This is the judge’s summary

 

  • In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

 

 

 

  • The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

 

 

 

  • The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

 

 

 

  • All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

 

 

That judgment made reference to the press reporting of the case to that point, and that the press were present in Court

 

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

 

G had a degree of dementia. She was assessed by an Independent Social Worker  (underlining mine)

 

 

  • Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

 

 

 

  • On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

 

 

 

  • G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

 

 

There was also an expert, Dr Lowenstein, who reported.  Again, underlining mine for emphasis

 

 

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94″; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

[The Court of course, did not HAVE to consider Dr Lowenstein's evidence at all, since it had been obtained without leave of the Court, but they did so]

 

Russell J’s conclusions on G’s capacity were these

 

  • In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

 

 

 

  • The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

 

 

 

  • There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

 

 

 

  • I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

 

 

A request was made for an order that C not exercise any of her powers under the Lasting Power of Attorney to manage G’s affairs and finances, and the Court agreed with this.

 

[Everything that the Judge decided is very hotly contested by those lobbying on C's behalf, and indeed the journalists who have spoken to G, but the judgment was not appealed]

 

Hearing two

 

This was before Cobb J on 26th March 2014   http://www.bailii.org/ew/cases/EWCOP/2014/959.html

 

This hearing was particularly about whether G had the capacity to give interviews to journalists or be interviewed with a view to stories being reported.  G remained living in her own home, with C as her carer (the only real change from the previous hearing was that C was no longer in a position to manage G’s finances)

Cobb J begins by remarking that members of the Press are present and that they are welcomed. He does pass comment on the reporting of the Russell J decision

 

  • I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

 

 

 

 

  • Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.

 

Cobb J felt that the issue of whether G had capacity, and if not, whether it was in her best interests to talk to the Press required some specialised assessment and evidence

 

  • Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today’s application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

 

 

 

 

  • This approach was supported by the Official Solicitor in all respects.

 

 

 

 

  • Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

 

 

 

 

  • It is self-evident that the question of G’s capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority’s application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

 

 

 Having made the decision to get expert evidence from Dr Barker on those issues, the only issue remaining was what should happen in the interim – should the Press be talking to G, or should those legitimate journalistic desires to get the story be put on hold until the Court could decide whether G had capacity to make that decision for herself?

 

  • I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

 

 

 

 

  • There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

 

 

 

 

  • As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G’s best interests that I should make such an order.

 

 

 

 

  • On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was “happy” that the article written by Ms Reid had indeed been written: “… it let them know what they do to the elderly“.

 

 

 

 

  • Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life.

 

 

 

 

  • On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: “The newspaper trying to say I am crazy when I am not crazy…” She has gone on to say, when asked about the article in the Daily Mail: “I don’t know how happy I would be about that. I don’t want anybody from the press. They put what they like. They put in details that are not correct.” She also told me that she valued her privacy.

 

 

 

 

  • There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly “in the spider’s web … the fly cannot get out of the spider’s web“. She has confirmed elsewhere and to others that C is “the spider“.

 

 

 

 

  • There is a concern that while Ms Reid has indicated to me that she has made but one visit to G’s home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

 

 

 

She said reporters are always at her home or phoning her“.

 

That said, she added:

 

She said she wants people to know what is happening to her and that it has gone all around the world already.

 

And

 

I asked her if she remembered the name of anyone she had spoken to. She said she did not.

 

  • I bear in mind, when considering G’s best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

 

 

 

 

  • It seems to me that, weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2nd May.

 

 

  • I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form

 

 

 

Readers may also be interested in the paragraphs dealing with C taking G to protest at Parliament.

The other issue was that C was resistant to social workers visiting G

 

  • I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

 

 

 

were not in a position to act as a substitute for Social Services … she” [that is a representative PCSO from the Redbridge Neighbourhood Team] “…did not think they had the resources to commit to twice-weekly visits … the Neighbourhood Team did not want to get drawn into court proceedings but would agree to resume visits to [G's home] on an ad hoc basis … the team could not commit to a weekly visit but would ‘pop in every so often and have a chat with G for ten minutes’.”

 

 

  • For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G’s welfare within the home.

 

 

 

 

  • I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

 

 

Again, this is all hotly contested, but the judgment has not been appealed

 

Hearing Three

 

This one was before the President, on 1st May 2014  http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

Apologies in advance, some of this is going to have to get technical.

There were two issues raised

1. Was Ms Reid, journalist for the  Mail on Sunday, in any trouble?  And latterly, did she have an article 8 right to private and family life that allowed her to visit G and have a say in her life?

 

2. Should Associated Newspapers Limited ( the Mail) be joined as a party to the proceedings, as per their application, and could they have an input into the questions to be put to Dr Barker following Cobb J’s judgment above?

 

The first is thankfully pretty short. Cobb J of course said that until the next hearing when Dr Barker’s report was available, journalists should not interview G, that it was not in G’s interests to talk to the Press and that “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings … “

What happened, allegedly, after that judgment was given, was that Sue Reid from the Daily Mail spoke with G and in effect said that she was not allowed to interview her anymore, but would visit her as a friend. (I say alleged, because of course the Court has not made any findings or heard any evidence, and this assertion might be complete nonsense. One has to be fair.  All I can see is that from THIS judgment, the President does not say that the allegation is denied. It could well have been, but it just did not get recorded in the judgment. So it is an allegation only.

 

  • On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

 

 

“After the hearing Ms Reid was heard outside court telling G that as the judge had stopped Ms Reid contacting her, Ms Reid would have to make social visits to G instead. Clearly this would be completely inappropriate in view of the judgment of Cobb J. The court heard that Ms Reid has only met with G at her home on one occasion and we assume that this was for the purpose of publishing her article dated 20 February 2014. We are not sure why Ms Reid would seek to make social visits to G

We write to clarify that Ms Reid will not seek to circumvent the Order of Cobb J by making social visits to G. Please respond urgently confirming that Ms Reid will not attempt to visit G before this matter returns to Court on 2 May 2014.”

ANL replied on 3 April 2014. Its response prompted the Official Solicitor’s solicitors to write again on 8 April 2014:

“We write further to your letter dated 3 April 2014. The Official Solicitor remains concerned about your client’s proposed actions and note that you have not provided an assurance that Miss Reid will not seek to visit G before the matter is again before the Court on 2 May 2014. We refer you specifically to paragraph 40 of the Judgment of Mr Justice Cobb dated 26 March 2014.

We enclose a sealed copy of the Order of Mr Justice Cobb dated 26 March 2014. In view of this please can you confirm whether your client has made any social visits to G since the hearing on 26 March 2014 and whether she intends to make any visits in the future?”

In the interests of fairness, I shall report that whether those allegations were true or not did not trouble the President, since even if they were true, he didn’t think they raised any concern that should worry the Court.

  • As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

 

So there you go, whether Ms Reid had said this or not, it would have been fine if she had said it, and it would have been fine if she had in fact gone to visit G as a friend.  [I might myself have had a different view as to the true purpose of those visits, but what is sauce for the goose is sauce for the gander - the Judge has said it, nobody has appealed it, so the issue is settled]

 

On the secondary issue, whether Ms Reid had article 8 rights in relation to G

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

 

[In a case that is already peppered with D and G, and F and H, the Judge explained all of the article 8 issues by use of X andY, which makes it hard going. In effect what he says is that G can have an article 8 right that she wants to spend time with Sue Reid, but if G doesn't want to spend time with Sue Reid (or lacks capacity and the Court have to rule on her best interests) then Sue Reid doesn't have an article 8 right to access to G. It is more complex than that, I've reduced it to a manageable form because there are real people reading this blog]

 

The big stuff then – should ANL be made a party?  Having already dragged X and Y into the alphabet soup, we broaden out by introducing here S (the subject – here G) and J (the journalist, here Sue Reid).

  • Where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

 

 

 

  • The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.

 

  • But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

 

 

 

  • In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

 

 

“in a case such as this there are in principle three questions which have to be considered:

(i) Does Pamela lack capacity? If yes, then

(ii) Is it in Pamela’s best interests that the film not be broadcast? If yes, then

(iii) Do Pamela’s interests under Art 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Art 10.”

