A London Borough v RB (by her litigation friend the Official Solicitor) and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby: |
| Judgment Date | 18 November 2011 |
| Neutral Citation | [2011] EWHC 3017 (Fam) |
| Court | Family Division |
| Date | 18 November 2011 |
| Docket Number | Case No: FD02P01268 |
[2011] EWHC 3017 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Munby
(Sitting as a Judge of the Family Division)
Case No: FD02P01268
In the Matter of RB (Adult) (No 4)
No hearing
Both before and since my appointment to the Court of Appeal I have been hearing proceedings in the Family Division concerning an adult, referred to as RB, who lacked capacity (she has since died). Although the proceedings were begun in the Family Division, prior to the Mental Capacity Act 2005, and have since quite properly continued there, they are of a type that would now be commenced in the Court of Protection. I have, of course, been exercising the inherent jurisdiction of the High Court in respect of incapacitated adults.
Throughout the litigation there have been three protagonists: the claimant, a local authority referred to as "A London Borough"; RB, acting by her litigation friend the Official Solicitor; and RB's partner, referred to as MF
In the course of the proceedings I have given three judgments: the first, on 30 September 2010, following the final hearing: Re RB (Adult) [2010] EWHC 2423 (Fam): the second, on 28 January 2011, explaining why I refused MF's applications for a re-trial and/or permission to appeal: Re RB (Adult) (No 2) [2011] EWHC 112 (Fam); the third, on 11 October 2011, dealing with costs: Re RB (Adult) (No 3) [2011] EWHC 2576 (Fam). In relation to each of these judgments there are four things to be noted; first, that the heading in each case included the words "In Private"; second, that each judgment was handed down in private (in chambers); third, that I deliberately omitted the rubric on the front sheet which, with minor variations, is conventionally attached to Family Division judgments authorised to be released for publication or report; 1 fourth, that, so far as I am aware, none of the judgments has yet been published or reported, whether on BAILII or elsewhere.
Following the handing down of the third judgment my clerk received a message from the Official Solicitor's office inquiring whether I had approved the judgment for publication, followed shortly after by the following email from one of the Official Solicitor's lawyers:
"It seems to me that the judgment contains some useful guidance on costs which may be of assistance to those dealing with COP H&W cases. However clearly this is a matter for his Lordship. If it is to be published it may need to be further anonymised."
On my instructions my clerk sent the following reply, copied to the other parties:
"Lord Justice Munby … has not been asked by anyone to release either this or his two previous judgments for publication and has not done so. Nor has he been asked to make or made any order prohibiting publication.
He notes your comment that "clearly this is a matter for" him, but wonders whether this is so. This was a case in the Family Division under the inherent adult jurisdiction (not in the Court of the Protection). Accordingly neither section 12(1)(a) nor section 12(1)(b) of the Administration of Justice Act 1960 would seem to apply. The judge is not aware of any other provision regulating the publication of such a judgment, unless there is something to this effect in the Family Procedure Rules 2010.
Could you perhaps discuss this with the other parties and find out (i) what their views are about the desirability of publication, (ii) what their views are about the need for (or desirability of) any judicial order or decision on the point, and (iii) what their views are about the need for any further anonymisation.
I look forward to hearing from you in due course."
MF's response was to ask my clerk: "Will you please tell me if I can take the contents of the Judgment to The Press?" The Official Solicitor has indicated that he does not seek any direction or order. Nor does anyone else.
Plainly I cannot give the parties any advice, nor have I done so. I can, however, as it seems to me, usefully explain two things: why I deliberately omitted the rubric from my previous judgments (as also from this judgment); and why I directed my clerk to write as he did.
In the absence of any relevant statutory restriction, it is not a contempt of court to publish or report a judgment (whether in whole or in part) merely because it was given or handed down in private (in chambers) and not in open court: Forbes v Smith [1998] 1 All ER 973 and Hodgson and Others v Imperial Tobacco Ltd and Others [1998] 1 WLR 1056. Exactly the same principle applies in the Family Division: Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261.
The publication or reporting of the proceedings, and therefore the publication or reporting of judgments, in cases in the Family Division involving children, is subject to the restrictions in section12(1)(a) of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989. But none of these restrictions apply to cases in the Family Division involving adults. Nor does section 12(1)(b) of the 1960 Act apply to such cases. For section 12(1)(b) applies only to:
"proceedings … brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or a county court."
Section 12(1)(b) accordingly applies to proceedings in the Court of Protection but not to proceedings in the High Court.
The Family Procedure Rules 2010, SI 2010/2955, contain nothing of relevance for present purposes.
In short there is, so far as I am aware, no statutory provision regulating the publication or reporting of judgments given or handed down in the Family Division in proceedings under the inherent jurisdiction in respect of adults. It follows that the...
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