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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Medway Council v Root (4) [2018] EWHC 1298 (Fam) (15 March 2018) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2018/1298.html Cite as: [2018] EWHC 1298 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| Medway Council |
Applicant |
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| - and - |
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| Sara Jayne Root |
Respondent |
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No 4 |
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Mr William Dean (instructed by Sternberg Reed) for the Respondent
Hearing dates: 26th & 27th February 2018; Judgment 15 March 2018
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Crown Copyright ©
Mrs Justice Theis DBE:
(1) The Local Authority's application for an injunction under section 12
Administration of Justice Act 1960 (AJA).
(2) The application by one of the children for a non-molestation order under
the Family Law Act 1996 (FLA) to prevent the mother from displaying in public her child's name, contact details or photograph and non-molestation. An application is also made by the Local Authority on behalf of the other child for a non-molestation order under the FLA.
(3) Ms Root's deemed application to discharge the injunction made by HHJ
Polden on 13 December 2011.
(4) The question of whether there should be any reporting restrictions order in
relation to the committal proceedings that concluded on 30 August 2017.
(1) At paragraph 4 of her approved statement Ms Root raises the issue that she did not understand the order made in December 2011 and the procedure when it was made was deficient. In his judgment on 17 July 2017 HHJ Polden dealt with this issue at paragraphs 38 and 39 of his judgment whereby he rejected similar contentions made by Ms Root then. This issue was not appealed.
(2) At paragraph 7 of her approved statement she stated she did not understand what 'until further order' meant and argued the order could not go beyond the children attaining 18 years. In his judgment on 17 July 2017 HHJ Polden dealt with this issue at paragraphs 40 to 51 whereby he rejected similar contentions made by Ms Root. This issue did form part of her appeal which was dismissed on 22 November 2017.
(3) At paragraph 8 of her approved statement she stated she did not understand what she was and was not able to publish. In his judgment on 17 July 2017 HHJ Polden dealt with that issue at paragraphs 56 to 63 whereby he rejected similar contentions made by Ms Root. This issue did form part of her appeal which was dismissed on 22 November 2017.
(4) In her approved statement she stated she did not understand the undertaking she gave in December 2016 or the reporting restrictions order. In his judgment on 18 July 2017 HHJ Polden dealt with these issues at paragraphs 13,14 and 18 – 23 when he rejected similar contentions made by Ms Root. This issue was not appealed.
Relevant Background
'….whether herself or by encouraging others from making any publication of court papers in the public law proceedings relating to her children (case number ME10C00342) and shall not allow copies of the papers or details specific to the proceedings as set out within them to come into possession of any unauthorised persons.'
The order had several recitals including that Ms Root accepted she had published documents from the care proceedings, that she had no further documents from the care proceedings having delivered a bundle to the Local Authority and that she assured the court that she will abide by the order and will not publish any further information about the proceedings. The order also required her in paragraph 2 in the event she had any documents from the care proceedings to deliver them up to the Local Authority. A penal notice was attached to paragraphs 1 and 2.
(1) 2 September 2016 as detailed in Ms Hopper's second statement dated 14
September which included personal information regarding the elder child;
(2) 14 September 2016 repeating a publishing of a Cafcass report from 2014,
the foster carer logs from 2011 and the post setting out her story from the
beginning.
(3) 22 September 2016 with an account of the hearing on 20 September, stating
she would not remove her publications.
(4) 11 October 2016 Ms Root published an extract of the Local Authority's
skeleton argument on 20 September 2016.
(5) 2 December 2016 whereby she questioned the legitimacy of the injunction
and named the younger child and there was a prominent photograph of the elder child.
(1) 13 December 2016 referring to the court hearing the previous day and that
she was being 'blackmailed' to withdraw her campaign to ensure the miscarriage of justice she alleged is established which would allow her children to 'embark upon their own legal case of misconduct, against the Medway Local Authority'.
(2) 22 December 2016 Ms Root posted a further lengthy post with photographs
setting out the history of her case
(3) 22 February 2017 about the next hearing date and quoted from counsel's
skeleton argument.
(1) 6 March 2017 Ms Root published an update which appeared to set out
details about the hearing on 2 March.
(2) 8 March 2017 Ms Root published further details about the hearing on 2
March.
(3) 18 April and 7 May Ms Root posted an invitation to the hearing on 10 May
that the Local Authority say included both children's names.
(1) 2 July 2017 publishing the Local Authority skeleton argument from the
hearing on 10 May.
(2) 5 July 2017 publishing details of both children's names and photographs.