 

  • The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.

 

 

 

  • Assuming that S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

 

 

 

  • Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.

 

 

 

  • As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

 

 

 

  • Of course, the court’s best interests decision in relation to S is not necessarily determinative. If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought.

 

 

 

[That's very considered and dense stuff - basically the Judge is saying that people get party status to litigate if there is a conflict between them and the other parties that gives right to an argument that the Court has power to resolve and needs to resolve. There isn't that here.  ANL have legitimate interest in any application for Reporting Restriction Order or injunctions against them or their staff, but they don't have a legitimate interest in the argument between G, C and the Local Authority.  They might be interested IN IT, but that's not the same thing]

 

  • ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

 

 

 

  • In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

 

 

 

  • Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

 

 

 

  • The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person’s best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

 

 

 

  • Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. On the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another [2014] EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.

 

 

 

  • I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

 

 

 

  • In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

 

 

 

  • I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.

 

 

 

(I will conclude by saying that whilst I too think that the ANL application was misconcieved in law, I can see why in practice they made it.  IF their story is (and it pretty much is) that the Court of Protection is a wicked terrible body, interfering with people’s freedoms and ignoring what dear old G wants, then I can see why they think that the Court of Protection DECIDING whether G should talk to the Press is something of a conflict of interest.  Imagine for a moment that it had been Maria Miller’s decision and it had been solely up to her whether any of the Press were allowed to report her expenses scandal. As the ANL think that the expert is going to be set up to say “Don’t let G talk to the Press, it isn’t good for her” they wanted to have an input into what he was asked and to have the chance to cross-examine him if that’s what he said.  That somewhat ignores the fact that C is already a party and is able to have that input and cross-examine Dr Barker, but I can honestly see why the Mail made this application from an emotional and journalistic perspective.   They couldn’t have got a judge who was more keen on transparency and openness though, so if they couldn’t persuade the President, it was a hopeless application)

I will add that I think that Sue Reid genuinely believes that what is happening here is an outrage and a miscarriage of justice, and that she is reporting what C and G are saying to them with absolute sincerity.  It is absolutely right that she follow her journalistic instincts and that if there is something rotten in the State of Denmark that this be exposed.

 

 

 

 

An important unimportant judgment

I believe that Re A, B and C (Children) 2014 is the first judgment to be published and made available online despite not having any significance or importance in and of itself. It is not a precedent for anything, it does not raise any unusual or interesting areas of law, nobody is likely to ever cite it in a skeleton argument or a legal article. But it seems to me to be the first, so it has some degree of novelty and importance despite itself.  [I could be wrong, it might just be the first one that has flitted over my radar, but I have been keeping an eye out]

http://www.bailii.org/ew/cases/Misc/2014/2.html

It is a fairly short judgment, the case moved at the Issues Resolution Hearing (the hearing that the Court has once all of the evidence is in, to see if the case can be agreed or whether a full-blown final hearing is needed) from a dispute between the LA and parents on the one hand (who were saying the children should stay at home under Supervision Orders) and the Guardian who had reservations as to whether that was safe, to agreement that Supervision Orders were the right orders to make.

It might actually be more interesting for what is NOT said – whilst the name of the LA and the Guardian are up, there is no naming of the social worker  (this may not be intentional, it might just be that in such a short judgment, the social worker’s name simply did not come up).

Cases like this, where the parents work to make changes, succeed in doing so, and there’s a good outcome for the family that means the children stay at home and have a happier life than they would have had before the proceedings started, don’t often get reported – the cases that historically get reported are the ones where there’s a big fight – such a big fight that the case is either in the High Court or gets appealed. Maybe it is a good thing to see that there are cases like this, where the hard work a family does to make changes makes a difference.

Happiness writes in white ink on a white page – Henry de Montherlant

“What’s got two thumbs and just cost family justice a million pounds per year?”

My quick unscientific estimate of the cost of a transcript (I took the ones I’ve obtained in the last year and took an average, although I think my judgments are all fairly short)  £130 per case

From the CAFCASS figures on number of care proceedings issued in 2012 (april 2012-march 2013) that was 11,107

If, as a result of the President’s decision on transcripts, we obtain a transcript for each final judgment, that would cost the family justice system  £1,443,910

(yes, that’s nearly one and a half million pounds. A year.)

Now, to be fair, some of those final hearings are heard by Magistrates or District Judges, which aren’t included (at the moment) within the guidance that a transcript be obtained of each final hearing.

It is a bit tricky to work out what proportion – let’s be generous and say half. 

That still leads three quarters of a million pounds of taxpayers money.  A year. And the system isn’t getting any extra, so that’s money that has to be found from existing resources, which means £750,000 of cuts from somewhere else.

 [I don’t have the statistics on how many Court of Protection judgments there are a year, but those all have to be transcribed now too. ] 

 There’s also the harder to calculate figures  (a lawyer has to anonymise the judgment and arrange the transcription, invoices have to be drawn up and paid, everyone’s lawyer has to wrangle with the Legal Aid Agency about the costs each and every time,  the Judge has to check the judgment, someone has to arrange for the transcript to go up on Bailii, Bailii have to host probably ten thousand more family judgments a year than they are used to doing).  Oh, and of course, the basic law of economics that as demand increases about five-fold, the price is probably going to go up too.

Now, when the MoJ ran pilot schemes in five Courts, where all judgments were anonymised and published online for a year,  they calculated the administrative costs, if it were rolled out nationally to be £500,000 per year, pushing the costs back up above a million pounds.

https://www.justice.gov.uk/downloads/publications/moj/2011/family-courts-information-pilot.pdf

This pilot was hardly a glowing endorsement for rolling the scheme out nationally, as you can tell by the fact it was published in 2010 and the scheme wasn’t rolled out nationally (until the President decided to do it this year).  In fact, the conclusion was that publishing judgments online was pretty much only useful for researchers and legal commentators; and that journalists and the parties didn’t think it had much value.  One of the few positives (because the transcripts were paid for by the Court) was Local Authorities who were pleased to be getting anonymised transcripts.

The tenor of the recommendations was that the statistical analysis of overall trends was far more useful, and to keep publishing anonymised judgments limited to either cases that had a value as a precedent or where one of the parties specifically sought publication.

 If you don’t want to read the full report on the pilot, then there’s a reasonable summary here:-

 http://www.familylawweek.co.uk/site.aspx?i=ed85957

 Now, I’m not saying that transparency isn’t a good thing – I think that it is. Maybe it is a good enough thing to be paying over a million pounds a year for even in our straitened times of cuts and belt-tightening. I’d just like to see the cost-benefit analysis that shows that to do it this way is worthwhile, because the pilot study doesn’t.

[See also David Burrows excellent analysis of the fact that making the decision on an individual case to publish a judgment still requires an actual judicial balancing of article 10 and article 8

http://dbfamilylaw.wordpress.com/2014/02/01/guidance-from-the-president-of-the-family-division-on-publication-of-judgements/
 
If you think I'm a stroppy swine, you need to read a bit of David's blog. He's only been doing it a week and he's already threatened two judicial reviews.... The spirit of John Osborne is lurking nearby, taking notes for a new play named "Angrier Less-Young Man"]

Transparency and Facebook

This is a County Court case, dealing with some of the transparency issues that I’ve been writing about recently, and highlights that there are going to be teething problems as the Courts move from very secret to fairly open. 

[If we were moving to 100% open where there were no restrictions at all, the lack of clarity about what is 'direct identification', what is 'indirect identification' and what is neither, wouldn't be such an issue, but at the moment, given that what the Courts are prohibiting is direct or indirect identification of the child and linking that to identification that that particular child had been the subject of Court proceedings, not being clear about what is meant by those terms is no longer helpful.]

 

Re B (A Child) 2014

 

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

 

 

The case involved an application by the Local Authority (Staffordshire) for a Reporting Restriction Order  – given that Staffordshire were the LA who lost so badly on this issue when they came before the President in Re J they must have been fairly nervous about making the application.

