H v A (No.2)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice MacDonald,Mr Justice MacDonald,H,A |
| Judgment Date | 17 September 2015 |
| Neutral Citation | [2015] EWHC 2630 (Fam) |
| Docket Number | Case No: MA14P01452 |
| Court | Family Division |
| Date | 17 September 2015 |
[2015] EWHC 2630 (Fam)
The Honourable Mr Justice MacDonald
Case No: MA14P01452
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tughan QC for the Applicant
The Respondent did not appear and was not represented
(The names of instructing solicitors have been omitted to protect the anonymity of the parties)
Hearing date: 23 July 2015
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.
This judgment was delivered in private. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition always that (a) the names and (b) the current address or present whereabouts of the Applicant and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and current address or present whereabouts of the Applicant and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
INTRODUCTION
This application arises out of a judgment I delivered earlier this year in the family court in the case of H v A [2015] EWFC 58 (Fam). Following the handing down of that judgment I concluded that it fell within the terms of Paragraph 16 of the President's Practice Guidance of 16 January 2014 entitled Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733, which provides that permission should always be given to publish a judgment where the judge concludes that publication would be in the public interest.
In the circumstances, and having requested that counsel for the parties provide proposals as to the appropriate level of anonymisation of the judgment, and counsel having indicated that no anonymisation was sought beyond the anonymisation of the names of the children, the parties and their solicitors, the judgment was placed on the British and Irish Legal Information Institute (Bailii) website in accordance with Paragraph 23 of the aforementioned Practice Guidance.
Following the judgment being placed on the Bailii website Mr Brian Farmer, the Press Association reporter based at the Royal Courts of Justice, alerted me via my Clerk that it was possible using certain of the facts set out in my judgment (which facts were already in the public domain) as search terms to identify the name of the family in this case by means of information available on the Internet. Specifically, an Internet search conducted by reference to those facts revealed a number of press reports concerning the circumstances surrounding the criminal convictions of the father, which criminal convictions formed the foundation for my judgment in the family proceedings. Those press reports named the father (and therefore, by extension, the family) and identified the address of the former family home. At least one of the press reports concerning the criminal proceedings gave the full name of one of the children of the family by reference to an unrelated incident.
Mr Farmer was concerned that he had managed to work out the parties' details from the facts contained in my judgment in very short order and considered that he should notify the court in light of what he considered to be a potential means of ascertaining the current whereabouts of the children and the mother. I agree with Mr Tughan QC, who at this hearing appears on behalf of the applicant mother, that the steps taken by Mr Farmer to alert the court to his concerns constituted responsible journalism of a very high order.
As a result of Mr Farmer's communication I requested that Bailii, and a number of other legal websites on which my judgment had been placed or had featured, remove the judgment and invited further submissions by the parties. All sites agreed to remove the judgment (albeit that, by reason of an administrative omission, one site left the judgment up for a number of weeks following the request being made). By the time the concerns regarding the judgment became apparent a number of stories concerning these family proceedings had appeared in the press, although none identified the family.
Following the court inviting further submissions from the parties in light of the events described above the Applicant lodged an application dated 22 July 2015. The matter now comes before me for consideration and determination of two interrelated questions raised by that application, namely:
i) Whether my substantive judgment should be placed back on the Bailii website in its current form in circumstances where I remain satisfied that it is in the public interest for it to be published or, as the applicant now seeks, remain unpublished or be published only in a heavily redacted format?
ii) Should I, as the applicant now seeks, in any event make a reporting restriction order prohibiting the publication of the identity and whereabouts of the mother and children and any information likely to identify them or their whereabouts and without the standard 'public domain' proviso?
The determination of these interrelated questions highlights the wider issue of the risk of so called 'jigsaw identification' in cases where the judgment of the family court has been made public. In particular, this case highlights the issue of 'jigsaw identification' in family cases where there has been prior press reporting of related criminal proceedings that remains readily accessible to the public on the Internet provided one has the appropriate terms to type into a search engine, which Internet search terms can be gleaned from the facts set out in the judgment of the family court even where that judgment is published in a form which anonymises the details of the family.
Within this context there has also been some discussion during the course of submissions in this case concerning the rubric indicating the ambit of permitted publication that appears on the front of judgments placed on Bailii, and the effect of that rubric in family cases in which there have been prior criminal proceedings that have been the subject of reports in the media. I address this issue further below.
The father has been given notice of this hearing and of the mother's application for a reporting restriction order. Ahead of this hearing the court was informed by the father's solicitors that the father had given no instructions with respect to this application and that they were without funds.
The press has likewise been given notice of this hearing in the ordinary way. I have had the benefit of hearing from Mr Farmer with respect to some of the difficulties that arise for the press in circumstances where family proceedings follow criminal proceedings arising out of the same facts, which facts have already been the subject of extensive reporting in the media.
Given the relative complexity of the issues raised by this application, having heard submissions on 23 July 2015 I reserved my judgment.
BACKGROUND
By reason of the decision that I have reached regarding the two questions that fall for determination as a result of the mother's application the background to this case can be gleaned from my original judgment, which judgment will be published in its original form, accompanied by a reporting restriction order in the terms dealt with at the conclusion of this judgment. In summary however, the background to the current application is as follows:
i) The mother and the father of the children were married and the father shares parental responsibility for the children;
ii) The father was convicted of a series of grave criminal offences arising out of his repeated attempts to do grievous harm to the mother and the children and was, as a result, ultimately given a discretionary life sentence;
iii) By reason of the level of ongoing risk of harm the father has been assessed by the criminal court as posing to the mother and the children, the mother made applications to this court with a view to terminating the father's parental responsibility for the children;
iv) Whilst the mother sought, by her original application, to terminate the father's parental responsibility for the children, this remedy was not open to her in law by reason of the manner in which the father acquired his parental responsibility for the children;
v) In the alternative, the mother sought to proscribe the exercise by the father of his parental responsibility for the children for the remainder of their minority by means of a prohibited steps order under s 8 of the Children Act 1989 and orders under the inherent jurisdiction of the High Court;
vi) At a hearing before me the parents reached a level of agreement as to the extent of the proscription to be applied to the exercise of the father's parental responsibility. They were unable however to reach agreement on the issue of whether the father should receive anonymised reports from the children's school detailing the children's respective academic progress;
vii) Having regard to the best interests of each child as my paramount consideration and applying the welfare checklist, and in circumstances where I was satisfied that there was a systemic risk of mistaken disclosure inherent in the provision of anonymised documents to the father from the children's school, I came to the conclusion that it was in the children's best interests for the father to be prohibited from receiving such reports from the children's school;
viii)...
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