RSS Feed

Author Archives: suesspiciousminds

Is a link a publication?

 

In the case of Medway Council v Root 2019, a mother was found to be in contempt of Court orders prohibiting her from publishing certain items about the care proceedings and her children, and having previously been given suspended sentences for earlier breaches, was given a nine month custodial sentence.

 

The eldest child had written to the Court expressing unhappiness as to the information the mother was placing about them and the siblings on the internet.

The point of law arose on one alleged breach – the judgments are published and on Bailii and anonymised.

 

The Reporting Restriction Order said this:-

AND it is permissible to publish the [five judgments of 17/07/2017, 18/07/2017, 30/08/2017, 15/03/2018 and 11/05/2018] save that the judgments are not to be published:

in conjunction with any other material that names the children or identifies them by photograph or any other image; or

on any online page containing any other material that names the children or identifies them by photograph or any other image where the existence of that material is known to the publisher.

 

The mother was said to have published material identifying herself and the children, with a hyperlink to the judgment.

Was that publishing the judgment?  (Mr Elliott was for Medway, Mr Dean was for Ms Root)

 

 

  1. In relation to the issue of the hyperlink both counsel agree there is no binding authority on this issue in this jurisdiction in the context of contempt. Mr Dean’s assiduous researches have produced two cases from other jurisdictions; a decision of the Canadian Supreme Court (Crookes v Newton [2011] 3 S.C.R. 269) and an Australian decision of the Supreme Court in NSW (Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350). They both involved defamation actions. Crookes concerned an action against the person who owned and operated a website which posted an article which contained shallow and deep hyperlinks to other websites which in turn contained information about the applicant, two of which the applicant alleged connected to defamatory material. In Visscher the applicant sued the owner and operator of a website that contained information on the website and a link to an article, both of which the applicant alleged was defamatory.
  2. In Crookes the majority judgment was given by Abella J. Justice Abella considered that hyperlinks bear the same relationship to the content of the impugned publication as references in that
    ‘[30]…both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.’

She concluded that

‘[42] …making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should the content be considered to be ‘published’ by the hyperlinker.’

  1. Whilst McLachlin C.J. and Fish J agreed with the majority ‘substantially’ they considered a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a web site is not enough to find publication. Deschamps J observed that excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet. The blanket exclusion exaggerates the difference between references and other acts of publication, and treats all references, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.
  2. In Visscher there was reference to the judgments in Crookes but Beech-Jones J considered that decision was not consistent with Australian authority and that the approach of McLachlin C.J. and Fish J in Crookes ‘[29]…can be readily adopted to circumstances in which a person is alleged to the publisher of material by inserting a hyperlink directing viewers to its web location. In particular, the question is whether, by the inclusion of the hyperlink, the defendant accepted responsibility for the publication of the hyperlinked material. This could be answered in the affirmative if, amongst other ways, it was concluded that there was an approval, adoption, promotion or some other form of ratification of the content of the hyperlinked material’
  3. Mr Elliott relies on the Visscher case submitting that the court can, if the circumstances of the case permit, find that the hyperlink equates with publication of the judgment. Mr Dean prefers the analysis in Crookes which he submits is more clearly reasoned and was not bound by any domestic authority.
  4. Whilst acknowledging both of these cases have to be viewed in the context of the proceedings they were concerned with, namely defamation, and, in any event, are not binding on this court I prefer the approach taken in Crookes in that making reference to the existence of something by hyperlink, without more, is not publication of that content. As Abella J observed the hyperlink communicates something exists but a further act is required before access is gained to it. In Visscher the factual position was different in that the website contained an article on the website as well as the hyperlink (indicating some adoption or promotion of the content of the hyperlinked material) and there was previous Australian authority that reached an analogous conclusion. That previous Australian authority cited an English Court of Appeal decision (Hird v Wood (1894) 38 Sol J 234) which was said in Visscher to be an example of a person approving, adopting or promoting a defamatory statement of another and thereby accepting responsibility for it. Mr Dean rightly referred the court to this decision but it does not assist in the situation this court is dealing with, as the context was limited to what facts could be left to a jury in a defamation action. I accept it could be said that the publication of the judgment citation together with the hyperlink is sufficient but, in my judgment, that does not equate with publishing the full judgment in connection with any identifying information relating to the children. It comes very close, but in the circumstances where this court is dealing with in proceedings involving contempt the position needs to be unambiguous.
  5. In the future when considering orders such as those made in this case it may be sensible for the court to actively consider whether there should be an express prohibition of publication of hyperlinks.

