Re R (Wardship: Restrictions on Publication)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HENRY,LORD JUSTICE MILLETT |
| Judgment Date | 16 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0414-2 |
| Docket Number | No. FAFMI 94/0400/F |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 1994 |
[1994] EWCA Civ J0414-2
(His Honour Judge Coningsby Sitting as a Deputy Judge of the High Court)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Henry and Lord Justice Millett
No. FAFMI 94/0400/F
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR. A. NICOL (instructed by Messrs Mishcon de Reya, London WC1B) appeared on behalf of the father.
MR. W. AYLEN Q.C. and MISS L. MACDONALD (instructed by Messrs. John Pearson, New Malden) appeared on behalf of the Mother.
MR. B. JUBB (instructed by Messrs. Dundons, London SW11) appeared on behalf of the Guardian ad Litem.
)
This is an appeal against a decision of His Honour Judge Coningsby, sitting as a Deputy Judge of the Family Division, on 17th March 1994, when he refused an application to discharge an injunction. At the centre of the case is a young girl who was born on 30th May 1986 and so is now approaching the age of eight. I shall refer to her as "the ward". The plaintiff in the proceedings is the ward's mother. The first defendant in the proceedings is the ward's father and the second defendant is the ward herself, who appears by her Guardian ad Litem. The Guardian ad Litem, Mr. Israel, is one of the welfare officers of the court. The father is an American citizen. He met the mother, who is British, in 1981. They were married in 1986, shortly after the birth of the ward. She is their only child. The mother, father and the ward lived together in the United Kingdom until 1987 when the mother's mother died and the family moved to France. In March 1988 the mother and the ward returned to England, but thereafter the ward returned to France for a period of access to her father.
On 21st June 1988 the mother obtained an order making the ward a ward of court. In July 1988 the mother and ward, who had both been in France, returned to the United Kingdom. Over the next few months, between July and April 1989, the ward had periods of staying access with the father in France. On 27th April 1989 Ewbank J made an order placing the ward in the care and control of the mother, with staying access to the father, whether in France or in the United Kingdom. The father appealed against that order. The mother then obtained a Mareva injunction against the father in support of an order which she intended to seek for maintenance. In December 1989 Ewbank J granted the father an order of access to the ward on condition that he made disclosure of his financial circumstances, but the father did not comply with that order, and as a result access ceased.
The next event to which I should refer is best described in language which I take from paragraph 4 of an affidavit sworn by the father on 28th February 1994. In that paragraph he said:
"On 24th June 1990 I recovered [the ward] from her mother and travelled to the United States of America with her. We then travelled to Israel where in about August 1990 I was arrested. I did not see [the ward] after that until 14th February of this year when a supervised contact visit took place."
The British Government requested extradition of the father from Israel, following the reunion of the ward with the mother in Israel in 1990. An extradition order was made in June 1993 and the father returned to the United Kingdom in July 1993. On his return to this country he was arrested and charged with kidnapping the ward. He was bailed in July, and in October was committed for trial by the South Western Magistrates' Court. His trial on a single charge of kidnapping the ward opened at the Central Criminal Court on 11th April, that is Monday of this week.
The circumstances of the ward's abduction, of her discovery in Israel, her reunion with her mother in Israel, and the arrest of the father, were the subject of very considerable publicity in the summer of 1990. It was said that the kidnapping involved some violence in that the mother was man-handled and chemicals were sprayed in her face, but newspaper reports to that effect have been challenged by the father as inaccurate. It is important to emphasise that this court is not invited to make any finding on that issue. It is, however, clear that these events, later events, provided material for what was regarded as a very striking newspaper story. The newspapers made a great deal of it, using pictures of the father, the mother and the ward, and making full use of their names. There was also some coverage at the time of the father's extradition, in the summer of 1993, again with pictures of the father, the mother, the ward and use of their names. Newspaper stories were supplemented, so we are told, by similar reports on radio and television, again mentioning the names of the mother, the father and the ward.
On 10th January this year an article appeared in the Independent, written by a journalist named David Cohen. It contained a large picture of the father. The effect of the article was to summarise the father's account of the history of his marriage. The newspaper touched on a number of personal matters, such as the mother's health and personal family details and gave the father's version of the ward's abduction and the circumstances surrounding it. It is plain, not only from that article but from other newspaper material which is before the court, that the father feels very deeply aggrieved, not only by the way that the law has treated him in the United Kingdom, but also by the way in which other fathers have been treated. He feels that the law and the practice of the courts are heavily loaded against fathers and feels that it is essential that contact should be maintained between children and their fathers, even after the breakdown of a marriage. He has been prominent in a campaigning and lobbying group named "Families Need Fathers" and that, as one understands, is a group seeking to change the law by publicising the injustices done in the father's case and, as it is said, in similar cases.
The article in the Independent prompted the ward's Guardian ad Litem to apply ex parte to His Honour Medawar, sitting as a Deputy High Court Judge, during the vacation for an injunction. The learned Judge made an injunction: "…restraining … any person (whether by himself or his servants or agents or otherwise howsoever or in the case of a company whether by its directors or officers, servants or agents or otherwise howsoever) from
a. Publishing any newspaper or broadcasting in any sound or television broadcast or by any means of any cable or satellite programme service
(i) the name or address or whereabouts of the above mentioned minor.
(ii) any picture being or including a picture of the minor.
(iii) any other matter in relation to the minor or these proceedings.
b. Causing or procuring any publication or broadcast of the type defined in paragraph a. above.
c. Soliciting any information relating to the said minor (other than information already lawfully in the public domain) from:
i) the parents;
ii) any carer;
iii) relatives and friends of the parents."
That injunction was ordered to continue until further order with leave granted to any person affected by the injunction to apply to vary or discharge it on 24 hours' notice. That order, endorsed with a penal notice, was served on the father on 21st January. On 24th February the father gave notice of his intention to apply to discharge that injunction. In support of his application he swore an affidavit, to which I have already referred, on 28th February.
The main burden of his application appears in paragraphs 13, 14, and 15 of his affidavit in which he says this:
"13. My trial is now imminent. The order in its present form will effectively prevent it from being reported at all since it prohibits the publication of 'any matter in relation to' [the ward]. The charge against me is inextricably linked with my daughter. I believe that this raises serious issues as to the power of a wardship Court to control the reporting of current criminal proceedings.
14. However, apart from the contemporary reports of the case as it takes place, the order represents a severe restriction on my and the media's freedom of expression. I am a spokesman for the registered charity, Families Need Fathers. I am the Head of the Parliamentary Affairs Committee and its media officer. I am also a journalist. In these roles I am often called upon by the press television and radio to contribute to the general public debate about the nature of family court decisions and the use of criminal as opposed to family proceedings. Examples of my activities on behalf of Families Need Fathers are now produced and shown to me [and exhibited]. I consider that my own case exemplifies many of the problems faced by men and children with the judicial system. My extradition and prosecution raise questions as to the appropriateness of a charge of kidnapping in this context. This injunction constitutes a real and not theoretical restriction on my freedom of speech. Two television companies in particular have expressed interest in having contributions from me in programmes about family law issues in which they would wish me to be able, subject to the matters that I mention in my next paragraph, to refer to my own experience. Television programmes take much pre-planning. The longer the injunction continues in force, the more constrained the broadcasters will be in setting their production schedules.
15. I am well aware that even if the injunction is discharged, I will be subject to other restrictions. In particular I have been advised as to the importance of the Administration...
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