Clayton v Clayton
| Jurisdiction | England & Wales |
| Judge | the President,Lord Justice Wall,The President,Lady Justice Arden |
| Judgment Date | 27 June 2006 |
| Neutral Citation | [2006] EWCA Civ 878 |
| Docket Number | Case No: B4/2005/2321 & 2322 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 2006 |
[2006] EWCA Civ 878
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
CARDIFF DISTRICT REGISTRY
Mr Justice Hedley
Royal Courts of Justice
Strand, London, WC2A 2LL
The President
Lady Justice Arden Dbe and
Lord Justice Wall
Case No: B4/2005/2321 & 2322
ZM04P00019
Mr James Price QC and Mr Adam Wolanski (instructed by Lyons Davidson Solicitors) for the Appellant
Mr Brian Jubb (instructed by CAFCASS Legal) as Advocate to the Court
Sir Mark Potter, P :
Introduction:
This is an appeal, brought by permission of Wall LJ, against orders of Hedley J made in the course of Children Act proceedings and dated 9 November 2004 and 11 August 2005. Those proceedings concerned the upbringing of C, the only daughter of the appellant father and the respondent mother who was born on 28 December 1998 and is now aged 7. The proceedings were concluded on agreed terms recorded in the order of 11 August 2005. The father's appeal relates to an injunction granted by Hedley J as part of that order, by which the judge continued an injunction (opposed by the father) earlier granted in the course of the proceedings on 9 November 2004 restraining the father from publishing various matters concerning C. The injunction was stated to be effective until C's eighteenth birthday in 2016.
Background:
The parties were married in 1997. They separated in spring 2000 and thereafter shared the care of C. In September 2002 the mother commenced proceedings for contact and residence orders in respect of C. During those proceedings, and before they could be resolved at a hearing, the father abducted C, removing her from the jurisdiction to Portugal without the knowledge or consent of the mother, travelling and living there in a camper van and concealing their whereabouts. The case attracted considerable publicity including regional and national television coverage when, on the advice of the police, the mother and the local police made a public appeal for information concerning the whereabouts of the father and C. After an absence of some 5 1/2; weeks, the appellant was arrested and imprisoned in Portugal where he remained for some 2 months. On his return to England he was remanded in custody and sentenced to 9 months imprisonment on a plea of guilty to child abduction. He was released after serving 6 months of that sentence in December 2003. A half hour BBC documentary covering the events called "Simon says" was broadcast in January 2004.
Some 4 months after his release from prison, the father was able to resume contact with C by order of the court in the Children Act proceedings.
In November 1994 the mother received a copy of an e-mail sent by the father to a BBC reporter on 15 October 2004 indicating the intention of the father, (1) based on the experience of his own case and in the proceedings to date, to publicise and discuss delays in obtaining Legal Aid and the whole care proceedings process and criticisms of the services of CAFCASS; (2) to revisit Portugal in the near future to make a video diary retracing his steps with C during their time together in Portugal ending in his imprisonment, for which purpose he was requesting supply of a camera with a view to his supplying any "good footage" to the media.
At that time, the Children Act proceedings were standing adjourned part-heard from 6 October 2004, with the hearing due to resume on 10 November 2004 in the Merthyr Tydfil County Court. However, upon application by the mother for an injunction to restrain the father in terms which appear below, her application was directed to be heard before Hedley J then sitting at Chester.