 

The child is 2 years old and on 23rd May 2013 the Family Proceedings Court made her the subject of care and placement orders.  There had been extensive assessments of the problems faced by these parents.  The mother and the father came to the courageous and wise decision that they would not oppose the local authority’s plan for their child to be placed for adoption.  The maternal grandmother had a different view and she made an application to the court for an order that she should care for the child.  The grandmother was also the subject of extensive assessment which concluded that the child should not be placed with her.

 

What happened after that final hearing was that the grandmother did not accept the outcome in the way that the parents had. She was against it, and not afraid to say so.

 

She appealed to the County Court, and lost, and appealed to the Court of Appeal and lost.

 

The grandmother is clearly very disappointed by this outcome and she has

complained that the outcome is unfair.  No one suggests that the grandmother

should be prevented from commenting on this saga or from criticising the local

authority or the court.  However, the local authority says that the grandmother

has gone beyond that.  They say that she has caused harm to the child by using

her name and her photograph.  Examples have been shown to me.  I have seen

the grandmother’s Facebook postings in the bundle at C13, C15 and C17.  There

is a further very relevant Facebook posting at the back of the local authority’s

written submissions, an entry which I am told is dated 13th December 2013 and

starts by an indication that it was posted 11 hours ago.  In addition the

grandmother has started an online petition bearing the name and photograph of

the child.  Details are in the bundle at C17.  The grandmother has contributed to

an internet radio station where there was a discussion forum to which the  

grandmother contributed the name of the child.  This is accessible from a link

which appears on page C19 of the bundle.

6.                  The local authority’s application for a reporting restriction order seeks

to prevent this identification of the child but otherwise does not seek to prevent

discussion, comment and criticism of the local authority and court processes.

So it is only anything that would directly or indirectly identify the child which would be prohibited.

 

That of course was easy in an age where the only people who could publish anything were newspapers – they would just be told “you can print the story but not the name” and would decide whether sans the name the story would have sufficient public interest to make it worth publishing. And the sanction for breaking that restriction would be fairly simple – it is easy to dish out a fine to a newspaper, who can pay the fine.

 

But we now live in a different age, one where anyone who wants to publish anything can do so. For example, this very blog that you are reading. Anybody who wants to can set up a blog and write about what they like. Or they can use their Facebook page, or Twitter, or join an internet chatroom or post comments on Mumsnet or other similar sites.

 

The considerations are different for a journalist or editor whose natural tendency is to comply with the Court’s wishes or orders, and that of an aggrieved person who is personally and fundamentally affected by the decision and has lost all faith in the Court.

 

The most natural place for most people these days, to express their views is on their Facebook page. The grandmother, of course, doesn’t have to give the surname of the child to have indirectly identified them if she writes about them on her Facebook page, because the Facebook page directly identifies HER, and her comments directly link the children to HER.

 

 

   The evidence presented to me leaves me in no doubt that the grandmother has embarked upon a campaign to undermine these rights enjoyed by the child.  The Facebook entry of 13th December 2013 attached to the written submissions can only be described as a call for others to help a search for the depicted child in her new adoptive placement.  The accompanying text and other text refer to the child as a stolen child but by that date the Court of Appeal had determined that the plan for adoption could not be challenged.  This kind of publication is very harmful at a number of levels.  It is harmful to the child in the present if the search established her whereabouts and led to disturbance and destabilisation.  It is harmful in the present even if the search does not succeed in that it exposes the prospective adopters to anxiety at a time when the child’s best interests would be served by them accepting her into their household from a standpoint of emotional stability.  It is very harmful to the child in the future in that these internet postings can remain so that when a little older and accessing the internet herself the child may encounter these destabilising messages and find her own wellbeing undermined.  Alternatively these postings might be accessed by friends of the child and form the basis of comment or even bullying.

11.              I remind myself that the courts of the land at the highest level have determined that placement for adoption is the only appropriate outcome for this child and an outcome which is inherently lawful.  In these circumstances it is clear that Article 8 and Article 10 are in conflict.  Both represent important rights.  However, as so often in these cases, a proportionate balanced reconciliation emerges.  The right to freedom of expression does not need the elements of personal identification which are so harmful.  The right to respect for family and private life does need a prohibition to be placed upon identification but does not need to prevent all comment and debate.  It is clear to me that the proportionate outcome is to allow discussion but to prevent identification

 

The Court balanced the article 8 right to private and family life for the child against the article 10 right to freedom of expression, and determined that it was right that the grandmother should be able to debate and discuss the case, including the facts of the case (and including within that scope her own view of the case, which might be at variance to the Court’s own conclusions) BUT that she should not be allowed to identify, directly or indirectly, the child.

 

 

There is one area in which I find the present case to differ from the President’s case of Re: J [2013] EWHC 2694 (Fam).  In that case the restraint of publication of photographs of a tiny baby was considered to be inappropriate.  The present case I find to be very different.  This child is significantly older and correspondingly easier to identify from photographs.  Indeed, the grandmother has used a photograph as part of her campaign to seek out the whereabouts of the prospective adoptive placement.  This is one of the most harmful aspects of the case and an element from which the child needs protection.  Carrying out the same balancing exercise as did the President I reach a different conclusion and find that the publication of photographs must be restrained alongside the publication of names.

 

 

 

I shall conclude with a note addressed to the grandmother. I am sorry that she has chosen not to attend court today. There may be points which she could raise which are relevant to my decision. I have done my best in her absence to anticipate them. However if there are other points I invite her to apply to the court. The worst thing she could do would be to act in breach of this order and only when steps are taken to enforce the order against her, to raise points which should have been raised today. The order does not prevent campaigning, discussion or debate. However as in many other cases, these must not include the use of the true names or photographs of the child as this would be harmful to her.

 

 

 

The judgment does leave me in some doubt, and sadly the precise terms of the Reporting Restriction Order are not set out to aid in interpretation, as to whether the grandmother can continue to post commentary or discussion about the case on her own Facebook page subject to NOT naming the child or including photographs, or whether doing that commentary or discussion under her own name indirectly identifies the child.

 

Likewise, if she posts an article about the case on a website, using her own name but not naming the child, is that okay? What if she puts up a photograph of the PARENTS but doesn’t name them? What if somewhere else in her Facebook page, there’s understandably a photograph of her grandchild?

 

As we get farther and farther along the transparency route, the vagueness about what would constitute indirect identification of the child in these sorts of cases becomes less and less satisfactory.

 

Lawyers need to be able to know where the boundaries are drawn to properly advise their clients how not to cross them.

 

People who are unhappy about outcomes of court proceedings need to know where the lines are that they should not cross in talking about the case

 

Newspapers and moderators of online discussion groups need to know where the lines are so that they don’t inadvertently cross them

 

Local Authorities need to know where the lines are so that they don’t end up warning or threatening legal action for things that they might wrongly think is a breach

 

Guardians need to know where the lines are so that children who are capable of understanding know what can and cannot be said about them in the press

 

And Courts need to know, so that these things can all be transparently expressed.

“I’m Batman”

 

This will now be the fourth time I’ve written about this particular case,  you may recall that it involves a family whose relationship with their daughter broke down and she came into care voluntarily as a result of being beyond parental control. The parents obtained a judgment in which the Court found that their complaints of being treated badly by the LA and being marginalised and excluded were made out, though the Court went on to make a Care Order believing that the better option of wardship was barred to them.

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

The Court of Appeal then ruled that it wasn’t and wardship was made.

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

The parents were then asking the Court whether they could speak out in public about the case – providing that they did nothing to give away the identity of themselves and the child.

