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Lady Justice Hale - Court of Appeal - 4 February 2003

1. LADY JUSTICE HALE: This is an application for permission to appeal against an order of His Honour Judge Milligan dated 12 September 2002. By that order the applicant father was forbidden (whether by himself or by instructing or encouraging any other person):

" 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
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 reasonably lead to the identification of the said [child]"
2. Those are the material parts of the order. It was made in the course of long running proceedings between the father and mother of the child, who was born in December 1997. There is no need for me to set out the history of those proceedings, because they have been before this court on at least seven occasions, and on the last four occasions they have come before me. My judgments on those applications set out the history in full.

3. I should say at the outset that the fact that frequent applications are made to this court does not mean that they are always misconceived. The father knows that on one occasion I did give him permission to appeal against part of the order which the judge in the court below had made.

4. The question, however, is whether this particular order was justified. There is no doubt that the judge had power to make such an order. Family proceedings are heard in private and that is expressly permitted under Article 6(1) of the European Convention on Human Rights in relation to the welfare of children. Therefore, the court is in charge of what can be made public about it. Proceedings in this court are held in public, but it is routine to prohibit the publication of any information which might identify or lead to the identification of a child who is concerned in these proceedings.

5. There is also a jurisdiction in the courts to grant orders between parents for the purpose of protecting the welfare of children. In making those orders, the court of course has to conduct a balancing exercise. On the one hand, there is the need to protect the welfare of children. This can arise in a variety of ways. Children can be directly affected by the publication of material about them. If this comes to the notice of their school friends or others, then they may be the subject of jokes, teasing, bullying, and worse. Children, particularly of primary school age, are greatly susceptible to embarrassments of this sort. The other way in which it can be harmful to children is if it serves to undermine the confidence and the ability to cope of the person who is looking after the child. That is part of the balancing exercise.

6. The other side of the balancing exercise, of course, is freedom of speech and expression. That is one of the most important of freedoms which are protected under the European Convention on Human Rights. Usually, however, there is absolutely no need for anybody who wishes to publish views and opinions, or academic arguments, research, and discourse about a particular issue, to do so in terms which could lead to the identification of a particular child who has been the subject of proceedings in these courts.

7. The father has a point of view which he wishes to advocate. His Honour Judge Milligan described it as a political point of view, but it is not political in a party-political sense. There are many people who might call it political in the gender political-sense for there are many ways in which that word can be used. He has the view that the courts and the law have been too respectful of the relationship between mothers and their children to the detriment of the importance of the relationship between fathers and their children. He argues that one of the purposes of the Children Act 1989 was to redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together.

8. The father is correct that that was one of the principles behind the Children Act 1989, in which I take a certain amount of pride. The father points out that he has a certain amount of pride, so I make that comment in response. He also argues that his views are not politically motivated, but they arise because of his qualifications and experience as a teacher with a professional interest in child development, child psychology and the welfare of children.

9. There is nothing in the order that prevents him from expressing or promoting his views in whatever medium he wishes to do, provided that he does not do so in a way which discloses the confidential material in the proceedings or leads to the identification of his son.

10. I have re-read the booklet for the purpose of this application. I notice that it contains now some very old and fuzzy photographs, which are unlikely to lead to the identification of the child. In section 8 it contains some specific examples coming from the proceedings, which again are unlikely to lead to the identification of the child, but could have been stated in a way which did not refer to particular proceedings. That is a good example of the sort of balance that his publications ought to seek to achieve.

11. I have no knowledge at all of the publications and, in particular, the website which prompted the mother's application. But it is clear to me that the judge had the power to make the order that he did and that when he did it he conducted the balancing exercise which I have described.

12. There is a further consideration. That is that the father deliberately did not attend the hearing at which the application for the order was made and the order was made. The judge did give him liberty to apply to discharge it on seven days' notice. No doubt that liberty could also be used to apply to vary it if there are particular aspects in which the father wishes to change the order. It would be quite wrong to allow permission to appeal against an order which the court had power to make, on material which is not fully before this court, where the judge conducted the correct balancing exercise, where the applicant father was not present, and where he does have liberty to apply to discharge the order. It would be wrong for this court to subject the other party to the proceedings to an appeal when, in fact, there has not been a contested hearing in the lower courts.

13. So for all of those reasons, I have to refuse permission to appeal. I am sure Mr Miller understands. I will make the usual order that he be provided with the transcript of this judgment at public expense.