A and B (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] EWHC 3491 (Fam) |
| Date | 20 December 2018 |
| Docket Number | Case No: PO16C00605 |
| Court | Family Division |
[2018] EWHC 3491 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: PO16C00605
Miss Nadia Tawfik (instructed by local authority solicitor) for the local authority
Miss Helen Khan (instructed by Footner & Ewing) for the children's mother
Ms Rosein Magee (instructed by Child Law Partnership) for the children's guardian
Miss Maureen Obi-Ezekpazu (instructed through the Direct Access Scheme) for Mr Stephen Green The children's father was present in person.
Hearing date: 22 June 2017
Judgment Approved
This judgment was handed down in open court
Sir James Munby, sitting as a judge of the High Court:
These are cross-applications by a local authority, Hampshire County Council (“HCC”), and a journalist, Stephen Green of Christian Voice (“Mr Green”), which arise out of care proceedings, PO16C00605, brought by HCC in relation to two children, A and B (“the children”), who were at the material time 13 and 6 years old. The care proceedings were in the Family Court at Portsmouth and were being heard by Her Honour Judge Black. On 1 June 2017 she made a care order in relation to B, the proceedings in relation to A having concluded with the making of a care order on 22 December 2016.
So far as concerns the matters before me, the story begins on 2 May 2017 when Mr Green attended a hearing in the care proceedings. His application to Judge Black for permission to report the proceedings was refused. Judge Black also ordered Mr Green to return to HCC by 2.30pm on 3 May 2017, all “court documents and any copies of those documents which he retains.” He failed to do so. The order also “informed” Mr Green, although not in terms ordering him to do so, that “he should remove … from the internet within 24 hours” a particular article referred to in the order (“the Article”). He did not do so and in fact, after Judge Black had made her order, put up more material about the case on the internet (“the Second Article”).
On 4 May 2017, applications were made by HCC under the inherent jurisdiction seeking injunctions against Mr Green prohibiting him from publishing “details relating to any proceedings concerning the children or information private to the children”, requiring him “immediately” to remove the Article from the internet, requiring him to return to HCC “all papers he has received in relation to the proceedings concerning the children (and any copies thereof)”, requiring him to inform the court as to “the identity of the person(s) who provided him with the information and papers relating to the proceedings concerning the children” and, finally, seeking permission to make a committal application against Mr Green “for publishing information relating to private proceedings under Children Act 1989.”
Those applications came before Baker J, as he then was, on 8 May 2017. Mr Green appeared in person. Baker J's order recites that Mr Green agreed (i) by 11.59pm on 8 May 2017 to remove from the internet, which he duly did, both the Article and the Second Article, (ii) not to publish or broadcast “any information relating to the family proceedings in case No PO16C00605”, and (iii) by 4pm on 10 May 2017 to return to HCC “all documents in his possession, and any copies thereof, which were prepared for the purpose of” those proceedings, including but not limited to “statements, court orders, reports, schedules and judgments.” As refined in the skeleton argument filed on behalf of HCC, what is sought is an injunction:
“to prevent Mr Green from publishing or broadcasting any details of the children or the proceedings, such order to last until the children's respective 18 th birthdays.”
The skeleton argument also indicated that HCC is not, at this stage, pursuing any application in relation to committal.
Since February 2016, Mr Green had been a member of the British Association of Journalists (“the BAJ”). On 9 May 2017, he was notified that he had been temporarily suspended for a period of 24 hours. On 10 May 2017, he was notified that he had been permanently disqualified from the BAJ for acting in a manner that was “detrimental to the interests of the Association.” According to Mr Green, this action was unlawful, solicitors on his behalf have written a letter before action to the BAJ and he intends to commence legal action against the BAJ. Whether he has done so, and if so with what outcome, I have not been told.