 

 

Allegation 1 – on 27/6/18 Ms Root published a link to the judgment of Mrs Justice Theis from 15.3.18

  1. This is based on the screenshot of a Facebook page with Ms Root’s name on it, with her photo (which is one of the profile pictures) on a page which contains other material featuring Ms Root (such as a video posted on 6 December 2017).
  2. Even if the court accepts this is Ms Root’s Facebook page the issue in relation to this allegation is does the posting of the hyperlink amount to a breach of the restriction in the injunction order and the RRO to ‘publish’ the judgment in conjunction with material that names X or Y (which the Facebook page does).
  3. Mr Elliott submits this is sufficient, when taken with everything else, for the court to conclude, if the court is satisfied Ms Root put the hyperlink there, she was publishing the judgment in circumstances where there was material identifying the children. That is how it is set out in the committal application why that amounted to a breach; in paragraph 1 (c) he nails his colours to the mast of the second part of paragraph 16 of the RRO. In his written and oral submissions, he sought to submit that Ms Root can’t have it both ways in that if it did not amount to publication, it was caught by the first part of paragraph 16 of the RRO as being ‘any information or details’ in relation to the hearing on 15.3.18.
  4. Mr Dean submits that the requirements of rule 37.3 make it clear there is a mandatory requirement on the applicant in committal applications to set out separately each alleged act of contempt. It is not appropriate or fair for the applicant to put the case in a way that is not set out in the application. Mr Elliott prays in aid the guidance given by Lord Woolf MR in Nicholls that the court should consider what prejudice there is to Ms Root when the position had been made clear in the skeleton argument.
  5. I am satisfied this breach is not proved to the required standard, for the following reasons:
    (1) It is clear the applicant’s case is founded on the hyperlink being a breach of the prohibition to publish, in both the injunction order and RRO. It says in terms under the reasons for this amounting to a breach Ms Root was ‘expressly forbidden from publishing this judgment’ (para 1A) and similar in para 1C. There is no mention or reference in the relevant part of the application to being prohibited from ‘publishing…any information or details’ and Mr Elliott did not apply to amend his grounds.

(2) Whilst there may be an argument that publishing a hyperlink does equate to publishing the judgment that has not been decided before in this jurisdiction. I consider there is some force to the argument (as accepted by the Supreme Court of Canada in Crookes) that a hyperlink is a reference to the existence and/or location of the content, rather than publication of that content. To get to the content, a further step needs to be taken, namely, to click on the link. It is arguable that without clicking on the link there is no publication of it.

(3) I agree with Mr Dean, that if there are competing arguments in an, as yet, undecided area of the law Ms Root should be given the benefit of that uncertainty.

 

As there is doubt, in a committal hearing the benefit of the doubt goes to the person who is alleged to be in contempt, so Ms Root was not in breach of the order prohibiting ‘publication’ of the judgments in connecting to the family.

 

As Theis J says, the orders will need to be drafted with precision if it is intended that someone cannot describe their case and link to a published judgment.

 

The case also sets out the detailed history and sentencing remarks.

https://www.bailii.org/ew/cases/EWHC/Fam/2019/669.html

 

Advertisements

Hounds of justice

 

 

 

I was momentarily tempted to headline this piece

 

Qui odoratus Isacus, de qua n eam

But then I remembered that I didn't do Latin at school, so I've no way of checking whether 
Google translate is right when it claims that this is the Latin for "He who smelt it, dealt it". And I knew the comments would be full of corrections to it.


This is a curious little case, involving a flawed ABE interview.  Not that unusual, it is more startling to find a judgment which commends the ABE for good practice than castigates it for bad.

This one though involves both anatomically correct dolls being used by the intermediary (The 1980s faxed and said "hi") and a dog being brought in. 

Yes, a dog. 

A real one. 

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B36.html

Re J and K (Flawed ABE interview) 2019

 I don't think His Honour Judge Hayes QC was too enamoured with this process. 


  1. As to the presence of B the dog in the interview room, I have never before seen a dog present during an ABE interview. There was no good reason to have a dog in the room and I find that it was misguided to have the dog present.  What took place during the video (summarised below) amply demonstrates why I say this.
  2. The purpose of the video was to speak to and elicit a free narrative from J.  And yet there were frequent times during the video when the dog took centre stage and attention / comments were directed to the dog rather than J. At one point, the dog took up a position on one of the chairs. The chair was there for child J, not the dog.
  3. On more than one occasion, the dog licked J on the face and on her hand.  J was distracted by this.  The adults were enamoured by it.  I was left asking myself why it was happening at all during an ABE interview of a young child


At one stage, after a vitally important (and pretty leading)question had been asked, the whole interview then forgets itself because of a certain doggy odour 

J Because he said, “Don’t ever tell anybody and we’ll do it, er, when mummy isn’t here and when mummy is here we’ll cover them up”
Officer Okay.  Do you smell a little smell in the room?  Do you think B has [done] a little trump?
J Yeah.
Intermediary Has she?
Officer I’m not sure.  I think so.
Intermediary Oh no.
Officer That’s okay.  She’s okay. Can you smell it or it is just me?
Intermediary I can’t smell anything.
J I can.
Intermediary Can you? Oh no, it’s probably going to reach me in a minute.
Officer That’s okay.
Intermediary Sometimes she gets a bit of wind.
Officer That’s okay.  That’s what animals do isn’t it?
J And we do.
Intermediary Yes, and we do.


So it was that what J said at the start of the above exchange about what her father had said to her (clearly a worrying account) was not developed any further.  The smell made by the dog distracted the attention of the officer, the intermediary and the child. The conversation turned from what J said to a discussion about the dog breaking wind.  It is simply unacceptable that that this happened.

