DE v AB [No 2]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder |
| Judgment Date | 24 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1064 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/0815 |
| Date | 24 July 2014 |
[2014] EWCA Civ 1064
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT
BODEY J
FD12P04004
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ryder
Case No: B4/2014/0815
Mark Emanuel and Victoria Shore (instructed by Vardags Solicitors) for the Respondent
The Appellant appeared in person
Hearing date: 24 July 2014
This is a preliminary application by a Respondent father who seeks an order that the oral permission hearing pursued by the Appellant mother shall take place in private. As an alternative he seeks an order postponing the naming of the parties to the proceedings until the conclusion of any appeal or until a further order is sought or obtained. I previously directed that the issue be tried as a preliminary matter before the permission hearing with the media to be on notice. The mother opposes the application and has applied in the face of the court for the preliminary application to be adjourned despite the fact that she is ready to proceed to make submissions on her permission application.
The mother and the media via the Press Association, were served with the father's application notice and supporting documents on Monday 21 July 2014 in compliance with the order that I made on 5 July 2014. The media have acknowledged service, there are no submissions in writing and no representative of the media has attended court. The mother submits that a private hearing will prevent her subjecting the orders that she wishes to appeal to public scrutiny and accordingly she opposes the same. Her rationale for an adjournment to allow more time to construct an argument to oppose the father's application has no force if this court concludes that a public permission hearing is appropriate and if, as it appears, the mother is ready to make her permission application today.
The mother seeks leave to appeal the orders made by Mr Justice Bodey on 20 December 2013 and 28 February 2014 (sitting in private), dismissing her appeal against the orders made by Senior District Judge Waller on 26 March 2013, in respect of (1) his decision to refuse an application relating to various financial orders that were sought by her on behalf of a child born to the parties, and (2) the grant of an injunction that restrains the parties from disclosing:
"to any third party without permission of the court any information or documents disclosed in or used for the purposes of these proceedings"
except as to the extent necessary for seeking legal advice and making relevant disclosure to the Child Support Agency or similar body fulfilling equivalent functions.
The father applies for the proceedings to be heard in private on the basis that the mother, in a telephone call she made to the father on 2 July 2014, has threatened him with 'maximum publicity' by ensuring that as many journalists and members of the public as possible attend the permission hearing. The father contends that the publicity of the appeal process is being used to bring undue pressure on him and to defeat the administration of justice by publicising in open court matters and information that are currently restrained by injunction (the 'prohibited information'). Indeed, during the 2 July telephone call the mother allegedly informed the father that the risk of the prohibited information coming to the attention of the public could be avoided if he made a payment of £250,000 to her and also guaranteed that he would meet certain financial requirements set by her. In layman's terms, if that allegation were to be proved, the precipitating circumstance would not have been a negotiation, it would have been blackmail.
Background to the hearing
These proceedings concern financial provision for the parties' child under Schedule 1 of the Children Act 1989 brought by the mother in January 2012. The child is known by the pseudonym 'John'.
Following a final hearing before Senior District Judge Waller on 4–7 th December 2012, 29 th–30 th December and 8 th February 2013, the judge handed down judgment and made an order on 26 March 2013. Paragraph 5 of the order gave effect to the judge's conclusion that the mother should be prohibited from reporting to outside agencies certain information relating to the father's sworn evidence. The Senior District Judge's conclusion on the injunction issue is set out at paragraph 7 of the judgment of Bodey J of 28 February 2014 which is reported.
The Judge considered the mother's opposition to the injunction on the basis of it being a 'disproportionate interference with her rights'. However, he granted the injunction on the basis that he was:
" particularly concerned that these proceedings involve a young child who may be affected by any proceedings which may be taken against either of his parents or their involvement in continued litigation together… The conclusion that I have reached is that it is manifestly not in the interests of the parties or of John for documents to be disclosed to the Police in circumstances where there is no investigation which is being undertaken to which these documents would be relevant. I am not suggesting that any such investigation should be undertaken. It seems to me that the issues arising from the non-disclosure in 2010 have been dealt within these proceedings. Nothing is to be gained for the parties, or indeed for the public, in disclosure to the Police which would precipitate an investigation by them."
The mother appealed the injunction and the refusal of her application for various financial orders to the High Court in December 2013. Judgment was given by Bodey J on 20 December 2013, dismissing the appeal. The issue of the injunction was reserved until 28 February 2014 when an anonymised judgment was handed down in public after hearing from counsel for the father and hearing the mother in person and reading her written submissions.
In doing so, the Judge considered the competing rights and interests of the parties and, separately, the public interest in disclosure. He acknowledged that the striking of the balance between those interests had been a difficult one for the Senior District Judge to conduct but concluded that he was not persuaded that the way the balancing exercise had been carried out could be characterised as wrong.
In a decision given on the papers, the mother was refused permission to appeal Bodey J's decision to this court. She orally renews her permission application this morning.
I heard the father's preliminary application before coming to a decision whether to adjourn it as requested by the mother. I did not need to decide the truth or otherwise of the allegation that the father makes as the trigger to the application given the stance taken by the mother before me. The mother makes it clear that she wishes the detail of the prohibited information to be discussed in open court, indeed that is the purpose or one of the purposes of her appeal. I make it clear having listened to her at length that I came to the very firm conclusion and I find as a fact that although she asserts that the prohibited information must be discussed in public so that on behalf of the public she can ensure that 'secret justice' is subjected to scrutiny, her overriding intention is to extract revenge on the father, if needs be at the expense of the child.
Despite the entirely adverse view that I formed of the mother, it is necessary for me to record that an application to cause part of the appellate process to be heard in private should be a very rare application indeed. Given the inevitable and proper moves to transparency within the family courts it would be an entirely retrograde step that would potentially damage family justice were this court to be persuaded to sit in private on anything other than an exceptional basis. It was not necessary to decide to do so on the application made in this case because a more proportionate mechanism was available.
As I shall explain, the court was able to use its powers to prevent publication of the prohibited information while continuing to sit in public. Even if it had been necessary to sit in private I would have done so with representatives of the media being present and able to take notes, that subject only to undertakings or orders to protect the prohibited information, would have enabled them to exercise their proper role in the public interest in the administration of justice. The circumstance that permitted this solution to be easily applied to this case was that no member of the public save for a pupil member of the Bar chose to attend the hearing, let alone the allegedly threatened supporters who might have been intent on publication rather than scrutiny.
At the conclusion of the preliminary hearing, I refused the application for an adjournment of the same, granted temporary orders under section 11 of the Contempt of Court Act 1982 until the conclusion of the permission hearing and heard the permission application in open court. I gave judgment on the permission hearing immediately (reported as In the Matter of J (A Child) [2014] EWCA Civ ****). At the end of the permission hearing and having refused permission to the mother to appeal, I heard further submissions on the orders that are necessary to protect this court's process from being undermined by disclosure of the prohibited information. I made continuing orders under section 11 of the 1982 Act. In making the orders that I did, I accepted the submissions made on behalf of the father which I repeat below as my reasons.
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