Re R (Wardship: Restrictions on Publication)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Court of Appeal (Civil Division) |
Sir Thomas Bingham, MR, Henry and Millett, L JJ
Child – ward – father charged with abduction of ward – injunction granted in wardship proceedings prohibiting publication of material relating to ward – injunction not excluding reports of criminal proceedings – whether injunction should have been made in terms preventing reports of criminal proceedings.
Wardship – criminal proceedings taken against father for abduction of ward – circumstances attracting publicity – injunction granted in wardship proceedings prohibiting publication of material relating to ward – injunction not excluding reports of criminal proceedings – whether injunction should have been made in terms preventing reports of criminal proceedings.
In wardship proceedings in 1989 the ward, then aged 3, was placed in the care and control of the mother. The father was granted staying access to the ward on condition that he made disclosure of his financial circumstances. He failed to do so and, as a result, access ceased. In June 1990 the father removed the child from the care of the mother and went abroad. The mother eventually traced and recovered the ward in August 1990. In 1993 the father was arrested, charged with kidnapping the child, and committed for trial on that charge. The trial was due to commence in April 1994. The circumstances of the child's abduction and the arrest of the father attracted considerable publicity. In January 1994 a newspaper article summarized the father's account of the circumstances. As a result, later the same month, on the ex parte application of the child's guardian ad litem, an order was made restraining, inter alia, publication of the name or address or whereabouts of the ward or any other matter relating to her or the wardship proceedings. In March 1994 the father applied for the discharge of the injunction as the order in the form made by the Judge would prevent publication of reports of his criminal trial. The Judge held that further publicity would interfere with the effective working of the court's jurisdiction and would be detrimental to the child's welfare. Further, the Judge considered the provisions of s 39 of the Children and Young Persons Act 1933. That section provided that a court could direct that there should be no publication of particulars calculated to lead to the identification of a child concerned in the proceedings as being, inter alia, the person in respect of whom the proceedings were taken. The Judge held that an order under that provision was not as wide as the power of the wardship court to make an order restraining publication. The information relating to the ward, her whereabouts, the events of her
abduction, and refused to exclude from the operation of the injunction reports of the criminal proceedings.
The father appealed.
Held – allowing the appeal: (1) In the absence of a statutory restriction, reports of proceedings in a public court of law should only be restrained where and to the extent that restraint was shown to be necessary for the purpose of protecting the proper administration of justice. As the criminal proceedings related to the abduction of the ward she was the person in respect of whom the proceedings were taken for the purpose of s 39 of the Children and Young Persons Act 1933. That provision was a special statutory power directed specifically to the situation in the present case and it was for the trial Judge in the criminal proceedings, and not for the wardship Judge, to decide whether and, if so, to what extent the publication of fair and accurate reports of the criminal proceedings should be restricted in the interests of a child concerned in those proceedings. Accordingly, the Judge's order would be amended so as to add a proviso that it should not apply to the criminal proceedings.
(2) Per Sir Thomas Bingham, MR and Millett, LJ. The courts had traditionally declined to define the limits of the wardship jurisdiction. But the control of the wardship court over the person of its ward was far from absolute and it had no power to exempt its ward from the general law or to obtain for its ward rights and privileges not generally available to children who were not wards of court. The recently developed jurisdiction to restrict the publication of information directed at the ward and those having responsibility for his upbringing could be reconciled with general principle by the very nature of the information in question. In practice, information which was likely to threaten the working of the court's own jurisdiction must almost invariably be obtained, directly or indirectly, from one or other of the parents or guardians involved in the wardship proceedings over whose conduct the wardship court had direct control. In the present case, in so far as the order of the wardship Judge restricted the publication of a fair and accurate report of the proceedings in another court, it went beyond the limits which Judges exercising the wardship jurisdiction had hitherto placed upon the exercise of their own powers. It was doubtful whether the Judge had jurisdiction to make the order but even if he had more than a theoretical jurisdiction, it was wrong in principle for him to have exercised it; it was a matter which should have been left to the criminal Judge to decide whether or not an order should be made under s 39 of the Children and Young Persons Act 1933.
Statutory provisions referred to:Administration of Justice Act 1960, s 12(1).
Children and Young Persons Act 1933, s 39.
Contempt of Court Act 1981, ss 2, 4(2) and 11.
Cases referred to in judgment:Attorney-General v Leveller Magazine Ltd [1979] AC 440; [1979] 2 WLR 247; [1979] 1 All ER 745.
C (A Minor), Re (unreported), 15 March 1990.
Mohamed Arif (An Infant), Re [1968] Ch 643; [1968] 2 WLR 1290; [1968] 2 All ER 145.
R v Horsham Justices, ex parte Farquharson [1982] QB 762; [1982] 2 WLR 430; [1982] 2 All ER 269. Appeal from His Honour Judge Coningsby sitting as a deputy Judge of the High Court.
Andrew Nicol for the father.
Walter Aylen, QC and Lindsey MacDonald for the mother.
Brian Jubb for the guardian ad litem.
JUDGMENTSir Thomas Bingham, MR. This is an appeal against a decision of His Honour Judge Coningsby, sitting as a deputy Judge of the Family Division, on 17 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 30 May 1986 and so is now approaching the age of 8. 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 21 June 1988 the mother obtained an order making the child 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 27 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 para 4 of an affidavit sworn by the father on 28 February 1994. In that paragraph he said:
"On 24 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 14 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 11 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 emphasize 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...
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