 

(You may remember, it was my clunky Batman analogy – the parents wanted to say in their interviews that the published judgments were about them, using the alias in the published judgments but not give their real name – i.e they could say “I’m Batman” but not  “I’m Bruce Wayne, and I am also Batman”)

http://suesspiciousminds.com/2013/08/01/rubrics-cube/

 

Okay, so the Court now finally have said that they can indeed say  “I’m Batman”   – their faces would need to be either silouhetted or pixellated but they don’t need voice-changing technology. I think it is important for family justice that in a case where the Court have found that the State got things wrong, that this gets properly aired, and those concerned ought to be able to tell their story, so I think it is a good thing.  (unlike Re J, where there was not yet any published context to ascertain whether the parents huge sense of injustice and aggrievement was justified by bad treatment as opposed to being a natural human reaction)

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B21.html

 

There’s even a fifth judgment, which deals in part with the wrangle that the parents had to obtain the therapy that their daughter so clearly needed.  If you have seen the title of the case and got excited that it is a ‘compelling the LA to fund therapy’ case, it isn’t.  Firstly this is wardship, and secondly the LA had agreed to be bound by the Court’s views – it was about who was to provide that therapy (the organisation supported by the psychologist and parents, or the one supported by the LA), the LA lost that argument too, but to their credit agreed to be bound rather than sheltering behind technical arguments about the court’s powers.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B20.html

 

Having played a microscopic part in all of this, I am very pleased for these parents, who have had a long and gruelling journey to get justice and the help that their daughter so badly needs and have finally done so. I hope that some of the principles they have fought for may help others.

 

And in a final flourish – Bale is amazing, obviously, but against all the odds, wimpy Michael Keaton delivers THE line better than anyone could have expected.

 

Historical amputations and lessons

 

Warning, yet again this blog post contains testicles – like the last one (and no doubt, some critics would say, most of them so far have been b******s throughout)

 

In the early days of surgical procedure, one man stood as a giant amongst his fellow professionals. Liston, often called “The Fastest Knife in the West End”.  In those days, prior to anaesthetics, the priority was to get the job done quickly, to get the ordeal over with as soon as possible and hopefully leave the patient alive.  One of Liston’s specialities was limb amputation, and he was well reknowned for being able to remove a limb in less than two and a half minutes. Of course, during one of his lightening fast amputations he took the patients testicles along with the leg. On another, it is said that he was sawing and cutting so fast that he took his assistant’s fingers off in the process, and also accidentally cut a nearby spectator. As the patient, spectator, and assistant ALL died of their wounds, this is said to be the least successful operation in history, having had a 300% death rate.

BUT overall , the death rate in Liston’s procedures was 1 in 10, as opposed to the usual 1 in 4.  And of course, Liston left medicine with one of the biggest advances ever, being the man who introduced anaesthesia to British medicine and gave it world-wide credibility (the chloroform he used was in practice in America, but Liston popularised its use).  Ironically of course, this made his lightening fast surgical skills rather redundant, as for the first time a surgeon could work with care and precision without risking the patient’s life.

 

It occurs to me, therefore, and this little vignette seemed a decent illustration of it, that speed isn’t always the best measure of something, and that being faster and faster for the sake of it doesn’t necessarily achieve the best results. The Family Justice Review looked very carefully and thoughtfully at how we could make care proceedings more efficient – meaning both faster and less costly, taking as an unspoken premise that our system was already getting good results and what we had to do now was just get them quicker and cheaper.  We already had the leg amputation techniques down pat, we just needed to get more efficient at it.

As has been evident to me from writing this blog, and thrown into even sharper focus with the furore about the decision of the President in Re J 2013, there’s a counter opinion to that unspoken premise. There are plenty of voices saying that actually, we aren’t currently getting the core function of family justice (to achieve the right and fair outcome in cases) and that speeding up the process isn’t going to put that right.

Now, I happen to believe that in the overwhelming majority of cases, if one looked at them independently, they would be achieving the right and fair outcomes. One can’t realistically expect a parent who loses their child to feel anything other than hurt and aggrieved and devastated. You’re not ever going to reach a system whereby every parent nods at the end of the case and says “Yeah, that was a fair cop”, but are those who speak out about the system just parents who haven’t come to terms with an awful and painful (but objectively fair decision) or are they actually as they report, the victims of injustice? Are even some of them?

 

I don’t mean do social workers sometimes make mistakes? Of course they do. All professions make mistakes. I mean, do we have confidence that the system we have in place – which gives the parents the chance to see the evidence against them down on paper, to see all relevant records, to have free legal advice, to question witnesses who accuse them of things, to call their own witnesses to support them, and all of that being determined by a Court who are unbiased and fair and start from the principle that children ought to be at home with parents if at all posible – does that system, catch the times when social workers have got it wrong, have come to a conclusion that might not be the best for the child?

I personally believe and hope that our system does that, but it doesn’t really matter what I believe and hope. We deal in evidence.  When the State is given power by the Government, to make recommendations about whether children should live with families, or be adopted, and where the Court is given power by the Government to make the decisions about whether those recommendations are correct; we need to remind ourselves that those powers are exercised in the name of the public, and it is therefore essential that the public have confidence that a system is in place that whilst individual errors might sneak through from time to time, is not inherently flawed or failing.

 

This is a debate which needs to take place. Not just ‘how can we do it cheaper, how can we do it faster’   – but is the system strong enough to get things right and learn from those cases where mistakes are made?  It was very easy in Re J to allow criticism of social workers to take place in the public domain, but did the Court really “own” their own decision-making? That child was removed, and remained in foster care because the Court decided so. The LA ask for the orders, but the Court decide whether or not to make them. If there’s blame there  (and we really don’t know about Re J, because no information about the case is in the public domain) part of that blame rests with the Court too.

With that in mind, I can see why the President is in favour of greater transparency, both in his plans to publish anonymised judgments as a matter of routine and in the RE J case of allowing criticisms of the system in language that might seem emotionally loaded to remain in the public domain (so long as the identity of the child remains secret). In doing so, an awful lot changes, and as yet, we don’t know how much will change and in what ways. As the ruler of China said about his thoughts on the French Revolution “It is too early to say”

 

With these changes, the 26 week timetable, the financial pressure on family law solicitors and the prospect of more and more advice deserts spreading across the country, these are watershed moments for family justice.  I’ve seen in a relatively short few years, cases move from the occasional parent being a heavy cannabis smoker to large proportions of cases being about heroin and crack addiction; I’ve seen the internet move from dial-up and “Page not found” – effectively a slower form of Ceefax, to becoming a fixture in most people’s lives, somewhere that can make publishers, documentary makers, journalists of almost anyone who chooses to be one. The times, they are a changing.

The Commital-ments

Two recent cases on committals – one resulting in a suspended sentence, one resulting in the commital being dismissed on some interesting techicalities.

The first :-  Re Roberts 2013

http://www.bailii.org/ew/cases/EWCC/Fam/2013/1.html

A warning shot across the bows, in relation to parents publishing material on the internet that would identify their child as being the subject of care proceedings.

In this case, Mr Roberts undertook some filming at Derby County Court, and also published on the internet documents which identified that his child was the subject of care proceedings, which is unlawful.  He had also given an undertaking not to do this sort of thing and breached that undertaking.

He was given a sentence of 6 weeks custody, suspended on the basis of him undertaking not to do this again.  (if he does it again, he will serve 6 weeks, plus whatever additional sentence is imposed for the later offence)

Of course, there is a lively and spirited debate at present as to whether parents should be able to do that, but unless and until the law is changed, doing this sort of thing presents a very serious risk to the parent of committal proceedings.  It is particularly worth noting the judicial comment here that breaches of this kind are bound to attract a prison term.

I’m not going to get into the merits of whether the law should change to allow Mr Roberts to do this, to publicise his case and speak out about whatever injustice he considers has been done to his family – the judgment is a cautionary tale that the law STILL applies to people even where they consider it to be unfair or foolish, and that there are serious risks attached to breaching the law.

I would add that as more and more litigants in person come into the family law system, the more vital it is to have clear and easy to follow rules about what can and cannot be said by a parent about the ongoing court case. The President’s direction of travel towards more openness is going to make it even more important that parents know exactly what the rules are.

It is such a short judgment, I can publish it in full. Note in particular, my underlined passages for emphasis.

RE MR PAUL ROBERTS

1.     On the 19 June 2013, Mr Paul Roberts appeared before His Honour Judge Orrell at the Derby Combined Court Centre; Mr Roberts was assisted by Mrs Jacque Courtnage, acting as a McKenzie friend.

