B4/2005/1381
B4/2005/1381(A)
Neutral
Citation Number: [2005] EWCA Civ 1536
IN
THE SUPREME COURT OF JUDICATURE
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE SOUTHAMPTON COUNTY COURT
(HIS
HONOUR JUDGE MILLIGAN)
Royal
Courts of Justice
Strand
London,
WC2
Monday,
24th October 2005
B
E F O R E:
LORD
JUSTICE WARD
LORD
JUSTICE MAY
LORD
JUSTICE GAGE
-
- - - - - -
C
Applicant/Respondent
-v-
M
Respondent/Applicant
-
- - - - - -
(Computer-Aided
Transcript of the Palantype Notes of
Smith
Bernal Wordwave Limited
190
Fleet Street, London EC4A 2AG
Tel
No: 020 7404 1400 Fax No: 020 7831 8838
Official
Shorthand Writers to the Court)
-
- - - - - -
The
Appellant Father appeared on his own behalf
MISS
ADRIENNE BARNETT (instructed by Messrs White & Bowker,
Winchester SO23 8BU) appeared on behalf of the Respondent Mother
-
- - - - - -
J
U D G M E N T
(As
approved by the Court)
1.
LORD JUSTICE WARD: As this is a case which concerns the welfare of a
young child, I would order that no one shall publish or reveal the
name or address of the child who is the subject of these proceedings,
or publish or reveal any particular or particulars or other
information which would be likely to lead to the identification of
the child. This is a fairly standard direction made in this court,
and it seems appropriate to me to apply it in the circumstances of
this case.
2.
This is a father's appeal against a committal order made by His
Honour Judge Milligan in the Southampton County Court on 8th June
2005, when he committed the appellant to prison for 28 days,
suspended until 8th June 2006 if the appellant complies with the
following terms:
"(a)
The Respondent do not in any manner publish or distribute material
given or produced in evidence in the proceedings [the number is
given] whether referred to during the hearing of the case or in any
judgment, or in any publication, letter, e-mail, website, booklet or
leaflet or any other oral or written communication.
(b)
The Respondent do within 7 days of this Order remove from his
booklets and all websites currently operated by him all evidence
contained in judgments in proceedings ...
(c)
The Respondent do within 24 hours of service of the Order write to
David Mortimer and serve a copy on the Applicant and the Court
requesting him to remove from the website [which is identified] the
following subsidiary website [and another web site is identified]. If
David Mortimer does not do so within 48 hours, the Respondent do
forthwith e-mail [some other web site] requesting to do the same."
3.
That committal order was made in these circumstances, which are
highly unusual, so unusual that no solace or comfort should be
derived by any other party from any of the facts and circumstances of
this particular case.
4.
On 12th September 2002 Judge Milligan sitting in the Southampton
County Court in a case involving this young child, which even then
had gone on for years, granted injunctions in these terms. The father
was forbidden:
"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."
That
order gave the father liberty to apply to discharge it on seven days'
notice. It was an order made without notice to him.
5.
An application for permission to appeal that order was refused by
Hale LJ on 4th April 2003, but in her judgment then, and in a later
judgment of 28th July 2003, she gave the father some encouragement to
his seeking a variation of the terms of that injunction. The father
duly applied, but his application was dismissed by Judge Milligan. He
applied for permission to appeal and that application, with the
appeal to follow, was heard by Thorpe and Clarke LJJ on 30th July and
the appeal was allowed.
6.
The order drawn by the Court of Appeal contained the order frequently
made, as I would make it in this case, that no one should publish or
reveal the name or address of the child. Unfortunately, other parts
of the judgment of the Court of Appeal were incorrectly recorded by
the associate when drawing the order, and to understand what happened
it is therefore necessary to see the judgment of the court. I shall
read that in a moment. It makes it clear that paragraphs 1 and 2 of
the September 2002 injunction were being discharged and replaced by
new terms, which the Court of Appeal identified in paragraphs 6 and 7
of the judgment of Thorpe LJ in these terms:
"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 SO98P00026 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 SO98P00026 on the Internet, in booklets or
pamphlets or otherwise howsoever.'"
7.
The order of 30th July 2004 should now be amended under the slip
rule, so that those variations can be correctly recorded.
8.
I must, however, read a little more of the judgment of Thorpe LJ. He
adverted to the court's practice, to be settled on a case-by-case
basis, to prohibit identification. He went on as follows:
"4.
I see nothing in this case to require any particular prohibition [on
identification] 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 the case number
SO98P00026.
5.
I would indeed, given [Mr M'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."
