An application by Gloucestershire County Council for the committal to prison of Matthew John Newman
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 03 October 2014 |
| Neutral Citation | [2014] EWHC 3136 (Fam) |
| Court | Family Division |
| Date | 03 October 2014 |
| Docket Number | Case No: BS13C00858 |
[2014] EWHC 3136 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BRISTOL DISTRICT REGISTRY
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: BS13C00858
Mr Benjamin Jenkins (instructed by the local authority) for Gloucestershire County Council
Ms Rebecca Scammell (of Bevirs) for the children's guardian
Mr Newman in person
Hearing date: 25 September 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
This judgment was delivered in open court
Sir James Munby, President of the Family Division:
1. I have before me an application by Gloucestershire County Council seeking the committal to prison for contempt of court of Matthew John Newman. It is the aftermath of care proceedings in relation to Mr Newman's son, who I will refer to as X, which culminated in the making by His Honour Judge Wildblood QC on 16 May 2014 of care and placement orders. An application by Mr Newman for permission to appeal against those orders was refused by the Court of Appeal (Macur LJ) at a hearing on 30 July 2014. I understand from Mr Newman that he is minded to apply for the revocation of the placement order. That is a matter for another day and another judge. I am concerned exclusively with the local authority's application for committal.
2. The application before me is based on alleged breaches by Mr Newman of parts of two orders made by Judge Wildblood, one on 16 May 2014 and the other on 16 July 2014. The orders were directed against both Mr Newman and his wife, but he alone is alleged to be in contempt. So far as material for present purposes, the order of 16 May 2014 ordered that Mr and Mrs Newman were forbidden (paragraph 1) from:
"taking any steps to ascertain the whereabouts of the child and/or foster placement, including using their mobile phone or laptop GPS positioning systems"
and (paragraph 5) from:
"harassing employees of the Local Authority's Children's Team and/or Legal Department."
So far as material, the order of 16 July 2014 provided as follows:
"BY CONSENT
IT IS ORDERED THAT:
1 The father shall forthwith and by no later than 12 noon 17th July 2014 take the following action:
(i) Delete the facebook account in the name of X or using the name of;
(ii) Delete any twitter account in the name of X or using the name of;
(iii) Delete all 'threads' from the facebook and twitter accounts in the name of X or using the name of;
(iv) Having deleted the facebook account, twitter account and any threads, not to reactivate the account and to take all possible steps to ensure that the information that was contained within these accounts has been permanently deleted;
(v) Delete from any public computer network, internet website and social networking website all documents created in and relating to these proceedings including the care and placement proceedings and all injunction proceedings;
(vi) Delete from publicly available electronic sources all photographs, pictures, images, recordings (voice or video) identifying X;
(vii) Delete all photographs of and contact details (including inter alia, telephone numbers, addresses) for any employee of the Local Authority involved with the care and / or placement of the child for adoption.
2 Further, the court makes the following prohibitions:
(i) 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 purpose of preventing the identification (whether directly or indirectly) of the child: the names and addresses of X and any picture, image, voice and/or video recording of X and the names and addresses of any employee of the Local Authority involved in relation to the care and/or placement of the child for adoption and any picture, image, voice and/or video recording of any employee thereof."
3. So far as material for present purposes, rule 37.9(1) of the Family Procedure Rules provides that:
"a judgment or order to do or not do an act may not be enforced … unless there is prominently displayed, on the front of the copy of the judgment or order …, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets."
Neither the order of 16 May 2014 nor the order of 16 July 2014 complied with this requirement. In the order of 16 May 2014 the penal notice appeared at the end of the order on the second page. Although the order of 16 July 2014 contained, prominently displayed, the statement on the front of the order that "A Penal Notice shall be attached to paragraphs 1 and 2 of the injunctive consent order", the penal notice itself was set out, just before the text of the injunctions, on the third page of the order.
4. Paragraph 13.2 of PD37A provides that "The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect." I was satisfied that no injustice would be caused to Mr Newman by waiving these defects. In the one case, the penal notice was prominently displayed at the end of a short, two page, order which also contained a recital that Mr and Mrs Newman had "previously received legal advice as to the implications of breaching the terms of this Order." In the other case, the father was present and consented to the grant of the injunctions. He cannot by that stage in the proceedings have been in any doubt as to the consequences of breach.
5. Although in this case I was prepared to waive these procedural defects, I cannot emphasise too strongly the need for meticulous compliance with all the requirements of Part 37 and PD37A. I might add, for the benefit of the doubters, that this surely serves only to demonstrate the need for the family justice system to adopt, as I have been proposing, the use of standard forms of order available to all in readily accessible and user-friendly templates.
6. On 26 August 2014 the local authority issued an application seeking Mr Newman's committal for contempt. The application was supported by affidavits from five of the local authority's employees. The matter came on for hearing before me in Bristol on 25 September 2014. The local authority was represented by Mr Benjamin Jenkins and X's guardian by Ms Rebecca Scammell. Mr Newman appeared in person and gave evidence on oath. In an order made by Judge Wildblood on 10 September 2014, Mr Newman had been "strongly advised to seek legal representation" and told that "legal aid would be available for you to be so represented": see Chelmsford County Court v Ramet [2014] EWHC 56 (Fam), [2014] 2 FLR xxx, paras 32–33. I asked Mr Newman whether he wanted legal representation and made clear that, if he did, I would be able to grant him legal aid then and there. He said that he preferred to represent himself.
7. On the afternoon of 23 September 2014, that is less than two days before the hearing, the local authority attempted to serve Mr Newman with a further application seeking his committal to prison for further alleged contempts, sending him copies of the documents by email at 15.33. Mr Jenkins sought an order that I abridge time for service, which is specified in paragraph 12.2 of PD37A as being not less than 14 days "unless the court otherwise directs." I was not prepared to contemplate such a drastic abbreviation of time in a matter as serious as contempt and refused the order Mr Jenkins was seeking. I ensured that Mr Newman was served with all the relevant documents before he left court after the hearing. Mr Jenkins said that the local authority wished to have time to consider whether or not to pursue the further application against Mr Newman. I directed that the local authority notify the court and Mr Newman no later than 4pm on 9 October 2014 whether or not it intends to pursue the application. I reserved both that application and any further committal application by the local authority to myself.
8. The application dated 26 August 2014 alleges four grounds of contempt: (i) breach of paragraph 1 of the order of 16 May 2014; (ii) breach of paragraph 5 of the order of 16 May 2014; (iii) breach of paragraph 1 of the order of 16 July 2014; and (iv) breach of paragraph 2 of the order of 16 July. Each requires to be considered separately.
9. These being allegations of contempt, they require to be proved to the criminal standard of proof. Mr Newman has to prove nothing. The local authority must prove its case. In relation to each allegation I cannot find Mr Newman guilty unless I am satisfied so that I am sure or, as it is sometimes put, beyond reasonable doubt.
10. It is also important to note, this being a matter of committal, that the defendant – here, Mr Newman – is entitled to make a submission that there is, in relation to any particular allegation, no case to answer. Moreover, where, as here, the defendant has chosen to represent himself, it is, in my judgment, the responsibility of the judge to consider on the papers whether there are grounds upon which, if the defendant was represented, his counsel might realistically make such a submission and, if there are, then to raise the matter with the applicant's counsel. In relation to both ground (i) and ground (iv) I had serious doubts as to whether there was in fact even a prima facie case against Mr Newman fit to go trial,...
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