2.     Mr Roberts admitted breaches of an order made by Mr Justice Hedley on the 14 June 2012 and breaches of an undertaking given by Mr Roberts on the 12 April 2013, namely:

3.     He allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified W by name as a child who had been removed from her parents’ care and been subject of proceedings under the Children Act 1989.

4.     He published on the Internet images and letters from the local authority which identify W by name as a child who had been removed from her parents’ care and been made the subject of proceedings under the Children Act 1989.

5.     On the 1 May 2013, he allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified J by name as a child who had been removed from his parents’ care and had been the subject of proceedings under the Children Act 1989.

6.     The above matters were breaches of the order made by Mr Justice Hedley.

7.     In breach of his undertaking, on the 1 May 2013, Mr Roberts disclosed information about the proceedings under the Children Act 1989 concerning J to a third party whilst allowing himself to be filmed including filming in the court building before the hearing in these proceedings on that day.

8.     In respect of the breaches, Mr Roberts was committed to 6 weeks custody to run concurrently in respect of each breach; the term of committal was suspended on condition that he complied with the terms of each of the following: [i] the order made by Mr Justice Hedley on the 14 June 2012, [ii] the order made by His Honour Judge Orrell on the 1 May 2013 within these proceedings and [iii] the undertaking given by Mr Roberts on the 12 April 2013.

9.     The sentencing remarks were as follows. The order and the undertaking were to protect a child in care. Any breach of that sort of undertaking is bound to attract a prison term. Breaches by talking to the sort of people you did was extremely reckless. On this occasion I will suspend the inevitable sentence in the hope you will not again risk going to prison.

His Honour Judge Orrell

And now, the second

In the Matter of an application by Her Majesty’s Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court 2013

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/application-matter-of-jennifer-jones-21082013.pdf

And this involved a mother who defied orders of the High Court that the children should be handed over to the father, who proposed to live with them in Spain.  She not only did not hand them over, she in effect went on the lam, and was finally found hiding out in a guesthouse in Gwent.

The two older children refused to go to their father, and even though the order transferring residence remained in force, they continued to live with their mother in Wales.

An application to commit the mother for contempt was brought, the trial Judge having asked the Attorney General to consider the case.

An issue arose as to whether there had in fact, been a breach of the order made by Hedley J, that underpinned the committal application. That order was as follows :-

“It is ordered that:

1 Jessica … Tomas … Eva … and David … shall be returned forthwith to the jurisdiction of the Kingdom of Spain pursuant to the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2 Paragraph 1 above shall be given effect as follows

(a) The children shall return to Spain accompanied by the father on a flight scheduled to depart from England and Wales no later than 24.00 hours on 12 October 2012 (00.00 hours on 13 October 2013); and

(b) The mother shall deliver up the children into the care of the father, or cause the children so to be delivered up, at Cardiff Railway Station at no later than 4pm on 12 October 2012”

Paragraph 1 does not place any obligation on the mother to do this, para 2 (a) relates only to the father, leaving only para 2 (b).  It is clear that the mother DID NOT deliver up the children.

 

18.  The Solicitor General does not base any allegation of contempt on a breach of paragraph 1 of Hedley J’s order. He was right to adopt that stance, for paragraph 1 was not an injunction, whether in form or in effect. First, paragraph 1 was not addressed to anyone in particular. It directed, in the abstract as it were, that something was to be done. But it did not order the mother, or anybody else for that matter, to do something: see the analysis in Re HM (Vulnerable Adult: Abduction) (No 2) [2010] EWHC 1579 (Fam), [2011] 1 FLR 97. Secondly, paragraph 1 did not specify any time for compliance, and that omission is fatal: Temporal v Temporal [1990] 2 FLR 98.

 

19        In relation to paragraph 2 of Hedley J’s order, the Solicitor General, as we have seen, puts his case on two different footings. First, he says that the mother was in breach in failing to deliver up the children by 4pm on 12 October 2012. Secondly, he says that she continued to breach the order by failing to deliver up the children after 4pm on 12 October 2012, which breach, he alleges, continued until 17 October 2012

That seems, on the face of it, to be a legitimate argument. The mother was aware that she had to deliver the children into the father’s care at Cardiff Railway station, no later than 4pm on 12 October 2012. And she didn’t do that. That looks and smells like a breach. But wait.

20    There is, in my judgment, simply no basis in law upon which the Solicitor General can found an allegation of contempt for anything done or omitted to be done by the mother at any time after 4pm on 12 October 2012. Paragraph 2(b) of the order was quite specific. It required the mother to do something by 4pm on 12 October 2012. It did not, as a matter of express language, require her to do anything at any time thereafter, nor did it spell out what was to be done if, for any reason, there had not been compliance by the specified time. In these circumstances there can be no question of any further breach, as alleged in the Solicitor General’s notice of application, by the mother’s failure to deliver up the children after 4pm on 12 October 2012 or, as alleged in the application, any continuing breach thereafter until 17 October 2012 when she and the children were found.

 

 

The President ruling therefore that mother could not have been in breach for not surrendering up the children AFTER 4pm on 12th October, as the order did not require her to do so.  So she was NOT in continued breach, and her actions in going on the run with the children wasn’t any part of the breach for which she could be committed. And she couldn’t be breaching the order by not delivering up the children BEFORE the deadline. That meant that the only possible breach was her not delivering the children to father’s care AT 4pm.

(So, she was possibly only in breach of the order for a minute, as by 4.01pm, the requirement on her had lapsed.)

22. The present case is a particularly striking example of the impossibility of reading in some implied term. What the order required the mother to do was to:

“deliver up the children into the care of the father … at Cardiff

Railway Station at no later than 4pm on 12 October 2012.”

Suppose that for some reason she failed to do that. What then did the order require her to do? Deliver the children to the father at Cardiff Railway Station or at some other (and if so what) place? And assuming it was to be at Cardiff Railway Station by what time and on what day? Or was she (to adopt the language of a subsequent proposed order) to return, or cause the return of, the children to the jurisdiction of the Kingdom of Spain by no later than a specified date and time? It is simply impossible to say. Speculation founded on uncertainty is no basis upon which anyone can be committed for contempt.

23.I do not want to be misunderstood. If someone has been found to be in breach of a mandatory order by failing to do the prescribed act by the specified time, then it is perfectly appropriate to talk of the contemnor as remaining in breach thereafter until such time as the breach has been remedied. But that pre-supposes that there has in fact been a breach and is relevant only to the question of whether, while he remains in breach, the contemnor should be allowed to purge his contempt. It does not justify the making of a (further) committal order on the basis of a further breach, because there has in such a case been no further breach. When a mandatory order is not complied with there is but a single breach: Kumari v Jalal [1997] 1 WLR 97. If in such circumstances it is desired to make a further committal order – for example if the sentence for the original breach has expired without compliance on the part of the contemnor – then it is necessary first to make another order specifying another date for compliance, followed, in the event of non-compliance, by an application for committal for breach not of the original but of the further order: see Re W (Abduction: Committal) [2011] EWCA Civ 1196, [2012] 2 FLR 133.

24.  It follows that the only question which properly arises on the present application is whether the mother was in breach of paragraph 2(b) of Hedley J’s order by reason of events down to 4pm on 12 October 2012.

At this point, one suspects that those bringing the committal application were beginning to quail. They probably considered that the mother was “bang to rights” but that sense of confidence was dissipating.

The next issue was then, whether the mother was actually flouting the order of Hedley J, or whether through forces beyond her control, she had been unable to comply with the order by getting to the train station at 4.00pm.

As luck would have it, before the mother had set off on the journey, the children had run away and the police were called and her departure was delayed, making it impossible for her to get to Cardiff train station by 4pm (or at worst, there being a reasonable doubt that it was impossible)

The Judge found therefore, that it was not proven to the criminal standard of proof that it had been physically possible for her to comply with the order to deliver up the children at 4pm, the mother had NOT breached that order, and that the order as drafted placed no obligation on her to do anything subsequent to 4pm (i.e she didn’t have to deliver the children to father’s care after that time), so the committal application had to fail.