Thorpe
LJ then went on make the two changes I have already recited.
9.
Part of the campaign conducted by this father is directed towards
achieving more open justice in the family courts. His campaign has
extended to his publishing in booklet form and on the Internet all of
six judgments given by Judge Milligan in the county court between
April 1999 and July 2004, and ten of the judgments in this court. All
of those have been suitably and properly anonymised by deleting the
child's name and referring to the child simply under the initial E.
There is no identification of the mother's name, which is, I should
record, different from his. He does in that publication identify
himself.
10.
One of the judgments that was thus published was a judgment given by
Judge Milligan on 28th July 2004, when the judge made a residence
order in favour of the mother and gave her leave to keep the child
out of the jurisdiction until August 2006. She and the child
concerned have been living far away for some considerable time. It
is, therefore, important to note that they are no longer in the
jurisdiction.
11.
In the course of that judgment, the judge made reference to certain
behavioural problems the mother was having with the child, and to
certain medical treatment he has been receiving to identify and
overcome the nature of those difficulties. The judgment quotes from
medical reports and opinions, and to that extent the judgment sets
out parts of the evidence which was before him on that application.
12.
The publication of a great deal of detail about this little boy's
difficulties understandably enough upset the mother, but her reaction
to it was to apply for the father's committal. Unusually, she seems
to have made two forms of application. One of them, which I would
have thought was inappropriate, was on a standard form, C2, which
indicated that she was applying for an order for his committal and
gave as the reason for that application that he breached the
injunction dated 12th September as amended on appeal:
"...
by publishing family court judgments in such a way that my son ...
can be identified as being the child who is the subject of the
proceedings."
13.
She also alleged he had breached the injunction:
"...
by publishing extracts from [E's] medical records that were submitted
as evidence during family court proceedings."
14.
She also, and correctly, filed a proper notice to show good reason
why an order for committal to prison should not be made, and recited
the two paragraphs of the order of 12th September as amended on
appeal and as set out above. She added, however, this:
"The
Respondent is subject to section 97(2) Children Act 1989 which
provides that: 'No person shall publish any material which is
intended, or likely, to identify - (a) any child as being involved in
any proceedings before the High Court, a county court or a
magistrates' court in which any power under this Act may be exercised
by the court with respect to that or any other child ...'"
15.
She alleged that the appellant had disobeyed the order by:
"1
Continuing to disclose and/or communicate details of the evidence
given in the Southampton Court proceedings SO98P00025 on the
Internet, in booklets or pamphlets or otherwise howsoever.
2.
Continuing to publish evidence in the Southampton county court
proceedings ... on the Internet, in booklets or pamphlets or
otherwise howsoever.
Particulars
of the alleged contempt are set out on the sheet annexed hereto."
16.
It is unnecessary to set out all of those particulars. The thrust of
it is that the appellant had published these county court and Court
of Appeal judgments on the Internet and in a booklet entitled "The
Welfare of the Child" in such a way that it was likely to
identify the child as his son and as the subject of the proceedings
in the county court. It was said that he had failed to remove all
particulars from that booklet and his web site which would lead to
the identification of the child. There are other particulars, but to
the like effect.
17.
The judge found the breaches proved. The main thrust of his judgment
can be found in paragraphs 11 and 14 as follows:
"11.
I am clear that leave is needed for the publication of a judgment. I
proceed on the basis that the Court of Appeal's approach, so far as
one can identify it, that the publishing of judgments with leave is
unobjectionable (provided of course that the child and the parties
are suitably anonymised - it being [Mr M's] case that he has done
that), but that what must not be put in the public domain is any of
the evidence given in the case. It is essentially [Mr M's] position
that he is has acted in accordance with what he considers to be the
Court of Appeal's position, namely, that the whole of a judgment may
be published whether it makes reference to evidence or not. That
seems to me to be patently unsustainable. The Court of Appeal, we
see, was alert that matters given in evidence should not be put in
the public domain. It seems to me idle to argue that when such
evidence is contained or referred to in the judgment, it then becomes
properly publishable. I do not think the Court of Appeal can have
meant that.
...
14.