 

[65]  As I have said, the observations that I have made do not, in the circumstances of this case, have any bearing on my findings of fact.  But the errors that were made could – in other circumstances – have had serious evidential consequences. A poorly conducted ABE interview has some parallels with a police officer (or some other person) trampling over a potential crime scene rather than adhering to essential forensic guidelines.

 

[66]  The video interview of J on 22 November 2016 regrettably strayed from its objective of “achieving best evidence” from the child.  It would be helpful for my observations to be fed back to the officer and the intermediary and, subject to considering any representations to the contrary by the parties, I will give permission for them to see this Judgment (or part thereof) for that purpose.  My observations are intended to be constructive criticism .  I hope that they are read in that spirit and that those involved will reflect on what went wrong and avoid making the same mistakes in the future.



Maybe I should have called it Never Work with Children AND animals...

That, frankly, hit me like a dart

 

This is an ancillary relief case, in which Holman J was dealing with a disputed application for enforcement of financial orders made by Baker J. The case had run up costs of around £2.2 million.  At the hearing, the wife had given her evidence, and the husband had completed almost all of his evidence in chief.

 

And then, something happened that led Holman J to say the title of this piece.

This morning, the husband was in the course of giving his oral evidence-in-chief. I happened to comment to him how regrettable it was that these parties had not been able to resolve their differences by agreement long ago, before so much costs were incurred, which neither of them can apparently afford to pay. The husband then observed that it was I who had conducted the FDR. That, frankly, hit me like a dart. 

 

Holman J stopped the evidence, to take stock

 

I do not know what the husband might have been planning on going on to say with regard to the course or content of the FDR, for, of course, I immediately stopped him from saying any more. I broke off his evidence altogether whilst I and Mr Chandler, in particular, could take stock of the situation.

 

It was nobody’s fault that this had not been spotted.  The wife was in person, and husband’s counsel had been recently engaged and had huge amounts to deal with. Holman J had not himself spotted it, explaining of course that he had dealt with a huge number of cases in the intervening period.

 

  1. If any of the counsel who had appeared at the FDR were still engaged and appearing at this hearing, I have no doubt that any one or more of them would have flagged up at once that I had conducted the FDR and, accordingly, that I could not conduct this hearing. It also goes without saying that if I, personally, had had the least recollection or appreciation before this case began yesterday morning or, indeed, in its early stages yesterday morning, that I had conducted the FDR, I would have said unhesitatingly and without more ado that I was disqualified from conducting the present hearing and that another judge would have to be identified.
  2. I do not accept any personal responsibility for what has happened. So far as I am aware, there is nothing in any of the highly selective documents that have been prepared for the present hearing which identifies me as having conducted the FDR. As I commented earlier today, in the 18 months or so between the FDR on 15 December 2017 and late July 2019, I have probably conducted hearings in at least 500 cases, some of them long, some of them very short, and not including in that figure the very large number of cases that I consider and adjudicate upon on paper, in particular when sitting in the Administrative Court. So it did not impact upon me for one moment when I embarked upon this hearing that I had conducted the FDR. Frankly, it did not occur to me to enquire whether I had done so, because one is so accustomed to the lawyers for the parties, or the court administration, ensuring, in advance, that cases are not listed before the judge who conducted the FDR.

 

Having taken stock, both the husband and wife were prepared for Holman J, who was nearly half-way through the case to continue and see it through, despite the usual provisions that a Judge who dealt with the FDR plays no part in the later case.

 

(For those who don’t do money cases, an FDR is a Financial Dispute Resolution hearing, and the Judge at that hearing basically gives a steer as to what he or she would do, being able to speak freely because they would not be the Judge at a contested hearing. Sometimes that steer leads to one side or another being willing to compromise and the case settle. Sometimes, as here, it doesn’t and the case still goes on to a fight.   It is a bit like a Settlement Conference. So imagine a Settlement Conference, not working, and then a Care Order is made by another Judge and then later there’s an application for a Recovery Order that accidentally goes before the Judge who does the settlement conference, but it is only mid way through the evidence that this gets discovered )

 

However, Holman J looked carefully at the rules and found that rather than it being the Judge “should” not be involved in any further decisions, the wording was ‘must not’ and that he could not find a basis for allowing it, even with consent, although there was skilful argument that the overriding objective in the Family Procedure Rules might allow such a thing where both sides consented.

