Ebk v Dlo
| Jurisdiction | England & Wales |
| Neutral Citation | [2023] EWHC 1074 (Fam) |
| Year | 2023 |
| Court | Family Division |
2023 April 25; May 5
Contempt of court - Committal application - Family proceedings - Claimant seeking permission to bring contempt proceedings - Alleged contempt committed by defendant by disclosure of documents deriving from family proceedings to police - Whether prohibition on disclosure applying where person seeking police protection from harassment - Whether permission to bring contempt proceedings to be granted -
The claimant father applied under FPR r 37.3(3)F1 for permission to bring proceedings against the defendant, his former partner and the mother of his child, for contempt of court consisting of breach of section 12 of the Administration of Justice Act 1960F2. The basis of the claim was an allegation that, after the defendant had made a complaint of harassment against the claimant, police officers, who were not specialist officers working in furtherance of child protection, had visited the defendant at her home, at which meeting the defendant had disclosed documents which derived from concluded proceedings under section 8 of the Children Act 1989F3.
On the application for permission—
Held, refusing permission to bring contempt proceedings, (1) that disclosure of documents which related to family proceedings was generally proscribed by section 12 of the Administration of Justice Act 1960 although that general proscription was disapplied in many circumstances by rules of considerable complexity; that a consideration of the case law, FPR rr 2.73, 12.75, and PD 12G led to the conclusion that, although a party had the right to disclose to a specialist police officer working in furtherance of child protection any information about the section 8 proceedings, disclosure to a non-specialist police officer would fall outside that freedom, be a breach of section 12 and thus a contempt; that it followed that the disclosures by the defendant amounted to a contempt; but that the seriousness of the breach was mitigated by the fact that, were such a disclosure to have been made by a party to a specialist police officer or by the CAFCASS officer to a non-specialist police officer, it would not have amounted to a breach (post, paras 32, 55).
(2) That there was a qualitative difference between, on the one hand, a misguided unlawful disclosure to the police in furtherance of seeking personal and child protection measures and, on the other, sending all the papers to a journalist or putting them up on social media platforms in order to harm the other party or to denigrate the legal system, and that difference was properly to be reflected in the permission decision; that when applying the permission test the strength of the case, public interest, proportionality and the overriding objective were of relevance; that relevant factors in the present case were that, inter alia, (i) the defendant would not have been in breach had she made the disclosure to specialist police officers, (ii) the claimant father did not seek any sanction against the defendant beyond an admonishment, (iii) the disclosure had been made by the defendant when seeking the assistance of the police for herself and the child and the ability of people in the position of the defendant to seek the assistance of the police ought not to be unduly inhibited by the spectre of facing contempt proceedings, (iv) it was not proportionate to allow the claimant to pursue the defendant for breach of section 12 where he himself had been guilty of doing the same thing, and (v) it would not be fair and just for contempt proceedings to go ahead on the footing that, whatever the result, the claimant would not be identified while the defendant, on a formal finding of contempt being made against her, would be named in open court; and that, in those circumstances, permission to bring contempt proceedings would be refused although the defendant would be admonished for her breach of section 12 of the 1960 Act (post, paras 75, 103–126).
Per curiam. (i) As it is absolutely forbidden for the defendant to show the (non-specialist) police officers any documents from the proceedings, other than judgments or orders, if she wants to do more then she needs to obtain an order from the court allowing it (post, para 125).
(ii) It is hard to understand why this aspect of the law of contempt, which, given its nature, should be as straightforward and transparent as possible, appears to be so arbitrary and bereft of logic. It is respectfully suggested that the Rule Committee needs to take a serious look at the Byzantine rules covering what parties can lawfully disclose to the police. Parties to section 8 proceedings seem to be forced to walk across a minefield of potential contempts and crimes if they seek the assistance of the police while the proceedings are ongoing. It is unacceptable that something so important should be so obscure, impenetrable, arbitrary and illogical. The position whereby the 2015 Practice Direction continues in existence in Family Division, Family Court and Court of Protection committal proceedings but not in King’s Bench Division or County Court committal proceedings is equally obscure and bizarre, and likewise needs to be looked at urgently (post, paras 55,129, 130).
