Re H. - S. (Minors) (Protection of Identity)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE WARD,LORD JUSTICE NEILL |
| Judgment Date | 21 December 1993 |
| Neutral Citation | [1993] EWCA Civ J1221-6 |
| Judgment citation (vLex) | [1993] EWCA Civ J1221-10 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1993 |
| Docket Number | No. 93/0991/F |
[1993] EWCA Civ J1221-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: BLACKWOOD COUNTY COURT
FROM: HIS HONOUR JUDGE CROWTHER QC
Before: Lord Justice Neill and Mr. Justice Ward
No. 93/0991/F
93/6099/F
MRS. J. TREHARNE (with MR. WYN WILLIAMS QC on 7/12/93) (instructed by Messrs. Fraser Brown, 84 Friar Lane, Nottingham) appeared on behalf of the Appellant.
MRS. C. GRAVES ( MRS. E. SZWED on 7/12/93) (instruted by Messrs. Fonesca & Partners, DX 43950, Ebbw Vale) appeared on behalf of the Respondent.
Tuesday, 21st December 1993
This is the judgment of the court.
The case is a most unusual one, the details of which merit being recited as fully as the limited facts before us make possible, subject always to the need to preserve the anonymity of the parties and their children. The children of the family with which we are concerned are a boy, J, now nearly 18 years of age, and two girls, M, who is 13, and G, who is 10 years of age. Their parents had married in 1975. It was an unhappy marriage. A major cause of their unhappiness arose from the husband's growing ambivalence towards his own sexuality. He said that from as far back as the age of 5 he had wished he was a girl. After his wife discovered his dressing as a woman, there were many arguments and, his transvestite urges being beyond his control, the parties finally separated in 1983. The wife, whom we shall henceforth call the Petitioner, began proceedings for divorce in 1984 and a decree was granted to her in that year. The custody, care and control of the three children was granted to her. The Respondent was increasingly aware of and sought advice about his transsexualism and, when not in prison, regularly dressed and sought to pass himself off as a woman. The distress that caused the Petitioner and other pressures upon her led to her suffering from a nervous breakdown which required treatment. Her health failed her in other unrelated respects. By 1987 she could no longer cope with the children who were received into the care of the local authority. Shortly thereafter the Respondent called for their return and they began to live with him. It was originally intended to be a temporary move, but he remained in control, subject to some informal supervision by the local authority social Services Department. In about 1989 the mother sought to remove the children and that led to proceedings to resolve where the children should live. By that stage the Respondent had made it plain that he wished to be addressed in the feminine (to which request we shall now accede) and that he desired to undergo a sex change operation. The family's position was fully investigated by the Court Welfare Officer and the Judge also had the benefit of reports from the Social Services Department and from the children's school. On 19th April 1989 His Honour Judge Francis formally varied the 1984 Order and further ordered that the children remain in the custody of the Respondent, subject to the supervision of the local authority. There is no transcript of this Judgment available to us. It must have been an anxious one for the learned Judge but in the light of the Petitioner's incapacity, and the satisfactory way in which the Respondent had looked after the children, we could not possibly suggest, and do not suggest, that he was plainly wrong, or wrong at all.
During the course of that hearing, the Respondent had indicated that she wished at some future time to write a book of her experiences but she denied any intention to exploit her situation to earn money by selling her story to the Press. Within a week of the hearing, there was a television programme about transsexualism, followed the next day by a programme inviting contributions from the public. The Respondent participated in that programme. She has explained in an Affidavit before the Court that, "I did it in all innocence and with a genuine belief that I might be helping others less fortunate. In the event it did open the floodgates as it were and I was then deluged by the press and media who wished me to talk more about my experiences. I would say again that I did not court publicity. The media came to my door and I felt it only right that I should talk directly to them in order to avoid any misrepresentation." As a result, the Respondent was interviewed on television and by a national newspaper. She said, "Obviously a great deal of interest had been generated and I had no control over newspapers that then proceeded to "lift" the interview that I gave to the (national newspaper) and put it into their own rather more sensational terms…It is part of the media's unfortunate tendency to sensationalise a story like the one I had to tell. I feel it is wrong that I should be castigated for the language of tabloid journalism." In the publicity which ensued, the identify of the Respondent and the children was revealed and photographs of them were published. The Petitioner did not escape attention from the press She said, "I was overwhelmed by the reporters and members of the media and as a result, in August 1989, I suffered a breakdown and was forced to obtain professional assistance." Indeed, she appears to have suffered seriously.
Just over a year later, the Respondent warned the Petitioner that further publicity was imminent. The Petitioner applied to the Court for variation of the Custody Order and for the protection of the children from exposure to any form of publicity. It was too late. There was another blaze of publicity when once again the children were named and photographed. On 8th June 1990 His Honour Judge Crowther QC made an Order that:
"The Respondent is strictly enjoined and restrained from taking or permitting any act likely to expose the three children of the family to any form of publicity arising from the Respondent's custody of the children and/or the Respondent's transsexuality and sex change operation until the Petitioner's Application for Custody is heard or further order."
There is no record of that judgment against which there was no effective appeal. Within days of that order, two more articles identifying the family by name and by photograph appeared in the local press. The Petitioner applied to commit the Respondent to prison for breach of the injuntion. The Respondent explained that the offending articles had appeared as a result of a friend's effort to raise the money necessary for the Respondent to undergo his long awaited sex change operation. This friend had given an interview to one local newspaper which was published. Another local paper started to make enquiries. In her Affidavit, the friend said, "My daughter answered the phone on countless occasions when I was out shopping. She told me they were actually ringing every 10 minutes. When I got back I actually rang (the newspaper) and told them I was not allowed to speak to anyone there because I had now been told that I could be in breach of an injuntion. It seems that my words had absolutely no effect and they just "lifted" the article from the (first newspaper) and published it whether I gave my permission or not. It is perhaps a lesson in the sense that the individual has no control whatsoever over the media once one has given one interview as stories can be syndicated in this way." No order was made on the Committal.
Later in the year the Respondent applied to discharge the injuntion. That was heard on 9th July 1991, together with the Petitioner's adjourned application to vary the Custody Order. His Honour Judge Crowther QC refused both applications. There is no appeal by the Petitioner against his refusal to return to children to her but in the unusual circumstances of this case, it is right that we recite some of his findings as they are recorded in a note of the Judgment taken by counsel but not sent to the learned Judge for approval until June 1993. The learned Judge noted that, "It is nearly two years since I dealt with this case. I earnestly hope that these infelicitous brief notes do not reflect the way I express myself. However, their general effect, reasoning and result are a fair record." We read from that note of Judgment:
"Technically, I have an Application in relation to J. He is of wilful age and nature and is emotionally disturbed and has made that manifest for some months by putting himself in a position where he is in care rather than with his parents. He is likely to be made the subject of a Care Order and the responsibility of the County Council. Turning to M and J, they live with the father pursuant to an order made in April 1989. For two years they have been living in circumstances that would not be unusual except that the Respondent prefers to dress as a woman and would like to be treated as a woman. At first sight this exposes them to an example which makes the progress of growing up and coming to terms with the role of sex in adult life, harder than it would be normally. The girls are not yet of an age where the problems are really acute. But one must not be naive about the future. Looking at the past two years, Judge Francis was presented with really no choice. The mother was ill. During the relevant period she has suffered severely with acute depression and has suffered too from a variety of problems, gynaecological and urinary. In addition to that, she has accommodation separate from the Respondent and by a considerable distance which was inadequate to receive her girls and boy, a family of three. Even since the boy left only fairly recently, her accommodation has improved. Things are improving, she feels, and there are some indications of that in the...
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