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His Honour Judge Milligan - Southampton County Court - 1 May 2003

JUDGE MILLIGAN: On 12 September 2002 an order was made in this court forbidding Mr Miller from disclosing or communicating details of the proceedings either in this court or in the Court of Appeal to any third party other than legal advisers or any other person with the leave of the court:

"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 he take all necessary steps to remove from his website there set out all photographs and/or written materials which identifies or could reasonably lead to the identification of the said E."

Mr Miller was duly served with that order. He had been served with notice of the application for it and chose not to attend court. The order having been made, he sought permission to appeal from me, which I refused on the basis that there was no reasonable prospect of success. That was on 23 September.

On 4 February of this year the Court of Appeal in their turn refused permission to appeal. Reference has been made by Mr Miller to the judgment of Lady Justice Hale in that court. I quote also from it:
"There is jurisdiction in the courts to grant orders between parents for the purposes of protecting the welfare of children. In making those orders the court 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 looking after the child. That is part of the balancing exercise.The other side of the exercise is freedom of speech and expression. This is one of the most important freedoms 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."

She concluded that I had the power to make the order that I did and that I conducted the balancing exercise which she described and which I have just also described.

She went on to make the point that the father deliberately did not attend the hearing at which the application for the order was made and the order was made. He had been given liberty to apply to discharge it on seven days notice, and she continued:
"It would be quite wrong to allow permission to appeal against an order which the court had the power to make, where the judge conducted the correct balancing exercise, where the father was not present and where he had 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."

On 27 September the mother's solicitors wrote that Mr Miller had been served and that the order required him to remove all material tending to identify his son, E.

On 4 October, permission to appeal having been refused by me, they wrote again, reminding him that the injunction remained in force. They gave examples of the offending material and repeated the requirement of the order that this material should be removed from the public domain.

On 14 October they wrote on the basis that he was using a new website and reminded him that the order applied to all or any means of public communication.

On 8 January of this year they wrote to him via Freeserve, who were then his internet service provider, who locked his website - this had previously been linked to many others - pending confirmation that he would remove all offending material, and were given an undertaking that there would be no further breach. I have seen the relevant documents. Mr Miller's response was to seek help as to ways round this apparent difficulty, including the question of locating an internet service provider outside the jurisdiction.

On 4 February, as I have indicated, the Court of Appeal refused permission to appeal. Thereafter, Mr Miller found a new internet service provider, publishing the same information and publication of his booklet continues to take place. One website was enlarged to include more recent photographs of E - ironically supplied by this mother, who, as I have found in a number of previous proceedings, has consistently supported the question of contact between E and his father, Mr Miller - contact, as I have said, not taking place because Mr Miller has chosen not to take it up, believing that the contact that was ordered following a full hearing was, in his view, insufficient.

I am satisfied on the documents that I have seen that there has been by Mr Miller widespread discussion of these proceedings, of findings and orders and judgments, both of this court and of the Court of Appeal. This is mirrored in his extracts from the European Court. What in fact is going on here is that Mr Miller is using the public domain for a full exposition of his view of the case and his response to the view that has been taken in various legal proceedings. Therefore, I am satisfied not only that he has failed to comply with this order, which is of itself a contempt, but he has thoroughly aggravated his contempt by responding in the way of continuing the conduct previously ordered to desist and seeking ways round the various restrictions that have been placed upon him.

In those circumstances, I am satisfied, without any shadow of doubt, that on the basis of Mr Miller's admissions as to the matters set out in the notice to show cause as to the ways in which he has disobeyed this order, I am satisfied on his admissions that those matters have been persisted in, in breach of this order, and I am further satisfied that no attempt has been made to remove any of the offending material from the public domain. Mr Miller, I find you plainly in contempt of the order of last September. Is there anything that you want to say to me before I proceed to sentence?

MR MILLER; If the other side would specify exactly where -the precise nature of the offending material, I will be only too willing to ...

JUDGE MILLIGAN: Mr Miller, the examples are far too numerous to be identified individually. I have given my judgment as to the way in which this order has been breached. Do you want to say anything to me as to sentence?

MR MILLER: I apologise to the court if you feel as though I have been in contempt, and I do mean that, your Honour, at any point whatsoever.

JUDGE MILLIGAN: Do you want to say anything to me as to whether you intend to take this material off the ...

MR MILLER: I will, certainly. I have just said, your Honour, if they specify ... I am sorry, but you did say there were too many.

JUDGE MILLIGAN: That is not good enough, Mr Miller. It is for you to go through and to remove from all your public websites, pamphlets, booklets - remove all references to E. It is a perfectly simple proposition.

MR MILLER: I can do that, your Honour.

JUDGE MILLIGAN: Very well. Then this is my decision, Mr Miller. You will come here in three weeks time, Thursday the 22 of May, at 10 o'clock. If all the offending material has been removed and you give me an undertaking not in the future to put any material in any public domain tending to identify E, if those two things are present - if you remove it and you give me an undertaking - then you will hear no more of this. If you fail in either of those two regards you will go straight to prison.

MR MILLER: I think you have been extremely generous, if I may say that, your Honour.

JUDGE MILLIGAN: That is the order I make. Thursday the 22 of May, 10 o'clock. Be in no doubt. If you can tell me that all the offending material has been removed and you give me an undertaking that there will be no further reference to E in any of your public activities, then there will be no more of this. If you are unable to satisfy me as to both of those, you will go to prison. Do you clearly understand that?

MR MILLER: I do, your Honour. Is there any chance of the other side giving me a list or not, your Honour?

JUDGE MILLIGAN: No, Mr Miller, because you can perfectly well go through ----

MR MILLER: Can I ask for a transcript of this hearing please, your Honour?

JUDGE MILLIGAN: For what purpose?

MR MILLER: Possibly appeal, your Honour.

JUDGE MILLIGAN: You will have to put in a notice seeking permission to appeal, and then I will consider it.

MR MILLER: Thank you very much, your Honour. I do really appreciate that.

(The proceedings continued)