It is therefore, a very important lesson in drafting terms in an order that might be enforced – one has to be clear what the mandatory obligation on the party is, and what the timescales for compliance are. Had the order been that mother must deliver the children to father’s care by 4pm on 12 October 2012 or in the event of that not being possible, that there was an obligation for her to deliver the children into his care at any time after and by the latest by 4pm on 19th October 2012, she might well have been in breach.

The events of 12 October 2012 – the facts

29. I turn at last to the central issue in the case: the close and careful scrutiny of the events of the crucial day, 12 October 2012. In fact, as I shall explain, the relevant inquiry focuses on an even narrower time-span: the period from 1.39pm to 2.56pm on the afternoon of 12 October 2012.

30. The unchallenged evidence of the mother, based on a Google printout, is that her home in Llanelli is 54.4 miles from Cardiff Railway Station, and that the journey by car along the M4 takes about 64 minutes. So, in order to get to Cardiff by 4pm they would have had to leave by 2.56pm at the latest. Also unchallenged was her evidence that she had arranged the loan of a friend’s 8-seater people carrier at 2.30pm to take herself and the four children to Cardiff and that, having herself packed the younger children’s luggage, at about 1pm she told the two older children to go upstairs to pack. At 1.37pm (the time is fixed by his mobile phone) Mr Williams received a telephone call from his daughter, who was driving past the house, to say that she could see Jessica on the flat roof outside her bedroom window and Thomas outside the house with his bag (apparently he had jumped down off the flat roof). Mr Williams went upstairs and pulled Jessica back into the house. She gave him the slip and ran out of the house and away with Thomas, Mr Williams in pursuit. He telephoned the police: the call was logged at 1.39pm. None of this is challenged by Ms Cumberland. So the crucial inquiry narrows down to the 77 minutes or so between 1.39pm and 2.56pm.

 

31. In relation to what happened during that period I am dependent in large part on the accounts given by the mother and Mr Williams. Both, as I have said, made witness statements and gave oral evidence. Their accounts can be summarised as follows: Mr Williams set off in pursuit, giving the police a running commentary on the phone: this is borne out by the police log. The children were found in the public library and collected by the police; the police log records them as being in the process of being taken back to the police station at 2.1pm. While they were being taken to the police station Mr Williams returned home and told the mother she was needed at the police station. Her friend Allyson Thomas took her there in her car. On her arrival – at about 2.30pm she thinks, perhaps a little earlier – she had to wait some time on her own. She then had a conversation with a police officer, who told her what the children had been saying. Only then was she able to see the children herself. Eventually they all returned home. A police log records at 4.59pm that they had left the police station “approx 1 hour ago” but the mother and Mr Williams think this is wrong and that they had in fact left somewhat earlier; the mother recalls her friend being anxious to get back in time to get her son to work by 4pm.

32. Having heard both of them giving evidence and being cross-examined, I accept this account as given by the mother and Mr Williams. They were, I think, being honest and doing their best to be accurate in what they said. Partly, this is a conclusion I arrive at having seen the way in which they gave their evidence. This was not some glib rehearsed account. The mother in particular was thoughtful, giving every appearance of trying to recall – to visualise – what had been happening that afternoon. Nor did she seek to put any kind of ‘spin’ on her account. If anything, quite the reverse. She did not seek to use the entry in the police log as showing that she had left the police station later than the time she recalled. And, significantly, she made no bones about the fact that as soon as she was reunited with the children in the police station she made it clear to them that they were not going back to Spain, nor about the fact that she repeated this to all the children at or soon after 4pm once she and the two older children had returned from the police station.

33. It is clear, both from her own account and from the police logs, that the mother told the police that she had to get the children to Cardiff by 4pm, and that she explained why. The police logs show that she was told it was a matter for her, and not the police. The mother’s account is that, whilst she was at the police station talking to the officer before being reunited with the children, he gave her an account of what they had told him and expressed his own opinion as being that Jessica was a danger to herself and others on the plane.

34. Apart from the police logs I have no account from the police of events at the police station. None of the officers gave evidence.

            Mr Hames submits that in these circumstances there is a clear answer to the critical question, Was it within her power to comply with the order, could she do it, was she able to do it? She could not. Through no fault of her own, and having made every effort to arrange a timely departure that would get them all to Cardiff by 4pm, the mother’s plans were frustrated: two of the children ran away, and whenever precisely it was that she left the police station it was on any footing well after 3pm, and probably nearer to 3.30pm – too late to get to Cardiff in time. As a fallback position, Mr Hames points out that it is for the Solicitor General to prove the case, and, moreover, to the criminal standard of proof. He submits that I simply cannot be sure that it was within the mother’s power to comply.

             

36. Ms Cumberland points to the mother’s frank admission of what she said to the children, to the fact that the mother, on her own account, made no effort to get the two younger children to Cardiff, and to the fact that, again on the mother’s own account, by shortly after 4pm she had embarked on a course of conduct that, far from trying to make alternative arrangements with the father, led to them all going on the run.

37. I can see the force of what Ms Cumberland says, and cannot help thinking that the mother has, quite fortuitously, been able to take advantage of two things that are unlikely to re-occur: one the serendipitous happenstance that the children ran away; the other that nothing which happened after 4pm is capable of being a contempt of court. So I have to come back to the critical question: Was it within the mother’s power to get the children back home from the police station in time for them all to leave for Cardiff no later than 2.56pm? Ms Cumberland says that it was: no-one had been arrested, everyone was free to leave the police station whenever they wished, and in any event there was nothing going on in the police station that would have prevented the two younger children being taken to Cardiff.

38. At the end of the day I am concerned with what is essentially a question of fact arising in most unusual circumstances. I have to put myself in the mother’s shoes as she is in the police station during the half hour or so between her arriving there at about 2.30pm and the time – 2.56pm – by which she has to leave for Cardiff. Two of her children have run away and been taken by the police to the police station. She has to wait, before receiving worrying information from the officer and only then being able to see her children. However the lawyer might subsequently analyse what had happened, the reality is that the mother was, metaphorically if not literally, in the hands of the police and having to work to their timetable. It is far from clear on all the evidence that the mother had been reunited with the children by 2.56pm – perhaps, but then perhaps not – and on that fact alone, in my judgment, the Solicitor General fails to prove his case.

 

Standing back from the detail, it is for the Solicitor General to prove that, as events worked themselves out on the afternoon of 12 October 2012, it was within the mother’s power to leave Llanelli by 2.56pm so that she could get the children to Cardiff Railway Station by 4pm. In my judgment he has failed to do so. The application must accordingly be dismissed

[Postscript - this is yet another one of those cases where a hugely important point was being litigated and the party did not obtain public funding. The mother was represented by pro bono counsel, who probably kept her out of prison, and hence at least some of her children still with her. The President spoke out afterwards about how unacceptable it is that such important issues are litigated relying on good will of lawyers acting for free.  http://www.lawgazette.co.uk/news/family-judge-criticises-reliance-free-representation  ]

Rubric’s revenge

I wrote yesterday about the murkiness and lack of clarity of what a parent can or can’t say post proceedings, particularly in a case where they were successful and the Court found that the LA had treated them badly.

And most, if not all, of the control of that  was pinned on the “Rubric”, the preamble wording under which the Judge releases an anonymised transcript.

Well, lo and behold, here is another one, in the case of Re E (A Child) 2013 (which is a really absorbing case, and I will come back to it, but it will take a while to fully absorb)

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2400.html

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

This does not prevent the parents from identifying themselves and the child in the event that they wish to discuss and/or publicise what has happened to them and their family in the course of these proceedings and beforehand.

Now, I am both a lawyer, and a pedantic git, and a lover of labyrinthine legal language, but I have to confess that as a result of those two paragraphs, I would not be certain whether the parents definitely could go on This Morning to talk about their experiences in this case using their real names.

It seems to me that the second paragraph says that they can (in fact, I am fairly sure it does, but fairly sure isn’t great when you are wondering whether what you are about to do is or isn’t a contempt of court), and the second paragraph specifically says that nothing in the first paragraph prevents it, but now I don’t see the point of the first paragraph.

