Y v Z
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Bodey |
| Judgment Date | 28 February 2014 |
| Neutral Citation | [2014] EWHC 650 (Fam) |
| Docket Number | Case No. FD12P04004 |
| Court | Family Division |
| Date | 28 February 2014 |
[2014] EWHC 650 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Bodey (In Private)
Case No. FD12P04004
The Mother appeared in person.
MR. Tod appeared on behalf of the Respondent (Father).
[ In the interests of saving costs and with the express agreement of the parties, this Judgment has been prepared from the draft version used by the Judge on 28 th February 2014. It is to be regarded as the definitive transcript and no other transcript need be bespoken. The Judgment may be reported in this anonymised form (only)].
A. INTRODUCTION
This is an appeal by a mother, whom I shall simply call 'the mother' against an order made in Schedule 1 proceedings by Senior DJ Waller on the 26 th March 2013. By that order the parties are "…forbidden to disclose to any third party without the permission of the court any information or documents disclosed in or used for the purposes of these proceedings". I shall refer to this as "the injunction". The underlying proceedings concern financial support for the parties' son 'John', who was born in 2008 and is almost 6. As the reference to Schedule 1 shows, the parties were never married. What the mother wishes to do is to be able to disclose to the Police and/or to the Crown Prosecution Service and the Financial Conduct Authority [FCA] the fact that the father lied in statements and on oath in these proceedings. The point about disclosure to the FCA is that the father works in the financial services sector. His lies consist (i) of his initially not disclosing within the proceedings the fact that he had sold an enterprise owned by him through a company of his in a foreign country which I shall call 'Anonland' and (ii) of his subsequently going out of his way to deny that he had been aware of any such sale, or had received any proceeds. In fact, it eventually emerged that he had received £111,000.
At the hearing on 26 th March 2013, in addition to the injunction, DJ Waller made several financial orders under 'Schedule 1'. The mother appealed certain of those orders, particularly his refusal to make a lump sum order to constitute a school fee fund to enable John to be educated within the private sector and for him to end up at one of the country's most prestigious public schools. The financial details of the order are immaterial for the purposes of this Judgment. The mother's appeal came before me and on 20 th December 2013 I gave judgment, to which reference should be made. In short, I dismissed her appeal. The time estimate for the hearing before me did not give sufficient time for the mother's appeal against the injunction to be dealt with: so it was put off and I have now heard it as a discrete issue. The mother has argued her case in person, augmenting her written submissions with great skill and determination. The father has been represented by Mr Tod, who likewise placed before me written submissions augmented orally. Many points were covered in the arguments and many authorities referred to. I shall not be able to do justice to all of them, but have them well in mind and shall highlight those which strike me as the most important.
Under the rules, I am to allow the appeal if the decision of DJ Waller to impose the injunction 'was wrong' (FPR 2010 R30.12(3)(a): Re B [2013] UKSC 33).
It had been the mother's case in paragraph 5 of her Skeleton Argument dated 6 th February 2014 that she was not seeking a public non-anonymised Judgment at this hearing. She there said and underlined: "The mother was not and does not seek unrestricted publication of the Judgment without anonymity". During the course of her presentation however, it became apparent that she was now saying that she did want a public Judgment without anonymisation. I explained the possible consequences of this in terms of publicity, which she might not necessarily find agreeable. I asked her to think about it carefully over lunch. Having done so, she confirmed her application that my Judgment should be given in open court and not anonymised, save as to changing the child's real name to the fictional name of 'John'.
