Category Archives: transparency

“I’m Batman”

Posted on November 16, 2013 by suesspiciousminds

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.

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.

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”)

“Rubric’s 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.

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Posted in case law, transparency and tagged therapy, transparency, wardship. Bookmark the permalink.

Transparency and vampire-ish creatures

Posted on September 6, 2013 by suesspiciousminds

Where we are following the President’s decision in Re J (A Child) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2694.html

(Or, as the Daily Mail have reported it, on their front page, providing a link to the contentious video in question “Top Judge’s War on Secret Courts” – I note with interest that their online version of the newspaper in amongst promoting this story heavily also speculates as to whether testicle-chomping piranhas are about to invade English rivers. I didn’t read that article, but I suspect the answer is no)

The broad sweep of the case appears to be that a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable.

I suspect the hearts of the Local Authority sank when they realised that their application for an injunction was to be heard by the President, much as those people long ago who brought their case about nuisance and cricket balls from the local cricket club breaking their coldframes must have had a sinking feeling when Lord Denning strode into Court wearing his MCC tie.

The narrow issue in the case was whether the Court should grant an injunction preventing the publication in the Press or on the internet, of material and in particular a video showing the moments of removal of a baby from the parents by social workers and police officers.

As one can see from the Daily Mail coverage, the application was not entirely successful, and had pretty much the Streisand Effect (the term given when an attempt to avoid bad publicity brings instead an avalanche of even more publicity).

Where the Court ended up was that an injunction until the child’s 18^th birthday was made in these terms

“3 This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite service for the purposes of preventing the identification (whether directly or indirectly) of the child of:

(a) The names and addresses of:

(i) The Child, whose details as set out in Schedule 1 to this order;

(ii) The Child’s parents (“the parents”), whose details are set out in Schedule 2 to this order;

(Leaving completely hanging the “whether directly or indirectly” element. Once the video appears on the website of a national newspaper, even if it pixellates the faces of the parents, you get to see an awful lot that would allow their neighbours to identify the parents and thus the child, particularly given that the date of birth of the child and home county is now in the national public domain. I suspect that the ‘indirectly’ part of this is where the difficult semantic arguments are going to be had in future. What if, for example, the father now puts on his Facebook page or Twitter “Can’t believe I’m in the Daily Mail today!” – is he indirectly identifying himself as the father in the case, and hence identifying the child?)

The case is quite important, because it involves a campaign of publicity which the Court has effectively endorsed (short of anything which directly or indirectly identifies the child) NOT following a judgment which concludes that the parents criticisms and complaints are bourne out (such as in Webster or Al Alas Wray) but in the midst of proceedings. The Court has not yet reached any decisions about the future of the child, or whether the parents complaints are justified.

I suspect the view of some of my regular commenters will be that this case is long overdue (and perhaps even that the restriction on names goes too far)

Here is a particularly good soundbite from the parents facebook and video campaign cited in the judgment. It has a sort of Poe / Lovecraftian quality about it.

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.”

The judgment sets out the details of the child’s birth and the parents efforts to publicise the injustice that they considered was occurring

J was born at home on 4 April 2013, the local authority says against medical advice. The father announced J’s birth on Facebook. It included these words: “SS banging on the door we’re not answering” and “ss gone to get epo”. I very much doubt that ‘SS’ was here being used as an innocent acronym for the local authority’s social services. The internet is awash with strident criticism of local authorities, described as “the SS” or “SS”, where it is quite clear from the context that the reader is meant to link the activities of the local authorities being criticised with those of Hitler’s infamous SS. The comparison is grotesque and is, and I have little doubt is intended to be, offensive and insulting – grossly so. I make no such finding against the father in relation to this particular publication but I am willing to proceed on the assumption, though without finding, that the father’s intent was indeed to encourage readers to make the comparison.

Subsequently the father posted on Facebook what the local authority says was the “covert” filming of the execution of the emergency protection order later the same day. J was referred to by name. The next day, 5 April 2013, it was picked up by a website called UK Column Live, which published it via You Tube. It has subsequently been much ‘shared’ on Facebook. Two days later, UK Column Live filmed an interview with the father which it uploaded to You Tube on 11 April 2013. The father and the mother are referred to by name. On 12 April 2013 the father gave an undertaking to remove all the material posted on the internet and within his control that would identify any of the children as being or having been subject to care proceedings. On 1 May 2013 he further undertook to use his best endeavours to secure removal of such material from the internet. Footage of an interview with the parents in the precincts of the court on that occasion was subsequently put on the internet by UK Column Live. W and J were identified by name. Further orders were made on 10 May 2013.