Coming to the specifics, [Mr M] accepts that he has published
judgments. It seems to me that he has done so without leave of the
judges in question. It seems to me idle of him to argue that where
these judgments contain evidence, about which the Court of Appeal
were clear that such material should not be published, it somehow
becomes legitimate to publish it provided it is referred to in the
judgment. Judgments inevitably have to contain reference to evidence
given. As I have said already, I do not understand how any
responsible parent could think that publication of emotional,
psychiatric and educational difficulties relating to his own child
could possibly be anybody's business but that of his parents and the
immediate family circle. So he accepts that there has been
publication; he accepts that there has been promotion. The issue has
been whether such activities have tended to identify the child. As I
have said, I think there is nothing in his argument that some of the
people to whom this material has been supplied do not actually know
the child's Christian name. The question is whether it tends to
identify the child. In one of the emails to which I have referred, he
says quite openly: 'You can buy my booklet of the judgments called
The Welfare of the Child, who is, of course, my son.' I think the
Applicant mother's case is well made out, that this is a father who
has got out of balance in terms of his responsibilities to his
campaign and his responsibilities to his son. I am quite satisfied
that the way in which he has conducted himself, as is alleged in the
notice to show cause, will and has had the result that the child has
been identifiable and identified in a manner which is wholly hostile
to the child's best interests. Accordingly, I find him in contempt as
the mother alleges."
18.
It seems to me, therefore, that the main finding set out in paragraph
14 relates to this published material identifying, or being capable
of identifying, the child concerned. It may or it may not be so
capable, but that, in my judgment, is not the matter for which this
appellant stood in danger of being committed to prison. The
application to commit him was an application to commit him for breach
of the terms of the injunction. It was not an application to commit
him for breach of any other order; for example, the order of this
court in terms that nothing be published which was likely to
identify the child.
19.
There was a reference to section 97(2) of the Children Act 1989, but
as subsection (6) to that section makes clear, any breach of section
97(2) gives rise to a criminal offence liable on summary conviction
to a fine not exceeding level 4. That envisages, obviously,
proceedings in the magistrates' court. These were not such
proceedings. It is important, therefore, to focus upon what breaches
were alleged of what particular orders. The orders as varied by the
court restrained the father from disclosing or communicating evidence
given in the Southampton County Court.
20.
Now what the father has done is disclose judgments given, both in the
Court of Appeal and in the county court. Let me say a word about the
way in which those matters should ordinarily be dealt with. Family
Proceedings Rule 4.23, dealing with confidentiality of documents,
provides:
"Notwithstanding
any rule of court to the contrary, no document, other than a record
of an order, held by the court and relating to proceedings to which
this Part applies shall be disclosed, other than to-
(a)
a party,
(b)
the legal representative of a party,
(c)
the children's guardian,
(d)
the Legal Services Commission, or
(e)
a welfare officer or children and family reporter,
(f)
an expert whose instruction by a party has been authorised by the
court,
without
leave of the judge or district Judge."
21.
So the rule is quite clear: a judgment of the county court ought not
to be published without leave. That is the general law, and that is
the rule which should be applied. I emphasise it, lest anyone be
foolish enough to think that from the circumstances of this
particular case there is general leave to publish judgments of the
county court. There is not such general leave. Permission must be
given for any disclosure of the judgment.
22.
The position in the Court of Appeal is different, because the Court
of Appeal sits in open court and consequently our judgments are
capable of being published, subject to the important caveat that if
the court imposes a restriction on identification of the child or the
parties, as we have imposed it here and as Thorpe LJ imposed it in
July 2004, then the report has to be anonymised so that there is no
danger of the child concerned being identified.
23.
A second general point. If there is to be an attempt to commit for
breach of the order which prohibits the disclosure of information
tending to identify the child, or if there is to be an attempt to
punish with imprisonment any contempt alleged to arise from the
publication of a judgment, then there needs to be a specific order
warning the party that he is in danger of prison if he does the
forbidden act. There is usually the need for a penal notice. There is
no order expressly restraining the publication of these judgments,
still less a penal notice attached to it. The breach of the Rule 4.23
would not automatically and without more give rise to an application
for committal. It needs a specific order to say so.
24.
There may be a further source of confusion. Section 12 of the
Administration of Justice Act may make it a contempt to publish
information relating to proceedings before any court sitting in
private. These were not proceedings for contempt brought under
section 12, and that provision is immaterial for our purposes.
25.
So the appeal boils down to this crucial question: has this father
broken an order of the court restraining him from disclosing or
communicating any evidence given in the Southampton proceedings? The
question is whether publishing a judgment containing that evidence
would be a breach. It seems to me that one must look to what the
Court of Appeal was saying on 30th July to find the correct answer.
The appellant tells us that during the course of argument on that
occasion he was given to understand that he had permission to
disclose all judgments, including county court judgments. He points
to a letter from the respondent in which she wrote to the court
suggesting her understanding of what happened on 30th July to be
that:
"The
terms of the injunction were changed on appeal so that judgments made
in family courts can now be made available to the public, so long as
they are published in such a way that the child is not identified."
