Harris v Harris; Attorney General v Harris
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Year | 2001 |
| Date | 2001 |
| Court | Family Division |
Injunction – Family proceedings – Form of order – No contact order against father in relation to children – Contra mundum and in personam orders – Father continually breaching orders and harassing ex-wife – Whether injunctions should continue.
Human rights – Fair trial – Civil right – Privacy – Family life – Freedom of expression – Injunctions against father contacting ex-wife and children – Father seeking publicity for case – Whether need for publication and judgment in public prevailing over family’s right to privacy – Human Rights Act 1998, Sch 1, Pt 1, arts 6, 8, 10.
The mother and father married in 1986 and had three daughters aged 14, 11 and 9 years. The parents separated in November 1993, when the mother left the matrimonial home, taking the children with her. The family had been involved in contact orders and related disputes since the parents separated. Residence orders in favour of the mother were made in 1993 and 1997. The mother petitioned for divorce, and a decree nisi was made absolute in 1994. In 1997 a no contact order was made against the father on evidence that he had a fanatic and combative personality and had continually harassed the mother and made excessive use of litigation. Injunctions against the father not to harass or interfere with the mother were granted. Subsequently, there were no fewer than 30 incidents which constituted breaches of the injunctions and undertakings by the father. A contra mundum order restraining publication of the details of the children and a further in personam injunction were granted. Furthermore, the father was also made subject to an order under s 91(14) of the Children Act 1989. After his release from prison for contempt, the father embarked on a campaign of disobedience breaching the injunctions in place against him. The court found that the children had suffered a degree of possibly permanent emotional damage as a result of the conflict between the parents, largely due to the father. When the father was granted interim contact with the children for six hours on a monthly basis, the judge advised the father to regard that interim provision as a probationary one. However, when contact took place pursuant to the order, the eldest daughter refused to attend and had not had direct contact with the father since. Dr C, a consultant child psychiatrist, reported on the contact and stated that the father continued to pressurise the children, exactly as he had done before. By an order of March 2000, the court reduced the father’s contact with the younger girls from approximately monthly sessions to sessions six times
a year. The court was of the view that by reason of the contact, there had been a significant deterioration in the emotional welfare of the children. The Official Solicitor, representing the interests of the children agreed that the only form of contact should be indirect contact as recommended by Dr C. Furthermore, there needed to be a period of calm for the children, without the shadow of continued and obsessive litigation. Accordingly, a new order under s 91(14) of the 1989 Act was put into effect to protect the children. In April the father commenced a campaign of protest by demonstrating outside courts and giving interviews to local television. The father later moved his protests to outside the private houses of judges. The private car of Dr C was also vandalised. Inevitably his actions attracted the desired media attention. During that time, contact sessions were arranged but all three children refused to see their father. In January 2001 the court found that various allegations by the mother of contempt by the father were proven. The other matters before the court concerned whether the previous contra mundum and in personam orders should continue and what form any injunctions against the father should take. The father had applied to the court to discharge the injunctions against him. The proceedings raised a number of important issues under arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998), namely the right to a fair trial, the rights to a private and a family life, and freedom of expression.
Held – (1) On the evidence, the emotional strain on the children from having direct contact with the father was harmful and far outweighed any benefit from seeing him. The welfare of the children was best served by there being no direct contact with their father.
(2) It was an elementary principle of justice and fairness that no order should be enforced by committal unless it was expressed in clear, certain and unambiguous language. So far as possible, the person affected should know with complete precision what it was that he was required to do or abstain from doing. It should not be necessary to cross-refer to other material in order to ascertain the full scope of an injunction. In the present case, the need for injunctions to remain in place to protect the mother and the children was overwhelming. Accordingly, the father’s application to discharge the injunctions would be dismissed. However, the multiplicity of injunctions contained in different orders were to be set out in a single order: Ellerman Lines Ltd v Read [1928] 2 KB 144 and Deodat v Deodat (9 June 1978, unreported) applied.
(3) The court could grant an in personam injunction to restrain an act by a parent that if unrestrained would or might adversely affect the welfare of the child. In the exercise of that jurisdiction, the interests of the child were paramount. Those seeking to invoke the inherent jurisdiction of the court had to establish ‘convincingly’ by proper evidence that an injunction was ‘necessary’ in order to protect the child from ‘clear and identifiable harm’. However, a contra mundum
injunction was granted in the exercise of the court’s protective jurisdiction. Any such restraints should not be other than strictly necessary and expressed in the clearest possible terms: Re G (minors) (celebrities: publicity) [1999] 3 FCR 181 and Kelly v BBC [2001] All ER 323 applied.