As those who use the internet know, once something has been published on the internet, it can never be 100% scrubbed clean. If J’s name was published on the internet by UK Column Live, then even if it is now removed, it is discoverable by anyone who really wants to find it.

One might think that the audience for UK Column Live, a website run from Plymouth, campaigning hard about what is often called forced adoption, would be fairly limited (though undoubtedly much larger than my own), probably to fellow campaigners and parents who have felt aggrieved by their own experiences. The Daily Mail front page is a rather different matter – anyone who walks into a newsagent or supermarket today will see it. Once the circulation of the story increases, the potential for someone identifying the child as a result increases exponentially.

The judgment deals with some very interesting aspects – the first is really the case for transparency, an issue dear to the President’s heart and one which he has adjudicated on several times in the past. This is the furthest he has gone – he makes a number of points here with which I agree, when setting out how vital it is for the public to be able to know what is being done in its name. (I have underlined what I consider to be the most important passage)

The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction: Re X; London Borough of Barnet v Y and X [2006] 2 FLR 998, para [166].

I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], “the system provides a remedy. It requires determined lawyers and determined parties.” So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

Almost ten years ago I said this (Re B, para [103]):

“… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.”

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.

The compelling need for transparency in the family justice system is demanded as a matter of both principle and pragmatism. So far as concerns principle I can do no better than repeat what Lord Steyn said in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, where, having referred to Holmes J’s dissenting judgment in Abrams v United States (1919) 250 US 616, he continued:

“freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. … It facilitates the exposure of errors in the … administration of justice of the country.”

This takes me on to the next point. It is vital that public confidence in the family justice system is maintained or, if eroded, restored. There is a clear and obvious public interest in maintaining the confidence of the public at large in the courts. It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables its workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism. This principle, as the Strasbourg court has repeatedly reiterated, is protected by both Article 6 and Article 10 of the Convention. It is a principle of particular importance in the context of care and other public law cases.

In relation to the pragmatic realities, I repeat what I said in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, para [133]:

“… the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 and something which, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise.”

The family lawyer’s reaction to complaints of ‘secret justice’ tends to be that the charge is unfair, that it confuses a system which is private with one which is secret. This semantic point is, I fear, more attractive to lawyers than to others. It has signally failed to gain acceptance in what Holmes J famously referred to as the “competition of the market”: Abrams v United States (1919) 250 US 616, 630. The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts. As I went on to say:

“… where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77:

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.”

In short, the remedy is publicity, “more speech, not enforced silence.”

The second matter is this. The workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466, 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system require open and public debate in the media. I repeat what I said in Harris v Harris, Attorney–General v Harris [2001] 2 FLR 895, paras [360]-[389], about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system. And the same goes, of course, for criticism of local authorities and others.

This takes me to the third matter. It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish. As I explained in Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89]:

“A judge can assess what is lawful or unlawful, a judge in the Family Division may be called on to assess whether some publication is sufficiently harmful to a child as to warrant preventing it. But judges are not arbiters of taste or decency … It is not the function of the judges to legitimise ‘responsible’ reporting whilst censoring what some are pleased to call ‘irresponsible’ reporting … And as the Strasbourg jurisprudence establishes (see Harris v Harris; Attorney-General v Harris [2001] 2 FLR 895, at [373]), the freedom of expression secured by Art 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. As Neill LJ recognised [in Re W (Wardship: Publication of Information) [1992] 1 FLR 99] a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public.”

As the Strasbourg court has repeatedly said, “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation:” see, for example, Bergens Tidende v Norway (2001) 31 EHRR 16, para 49.

Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. A much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language: see on all this Harris v Harris, Attorney–General v Harris [2001] 2 FLR 895, para [372] and Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89].

It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory or because its dissemination involves the commission of a criminal offence. If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction. If a criminal offence has been committed, the appropriate course is the commencement of criminal proceedings. If it is suggested that publication should be restrained as involving a criminal offence, that is a matter for the Law Officers.

The publicist – I speak generally, not of the present case – may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving. As Lord Oliver of Aylmerton robustly observed in Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248, 1320:

“the liberty of the press is essential to the nature of a free state. The price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars and charlatans, but that cannot be avoided if the liberty is to be preserved.”

The remedy, to repeat, is publicity for the truth which lies concealed behind the unfounded complaints, “more speech, not enforced silence.”

(I do think, however, that a fairly simple case for the distinction between privacy and secrecy can be drawn, in relation to preserving the anonymity of children’s identities. Although the vast majority of the public will never go anywhere near care proceedings or social services and thus the issues are outside their usual experience, most people have known someone who has divorced. In a divorce case, most people would agree that it would be wrong for their neighbours or work colleagues to be able to read the lurid and scurrilous allegations set out in the divorce petition or to read the details of what the husband has paid out in his bank statements disclosed into the ancillary relief proceedings. They would understand that the public don’t get to see that because it is PRIVATE. )

The Judge goes on to make some comments about the Internet, and the massive changes it has made to the world of transparency.