26.
We have no transcript of the argument that took place before the
Court of Appeal on 30th July 2004. For my part, I would wish to see
that transcript before I was able to conclude that Thorpe LJ had said
anything which went as far as the mother's understanding of what took
place. She was not present and she was not represented at that
hearing.
27.
So we are left simply with the order that was made, but also with the
explanation for it that was given in paragraph 5 of that judgment,
which I repeat:
"...
given [Mr M's] history of responsible campaigning and writing on
issues relating to family relationships, [I would] go further and
ensure that the prohibition distinguishes between evidence in those
proceedings and judgments in those proceedings."
28.
It seems to me that a distinction was being quite clearly drawn by
the Court of Appeal that publication of a judgment containing
excerpts evidence was something quite different from separate
publication of the evidence in the case. Judge Milligan was, in my
judgment, therefore quite wrong to say as he did that it was patently
unsustainable to take that position. On the contrary, that is exactly
the position the Court of Appeal did take. The consequence is that
the father has been led to believe that he could publish the judgment
with impunity; what he was not allowed to do was separately publish
evidence.
29.
Since committal involves depriving the citizen of his liberty, the
proceedings need to be strictly interpreted, and given that at least
misunderstanding of what the Court of Appeal was sanctioning, I would
be reluctant to find that a breach has occurred in this case. I
emphasise that I see nothing in what happened as tantamount to giving
this father permission to have published the county court judgments;
he needed the leave. But that breach of the rules does not justify
his being under threat of being sent to prison. The judge was wrong,
in my view, to find the breach proved. Accordingly, I would allow the
appeal and discharge the suspended committal order made by the judge.
30.
Lest there be any doubt about it, I repeat: judgments of the county
court are not to be published without leave. This litigation, sadly,
shows every sign of continuing to engage the courts, and the
Southampton County Court in particular. Any future judgment being
given in the county court will be on the usual terms that it remains
confidential, and it shall not be published without specific leave of
the judge of the county court or of the Court of Appeal. For the
future, therefore, this father must be strictly aware of the limits
of his right to publish the judgments, but I would take no action on
the alleged breaches set out in this application to commit him.
31.
I would allow the appeal.
32.
LORD JUSTICE MAY: I agree that this appeal should be allowed on the
limited basis which Lord Justice Ward has described.
33.
In these proceedings concerning a child, Mr M has published a number
of judgments in the proceedings in the Southampton County Court. He
reckons that he has the permission of the Court of Appeal to do so,
but he has not satisfied me that this court went that far. I agree
with what Lord Justice Ward has said on this topic.
34.
I am satisfied, however, that publication of these judgments without
the permission of the court in which they were made was contrary to
Rule 4.23 of the Family Proceedings Rules 1991, but that is not the
main point.
35.
The proceedings currently before the court are an appeal in committal
proceedings before Judge Milligan on 8th June 2005. The committal
application was upon a notice to show cause why a committal order
should not be made. This alleged breach of an order of 12th September
2002, as amended by the Court of Appeal. The original order of 12th
September 2002 forbade Mr M:
"1.
From disclosing or communicating details of these 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."
36.
The varied order resulted from a hearing in this court before Thorpe
and Clarke LJJ on 30th July 2004. The varied terms were, paragraph 1,
he was forbidden:
"...
from disclosing or communicating any evidence given in the
Southampton County Court proceedings SO98P00026 to any third party."
And
paragraph 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 SO98P00026 on the Internet, in booklets or
pamphlets or otherwise howsoever."
37.
This has been erroneously carried into the order of the court as
drawn, and I agree that the order should be amended to record the
terms of paragraphs 6 and 7 of Thorpe LJ's judgment.
38.
The committal application alleged that Mr M was in breach of the 2002
order as amended, because he had published the county court judgments
which contained evidence. Judge Milligan held that Mr M was in breach
of the order of 2002. He said in paragraph 11 of his judgment:
"11.
I am clear that leave is needed for the publication of a judgment. I
proceed on the basis that the Court of Appeal's approach, so far as
one can identify it, that the publishing of judgments with leave is
unobjectionable (provided of course that the child and the parties
are suitably anonymised - it being [Mr M's] case that he has done
that), but that what must not be put in the public domain is any of
the evidence given in the case. It is essentially [Mr M's] position
that he is has acted in accordance with what he considers to be the
Court of Appeal's position, namely, that the whole of a judgment may
be published whether it makes reference to evidence or not. That
seems to me to be patently unsustainable. The Court of Appeal, we
see, was alert that matters given in evidence should not be put in
the public domain. It seems to me idle to argue that when such
evidence is contained or referred to in the judgment, it then becomes
properly publishable. I do not think the Court of Appeal can have
meant that.