 

  1. I have, in the limited time available to me, given very careful and anxious consideration to whether, building upon what Lawrence Collins LJ had said at paragraph 35 and 36 and Goldring LJ had said at paragraph 61, I might hold that the requirement of the rule can be waived by the parties. Whilst in some circumstances at some future date it may be open to the Court of Appeal to develop the jurisprudence in that way, it currently seems to me that it is not open to me to do so. Those observations in those paragraphs are entirely obiter. As I have said, it seems to me that the policy as described by Thorpe LJ in paragraph 26 and his very clear statements in the last two sentences of paragraph 28 simply preclude waiver.
  2. For those reasons, and as it has now emerged (and has been checked and verified) that I did hear the FDR between these two parties on 15 December 2017, I conclude that the mandatory effect of rule 19.7(2) is simply that, as the rule says, I must have no further involvement with this matter at all. Judges have many powers and discretions under rules of court to relax, or even waive altogether, the impact of many rules upon a party or parties. But where a rule says, without discretion, that a judge must not do something, he must not do it. In a sentence, he must obey the law.
  3. For that reason, I propose to bring this hearing now to a complete halt. Anything that I have said during the course of the hearing, including indications that I gave as to the manner in which I intended to deal with some of the applications, are, in my view, complete nullities. This will have to go back to be heard from scratch before another judge on a date just as soon as it can be fixed.

 

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2135.html

 

Shokrollah-Babaee v Shokrollah-Babae [2019] EWHC 2135 (Fam) (25 July 2019)    

Dingoes ate my decree absolute

 

Well of course they didn’t.  But in this case, decided by Mostyn J, a man who got divorced in 1997 and wanted to remarry asked the Court for a copy of his decree absolute. The Court had a look and declared that it was being economical with its visibility.

 

His former wife was asked whether she had a copy, and she replied that she might have one, in storage.  Having moved to Australia, the storage unit was 1000 kilometres from her home, so it wasn’t a small favour to ask.

 

As Mostyn J stated, the Court have duties to keep the divorce papers

  1. Specifically:
    1. a. The original file appeared to have been totally destroyed in about 2013 notwithstanding that the agreed HMCTS record and retention policy, agreed by the President of the Family Division, is that the contents of divorce files are stripped and destroyed 18 years after the date of the final order (or resolution of any subsequent complaint) but that several key pieces of paperwork are retained longer, one of which is the Decree Absolute which is kept for an additional 82 years (thus ensuring it is kept for 100 years in total).

b. A search for the original file in the TNT archive storage depot in Branston yielded no trace of it.

c. The Office for National Statistics stated that they had checked their stores and all paper Decree Absolutes from 1997 had unfortunately been destroyed. Nor had they retained a microfiche copy of this Decree Absolute[1].

d. The Decree Absolute team at the Central Family Court was not, despite extensive searches, able to identify the Decree Absolute on the central index maintained pursuant to the Family Procedure Rules, rule 7.36(1) or its predecessor the Family Proceedings Rules 1991, rule 2.51(3). It would appear that the original Decree Absolute was either never sent in early 1997 to Somerset House for entry on the index, or that it was lost in the post.

On any view, this is an extraordinary series of unfortunate mishaps.

 

As luck would have it, HMCS funded the trip to the storage facility, and the ex wife’s copy was there. So the Court gave a declaration certifying it to be a true copy, and the man was able to remarry.

 

  1. It is therefore necessary for a declaration to be made by the High Court to put the position on a footing as close as possible to that which would obtain had the file not been destroyed and the original Decree Absolute lost.
  2. In Egeneonu v Egeneonu [2017] EWHC 43 (Fam), [2017] 2 FLR 1181, [2017] 2 FCR 130 Sir James Munby P confirmed that the High Court possessed an “inherent declaratory jurisdiction”, in that case to declare whether or not the father’s conduct in abducting the children to Nigeria amounted to a criminal contempt of court. In Mazhar v The Lord Chancellor [2017] EWHC 2536 (Fam), [2018] 2 WLR 1304 Sir Ernest Ryder SPT was of the view that the power to grant declarations was statutory in origin. In Bank Of New York Mellon, London Branch v Essar Steel India Ltd [2018] EWHC 3177 (Ch) Marcus Smith J likewise identified the source of the power to grant a declaration as being statutory; he identified section 19 of the Senior Courts Act 1981. That provides at section 19(2)(a), as did its predecessors, that “there shall be exercisable by the High Court all such other jurisdiction as was exercisable by it immediately before the commencement of this Act”. Thus, there was vested in the High Court all the powers exercisable by the common law courts and the courts of equity prior to the enactment of the Judicature Acts. Those powers clearly included the power to grant declarations, which had originated in the Court of Chancery. I think this is what Sir James Munby P was referring to when he spoke of the High Court possessing “an inherent declaratory jurisdiction”. Plainly, the fact that for some reason CPR rule 40.20 is not replicated in the Family Procedure Rules does not detract from the clear existence of the declaratory jurisdiction.
  3. The cause here was automatically transferred to the Family Court at Willesden on 22 April 2014 by virtue of article 2 of The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014, SI 2014 No. 956.
  4. I order that the cause is transferred to the High Court for the purposes of exercising the declaratory jurisdiction. Immediately following the making of the declaration the cause will be transferred back to the Family Court at Willesden.
  5. I am fully satisfied on the material before me, and I so declare, that:
  6. a. the document produced by the respondent is an authentic and accurate copy of a certified copy of the original Decree Absolute; and

b. the marriage of the petitioner and the respondent was, as shown by the copy of the certified copy of the decree absolute, dissolved on 29 January 1997.

