drop-down menu

Lady Justice Hale - Court of Appeal - 28 July 2003

1. LADY JUSTICE HALE: On 12 September 2002 His Honour Judge Milligan made an order prohibiting the father from publishing material about proceedings relating to his son, E, who is now aged five and has been the subject of a longstanding dispute between his parents. The relevant parts of that order read as follows:

"That [the father] is forbidden (whether by himself or by instructing or encouraging any other person)

1. From disclosing or communicating details of those proceedings or details of proceedings in the Court of Appeal (2001/2837) to any third party other than
(i) Any legal advisor who he may consult or instruct
(ii) Any other person with leave of the Court
2. In particular and without prejudice to the generality of the foregoing that he be restrained from publishing any such information on the internet, in booklets or pamphlets or otherwise howsoever

3. He shall forthwith take all necessary steps to remove from his website www.kipmiller.fsnet.co.uk all photographs and/or written material which identifies or could reasonable (sic) lead to the identification of the said EJC."
2. On 4 February 2003 I dismissed the father's application for permission to appeal against that order. I recognised that the judge had conducted the required balancing exercise between the need to protect the privacy and confidentiality of family proceedings and freedom of speech in making that order. More importantly, I recognised that the father had not attended the hearing at which that order was made. However, he had been given liberty to apply to vary or discharge it and he had not taken advantage of that liberty to apply. It would therefore be very unfair to subject the mother to an appeal against that order when there had been no contested hearing leading to it because of the father's own actions, and he had the opportunity of challenging it in the court below should he so wish.

3. It is fair to say that if the applicant father had wished to avail himself of the opportunity to apply to vary or even discharge the order, he might have had some very good points to make. His best point would be that proceedings in the Court of Appeal are in public, although it is routine to prohibit any identification of any child involved. Therefore he might have argued that the order went too far and should not have prohibited communication of details of proceedings in the Court of Appeal, save in so far as that publication might lead to the identification of the child concerned. However, the father chose not to avail himself of that opportunity, even after my judgment, because he wished to protest against the whole idea that publication of this material might be a contempt of court.

4. At some later date unknown to me, the mother served a notice to show cause why the father should not be committed to prison for breaking that order in number of respects. These are listed at page 27 of the appeal bundle:
"a) Contrary to paragraphs 1 & 2 thereof, the Respondent has published a booklet entitled 'even Toddlers Need Fathers' which contains numerous photographs of the said [EJC], extracts from the Skeleton Argument that he submitted to the Court of Appeal during the course of these proceedings, and quotations from the Judgement of Lady Justice Hale in the Court of Appeal.
b) Contrary to paragraphs 1 & 2 thereof, private correspondence between the Applicant's solicitors and the Respondent regarding the proceedings has been made accessible to the general public via the Respondent's website.
c) Contrary to paragraphs 1 & 2 thereof the applications and Court Orders made during the proceedings are reproduced and can be accessed by members of the general public visiting the Respondent's website.
d) Contrary to paragraphs 1 & 2 thereof, the Respondent has published on the internet a copy of his Application to the European Court which contains extracts of Judgements made by His Honour Judge Milligan and Lady Justice Hale and gives details of the proceedings both in the County Court and in the Court of Appeal.
e) Contrary to paragraph 3 thereof, the Respondent has added to his website a recent photograph of [EJC] and he has failed to remove from his website written material which identifies or could reasonably lead to the identification of the said child."
5. The most serious aspects of those publications were clearly the making available of private correspondence between the mother's solicitors and the father about the proceedings and details of applications and court orders made during the proceedings, in such a way that the child might be identified and the publication of a recent photograph of the child. Furthermore, the mother explained that in correspondence after the injunction of 12 September representations had been made to the Internet service provider, which had then frozen the father's website, but he had found another Internet service provider on which the same material was available.