It is probably far too soon to be assessing the true implications of all this, and there is no need for me even to attempt to do so. It suffices for present purposes to make three points, building on what Tugendhat J said in MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB), para [11]. First, the internet allows anyone, effectively at the click of a mouse, to publish whatever they wish to the entire world – or at least to everyone who has access to the internet. No longer does the campaigner have to persuade a publisher, newspaper or broadcaster to disseminate the message. So there is very little editorial control. The consequence is that the internet is awash with material couched in the most exaggerated, extreme, offensive and often defamatory terms, much of which has only a tenuous connection with objectively verifiable truth. Second, material once placed on the internet remains there indefinitely and, because of powerful search engines, is easily accessible by anyone wanting to track it down. Third, internet providers are often located outside the jurisdiction, in countries where practical difficulties or principled objections stand in the way of enforcing orders of this court.

All of this, it goes without saying, poses enormous challenges. The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies. We must not simply throw up our hands in despair and moan that the internet is uncontrollable. Nor can we simply abandon basic legal principles. For example, and despite the highly objectionable nature of much of what is on the internet, we must, at least in the forensic context with which I am here concerned, cleave to the fundamentally important principles referred to in paras [37]-[40] above.

The Judge then goes on to consider the ability of injunctions to control what is published in other countries. I think that these passages will be particularly interesting to one of my regular commenters, whose website is hosted in Monaco

But at the outset I make clear that there is, in principle, no objection to the English court in an appropriate case granting injunctive relief against a foreign-based internet website provider. Mr MacDonald has helpfully drawn my attention to XY v Facebook Ireland Limited [2012] NIQB 96, HL (A Minor) v Facebook Incorporated and others [2013] NIQB 25 and Tamiz v Google Inc , affirmed [2013] EWCA Civ 68, [2013] 1 WLR 2151. Other relevant cases are G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), [2010] EMLR 14, and Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753.

I can likewise see absolutely no reason why the same principle should not apply equally in the case of what has come to be known as a contra mundum injunction. In my judgment there is, in principle, no objection to the English court in an appropriate case granting a contra mundum injunction against the world at large, including against foreign-based internet website providers.

(In short, a UK court CAN injunct a publisher, or internet site in another country not to publish material, but one then has to consider the ability of the Court to ENFORCE that injunction if it is breached. The Judge effectively raises the issues but says that resolution of them is for another day, but gives guidance on what the applicant would NEED to do if seeking an injunction to take effect against a person or organisation outside of the UK jurisdiction)

I turn to the question of discretion. There is a tension here. On the one hand the starting point is that the courts expect and assume that their orders will be obeyed and will not normally refuse an injunction because of the respondent’s likely disobedience to the order. Romer LJ put the point forcefully in Re Liddell (page 374):

“It has been further contended that even so this order can never be enforced against Mrs Liddell if she chooses to disobey it and that the sequestration of her income would not be for the benefit of the children. It is not the habit of this Court in considering whether or not it will make an order to contemplate the possibility that it will not be obeyed.”^[2]

On the other hand, and because equity does not act in vain, the court will not grant an injunction which is ineffectual or, to use the Latin, a mere brutum fulmen. As Kerr LJ put it in the passage from which I have already quoted, “our courts will not make orders which they cannot enforce.”

What approach should the court adopt in coming to a decision as to how to exercise its discretion? This is a matter for another day, when there is fuller argument than was appropriate in the present case. Here I merely note that in Wookey Butler-Sloss LJ said that “there must be a real possibility that the order, if made, will be enforceable,” while in Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, para [35], Arden LJ said that “the court must be astute to see that there is a real prospect that something will be gained.”

Drawing the threads together, the court is going to need evidence on two distinct matters. First, in relation to jurisdiction, the court will expect the applicant to put before the court evidence that service by email or letter or as the case may be is permitted by the law of the relevant foreign country: Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753, para [53]. Second, in relation to discretion, the court will need evidence as to the applicable law and practice in the foreign court, evidence as to the nature of any proposed proceedings to be commenced in the foreign jurisdiction, and evidence as to whether the foreign court would be likely to enforce the injunction: compare Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499. Where the injunction, as here, engages freedom of speech, the evidence will also have to detail the foreign jurisdiction’s approach to such matters. Given the First Amendment, this is obviously particularly important in the case of the United States of America: cf the comments of His Honour Judge Parkes QC in Davison v Habeeb and others [2011] EWHC 3031 (QB), para [69].