 

Not a sterling endorsement of the Court’s record-keeping abilities. Nor is there any part of the judgment indicating that the legal costs that the husband incurred because the Court failed in its responsibilities would be paid for by HMCS

Power v Vidal 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2101.html

How Dorset feel – to treat me like you do?

Or, Wakefield its a beautiful morning, if you are more Boo Radleys than New Order.

 

Another day, another case about designated authority.   This one answers the question “Does the stop the clock provision apply under a Supervision Order?”

 

Stop the clock, I’ve found the clue!

 

(Stop the clock is the colloquial term family lawyers use for the provision of section 105(6) of the Children Act 1989 which in very broad terms is the care order gets made to the LA where the child is living UNLESS the child is living somewhere because the LA put the child there. It is probably the most litigated provision in the Children Act 1989, leading to case after case where the Judge sighs in exasperation and says in judicialese  “I’m sure Parliament did not intend for Local Authorities to spend quite so much time squabbling about this”  .   For the avoidance of doubt, these squabbles are almost always local authorities wishing that they were not going to be liable for all of the costs of looking after the child and trying to argue that it should be the other local authority – though in this case, the LAs break that mould and are actually reasonable and grown-up with each other. Hooray!)

 

 

section 105(6) of the Children Act 1989:

 

 

      1. “In determining the ‘ordinary residence’ of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place—

(a) which is a school or other institution;

(b) in accordance with the requirements of a supervision order under this Act;

(ba) in accordance with the requirements of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008; or

(c) while he is being provided with accommodation by or on behalf of a local authority.

https://www.bailii.org/ew/cases/EWCA/Civ/2018/900.html

Re C (Children) [2018] EWCA Civ 900 (07 March 2018

 

Stop the clock DOES actually apply where a Supervision Order is made with a CONDITION that the child reside in a particular area  (and I’ll be honest, I didn’t know that.  It is clear from a close reading of the statutory provision, but it had just never occurred to me that it would ever happen)

  1. It is plain, from a reading of those provisions, that a supervision order may contain a requirement under paragraph 2(1)(a) for the supervised child “to live at a place or places specified in the directions for a period or periods so specified”. There is also the facility for the court to impose an obligation on the responsible person (for example the father in this case to comply with directions. It seems, therefore, apparent that the provisions in paragraphs 2 and 3 of Schedule 3 of the Children Act may include a requirement in an appropriate case for a child to reside at a particular location. That that is so has long been established in case- law and, in particular, the decision of Hollings J in the case of Croydon LBC v A (No.3) [1992] 2 FLR 350.

 

It seems that at final hearing, that provision was dusted off and plonked in front of a Judge, who ruled  (wrongly, but understandably) that Wakefield was the right authority to hold the Care Order, because the children had moved to Dorset AFTER the making of a Supervision Order (before things went wrong) and the stop the clock provisions meant that it stayed as Wakefield.

 

However, just making the Supervision Order in and of itself didn’t stop the clock, there had to be a condition attached to the Supervision Order saying that the children were to live in Dorset with their father to stop the clock.

Wakefield appealed, and Dorset took a very wise view of the appeal.

  1. The appeal that is now brought by Wakefield can be described in short terms, I having now laid the ground. The point simply is the supervision order made in these proceedings was not one that can be said to fall within the definition in section 105(6)(b) because there are no “requirements” made within the supervision order made under the Act. Having looked at the orders as I have described, that plainly is correct. This was a bald supervision order with no additional adornments, directions or requirements added to it. The basis of the order was that the children were to live in Dorset, but I accept, as the local authority submits, the purpose of the supervision order was to support that placement rather than to require it or to dictate that the children should remain living there. Thus it is plain, on my reading of the facts and of the provisions that it is not possible to hold that this case falls within section 105(6)(b). That position is expressly accepted by Dorset County Council in a helpful position statement that they have filed with this court. In terms they say this:
      1. “Having considered Wakefield’s skeleton argument, Dorset County Council are not contesting this appeal. In fact, Dorset consents to the appeal.”

The skeleton argument makes plain that there is now agreement between the administrative authorities of the two local authorities that the groundwork, as it were, in terms of running the supervision of the care orders will be undertaken locally by Wakefield but will be funded and reimbursed by payments from Dorset. As I have indicated, neither of the parents have made any submissions on this point and there has been no communication from those acting for the children. It seems to me that the position now put forward by the two local authorities is entirely correct and that the period during which the children resided permanently with their father under the child arrangements order from December 2016 until the middle of 2017 represented their ordinary residence and that therefore they were ordinarily resident in Dorset at the time that Dorset issued the care proceedings that were eventually determined by the judge. On that basis, if my Lord agrees, I would therefore allow the appeal and direct that the care orders made for these two children should be amended so that the local authority designated is now to be shown as Dorset.