...
14.
... It seems to me that he has done so without leave of the judges in
question. It seems to me idle of him to argue that where these
judgments contain evidence, about which the Court of Appeal were
clear that such material should not be published, it somehow becomes
legitimate to publish it provided it is referred to in the judgment."
39.
In my judgment Judge Milligan was wrong here. In his short judgment
Thorpe LJ explained that in this court the practice relevant to the
publication of its own judgments has moved on, so that each case is
assessed on its individual facts, except in so far as publication
might lead to the identification of the child. Thorpe LJ then said,
paragraph 4 of his judgment:
"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 the case number SO98P00026.
5.
I would indeed, given [Mr M'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."
40.
In my judgment, Thorpe LJ was distinguishing between evidence in the
proceedings on the one hand and judgments in the proceedings on the
other, without excepting from the latter any content of judgments
which might recount evidence. That makes it plain that the reference
to evidence in the immediately following variation of the order was a
reference to evidence in the proceedings which did not extend to
evidence which might appear as part of a judgment. That appears also
to have been the view of Scott Baker LJ in paragraph 5 of his
judgment of 4th November 2004. It follows that in my judgment Mr M
was not in contempt in the manner mainly alleged in the application
to commit.
41.
This is important for two reasons. First, since contempt proceedings
are penal, the question whether a person is in contempt is to be
strictly judged. Second, I would make it plain that my view that Mr M
was not in contempt as alleged in the present proceedings does not
mean that he was at liberty to publish these judgments without the
leave of the court in which they were made, still less that our
decision in the present proceedings somehow might carry with it a
general licence to publish county court judgments given in private
without permission from the court in which it was made. It does not.
42.
LORD JUSTICE GAGE: I agree that this appeal should be allowed on the
limited basis for the reasons given by both of my Lords.
43.
For my part, I only add that I find it understandable that the judge,
on the evidence before him, should have found that the father had
published material which did disclose the identity of the child. I am
persuaded by the reasons for so finding given by the judge in
paragraph 14 of his judgment, to which my Lord, Lord Justice Ward,
has referred. But as my Lords have pointed out, that was not the
contempt that the father was alleged to have committed.
44.
In the circumstances, as I say, I agree that the appeal must be
allowed.
(Submissions
as to costs)
45.
LORD JUSTICE WARD: Whereas costs follow the event as the ordinary
rule, there are exceptions to that. Family cases frequently are
treated as exceptional. In this case one has heard of the mother and
child's predicament. Without suggesting that the father can be paying
child support, that is a matter for the Child Support Agency to
investigate, but we think in the circumstances of this case,
especially where the discharge of the order means the discharge of
the order that he pay the costs in the court below, that is as much
of a benefit as he can expect and we think no order for costs should
be made.
ORDER:
Appeal allowed; no order as to costs; a copy of this judgment to be
made available to the parties at public expense.
(Order
not part of approved judgment)
______________________________
MONDAY 24TH OCTOBER 2005
______________________________
MONDAY 24TH OCTOBER 2005
IN THE COURT OF APPEAL
4018/05
ON APPEAL FROM THE
SOUTHAMPTON COUNTY COURT
S098P00026
BEFORE LORD JUSTICE
WARD LORD JUSTICE MAY And LORD JUSTICE
GAGE
COURT 74
application No.
B4/2005/1381(A) Appeal No. B4/2005/1381
ON READING the
Appellant's Notice sealed on the 28 June 2005 filed by the
Applicant on appeal
from the order
of His Honour
Judge Milligan
dated 8 June 2005
AND ON READING the Application Notice sealed
on the 7 September 2005 filed on behalf of
the Respondent applying for an extension of time to file
Respondent's Notice AND
ON HEARING Mr K A V Miller the Applicant appearing in person
and Miss A Barnett counsel on behalf of the
Respondent
IT IS ORDERED that:
1)
the appeal be allowed in part and the order of His Honour Judge
Milligan dated 8 June 2005 whereby a suspended order was made against
the Applicant be discharged
2)
the order of this Court dated 30 July 2004 be amended in accordance
with the slip rule
3) a transcript of
Judgment be provided to the Applicant at public expense
4) there be no order for costs
4) there be no order for costs
AND IT IS FURTHER
ORDERED that no one shall publish or reveal the name or address of
the child who is the subject of these proceedings or publish or
reveal any particular or particulars or other information which would
be likely to lead to the identification of the said child
______________________________