Does the first paragraph (in light of the second) mean nothing more than “nobody else can OUT these parents, but if they choose to OUT THEMSELVES, they can” ?   Or does it in effect mean nothing more than “You can publish this transcript of judgment, but you can’t publish it in a way that takes out all the “E” “M” and “F” and replaces those with the real names?”

Or something else entirely?

My gut feeling is that the family, much as with the Websters, are probably permitted by the rubric to publicise the facts of their case, using their own names, if they so wish.

Having said that, whilst the paragraphs suggest that the parents can go onto This Morning and name themselves and the child and talk about the case, paragraph one looks to me like it still bites on the producers of “This Morning” or the editor of the newspaper deciding whether to actually publish the interview in which they do it. Paragraph 2 doesn’t permit the producers or editors to ignore para 1. I don’t think that can be what was intended, but again, if I were being asked by the producers of This Morning whether they were good to go on running the peace, I’d have to say that I think they are okay, if the parents themselves identify their names, but I’m not sure. I definitely wouldn’t put up a caption of the parents names or introduce them – the parents would have to say their own names before Pip and Holly use them.

[For the avoidance of doubt, my own view would be that they SHOULD be able to do this - where the child is as young as this, and they were exonerated of all allegations of harm and there are important lessons for professionals to learn, they should.  Only by doing that will a case of this kind, where "Child rescue" overrode "Family Preservation" get the same sort of media attention as say the Daniel Pelka case where things may have gone wrong in the other direction. If we only get media reporting of the State failing to act, and not of the negative consequences of the State taking action, the debate and policy arising from the debate can be badly skewed]

One flew over the Cuckold’s nest

The peculiar set of facts of Re M 2013, which hinged on whether a child had been conceived by artificial insemination, or in the traditional way, and if the former, whether the husband of the mother had consented.  Also, we touch on the issue of anonymity. 

The case is here

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1901.html

We have three players – M, who is the mother of the child, F who provided the gametes for the child’s conception, and H, the husband of the mother.  It is fairly to establish that M  is the child’s legal mother, but establishing who is the child’s legal father is a bit more difficult.

In essence, F was a man who was a sperm donor on a regular basis. Sometimes he did this by means of artificial insemination (AI), and sometimes by natural intercourse (NI).  It was factually agreed that F had been contacted by M and asked to assist with her fertility issue, and that some episodes of NI took place. The issues between the parties were these :-

1.       Was the event which led to the conception of the child, AI or NI ?

2.       Was the Husband in agreement with this?

Why is that relevant? The Court are clearly about to plunge into very delicate and sensitive matters and things are liable to get (excuse the phrase in this context) sticky.

Well, it is because when the Government decided to legislate and regulate the whole business of insemination done outside of the confines of a relationship or even one night stand, they brought into being the Human Fertilisation and Embryology Act 2008  (HFEA from now on)

Section 35 of that Act, provides (in very clinical language) that if a woman is married, her husband shall be the legal father of a child produced by artificial insemination with another man’s gametes PROVIDED that he consented to that insemination taking place.

If he did not consent, he is not the child’s legal father. And the donor of the gametes would only be the child’s legal father if he had provided the mother with a notice saying that he consents to be treated as the father of the child AND M has provided him with a notice that she agrees to that.  So, a child conceived by AI without the consent of the Husband  (H) or biological donor of the gametes (F) agreeing to be treated as the Father would have no legal father.

With me so far?

IF the child was conceived by NI, then the male participant would be the child’s legal father (but would not automatically acquire parental responsibility, unless he was registered on the birth certificate)

In this case, which was heard by Mr Justice Peter Jackson – who is rapidly becoming the “go-to” guy on difficult AI cases, the Mother was claiming that the conception had taken place as a result of NI, and that therefore F was the biological AND legal father. She was also seeking orders for financial support for the child from F, under Schedule One of the Children Act 1989.

It would be fair to say that the role of the Court became less one of determining which of F or M was telling the truth, but which of them, after sifting through the multiple lies that each had told, was the more credible in their overall account.  Given that F said the conception was by AI, and M said by NI, one of them must have been telling the truth about the circumstances, and it was, the Judge said, unfortunate that each of them had told so many lies in the proceedings.

These are the lies the Court found that M had told. (The names that I give are names that are within the anonymised transcript, and do not relate to the real names of M, F or H, or the child)

 

·  Examples of Ms M’s deceptions are these:

(1) Her opening e-mail to Mr F stated that she was healthy (she has a medical condition) and that Mr H was excited about donor insemination (he was against it but she hoped to bring him round).

(2) She told Mr F that she had miscarried his child, when she had in fact had a termination.

(3) Her ‘misdirected’ email to a girlfriend, deliberately sent to Mr F, is the work of a fluent fabricator.

 

 (4) Her use of the ‘Andy Hitchings’ name and e-mail account shows a capacity for determined and malevolent action to achieve her ends, and also demonstrates that she will use an alias when it suits her.

(5) I find that she wrote those ‘Andy Hitchings’ emails that she denies writing. Her criterion for accepting or denying authorship was no more than an assessment of the damage that the truth would do to her case.

(6) I find that she probably wrote the ‘Nicole White’ and ‘Edward Mason’ e-mails for the reasons given in Mr F’s opening submissions. She has had two years to prove that these people exist in the face of Mr F’s allegation that they do not, but she has made no attempt to do so.

(7) If I am wrong about point (6), the only plausible alternative is that Ms M conspired with one or more other persons unknown to pursue her campaign against Mr F.

(8) Ms M’s reason for keeping a transcribed log of text messages was that it was as a record for the child. This is unconvincing; a more likely explanation is that she kept the information as a form of insurance.

·  I found Ms M to be an unimpressive witness in relation to the above matters and to show no sign of discomfort when caught in an obvious lie. She freely stated that she is motivated by her own need for Mr F to be punished.

 

 

And then these are the lies that F told

·  Examples of Mr F’s deceptions are these:

(1) His calculating betrayal of his girlfriends, to whom he made promises that he was no longer engaging in sperm donation, and his unabashed dishonesty in concealing his overall activities from recipients with whom he entered into relationships.

(2) His casual untruthfulness on his website profiles about the number of children that he had fathered, lies that would only work to his benefit by disguising a level of hyperactivity that might have deterred responsible approaches.

(3) His deliberately misleading first statement, in which he trumpets the rules of the website as being ‘AI-only’ in an effort to create the impression that this was the case here, when in fact he had been engaging in and advertising sexual activity through the website for years.

(4) His untruthful evidence in these proceedings and to the CSA that he had not had sexual intercourse with Ms M until December 2010 or January 2011, when on his own case it occurred in October 2010.

(5) His gratuitously inaccurate statement that sexual intercourse with Ms M began ‘at her instigation’.

(6) His denial of certain text messages to and from Ms M, taking the same selective tactical approach as she has done.

·  As to the last matter, the log of text messages was produced by Ms M in an unsatisfactory form (allegedly transcribed in edited form from notes that no longer exist of texts that have been ‘lost’). Having exercised due caution in the light of Ms M’s general dishonesty, I nevertheless find that the record can be viewed as a reasonably reliable journal of this form of communication between the couple. The messages have the spontaneous and often inconsequential flavour of real life, are congruent with the content of the contemporaneous emails, and are in my view beyond even Ms M’s powers of fabrication. Moreover, had she wanted to invent evidence, she would probably have inserted some direct and unambiguous reference to sexual activity, but there is none. Many texts are accepted by Mr F, but only where they do him no damage.

·  Mr F’s evidence was clearly given, but he had clearly taken the strategic decision to tell the truth where possible and to lie where necessary. He at least conveyed some impression that he would have been more comfortable telling the truth if circumstances had not prevented it.

 

 

The Judge then had to weigh up, which of them on balance was telling the truth on the central issue of conception, taking into account that the burden of proof was upon M as the applicant

 

·  On the central question of the manner of this child’s conception, I have reached the clear conclusion that Ms M’s evidence is greatly to be preferred to that of Mr F. My reasons are these:

(1) Her account of the sexual activity is detailed and has been consistently maintained. It was unshaken during her evidence.