6. On 1 May 2003 His Honour Judge Milligan found that the contempt was proved. In his judgment he says that that was on the basis that the father had admitted that he had disobeyed the order in the ways set out in the notice to show cause, and that was therefore a contempt of court. He decided to order the father, by 15 May, to:
"remove from any booklet, pamphlet, letter, card, website or other means of public communication any reference whatsoever to his son [EJC] for clarity photographs and of the proceedings concerning him and going on in this Court or the Court of Appeal."

He further ordered that the father:
"... shall attend Court at 10.00am 22 May 2003 for the purposes of satisfying the Court that he has fully complied with the terms set out in paragraph 1 of this order and will give an undertaking that nothing tending to identify the child [EJC] will be thereafter placed in the public domain in default of either of these requirements, he has today been warned that he will be sent to prison for his contempt today established."

7. That is a strange form of order, in that it is stated to be a specific issue order under section 8 of the Children Act 1989. It is not in the usual form that one would expect of an order resulting from a committal application. That would normally say that the committal application was adjourned to 22 May and that in the meantime the father was ordered to do what he was ordered to do by 15 May. It clearly is not a suspended committal order, despite the fact that it contains a clear threat that the father will be sent to prison if he fails to comply with it.

8. I am told that by 22 May the father had complied with the order of 1 May. He had removed the material from the web site and other means of public communication. There may have been a residual complaint made on behalf of the mother, but the judge did not regard that as being the responsibility of the father. The father tells me therefore that the application to commit him for contempt was dismissed. He also tells me that he does not wish to appeal against the orders made on 22 May. I have not therefore been shown a copy of those orders and I am relying on what he tells me took place. He does, however, want to appeal against the order of 1 May, despite the fact that nothing very serious has happened to him as a result.

9. This leaves the court in something of dilemma, because it is quite clear that the reason why he wishes to appeal is that he wishes to mount an argument that the publication of material of this sort in support of a campaign on behalf of fathers is not in principle a contempt of court. He makes various points. The first is that the Circuit Judge should have separated the two issues of his contempt of court and his application for permission to make another application for contact with his son, and that the contempt application should have gone to a different judge. In that respect he relies upon the decision of this court in the case of G [2003] EWCA Civ 489, and in particular the remarks about going before a different judge which are made by the President of the Family Division at paragraph 21. Those remarks were in the context of a case which concerned an alleged contempt for breach of the general rules of law, not an alleged contempt for breach of a particular order of the court. In those circumstances, one can see why it may be particularly important to separate off the contempt issue and have that dealt with differently. This was a contempt application relating to a particular order. The question whether it is better dealt with by His Honour Judge Milligan or some other judge is a different matter. I cannot say that it was so improper for His Honour Judge Milligan to consider this particular application, given his familiarity with the case, that that would amount to a ground of appeal. I would ask His Honour Judge Milligan to consider whether or not, if there are further applications to commit for contempt in the context of this case, it might not be preferable for those applications to go before a different judge in the light of the repeated requests of the father to have the matter dealt with by a different judge. It is important that the father feels that he has been treated properly.

10. The second point made by the father is that he wrote to the judge in advance of the hearing and asked to be allowed a McKenzie Friend and to call witnesses. He has not shown me a copy of that letter, but he tells me that the witnesses that he wanted to call included Professor Sir Michael Rutter, Sir Bob Geldof and a Mr O'Connell, who was present at court on 1 May. There are possibly two reasons why he wanted to call these witnesses. They were all in basic support of his proposition that his campaign is not politically or dishonestly motivated, as His Honour Judge Milligan had described it in his judgment on 12 September 2002. I made it clear in my judgment on 4 February that I did not consider that his campaign was politically motivated in the normal sense of the word "political". Nor have I any reason to suppose that it is dishonestly motivated. His desire to call Professor Sir Michael Rutter as a witness is because of his desire to obtain that very distinguished child psychiatrist's evidence, in support of his view that the courts' approach to the care of very young children is not in accordance with modem thinking on their psychological needs. His desire to call Sir Bob Geldof is no doubt associated similarly with his desire to show the courts that there is a strong view that their approach to applications by fathers is unfair and misconceived.

