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Lord Justice Thorpe and Lord Justice Clarke - Court of Appeal - 30 July 2004

1. LORD JUSTICE THORPE: This is Mr Miller's application for permission to appeal an order made by HHJ Milligan in the Southampton County Court on 12 September 2002.
2. The application was before me on 16 February when I directed an adjournment for oral hearing on notice with appeal to follow if permission granted. In making that order I recognised the likelihood that the respondent mother would not attend since she has, in circumstances that are open to some mild criticism, removed the child C to New Zealand. However, solicitors have written to the court on her behalf. A letter of 9th June refers to this fixture and it says:

"In the circumstances, we are instructed to inform you that our client is prepared to consent to paragraphs 1 and 2 of the Injunction Order ... being varied by removing the prohibition against publication of details of proceedings in the Court of Appeal, save insofar as that publication might lead to the identification of the child concerned."

3. Since that concession was made the practice in this court has moved on in consequence of the challenge that Dr Pelling laid to the court's standard practice, and now each case has to be assessed on its individual facts to determine whether or not it merits prohibition on identification.

4. I see nothing in this case to require any particular prohibition and so, accordingly, I would simply propose that the order below be varied to delete any reference to proceedings in the Court of Appeal and, for the sake of clarity, further varied to ensure that in both paragraphs 1 and 2 there is specific reference to the proceedings in the Southampton County Court with case number S098P00026.

5. I would indeed, given Mr Miller's history of responsible campaigning and writing on issues relating to family relationships, go further and ensure that the prohibition distinguishes between evidence in those proceedings and judgments in those proceedings. In my view, given the noticeable trend towards reduction in privacy, that would be appropriate in the circumstances of this case.

6. So the variation will be that paragraph 1 will now appear as:
"From disclosing or communicating any evidence given in the Southampton County Court proceedings S098P00026 to any third party."

7. And in paragraph 2 of the order, variation 2:
"In particular and without prejudice to the generality of the foregoing that he be restrained from publishing any evidence in the Southampton County Court proceedings S098P00026 on the Internet, in booklets or pamphlets or otherwise howsoever."

Mr Miller makes the forceful point that in the course of five years of active public debate in this sphere he has never put into the public arena any of the evidence in the Southampton Court proceedings and has no intention of doing so in the future. So, in a sense, the order that I would now propose is not going to change the future course of his campaign, but it is right that the order should go since the proceedings in the Southampton County Court are subject to the provisions of section 97.2 of the Children Act 1989.