APPLICATION
On 5 December 2022 the claimant, EBK, filed an application in the Family Division of the High Court seeking permission to bring contempt proceedings against the defendant, DLO. The application alleged that, after the defendant had made a complaint of harassment against the claimant, police officers, who were not specialist officers working in furtherance of child protection, had visited the defendant at her home at which meeting the defendant had disclosed documents which derived from concluded proceedings under section 8 of the Children Act 1989, in breach of section 12 of the Administration of Justice Act 1960. The Chief Constable of West Yorkshire Police was joined as an interested party.
The facts are stated in the judgment, post, paras 3–30.
The hearing was held in private and is reported with permission of the judge on condition that the anonymity of the child and the parents be strictly preserved.
The claimant in person, assisted by a McKenzie friend.
Melissa Millin (instructed by Watson Ramsbottom, Blackburn) for the defendant.
Robert Cohen (instructed by Head of West Yorkshire Police Legal Services, Wakefield) for the interested party.
Brian Farmer of PA Media also attended.
The court took time for consideration.
5 May 2023. MOSTYN J handed down the following judgment.
1 In this judgment:
“the 1989 Act” is a reference to the Children Act 1989;
“section 8 proceedings” is a reference to proceedings for a child arrangements order applied for under section 8 of the 1989 Act;
“section 97(2)” is a reference to section 97(2) of the 1989 Act;
“the 1960 Act” is a reference to the Administration of Justice Act 1960; and
“section 12”, “section 12(1)” and “section 12(2)” are references to section 12, section 12(1) and section 12(2) of the 1960 Act.
2 This is my judgment on the reconstituted application by the claimant dated 5 December 2022 for permission to bring contempt proceedings against the defendant, his former partner and mother of his child, for breach of section 12 on 11 August 2020 by showing documents to officers of the Interested Party, the West Yorkshire Police (“the police”) which derived from ongoing section 8 proceedings.
The background3 The claimant is 28 years old and he is a serviceman in the Royal Marines. The defendant is 37 years old and is a specialist neurological physiotherapist. The parties began a relationship in early 2016. They have a child together, N, who is 5 years old. The defendant also has two older children from a previous relationship, aged 13 and 12.
4 The parties separated in November 2017. On 24 November 2017, the defendant applied for an ex parte non-molestation order which was made on the same day, in relation to an incident on 12 November 2017 when she had reported domestic abuse to the police. At the return hearing the order was directed to remain in place until 24 November 2018.
5 In December 2017, the claimant sought contact with N and made a C100 application for a child arrangements order. A finding of fact hearing took place on 26 and 27 March 2018 before District Judge Barraclough sitting in Huddersfield to determine the defendant’s allegations of domestic abuse. Judgment was given on 9 April 2018. Out of 17 allegations before the court, four were not proven, three fell away through the claimant’s admissions to the court and ten allegations were found proven. Those proven allegations “did not necessarily amount to domestic abuse”; that was as far as the judge was willing to go in his findings.
6 The judge concluded that his findings should not stand in the way of the claimant’s relationship with his child but that the safety of the defendant and child must be assured. The court therefore ordered the claimant to be referred to a Domestic Abuse Perpetrator Programme (“DAPP”) and for CAFCASS to carry out the referral by 2 May 2018. On 18 September 2018, the claimant was referred to DAPP and on 27 September 2018, the DAPP provider assessed the claimant as unsuitable for DAPP for three reasons: first, that...
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Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings)
...appeal, I have been referred to my own judgment in Sunderland City Council v Macpherson [2023] EWCOP 3, and the decision of Mostyn J in EBK v DLO [2023] EWHC 1074 (Fam). Mostyn J's judgment was on an application for permission to bring contempt proceedings for breach of s. 12 of the Admini......