G (Child)
| Jurisdiction | England & Wales |
| Judge | THORPE LJ,THE PRESIDENT |
| Judgment Date | 28 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1055 |
| Docket Number | B1/2003/1292 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2003 |
[2003] EWCA Civ 1055
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE IAIN HAMILTON)
Royal Courts of Justice
Strand,
London WC2A 2LL
The President
Lord Justice Thorpe and
Lord Justice Rix
B1/2003/1292
ROBIN SPON-SMITH (instructed by Bar Pro Bono Unit) appeared for the appellant father.
KATHRYN M KOROL (instructed by Messrs Green & Co of Manchester M3 2WJ) appeared for the Guardian Ad Litem.
HEATHER HOBSON (instructed by Messrs Glaisyers of Manchester M13 0SH) appeared for the mother.
HEATHER MACGREGOR (instructed by CAFCASS Legal) appeared as advocate to the court.
There have been long running proceedings in the Manchester County Court between the parents of AG born on 3 July 1996. The central issue has always been contact, or rather lack of contact, between AG and her father Mr B. I will refer to him throughout this judgment as the father. His Honour Judge Hamilton has had charge of the case for some time. There was a major hearing commenced on 10 March 2003, in preparation for which Judge Hamilton had given directions in November 2002 and January 2003. At the conclusion of the March hearing Judge Hamilton reserved his decision, handing down a written judgment on 2 May 2003. Paragraph 3 of the resulting order reads as follows:
"The father is prohibited from disclosing in any manner any papers or documents filed in these proceedings or their content or any school reports he may obtain to either Dr Richard Gardner or Dr Ludwig Lowenstein or any other expert in parental alienation syndrome or any other agency or organisation such as Families Need Fathers without the specific permission of the court."
By paragraph 7 of the order a penal notice was attached to paragraph 3.
The father, as a litigant in person filed a notice of application in the Civil Appeals Office seeking permission to appeal.
The papers were referred to me and on 11 June I ordered an oral hearing on notice with appeal to follow if permission granted limited to the restriction in paragraph 3 of the order below on disclosure to 'any other agency or organisation such as Families Need Fathers …'. On 24 June the President ordered that CAFCASS Legal Services be invited to appoint an Advocate to the Court at the oral hearing.
The father was referred to the RCJ Advice Bureau where he received great assistance from Mr Alexander Mercouris. Amongst other things Mr Mercouris secured for the father representation through the Bar Pro Bono Unit.
Finally notice of the oral hearing was given to Families Need Fathers to enable them to give their views to the Advocate to the Court and also to make written submissions.
Thus at the hearing on 1 July the father was represented by Mr Spon-Smith, the mother by Ms Hobson, who appeared in the court below, and the guardian ad litem for AG by Miss Korol. CAFCASS Legal instructed Mrs Heather MacGregor as advocate to the court. Helpful written submissions were received from Families Need Fathers.
Before turning to the various submissions I would wish to record the extent to which these preliminary arrangements have borne fruit. Mr Spon-Smith, given the fact that he appeared for CAFCASS in the case of Re M [2002] EWCA Civ 1199, [2002] 3 FCR 208, could not have been a more discriminating choice on the part of the Pro Bono Unit. The assistance that we received from Mr Spon-Smith at the hearing was of the highest order. He put the father's case succinctly, persuasively and always powerfully. Without that presentation it would have been impossible for the court to have concluded the oral argument within the only available date for the constitution.
Equally significant was the assistance given by Mrs MacGregor. As well as presenting well prepared and carefully considered submissions on the law she devoted the lunch-hour to taking soundings from the representative of Families Need Fathers and from the RCJ Advice Bureau.
Miss Hobson made a valuable contribution as the only counsel to have appeared below and she and Miss Korol achieved considerable economy by discussing their respective positions in advance and adopting submissions wherever possible.
Finally thanks to their written submissions a clearer picture emerged of the nature and extent of the services provided by Families Need fathers to its members and the extent to which those services depend upon open communication.
I turn now to counsel's submissions. Mr Spon-Smith at once acknowledged that the judges of the Family Division possess a wide ranging inherent jurisdiction that can be deployed in the truly exceptional case, as an illustration of which he cited Thompson and Venables v News Group Newspapers Limited & Ors [2001] 1 FLR 791. No one disputed that the present appeal (for permission was granted at the hearing) does not begin to approach that territory.