(2) As a straw in the wind, her answer to an unexpected question about what happened to the AI equipment after the first meeting (which was that she kept bringing but not using it) had the ring of truth.

(3) Allowing for the difficulty faced by any witness in breathing life into a denial, Mr F’s evidence on the issue lacked any real conviction.

(4) His new-found certainty that the first occasion of sex was in late October is inconsistent with his previous accounts and best explained by his having decided to sail as close to the wind as he could in terms of dates.

(5) If the first occasion of sex occurred in October it would have been at one address: if it was in December or January, it would have been at another, Mr F having moved in the meantime. A mistake about dates might be explained: a mistake about venue cannot be accounted for so easily.

(6) My findings about Mr F’s unreliability as a witness are of course relevant.

(7) While of no great importance, it would be a curiosity that the child was conceived by AI at a meeting that was the immediate predecessor of his parents’ very first sexual activity.

(8) The coy and flirtatious tone of their emails and texts from the start suggests that the couple’s relationship had swiftly progressed far beyond AI. The approach seems to have been to communicate in way that was not explicit, chiming with the wish to keep the affair hidden from their partners. Of interest, the tone of the texts and emails is no different before and after October 2010.

(9) I attach no real significance to the use of the term ‘donor’ by either parent when it is clear that this was used interchangeably in their minds for AI and NI. As Mr F put it, ‘I call it donation by sex or receptacle’.

(10) I reject Mr F’s case that a simple friendship and closeness developed between himself and Ms M arising from the intimate nature of AI. The sheer amount of time the couple spent together in a variety of private places from April 2010 onwards is a strong indicator that they were meeting for more than repeated AI.

(11) Mr H believed from an early stage that his wife was having an affair, and I believe that he had good grounds for thinking so.

(12) On the evidence, Mr F did not commonly engage in extended continuous asexual relationships with the women he met through the website. He has an unmistakable track record of inveigling or encouraging recipients into engaging in sexual activity with him from the very first meeting. Ms M’s account of Mr F making a pass at her during the first meeting is consistent with descriptions given by others. Of note, Mr F accepted that he had given her the option of AI or NI within minutes of their first meeting, which was highly inappropriate when she was a stranger who had come for AI.

(13) I accept that Mr F first became involved in licensed donation altruistically and even now, I do not discount a residual element of altruism in his make-up or forget that there are many much-wanted children alive today as a result of his efforts. However, I am clear that in relation to his website activity his mainspring has been to meet his own needs, at least at a sexual level. This is seen by his behaviour in 2007, when he advertised himself in graphic terms as willing to participate in a ‘breeding party’, i.e. a male-dominated orgy designed to get a woman pregnant, though there is no suggestion that he actually took part in such activity. Likewise, he referred in evidence to an occasion when he engaged in sexual activity with both members of a lesbian pair who had approached him via the website.

(14) The fact that Mr F is bound in his professional life by a clear code of ethics makes the risks he was taking the more surprising. His prolific sexual activity with recipients amounted to a brazen flouting of the rules of the website, such as they were. In one relevant period of 2-3 months alone, he was on his own account having sex with three women and providing AI to two others. Most of these contacts had to be kept secret from the other women involved. The sheer logistical challenge alongside his professional life will have been a burden that he would have been likely to have laid down if he had not been driven on by some degree of compulsion. He even kept up and refreshed a posting on a different website, from which he never received any custom over a period of years, and despite the volume of applications the main website was reliably producing.

(15) I reject Mr F’s case that Ms M main motivation is financial, but accept that much of her behaviour is explained by a desire to damage him in any way she can as a way of getting redress for his deeds and his lies.

 

Thus finding that F was the biological and legal parent of the child, the child having been conceived by natural intercourse.

 

Where things get really rich, was the application for costs

Ms M seeks an order that Mr F should pay her costs, while Mr H seeks an order that Mr F should pay his costs on an indemnity basis. Mr H’s costs, it will be recalled, come to £13,000 and Ms M’s to £81,000, of which £61,000 is publicly funded.

 

Well, I see some merit in H asking for it, but after those findings about the pack of lies that M told, asking for a costs order required some bravery. It wasn’t successful.

The issue of anonymity was touched upon, and it is relevant in view of the current debate and the last blog piece that I wrote. Underlining here is mine.

·  Prohibited steps application Mr F seeks an order in these terms:

1. No party may, without the permission of the court, disclose to any person other than their respective legal advisors any of the evidence, oral or written, which has been adduced during these proceedings.

2. No party may disclose to any person other than their respective legal advisors, close friends and family members, or medical professionals treating either themselves or the child any information relating to the circumstances of the conception of the child.

3. For the avoidance of doubt, paragraphs 1 and 2 of this order prohibit disclosure of any information covered by those paragraphs in any of the following ways:

a. By email to any person other than those included in paragraph 1 of this order;

b. By posting the information on any website or internet forum;

c. By publishing the information via Twitter, Facebook or any other social media;

d. By disclosing any of the information to any representative of the Press.

4. Other than specifically provided for in this order, any disclosure which would otherwise have been permitted by Family Procedure Rules 2010, r.12.73 or 12.75 is prohibited unless the party wishing to make such disclosure has obtained the permission of the court.

·  Mr F seeks this order to prevent what is described as prurient interest in the circumstances of the child’s conception. He points to the findings about Ms M’s past behaviour in relation to third parties as heightening this risk. He is anxious to protect his personal position, that of the child and that of third parties, including other children fathered by him. He fears that the financial proceedings may prompt Ms M to renew her public campaign against him.

·  Ms M, who initially appeared attracted by the idea of such an order, now opposes the application. She considers that she should be free to discuss such information or desist from doing so as she sees fit in so far as is otherwise permitted by law.

·  FPR 2010 r.12.73 and r.12.75 protect information arising from the proceedings, either by way of written or oral evidence, or by description of what occurred in court, but at the same time permit disclosure of information relating to the proceedings in defined circumstances, which do not include communication to the public at large. However, in the absence of a specific order, there is nothing to prevent anyone talking privately or publicly about matters that do not originate from within the proceedings: the mere fact that information arising independent of the proceedings is then referred to within the proceedings does not mean that it cannot continue to be spoken of.

·  In this case, Mr F applies for greater restrictions than those imposed by the rules. In balancing the interests that arise under Articles 8 and 10, I am clear that this is not a case in which it would be appropriate for the court to make an order of this kind. Looking at the matter from the point of view of the child, I doubt that the sort of transient publicity that might follow either of the parties speaking publicly would have any real effect on his welfare or of other children. This is not an encouragement to anyone, and in particular Ms M, to go to the press. On the contrary, all parties would no doubt be wise to desist from washing dirty linen in public, but that is a matter for them, and not for the court to regulate in the circumstances of this case. I am not influenced by Ms M’s change of stance: had the parties been united in the application, I would still have refused it.

 

And thus the judgment is published, with names anonymised, with the standard rubric (see the last blog post) about anyone wishing to make use of the judgment having to do so on the basis that no information leading to the identification of the parties will be provided.

 

I know that some of my readers, and some of the media, and population at large, take the view that anonymising the judgments is a step too far, and that the names should just be made public save for the most drastic of circumstances.

 

But imagine, if you will, that this judgment, which is up online and can be viewed by anyone who looks for it, named the child, F, M and H, giving their real names.  Anyone in the child’s social circle could read it now or in the future, and know the whole grisly story of the conception and the lies , manipulation and deception that both of his biological parents were involved in. And could tell the child that , or tease or bully the child with that information. Imagine you are the child, and ten years hence you type your name into Google, and THIS judgment is what comes up.  And you see your mother’s name, and the name of her husband, who you thought was your father?

 

This is of course, nowhere near the worst things that are contained within family court judgments; and it is for that reason that I would support publication of anonymised judgments (hopefully with some clear guidance on what can or can’t be done with them) but not for the routine naming of those involved.

cuckoo

Follow

Get every new post delivered to your Inbox.

Join 2,374 other followers