(3) 8 July 2017 publishing documents served on her relating to the non-
molestation order.
(4) 10 July 2017 publishing the statement in support of the non-molestation
order and the EPO documents.
(5) 13 July 2017 publishing a link to an article about her case in which she
identified herself and both children.
(1) 20 July 2017 a link was published to an anonymised article making it clear
it was about Ms Root and pictures of both children and social worker were uploaded.
(2) 3, 21 and 24 August published information about the hearing on 17 and 18
July.
'In relation to C00ME422. On 30th August 2017, at Maidstone County Court, His Honour Judge Polden sentenced Sara Root to a custodial sentence of six months, suspended for twelve months, for contempt of court. The basis of that sentence was that: (a) she had breached an injunction made under section 12 of the Administration of Justice 1960 on 13th December 2011 on ten occasions; (b) she was in breach of an undertaking she gave to the court on 12th December 2016; and (c) she failed to comply with reporting restrictions made at the same hearing. All of the breaches were occasioned by publishing material relating to care proceedings on Facebook and failing to remove it. '
'Sara Root subsequently appealed the order of His Honour Judge Polden in an appellant's notice dated 12th September 2017. The appeal was heard by the Right Honourable Lord Justice McFarlane and the Right Honourable Lord Justice McCombe on 22nd November 2017. They gave judgment the same afternoon dismissing the appeal.'
Legal Framework
i) First, no article has, as such, precedence over the other;
ii) Secondly, where the values under the articles are in conflict, an intense
focus on the comparative importance of the specific rights being claimed in the individual case is necessary;
iii) Thirdly, the justifications for interfering with or restricting each right must
be taken into account;
iv) Finally, the proportionality test must be applied to each, referred to by
Lord Steyn as "the ultimate balancing test".
'[21] What may be called the 'automatic restraints' on the publication of information relating to proceedings under the Children Act 1989 are to be found in s 97 of that Act and s 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of 'material which is intended, or likely, to identify' the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2006] 3 WLR 599, [2007] 1 FLR 11, [2007] UKHRR 264. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child: see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para [82], A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, para [79], Re X and Others (Children) (Morgan and Others Intervening) [2011] EWHC 1157 (Fam), [2012] 1 WLR 182, sub nom Re X, Y and Z (Expert Witness) [2011] 2 FLR 1437, para [32]. So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.
[22] The court has power both to relax and to add to the 'automatic restraints'. In exercising this jurisdiction the court must conduct the 'balancing exercise' described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2004] 3 WLR 1129, [2005] 1 FLR 591, [2005] UKHRR 129, and in A Local Authority v W, L, W, T and R (by the Children's Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1. This necessitates what Lord Steyn in Re S (Identification: Restrictions on Publication), para [17], called 'an intense focus on the comparative importance of the specific rights being claimed in the individual case'. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention). I incorporate in this judgment, without further elaboration or quotation, the analyses which I set out in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [93], and in Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, [2007] EMLR 199, at para [80]. As Lord Steyn pointed out in Re S (Identification: Restrictions on Publication), para [25], it is 'necessary to measure the nature of the impact ... on the child' of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 WLR 148, [2011] 1 FLR 2170, para [33].
[23] I should add two further points. The court may, by an appropriate injunction, extend the anonymity of the child beyond the point at which s 97 of the 1989 Act ceases to have effect in accordance with Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11. But it is important to note the views expressed in that case by each of my two immediate predecessors as to the likely need for specific orders protecting a child's identity beyond the conclusion of the proceedings. Both were sceptical. Sir Mark Potter P said this (para [51]):
'given the existence of section 12 of the Administration of Justice Act 1960 which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save insofar as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life.'
Wall LJ, as he then was, said (para [145]): 'My impression is that there are unlikely to be many cases in which the continuation of that protection will be required'. I shall return to this below.