 

 

This spirit of collaboration and working in partnership is referred to in Re Z, yet ANOTHER section 105(6) case published on Bailii on the same day, which is a nice little quirk. It flummoxed me at first, until I looked at the dates.    (Re C’s judgment was 7th March 2018, Re Z 11th June 2019, but both were published on Bailii on the same day )

 

Re Z 2019

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B30.html

 

[You don’t need to read Re Z, the only bit of interest in it is that the mother in a set of care proceedings appeared to be represented by a “Trainee solicitor” but I suspect that is because  the mother had given instructions that she agreed the making of the Care Order and did not have strong views about which LA would take it on.  Quite nice for the trainee to get their name in a published judgment so early, something I’ve never managed as a lawyer, so big up to Bhanya Rawal.  If you are someone who googles your own name, this might be a bit of a surprise as you are tagged into this.  ]

All at sea

 

Hi everyone.  It turns out we are all dead.

I’m not sure in our current political climate whether that is a shock or a blessed relief to us all. It certainly explains a lot.

Hayden J was dealing with an application under section 33 (and the inherent jurisdiction) for a Local Authority who held an interim care order to register the child’s birth, the father strenuously objecting to the birth to be registered.

 

Why?

Because we are dead, obviously.

That’s not fair. Some people aren’t dead, but those people are under seven and not reading my blog.

If you are over seven, you are legally dead *

 

(*is the argument being put forward in this case. It is NOT my opinion, and anyone contacting Norwich Union in the hope of getting their life insurance payout may be out of luck. Not least because they are Aviva now)

 

T (A child), Re [2019] EWHC 1572 (Fam) (12 June 2019)

https://www.bailii.org/ew/cases/EWHC/Fam/2019/1572.html

 

But before I even get into explaining why we are all legally dead, here’s a picture of Blue.  Which will also be skilfully woven into this delicious narrative.  Buckle up, buckaroo.

 

I rest my case

 

 

  1. F has strong beliefs surrounding the concept of “sovereignty”. This is a very particular concept for him. It has nothing at all to do with contemporary debate. It is essentially a personal ideology. F believes that central to the concept is the power and writ of the individual. ‘We are each…’, he says, ‘our own sovereign. We come from the Earth, we are the creations of the universe. We are governed by a Common Law but only to the extent that we depart from three principles. These three imperatives are: to do no harm; to cause no loss; to inflict no injury.’ In circumstances where they are proved to have occurred, to the criminal standard of proof, F asserts that what he calls the Common Law is then triggered.
  2. He places great emphasis on The Cestui Cue Vie Act 1666. In the 1666 Act Section 1, F tells me, there are provisions which state ‘that if a title or living being does not prove themselves alive after 7 years they are considered lost at sea. This is the means for government to take control of the dead entity’s property.’ F believes this to be the route by which the government ‘help themselves to money and property.’ We are in such circumstances considered ‘dead entity in the eyes of the law.’ In a graphic and powerful metaphor F states to me that we ‘come to life and are temporarily risen from the dead when summonsed to court’. The requirement to ‘all rise’ when the judge enters the court is symbolic of rising for the resurrection. These views may sound unusual and somewhat eccentric. They are, however, genuinely held and I have done my best to summarise them.
  3. It is in this context that when a birth is registered, F considers this to be the equivalent of an ‘entry into a ship’s manifest’, in which the child becomes ‘an asset to the country which has boarded a vessel to sail on the high seas.’ This facet of admiralty and maritime law is pervasive in F’s thinking. The essence of F’s objection is his belief that registration will cause his son to become controlled by a State which he perceives to be authoritarian and capricious.
  4. T has been given a name and surname but F strenuously resists registration. This is notwithstanding that a failure to do so is, in a variety of practical ways, likely to serve as an impediment to the promotion of T’s welfare as well as to have an adverse impact on F’s own legal status

 

And boy does researching The Cestui Cue Vie Act 1666 take you down some rabbit-holes.  It crops up quite a lot in the  ‘law only applies to me if I agree to it’ fallacy,  and my favourite bit was

 

“When a ship BERTHS, it is given a CERTIFICATE at a DOCK,  and the Government gives you a BIRTH CERTIFICATE from a DOC, so you’re just a ship owned by the Government”

That’s someone for whom rolls of  tin-foil (9)  is always in their Ocado basket.

 

Anyway, The Cestue Cue Vie Act 1666 does not assert that everyone is legally dead unless they prove every seven years that they are alive, of course not.  It says that if a person is missing without trace for seven years they can be pronounced legally dead without their creditors or heirs having to legally prove that they are dead.

 

The Judge kindly, but sadly for me, avoids getting into legal analysis of whether the father was right, and just decides that there are benefits for a child being registered as a citizen and getting those rights, and rules that the Local Authority can do it under section 33 of the Children Act 1989  (in doing so, considering one of my favourite cases where the mother tried to name her daughter Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/  )

 

The Judge also ruled that s33 was sufficient, and the inherent jurisdiction wouldn’t work here.