As contemplated by Baker J's order, on 25 May 2017 Mr Green applied for various orders, which I can summarise as follows:
i) Orders permitting “information relating to the proceedings” to be provided and “disclosure of case papers” for the purpose of “writing a series of articles about the operation of the child protection care proceedings process.”
ii) An order “permitting … publication of a series of articles about the child protection care proceedings process.”
iii) An order “permitting any person with knowledge of the case or party to the case to share their knowledge and to pass on to me the papers detailed above.”
He identified the papers sought as follows:
i) Copy sealed copy of the application for a public law order.
ii) Interim and final threshold document containing findings sought by HCC against the parents.
iii) Initial and final social work statements.
iv) Expert assessments including ISW assessments.
v) Initial and final analysis and recommendations of the children's guardian.
vi) Copy sealed application for a placement order (if applicable).
vii) Statements of facts.
viii) Redacted annex b report.
ix) Guardian report.
x) Transcribed judgment.
It will be noted that this list embraces, to all intents and purposes, almost all the key documents in the case, other than those emanating from the parents; that, except for (viii), there is no suggestion that any of the documents should be redacted in any way; and that no limitations of any kind are suggested on the use or publication of any of the documents, whether in whole or in part, nor are any protective safeguards proposed.
On 31 May 2017, Judge Black refused, pursuant to FPR Rule 27.11(2)(g), an oral application by Mr Green to observe the final hearing of the care proceedings.
The hearing before me was on 22 June 2017. HCC was represented by Miss Nadia Tawfik, Mr Green by Miss Maureen Obi-Ezekpazu, the mother by Miss Helen Khan, and the children's guardian by Ms Rosein Magee. The father was present in person. Broadly speaking, the mother and the children's guardian supported HCC; the father supported Mr Green. In a statement dated 12 June 2017 he said: “I and my family have suffered grave injustice in these proceeding. I fully support the application of Mr Green for documentation and to report on this case.”
Given its contents, it would be wholly inappropriate, and indeed counter-productive, for me to set out or even summarise the Article. For present purposes it suffices to make three observations:
i) First, it is perfectly obvious that the Article contains much information and material culled from the care proceedings. Indeed, it explicitly refers to “documents we have seen”, quotes at length from a judgment given by Judge Black, the publication of which had not been authorised by the judge (it does not appear, for example, on the BAILI website) and also quotes from “a report prepared by” an HCC social worker.
ii) Secondly, it refers – inaccurately according to HCC – to certain of A's behaviours and actions in a way that A would undoubtedly find distressing. In relation to this (the impact on the children) there is much concerning material in a witness statement filed on behalf of HCC which it would not be appropriate even to summarise in a public judgment,
iii) Thirdly, although none of the family is identified, it refers to other distinctive and unusual aspects of A's life in a way which would very significantly increase the likelihood of readers being able to identify precisely who A is.
It is perfectly obvious that, on the face of it, the publication of the Article on the internet was a contempt of court. The effect of section 12(1)(a)(ii) of the Administration of Justice Act 1960 is that, unless a judge has previously give permission, it is a contempt of court (see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 58) to publish:
“'information relating to proceedings before any court sitting in private … where the proceedings … are brought under the Children Act 1989.”
As set out in Re B, para 82(vi):
“Section 12 prohibits the publication of:
(a) accounts of what has gone on in front of the judge sitting in private;
(b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);
(c) extracts or quotations from such documents;
(d) summaries of such documents.
These prohibitions apply whether or not the information or the document being published has been anonymised.”
Mr Green's prima facie contempt of court is aggravated by his posting after the hearing before Judge Black on 2 May 2017 of the Second Article, itself breaching section 12, though less flagrantly.
I add that Mr Green's lengthy final witness statement dated 25 May 2017 (which is expressly stated to supersede his earlier statement) contains much detail about his involvement in the reporting of other family court proceedings but has surprisingly little to say about this case. He complains that “the freedom of the Press has been severely, unreasonably limited by the court by its order of 8 th May 2017.” He makes various legal submissions, saying that “In my mind there is a clear...
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