The father did not attend the hearing, explaining by letter to the judge that he felt obliged to prepare for the resumed hearing of the Children Act proceedings on the next day. However, on the basis of the mother's counsel's submissions that the e-mail indicated that the father was contemplating publication of the details of his case and of information in respect of C's upbringing and care while the proceedings were still current, and that his likely disclosures would include matters live before the County Court in dealing with the residence and contact applications, Hedley J made an order restraining the father until C's 18 th birthday or until further notice:
"[2]… from discussing or otherwise communicating (otherwise than for ordinary domestic and social purposes) any matter relating to the education, maintenance, financial circumstances or family circumstances (including any proceedings before any court) of …. [C]… ("the child") other than with:
(a) any legal adviser whom he may consult or instruct;
(b) the other parties;
(c) the medical and educational advisers of the child;
(d) any person to whom information is communicated for the purpose of enabling the person to exercise any function in relation to the child which is authorised by Statute or by a court of competent jurisdiction; and
(e) any other person the court may permit;"
The order went on to state:
"[3] Nothing in this Order shall of itself prevent … [the father].. from:
(a) discussing, communicating or publishing any matter relating to any part of the proceedings before any court other than a court sitting in private; and
(b) discussing or communicating or publishing ("disclosing") anything which at the date of the disclosure by that person has been disclosed (whether inside or outside the jurisdiction of the court) in any newspaper or other publication or through the internet or any other broadcast or electronic medium to such an extent the information is in the public domain (other than in a case where the only disclosure was made by that person)."
Liberty to apply on 48 hours' notice was granted to the parties or any person affected by the order.
The father did not take advantage of the liberty to apply expressly granted by the judge. However, in July 2005, after a contested hearing before the District Judge, the proceedings were transferred for final disposition to the High Court, where it returned before Hedley J. The father was in person, the mother was represented by leading counsel Mr Anthony Kirk QC, and C was separately represented by counsel through NYAS, who acted as C's Guardian. Agreement was reached as to the disposal of the Children Act proceedings without the necessity for a hearing. After lengthy negotiations, in respect of which the father paid a warm and unsolicited tribute to Mr Kirk for the way in which such negotiations had been facilitated, both parents effectively consented to the discharge of all previous orders and the subsequent withdrawal of all applications for orders under the Children Act on the basis of the concept of a "shared care" arrangement which acknowledged the importance to the child of a number of matters set out in the second schedule to the order. Hedley J was approving of the approach adopted by the parents in the case to the extent that he adjourned the case into open court for judgment in anonymised form, so that publicity could be given to that approach and the terms of the "shared care" arrangements, in the hope that it might recommend itself to others as a basis for discussion and negotiation. For this purpose he incorporated into his judgment the shared care arrangements and the matters set out in the second schedule in anonymised form. So far as I am aware, Hedley J's judgment has not, to date, been reported.
However, the parties were not agreed on the question of the continuation or discharge of the injunction earlier granted in the terms set out above and, indeed, prior to the hearing, the father had given notice of application to discharge it. The father wanted the injunction lifted in its totality; C's guardian wanted it to continue in its totality, whilst the mother was agreeable to some publicity for the order provided that the child was not identified. Counsel for the NYAS Guardian considered that, in the light of the contrary arguments, the application to discharge the injunction should be adjourned on appropriate directions. The father indicated his disagreement. The judge made clear that he would hear the father and, if evidence were required, he would not deal with the matter that day. In the event he did not require further evidence.
The Judgment of Hedley J
Hedley J dealt with the matter succinctly in a written judgment dated 26 July 2005
"7… [the father] essentially advanced two reasons for discharge: first, that he lived in a small community where this story was well-known and indeed it had received some national publicity and he wished to be able to say how it had ended; and secondly, that [the father] was also engaged on behalf of other fathers who wished to be able to show others the order and to commend the approach that had given rise to it.
8. The Guardian shared [the mother's] concern that the child should not be identified but advanced the view that in this case that could only be achieved by continuation of the injunction. In this case the rights of free speech under Article 10 and the rights to private life under Article 8 are all engaged and cannot each be wholly accommodated. I am particularly sympathetic to concerns that this order and the approach upon which it is based should be available widely and to concerns that this child's identity should be safeguarded so that the child can have peace. That peace should not be the price of A's freedom of speech. I was referred briefly to authority including S (Identification: Restrictions on Publication) [2005] IFLR 591 HL. In my view the relevant factors are adequately set out above so as to...
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