B. SENIOR DISTRICT JUDGE WALLER'S JUDGMENT (26TH MARCH 2013)
Following many paragraphs of quite complicated fact finding regarding the father's finances, and having set out his conclusions thereon, the District Judge turned to the issue which had arisen during the hearing as to whether or not the mother should be permitted to report to outside agencies the father's (by now admitted) lies. In his final submissions, Mr Tod had asked for an injunction to restrain this. At paragraphs 228 and 229 of her subsequent closing submissions running to 240 paragraphs over 57 pages, the mother (who was acting in person) had described such an injunction as a '…disproportionate interference with my rights'. She said that it would be '…wholly unjust to grant the father an injunction, since he should not benefit from criminality and should be fully accountable for his actions'. She referred to his position as the Chief Executive Officer and Executive Chairman of a company funded by investors' money, the company being registered with the then Financial Services Agency '…which presumes he is a person of trust and integrity'. She said that '…given his ongoing deception to the Court and his lack of respect for law, it would be just and fair for him to face his responsibilities. This is certainly in the public interest'.
There has been discussion at this hearing as to whether the mother had satisfied R29.5 of the Family Procedure Rules 2010 about giving notice of ECHR points, particularly under Article 10 (freedom of expression). Certainly she did not specify any Articles by number. However, she did speak of 'a disproportionate interference with her rights', which I consider (since she was acting in person) sufficiently flagged up the sort of ECHR points which she has pursued in more detail before me at this hearing.
I need to record the District Judge's decision on this injunction issue (at paragraphs 129 to 132 of his Judgment) at length:
"In relation to disclosure of information generally, I think it is highly desirable in John's interests and the interests of the parties, that neither party seeks to rely on or use information provided in these proceedings except to the extent that it is necessary to do so to seek legal advice. The mother seeks particularly permission to disclose the papers, or at least the Judgment, to the Police… for the purpose of any further investigation in relation to perjury. …In relation to that, the Court has to balance the interests of the parties, together with the public interest in the detection of crime. I am particularly concerned that these proceedings involve a young child, who may be affected by any proceedings which may be taken against either of his parents or their involvement in continued litigation together. …The conclusion that I have reached is that it is manifestly not in the interest of the parties or of John for documents to be disclosed to the Police in circumstances where there is no investigation which is being undertaken to which these documents would be relevant. I am not suggesting that any such investigation should be undertaken. It seems to me that the issues arising from the non-disclosure in 2010 have been dealt with within these proceedings. Nothing is to be gained for the parties, or indeed for the public, in disclosure to the Police which would precipitate an investigation by them".
The District Judge then went on to observe that in contrast the Child Support Agency does have an interest in the conclusions reached by the court about income matters. He therefore permitted the paragraphs of his judgment dealing with the father's income (only) to be disclosed to that agency.
C. BACKGROUND.
A summary of the background appears at part B of my Judgment of 20 th December 2013. Essentially, the parties had a relatively brief relationship which broke down in 2007, by which time the mother was pregnant with John. The mother is now 40 and the father 42. Both are highly educated and successful professionals. The mother used to work in the financial sector and the father still does. She is now studying for the Bar. Since their relationship broke down, the father has married and has two young children. He currently pays £12,000 p.a., for John as computed in paragraph 11 of my Judgment of 20 th December 2013.
The mother's claim under Schedule 1 came first before DJ Basset-Cross on 25 th March 2010. He took a poor view of both parties. He highlighted their profoundly different expectations from their relationship, the mother regarding it as an intense relationship lasting a number of months, the father painting a picture of 'not quite a one-night-stand, but very close to it'. He (the father) had wanted her to terminate the pregnancy and, when she went to the Child Support Agency, he denied paternity and sought DNA testing. For obvious reasons, this was very upsetting for the mother. The DJ listed, without making findings, a number of actions by her as summarised by the father's then-Counsel, including: her attending at the father's work place with John; lingering outside the father's home; sending unpleasant text messages to the father, his mother and girlfriend; and contacting his friends and acquaintances. He went on to say: "…Suffice it to say that the father was forced to obtain [an ex parte] non molestation injunction against the mother on 7 th September 2009 to protect not only himself but also his girlfriend and her children". On the return date, the mother had given undertakings not to molest the father and he had agreed to have contact with John, although (as recorded by DJ Basset-Cross) he only took up one such visit. The District Judge continued:
"…there is no doubt...
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