R v Tigipko
| Jurisdiction | England & Wales |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] EWHC 105 (Fam) |
| Date | 2019 |
| Year | 2019 |
| Court | Family Division |
Publicity – Contempt – Redaction of passages in contemplation of criminal proceedings – Whether s 11 of Contempt of Court Act 1981 applied – Whether s 4 of 1981 Act applied.
Following the decision by the Court of Appeal to uphold the judge’s dismissal of the mother’s application to remove the two children to Ukraine, the parents mediated about the mother’s stated wish to take the children to Ukraine to spend a month there, with the mother’s new baby and her new husband. The parents were able to agree terms on which this trip could take place. The mother declined the father’s request that she arrange for a mirror order in the Ukrainian court, on the basis that this would take too long to organise, but did agree to her new husband providing his consent to the baby moving with the mother to London, in accordance with the terms of the baby’s visa. This consent was provided in a notarised letter in July 2018; shortly afterwards the mother’s husband was himself granted a visa to visit the UK, valid until early 2019. The mother also agreed to provide £1 million as security for the father’s costs, in the event that she failed to make the children available for holiday contact. This money was paid into the client account of her solicitors on the basis that it would either be released back to the mother once the children had been collected from Ukraine or, if the children were not made available as arranged, transferred to the father’s lawyers. If the reasons for the children not being made available were beyond the mother’s control, documentary evidence of this was to be provided and new arrangements made. The parents’ agreement was embodied in a detailed consent order, which also provided for a joint letter, signed by the parties and their lawyers, to be sent to the Ukrainian court to ask for recognition in Ukraine of the substantive child arrangements order.
On the day before the children were due to be collected, the mother informed the father that her own father (the maternal grandfather) had told her that he had obtained an injunction from the Ukrainian court, preventing the children from leaving Ukraine. The mother’s lawyers asserted that these were circumstances beyond the mother’s control. It later emerged that while the mother’s husband had applied to the Ukrainian court to prevent the baby’s departure from Ukraine, his applications had been summarily dismissed; and that while the maternal grandfather was still trying to obtain an injunction to prevent the children leaving Ukraine; his first application had been summarily dismissed. Subsequent applications by the maternal grandfather to the same effect were eventually withdrawn and no Ukrainian injunction preventing the children’s departure from Ukraine was made at any stage. The judge in England ordered that the children were to be made available for collection by the nanny as agreed, made an order restraining the maternal grandfather from attempting to prevent the children from leaving and ordered the £1 million security fund to be released to the father’s solicitors. Further return orders were made by the English High Court subsequently and the children were made wards of court.
In September 2018, the father applied to permit information about the case into the public domain. The father did not seek to name the children but did seek to name the mother and the maternal grandfather, who was a public figure in Ukraine, as a way of encouraging them both to comply with the English court orders. The father also applied in Ukraine for the children’s return under the 1996 Hague Convention on Parental Responsibility and Protection of Children.
Prior to the hearing, the court-appointed guardian noted some worrying indications that the father had been demonised in the mind of the elder child. In the guardian’s view the children were suffering profound and long-lasting harm and were currently in an acutely harmful situation.
A number of members of the press were present at the hearing and the court made a reporting restriction order, limited to a prohibition on naming those involved in the case and a requirement that the maternal grandfather be described only as a businessman. Otherwise, the press was permitted to report what they heard in the proceedings. The published newspaper articles described the case in some detail but adhered to the reporting restrictions regime. At the hearing, the mother’s position was that the father could travel to Ukraine to have contact with the children; the father repeated his earlier claims that he risked false accusations being made against him as an explanation for his refusal to go to see the children in Ukraine. The mother criticised the father for having made the ‘tactical’ decision to proceed in Ukraine under the 1996 Hague Convention rather than the 1980 Hague Convention on Abduction, arguing that this had deprived her of the defence that a separation of the girls from their half-brother would risk exposing them to a grave risk of psychological harm or otherwise place them in an intolerable situation.
Both the mother and the maternal grandfather then applied to the judge, seeking redaction of certain passages in the draft judgment dealing with the question of publicity, arguing that the passages in question ought not to be reported until the conclusion or abandonment of any relevant criminal investigation or criminal proceedings.
Section 4 of the 1981 Act provided that ‘(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. (2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.’
Section 11 of the 1981 Act provided: ‘Publication of matters exempted from disclosure in court. In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.’
Held – (1) There was no doubt that the mother, in concert with the maternal grandfather and her husband, had decided to defy the authority of the English court and to retain the children in Ukraine indefinitely. She had made this decision notwithstanding that the consequence was forfeiture of £1m security and the possibility of criminal proceedings as well as contempt proceedings. She relied on her husband’s preference for the baby remaining in the Ukraine, but the husband had consistently declined to give evidence to the English court. The court could not accept indirect evidence from the husband. The supposed stance by the husband was at complete variance with his signed and notarised letter of 2 July 2018, on the basis of which the father had agreed to allow the children to go to the Ukraine for a summer holiday (see [2019] EWHC 105 (Fam) [19], [20], below).
(2) Referring to comments made by this court in E v E (Secretary of State for the Home Department intervening) [2018] Fam 24, the arrival of the reciprocal enforcement of orders regime in both Brussels IIR (Council Regulation (EC) No 2201/2003 of 27 November 2003) and the 1996 Hague Convention on Parental Responsibility and Protection of Children, had the effect of rendering the 1980 Hague Convention on Abduction obsolescent. Plainly, the father was not to be criticised for choosing a path under the more modern treaty, to seek to enforce the English court’s substantive order (see [2019] EWHC 105 (Fam) [30], below).
(3) The father’s application squarely concerned the upbringing of the girls and the paramountcy test set out in s 1(1) of the Children Act 1989 applied. The court was being asked to allow publicity as a coercive measure – to ‘encourage’ the mother and maternal grandfather to comply with the court’s substantive determination that it was in the best interests of these children that they lived in London under the primary care of their mother but with very substantial secondary care from their father. This was a question with respect to their upbringing. The court therefore declined to rule on the interesting legal debate as to the balance between freedom of expression and the interests of the children where they were the (or a) primary consideration, rather than the paramount consideration. This particular decision must be based exclusively on the court’s evaluation of what was in the best interests of these girls (see [2019] EWHC 105 (Fam) [37], [39], below).
(4) Notwithstanding obiter dictum in Lykiardopulo v Lykiardopulo[2010] EWCA Civ 1315 to the effect that public judgment should not be used as an aid to enforcement, it seemed to the court that to seek publicity as an aid to enforcement, where the respondent was in defiant breach of the obligation to pay, was a much more readily comprehensible reason for lifting secrecy than the desire ‘to bring shame to the offender and solace to the offended’. In any event, the court did not see these remarks as being an obstacle to the court making the order sought on the facts of this case, provided that it was in the best interests of these girls to do so. If the court were satisfied that this was the case, the court would authorise the publicity to happen virtually immediately, on the basis that any further delay (including a delay until the conclusion of the first instance Ukrainian decision under the 1996 Hague Convention) in the resolution of the circumstances of the children would be highly...
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Re J (children)
...2010/2955), r 28(1), r 28.3(11). Cases referred to J (children: relocation), Re[2018] EWCA Civ 1372, [2019] 3 FCR 217. RJ v Tigipko[2019] EWHC 105 (Fam), [2019] 3 FCR S (a child),Re[2015] UKSC 20, [2015] 1 FCR 549, [2015] 1 WLR 1631, [2015] 2 All ER 778, [2015] 2 FLR 208. T (care proceeding......