(4) In granting the orders, it was necessary to hold a proper balance between the public’s right to know, pursuant to arts 6 and 10 of the Convention, and the parties’, and particularly the children’s, rights to privacy and respect for their private and family life, under art 8 of the Convention. The public interest argued strongly in favour of publishing the judgment and the father’s name, and thus inevitably linking the story to his unnamed children. However, the children’s own best interests would be furthered by the public being told the truth and by the media publishing the story. When the balance of advantage and disadvantage to the children was set alongside the clear public interest in making the judgment publicly available, the overall balance was in favour of publication: A-G v Guardian Newspapers Ltd [1987] 3 All ER 316 applied.
Cases referred to in judgmentA (a minor) (contact: parent’s application for leave) [1999] 1 FCR 127, [1998] 1 FLR 1, CA.
A-G v Guardian Newspapers Ltd [1987] 3 All ER 316, [1987] 1 WLR 1248, Ch D, CA and HL.
A-G v Punch Ltd[2001] EWCA Civ 403, [2001] 2 All ER 655, [2001] 2 WLR 1713.
A-G v Staffordshire CC [1905] 1 Ch 336.
A-G v Times Newspapers Ltd[2001] EWCA Civ 97, [2001] 1 WLR 885.
B v B (unmeritorious applications) [1998] 3 FCR 650, [1999] 1 FLR 505.
B v UK[2001] 2 FCR 221, ECt HR.
Barfod v Denmark (1989) 13 EHRR 493, ECt HR.
Bodden v Comr of Police of the Metropolis [1990] 2 QB 397, [1989] 3 All ER 833, [1990] 2 WLR 76, CA.
C (a minor) (wardship: medical treatment) (No 2), Re [1990] FCR 220, [1990] Fam 39, [1989] 2 All ER 791, [1989] 3 WLR 252, [1990] 1 FLR 263, CA.
C (a minor), Re (15 March 1990, unreported), Fam D.
De Haes v Belgium (1997) 25 EHRR 1, [1997] ECHR 19983/92, ECt HR.
Deodat v Deodat [1978] CA Transcript 484.
Douglas v Hello! Ltd [2001] 2 All ER 289, [2001] 2 WLR 992, [2001] 1 FLR 982, CA.
DPP v Jones [1999] 2 AC 240, [1999] 2 All ER 257, [1999] 2 WLR 625, HL.
Ebert v Venvil, Ebert v Birch [2000] Ch 484, [1999] 3 WLR 670, CA.
Ellerman Lines Ltd v Read [1928] 2 KB 144, [1928] All ER Rep 415, CA.
G (minors) (celebrities: publicity), Re[1999] 3 FCR 181, [1999] 1 FLR 409, CA.
Grepe v Loam (1887) 37 Ch D 168, CA.
H (minors), Re [1998] CA Transcript 35.
H (minors), Re [2000] CA Transcript 1089.
Iberian Trust Ltd v Founders Trust & Investment Co Ltd [1932] 2 KB 87, [1932] All ER Rep 176.
Jersild v Denmark (1994) 19 EHRR 1, [1994] ECHR 15890/89, ECt HR.
Kelly v BBC[2000] 3 FCR 509, [2001] Fam 59, [2001] 1 All ER 323, [2001] 2 WLR 253.
Low v Innes (1864) 4 De GJ & S 286, 46 ER 929.
M (s 91(14) order), Re [1999] 2 FLR 553, CA.
M and N (wards: publicity), Re [1990] FCR 395; sub nom Re M and N (minors) (wardship: publication of information) [1990] Fam 211, [1990] 1 All ER 205, [1989] 3 WLR 1136, [1990] 1 FLR 149, CA.
Morris v Crown Office [1970] 2 QB 114, [1970] 1 All ER 1079, [1970] 2 WLR 792, CA.
P (a child) (residence order: child’s welfare), Re[1999] 2 FCR 289, [2000] Fam 15, [1999] 3 All ER 734, [1999] 3 WLR 1164, [1999] 2 FLR 573, CA.
Phonographic Performance Ltd v Tsang CA Transcript 85/187, (1985) LS Gaz 2331, CA.
Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, [1991] 1 All ER 622, [1991] 2 WLR 513, HL.
Prager v Austria (1995) 21 EHRR 1, [1995] ECHR 15974/90, ECt HR.
R (wardship: restrictions on publication), Re[1994] 2 FCR 468, [1994] Fam 254, [1994] 3 All ER 658, [1994] 3 WLR 36, CA.
R v Central Independent Television plc[1995] 1 FCR 521, [1994] Fam 192, [1994] 3 All ER 641, [1994] 3 WLR 20, [1994] 2 FLR 151, CA.
R v Secretary of State for the Home Dept, ex p Simms [2000] 2 AC 115, [1999] 3 All ER 400, [1999] 3 WLR 328, HL.
Redland Bricks Ltd v Morris [1970] AC 652, [1969] 2 All ER 576, [1969] 2 WLR 1437, HL.
Redwing v Redwing Forest Products Ltd (1947) 177 LT 387.
Rochdale BC v BW [1991] FCR 705, [1991] 2 FLR 192.
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