11. The judge did not allow these witnesses to be called. In so far as Professor Sir Michael Rutter and Sir Bob Geldof are concerned, there is absolutely nothing in the material before me to indicate that either of them would have been ready and willing to come and give evidence on the behalf of the father on this application. Mr O'Connell was there, but the question of course is whether his evidence would have been relevant to this application. I can see circumstances in which it might have been relevant to whatever disposal the judge might have been contemplating. It might have been relevant, I know not, his witness statement is not so particularly, but it might have been there to show that the father is not politically or dishonestly motivated, but is behaving in this way out of a genuine concern, firstly, for the welfare of his son and, secondly, for the position of children and fathers situated as he is. But of course the question for the judge was whether or not the breaches of the order of 12 September had in fact been made out. The judge says in his judgment that the father accepted that he had done those things. In interchanges in this court it appeared to me also that the father accepted that he had done those things. What he does not accept, necessarily, is that they are breaches of the order, still less does he accept that they are contempt of court. I cannot see a material irregularity in the judge not hearing the witnesses, at least the witnesses as has been explained to me that the father wished to call.

12. The other main point that the father makes was not in his bundle, but it is in documents that he has handed up to this court today. This is that he wishes the Court of Appeal to commission "an expert's court report on contact and the theory of maternal deprivation or, as it is more commonly applied in family proceedings, the tender years doctrine." He considers that the court should address a range of questions of a very important nature about the basis of the theory of maternal deprivation: how it is usually applied in arrangements for contact between separated parents; the research that indicates that interaction between fathers and their babies or toddlers is just as sensitive as that between mothers and their children; other research about multiple attachments without any adverse affect on mother or father; can the theory of maternal deprivation work in a self-fulfilling way, for example, if fathers are allowed only limited contact with their children? Are there any popular misconceptions associated with this theory? Do mothers believe that they should be naturally good parents and feel guilty when they do not live up to these expectations? If such misconceptions exist, is it possible that the courts may perceive it as their role to try and impose these expectations in the interests of the child, even to the detriment of the other parent or the child? Is there any psychological or emotional reason that shared parenting, i.e. the more equal sharing of contact between parents, should not be accepted as normal for children in family proceedings? Are there any other issues related to this theory of which the court should be aware?

13. In his argument in support of this application, he quotes some remarks of mine in a judgment, on another application of his, which I gave on 19th November 2002, in which I said that:
"This court hears appeals from particular orders made by particular courts in particular cases. It does not subject psychological theories to that sort of close examination."

He says I am wrong. In the sense that if in the context of a particular order made by a particular court in a particular case it is necessary to examine any or all of the questions which the father would like examined by an expert court report, then the court will hear evidence upon it. But it is always related to that particular case or cases in some instances. The court does not subject any sort of psychological theory to an overall generalised investigation of the sort that the father wishes to pursue. It is quite right that the courts do their best to keep abreast of the development of research and thinking in these very difficult areas and interdisciplinary machinery exists for them to do so. In other words, there is a clear distinction between making a decision in an individual case and making decisions about the generality of psychological theories or sociological behaviours. Therefore, that application is not one to which I could possibly accede.

14. For the reasons that I have given, there is no prospect of an appeal against the substance of the order made by His Honour Judge Milligan on 1 May being allowed. That being the question before me, I have to refuse this application as well.

15. I do urge the father to take advantage of the permission that he was given to apply to vary the order of 12 September, or even to discharge it, and to work out those ways in which it may be too wide or may be objectionable and make that application. That would be a much better use of his time and a much greater safeguard against his being subjected to further applications of this sort than any appeal to this court could ever be.

16. So the application is refused. I will make the usual order about a transcript.

ORDER: Application for permission to appeal refused; the applicant to be provided with a copy of this judgment at public expense. 

(Order not part of approved judgment)