 

  1. It requires to be stated that such an order is inconsistent with my conclusion that Section 33 (3) CA 1989 is apt to address the requirement for registration. In London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam) I made it clear that the inherent jurisdiction of the High Court is not, as I termed it there, ‘a lawless void’ permitting judges to do all that which we consider to be right and helpful. Its power is only available through the gateway of Section 100 CA 1989. It is perhaps helpful to reiterate what I said in London Borough of Redbridge v SNA (supra):
    1. “33. The concept of the ‘inherent jurisdiction’ is by its nature illusive to definition.  Certainly, it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’.  But it is not ‘ubiquitous’ in the sense that it’s reach is all- pervasive or unlimited.  Precisely because it’s powers are not based either in statute or in the common law it requires to be used sparingly and in a way, that is faithful to its evolution.  It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.”

Towards and untowards

 

This is a decision in an application for committal, and is a salutary lesson in the importance of precision in drafting.

 

London Borough of Wandsworth v Lennard [2019] EWHC 1552 (Fam) (14 June 2019)

http://www.bailii.org/ew/cases/EWHC/Fam/2019/1552.html

 

The father in the case was aggrieved at the social workers dealing with his child, and as a result of the way in which he expressed his feelings, an injunction was made.

It had this wording, which seems unexceptional and unproblematic and I make no criticism of the drafting here (but we shall see that it becomes very important)

“IT IS ORDERED THAT:

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour towards Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

I am now going to reprint that, with the critical word (for the purposes of this committal application) highlighted

“IT IS ORDERED THAT:

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour TOWARDS Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

 

 

What was alleged in this case (and please note it is important that the Court HAVE NOT gone on to determine whether these things are true) is that

 

 

  1. on 13 February 2019 Mr Lennard accepts that he attended Wandsworth Town Hall, whereat he “let his frustration get the better of me and I am truly sorry and remorseful about my behaviour towards the two staff members”. The behaviour to which Mr Lennard refers in his first, and in his second statements before this court, is alleged by the two staff members referred to, Gladys Etiobho, in an affidavit dated 28 March 2019, and Nathan Ojiekhudu, in a statement dated 9 May 2019. It can be summarised as follows:
  2. i) Mr Lennard barricaded Gladys Etiobho and Nathan Ojiekhudu in a room by using his body and refused to allow them to leave.

ii) Mr Lennard became verbally abusive and stated he would not permit Gladys Etiobho and Nathan Ojiekhudu to leave the room until he could see Grace Okoro-Anyaeche.

iii) Mr Lennard made threats of harm towards Grace Okoro-Anyaeche stating that he would “wait outside and snatch Grace because I want answers” and that he “would body snatch Grace at the car park and have a body map on the floor and going to burst her head open”.

iv) Mr Lennard is said to have made similar threats to Gladys Etiobho and Nathan Ojiekhudu.

v) When informed that the Police would be called, Mr Lennard himself called the Police and said he had “two hostage workers and if you don’t come now I don’t know what might happen” and proceeded to give the address of Wandsworth Town Hall.

vi) Mr Lennard then allowed Gladys Etiobho and Nathan Ojiekhudu to leave the room but made them wait in the reception area.

 

 

The father says that he did use foul language towards Gladys and Nathan, detained them in the room for ten minutes and regrets what he did.

 

But DID HE BREACH the injunction?

Well,  at first glance,  saying that he  “would body snatch Grace at the car park and have a body map on the floor and going to burst her head open”.  if proven  (and the Court would need to hear from the three people present, one who says it wasn’t said, two who say it was) would appear to be using threatening behaviour towards Grace. It is aimed very obviously at her.

But Grace was not present. She obviously now knows what has been said, and that must be frightening and distressing.  But the injunction doesn’t say “about”  or “aimed at” it says “towards”

 

Initially, one might think that there’s no real difference between those formulations, but actually, for it to be legally ‘towards’ someone, they have to hear it.

 

 

  1. In support of this submission, Mr Wauchope relies on the case of Atkin v Director of Public Prosecutions (1989) 89 Cr App R 199. That case concerned two Customs and Excise officers, accompanied by a bailiff, who attended the defendant’s farm to recover outstanding value added tax. Whilst two Customs officers conducted their business inside the farmhouse the bailiff waited outside in the car. The car was parked in the farmyard where the bailiff was unable to hear any of the conversation in the farmhouse. When the Customs officers ascertained from the defendant that he was unable to pay the VAT due they informed him that the bailiff would have to enter the farmhouse to distrain on his goods. The defendant replied that, “If the bailiff gets out of the car he’s a dead un.” No threats were made to the two officers. The bailiff did not hear the words spoken by the defendant. The defendant was convicted by the magistrates of using threatening words towards the bailiff and appealed by way of case stated.
  2. At p 204 the Divisional Court in Atkin recounted the submissions it heard in respect of the meaning of the “used towards another person threatening words”:
    1. “In this Court, Mr. Murray on behalf of the defendant, has highlighted the phrase in section 4(1)(a) ‘used towards another person threatening words.’ He submits that the plain and natural meaning of that phrase is that the threatening words have to be addressed directly to another person who is present and either in earshot or aimed at as being putatively in earshot. The phrase does not equate with ‘used in regard to another person’ or ‘used concerning another person.’ He submits that approached in that way the phrase here clearly related to the use of the words within the house to those who were in earshot.”