Accordingly Mr Spon-Smith submitted that in bitterly contested cases, sadly all too common, the welfare of children is well protected by general provisions of primary and secondary legislation. Those provisions are respectively section 12 of the Administration of Justice Act 1960, section 97(2) of the Children Act 1989 and Rule 4.23(1) of the Family Proceedings Rules 1991.
Since these are the legislative provisions that determine the outcome of this case it is convenient to set out their relevant parts at this stage of my judgment.
The relevant provisions of the Administration of Justice Act 1960 are as follows:
"12. Publication of information relating to proceedings in private
(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –
(a) where the proceedings –
(ii) are brought under the Children Act 1989"
The relevant section in the Children Act 1989 is:
"97. Privacy for children involved in certain proceedings
(2) No person shall publish any material which is intended, or likely, to identify –
(a) any child as being involved in any proceedings before [the High Court, a county court or] a magistrates court in which any power under this Act may be exercised by the court with respect to that or any other child; or
(b) an address or school as being that of a child involved in any such proceedings.
(3) In any proceedings for an offence under this section it shall be a defence for the accused to prove that he did no know, and had no reason to suspect, that the published material was intended, or likely, to identify the child.
(4) The court or the [Lord Chancellor] may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order.
(5) For the purposes of this section –
'publish' includes –
[(a) include in a programme service (within the meaning of the Broadcasting Act 1990;] or
(b) cause to be published; and
'material' includes any picture or representation.
(6) Any person who contravenes this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale."
Rule 4.23 provides as follows:
"4.23 Confidentiality of documents
(1) Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to –
(a) a party,
(b) the legal representative of a party,
(c) the guardian ad litem,
(d) the Legal Aid Board, or
(e) a welfare officer,
without leave of the judge or district judge."
Mr Spon-Smith's first submission was that, given the wide-ranging restrictions provided by the legislation and the resulting protection, additional and specific provisions, such as those enunciated by the judge in paragraph 3 of his order of 2 May 2003, were quite unjustified.
His second submission was that the two statutes prohibited either publication or publishing. That meant, according to the Shorter Oxford English Dictionary some public notification or announcement. That prohibition certainly did not extend to limited confidential exchanges to private individuals or organisations with whom a party has a proper interest in communicating. Although the rule was more widely drawn in that it prohibits any disclosure it is narrower in that it relates only to documents.
Third Mr Spon-Smith submitted that the list of individuals or bodies excepted from the prohibition imposed by Rule 4.23 was too narrowly drawn and clearly acted to the prejudice of a litigant in person who could not seek advice as a parent or aid in presenting his case to the court without either suffering a significant handicap or being forced to make an application to a judge or district judge for release from the rule's restriction.
Finally Mr Spon-Smith submitted that even if Judge Hamilton had the jurisdiction to restrain the father's communication with an association the words of the order, 'any other agency or organisation such as Families Need Fathers …' was too imprecise to be enforceable.
Miss Hobson for the mother accepted that paragraph 3 could not stand as drafted and she adopted Mrs MacGregor's submissions. She submitted that paragraph 3 should be replaced with a form of order approved by this court in its recent decision of Re G [2003] 2 FCR 231. Miss Hobson pointed out that the father had not attended the hearing on 2 May which would have allowed Judge Hamilton to consider any objection to the form of order proposed.
...To continue reading
Request your trial
-
Re O (children) (representation: McKenzie friend); Re W-R (A Child) (representation: McKenzie friend); Re W (children) (representation: McKenzie friend)
...Hicks (1831) 2 B & Ad 663, 109 ER 1290. Dombo Beheer BV v Netherlands (1993) 18 EHRR 213, ECt HR. G (a child) (litigants in person), Re[2003] EWCA Civ 1055, [2003] 2 FLR 963. G (chambers proceedings: McKenzie friend), Re [1999] 1 WLR 1828, [1999] 2 FLR 59, CA. H (McKenzie friend: pre-trial ......
-
Real Estate Opportunities Ltd v Aberdeen Asset Managers Jersey Ltd
...had been communicated to the member of the public without inhibiting its further distribution to the public. Mr Howard further relied on Re G [2003] 2 FLR 963, a decision of this Court on the meaning of “publish” in section 97 of the Children Act 1989. This court gave the word its meaning i......
- A v Payne and Williams