If what is being sought is an injunction against named defendants it will usually be appropriate for all this evidence to be available before the court is invited to grant the injunction. If, however, what is being sought is, as in the present case, an injunction in contra mundum form, it may be more appropriate to adopt the same procedure as with worldwide freezing (Mareva) orders: see Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, and the form of freezing injunction in the Annex to CPR PD 25A.

There the practice is to require the applicant to give the court an undertaking that “The Applicant will not without the permission of the court seek to enforce this order in any country outside England and Wales” and to include the following in the order:

“Persons outside England and Wales

(1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court –

(a) the Respondent or his officer or agent appointed by power of attorney;

(b) any person who –

(i) is subject to the jurisdiction of this court;

(ii) has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(iii) is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and

(c) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.”

The detailed evidential investigation of foreign law and procedure can then be postponed until such time as the applicant seeks permission from the English court to enforce abroad.

On the final matter, that of whether publication of the video was lawful given that the baby’s face could be seen, the Judge said this :-

There is, however, in my judgment, a crucial difference in a case such as this, where we are concerned with a baby a day old (though the same point will no doubt apply to somewhat older children), between restraining publication of the child’s name and restraining publication of visual images of the child. There are three reasons for this. First, the reality is that although anyone can identify a baby by its name it is almost impossible, unless you are the parent, to distinguish between photographs of children of that age who have the same general appearance. Second, the reality, at least with current domestic technology where searches of the internet are by word (name) and not image, is that unless you have a name, or a mass of other identifying details, it is going to be very difficult, if not impossible, to locate anonymous postings about an individual. Third, in a case such as this, although there may be a powerful argument for asserting that the baby who features in a filmed episode should not be named, there are at least as powerful arguments for asserting that the publication on the internet of film such as I am concerned with here, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby.

Assessing these three factors together, there is, it seems to me, a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.

Leaving us with the situation where the Daily Mail and other newspapers, can run the story of this case on their front page, provide stills from the video and use their websites to link to the video PROVIDED that they do not give the child’s name.

Short of defamation actions (which are not at all easy to get off the ground), given that the injunction here did not restrict the publication of the details of social workers names and the Court ruled that

I simply fail to see how naming the local authority, the social workers, the local authority’s legal representative or the children’s guardian, or even all of them, can in any realistic way be said to make it “likely” that J will be identified, even indirectly. The risk is merely fanciful

This case is obviously a major shift for campaigners and a major headache for Local Authorities.

It is also very clear that in any application for an injunction or Reporting Restriction Order in future, this case is going to be cited as a compelling reason NOT to make such an order, and the evidence of harm or risk of harm to the child will need to be very clearly set out.

It is, to me, really interesting to compare this case with the Vicky Haigh judgments. In that case, Vicky Haigh ran the risk of prison for her internet campaigning and a friend of hers who was assisting her in the campaign DID actually go to prison (albeit briefly). That judgment was made by our last President, only two years ago, and related to a mother who was running a campaign on the internet about her court dispute, including making allegations which were unfounded about the father being a sexual risk to children.

http://www.bailii.org/ew/cases/EWHC/Fam/2011/B16.html

One can’t help but wonder the extent to which these two cases differ so vastly in such a short space of time.

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The Commital-ments

Posted on August 21, 2013 by suesspiciousminds

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 12^th 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 19^th 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 ]

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Posted in case law, private law, transparency and tagged breach of order, committal, committal application, imprisonment for breach of order in family proceedings, jennifer jones, re roberts 2013, transparency. Bookmark the permalink.

Rubric’s revenge

Posted on August 2, 2013 by suesspiciousminds

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]

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Posted in case law, transparency and tagged ability of parents to speak to the press, high court, permission given by the Court for parents to tell their story, Re E (a child) 2013, rubric, transparency. Bookmark the permalink.

One flew over the Cuckold’s nest

Posted on August 1, 2013 by suesspiciousminds

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.

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Posted in case law, transparency and tagged anonymity, artificial insemination, HFEA, human fertilisation and embryology act, husband consenting to artificial insemination, paternity issues, removing names from judgments, schedule one of the children act, transparency, who is the father in an artificial insemination case. Bookmark the permalink.

“Rubric’s cube”

Posted on August 1, 2013 by suesspiciousminds

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

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

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

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

I wrote about the care proceedings here

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

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

The case I am most pleased about this year

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

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

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

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Posted in case law, transparency and tagged anonymised transcript of judgment, can a parent give interviews about care proceedings, confidentiality in family court, contempt of court, identifying subject of court proceedings, press and care proceedings, reporting care proceedings, rubric, transcript of judgment, transparency. Bookmark the permalink.

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