Later at p 204 the Divisional Court went on to observe as follows in light of the submissions made on behalf of the defendant:

“We were referred to decisions of different divisions of this Court in previous cases, Parkin v. Norman [1983] Q.B. 92 and Masterson v. Holden [1986] 1 W.L.R. 1017. We have not found those citations particularly helpful as they were both concerned with an earlier Act, the Public Order Act 1936. The 1986 Act in sections 4 and 5 supersedes section 5 of the 1936 Act. The wording in the new Act is quite different. The phrase ‘uses towards another person’ is entirely new and the construction of section 4 is therefore not assisted, in my judgment, by considering decisions of this Court in regard to the construction of an earlier statute. This statute has, we are told, not been construed by any court and the phrase “uses towards another person” has not been found by counsel in any other statutory provision which would give any helpful indication as to its true meaning in this context. So the exercise is one of purely looking at the wording of the section and deciding what the plain and natural meaning of the words is, bearing in mind that if there were any doubt that doubt would have to be resolved, since this is a penal provision, in favour of the appellant. In my judgment the submissions made by Mr. Murray are correct. The phrase “uses towards another person” means, in the context of section 4(1)(a) ‘uses in the presence of and in the direction of another person directly.’ I do not think, looking at the section as a whole, the words can bear the meaning ‘concerning another person’ or ‘in regard to another person.'”

  1. My attention was drawn to no other authorities or materials on the question of the meaning of “towards” in the context that is before this court.

 

 

[So here, the word ‘towards’ is significant, and for those reasons the application for committal was dismissed. It may seem a technical point, but for something as serious as committal the technical stuff matters and is essential. The benefit of the doubt, on something where someone might be sent to prison goes in the favour of that person. For ‘towards’ in an injunction, the person being protected needs to be present.  If the injunction instead said ‘shall not make in the presence of any person threats about’ then this would have been capable of being proved as a breach]

 

 

  1. Having given careful consideration to the matter, and in the context of the alleged breach in question being the use by Mr Lennard of verbal abuse, I conclude that I favour the narrow interpretation of the word “towards” in this context and take Parker J’s order to mean that Mr Lennard is prohibited from using offensive, foul, threatening words or behaviour in the presence of and in the direction of Grace Okoro-Anyaeche. Conduct such as, for example, Mr Lennard publishing his abuse on social media and Grace Okoro-Anyaeche thereafter reading the same, or posting a letter to her with the same result, would be caught in these circumstances. However, verbal abuse by Mr Lennard direct at Grace Okoro-Anyaeche when she is not present will not. On the local authority’s single pleaded allegation, the court here is concerned here with words spoken about, but in the absence of, Grace Okoro-Anyaeche.
  2. I take the view I do on the proper interpretation of the word “towards” in these circumstances primarily by reason of the fact that a breach of this injunction carries with it penal consequences. On the one hand, I must, of course, be conscious of the protective function of injunction, and that that protective function argues for a broad, purposive application of its terms. The court grants an injunction to provide protection and relief in circumstances where it is satisfied that such protection and relief is merited. However, against this, the injunction carries with it very serious penal consequences and can, within the current context, result in the imprisonment of the person bound by the injunction for a period of up to two years. The long list of procedural requirements that I set out at the beginning of this judgment further illuminates the strict approach the court takes to the examination of breaches that can result in a term of incarceration.
  3. Within this context, and again accepting I am not engaged in an exercise of statutory construction, I bear in mind the words of Lord Justice Taylor in Atkin at p 204 that where the exercise is one looking at wording and deciding what the plain and natural meaning of the words is, in circumstances where the provision in question is a penal provision any doubt is to be resolved in favour of the person subject to that penal provision. Once again, it is the meaning of a provision with penal consequences with which the court is here concerned, namely the order of Parker J dated 6 July 2018 with its attached penal notice.
  4. Within this context and having regard to the terms of the order made by Parker J, it seems to me that given the type of conduct alleged in the single allegation of contempt, namely verbal abuse, in order to find a breach, the conduct in question needs to have occurred in the presence of, and to have been directed at the person protected by the injunction. I accept this is a narrow interpretation rather a broad, purposive interpretation of the word “towards” and that this construction may be said to reduce the protective efficacy of the injunction. However, I am also clear that the penal consequences of the injunction argue against extending the effect of the injunction to words that were not spoken in the presence of the person protected by that order.
  5. I am reinforced in this view by examining the nature of the behaviour that caused Parker J to make the injunction of 6 July 2018 in the first place, namely the alleged behaviour of Mr Lennard directed towards those named in the injunction. Whilst it may be the case that spoken words will be passed on, once again given the penal consequences of the order there would be obvious difficulties in committing a person to prison on the basis of words that they had spoken being passed on by a third party to the person protected by the injunction who was not themselves present.

 

 

The Judge did go on to say that he would hear submissions about whether the injunction and the wording in it should be varied

 

  1. Given the conduct that has been admitted by Mr Lennard in his statements before the court, I will hear submissions on whether the terms of the current injunction should be extended either in their ambit, their duration or both.