[24] The court may likewise, by an appropriate injunction, afford anonymity to other participants in the process, for example, an expert, a local authority, or a social worker. Such injunctions, however, will not readily be granted: see the discussions in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, and Re X and Others (Children) (Morgan and Others Intervening) [2011] EWHC 1157 (Fam), [2012] 1 WLR 182, sub nom Re X, Y and Z (Expert Witness) [2011] 2 FLR 1437. As I put it in A v Ward, para [181], any such application in relation to an expert or a social worker must be justified by reference to 'the particular circumstances or particular vulnerabilities of specific individuals'. What I referred to as a 'class' claim, that is, 'a claim that any professional who falls into a certain class – and in the case of ... social workers ... the membership of the class is very large indeed – is, for that reason, and, truth be told, for that reason alone, entitled in current circumstances to have their identity protected, in plain language to have their identity concealed from the public', will not succeed. Anonymity should not be extended to experts, local authorities and social workers unless there are compelling reasons. Again, I shall return to this below. '
'43. Before considering in detail the three points of justification for interfering with the parents' Art 10 rights advanced by the local authority, it is important to be clear what the information the parents seek to publicise in this case now comprises of. The information comprising the petition consists, essentially, of (a) a statement that the children were the subject of care and placement proceedings, (b) a statement that the parents do not agree with the decision of the court, (c) a statement that they do not think the proceedings were fair, nor the decision evidence based, (d) a statement that they are seeking to try and overturn the decision and (e) statements by a number of people expressing agreement with them, a small number of which statements refer to the children by their forenames notwithstanding the parents agreement to remove the children's names from the front page of the petition. The information in the petition contains no details of the evidence and submissions the court heard during proceedings, no details of the significant harm the court found the children to have suffered and no details of the children's current circumstances, save that two of the children are the subject of a plan for adoption. The mother is referred to by both her forename and surname as the instigator of the petition and, thus, in circumstances where a limited number of responses to the petition mention the children using their forenames, the children are, in places, identifiable as having been the subject of proceedings (a situation that is not prohibited by the terms of the Administration of Justice Act 1960 s 12 (A v Ward [2010] 1 FLR 1497)). Finally, the petition has been in the public domain since May 2017. It has been signed by 160 people. There have been no new signatures since 30 May 2017.'
'49. In the circumstances, I am satisfied that there is very little cogent evidence before the court that each of the children or any of them will suffer embarrassment, much less emotional harm if the petition on the Change.org website remains in place online. Within this context, once again, it must be remembered that what the court is examining is whether there is evidence which amounts to a justification for interfering with the cardinal right of freedom of expression for the purposes of Art 10(2). Whilst it is, of course, possible to formulate a number of common-sense assumptions with respect to the potential impact on each of the children of persons accessing the online petition, the reality is that the justifications on which the local authority seeks to rely for interfering with the parents' right to freedom of expression under Art 8 are poorly evidenced and largely speculative in nature.'
57. With respect to the justifications for interfering with the children's Art 8 right to respect for private life, the discussion of the importance of the Art 10 right to freedom of expression has already resulted in these contended for justifications being articulated in broad outline. Within this context, beyond the fact that the court must, pursuant to s 12(4) of the Human Rights Act 1998, have regard to the importance of the right to freedom of expression generally, the following contended for justifications fall for consideration.
58. It is important that citizens whose lives have been the subject of State intervention, in this case parents who have been the subject of public law proceedings under the Children Act 1989 brought by the State, are able to express their opinions about that intervention, and to protest such intervention where they contend that it has worked an injustice (whether that intervention has, in fact, worked an injustice or not). The reasons that this must be so were eloquently articulated by Lord Steyn in R v Secretary of State for the Home Department ex parte Simms and Another [2000] 2 AC 115 at [126]:
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market": Abrams v United States (1919) 250 US 616, at 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country."
59. Within the context of the right of the citizen to petition Parliament or the Government in respect of a personal grievance being of fundamental constitutional importance, it is also important that citizens in the position of these parents, who consider that they have a personal grievance, can express themselves by articulating their grievances fully and effectively by way of petition, gain support for their views and, by doing so, seek redress. Further, in circumstances where, as the parents do here, a person seeks to petition the State for redress in respect of a personal grievance arising out of alleged actions of the State, it is particularly important that the State should not, without very good reason, be permitted, as it seeks to be permitted here by way of an application for injunctive relief, to restrain that person from petitioning. Indeed, once again, whilst I did not hear detailed submissions on the point, it is arguable that the prohibition on "commitments and prosecutions" with respect to petitions seeking redress contained in the Bill of Rights of 1689 would render such restraint unlawful.
60. Finally, in respect of the contended for justifications for interfering in the Art 8 right of the children for respect for private life, in this case one of the main factors driving the interference in the children's Art 8 right is the fact that the mother's name appears on the front page of the petition and the children are referred to by their forenames in a limited number of the responses to that petition. Against this, the ability of a parent to make clear who is speaking out or seeking to petition for redress is self-evidently very important, it being very difficult, if not impossible, to effectively protest a contended for injustice or petition for redress of a personal grievance if the protester or the petitioner must remain anonymous and prevented from providing any salient details of their grievance that may breach that anonymity.
61. Having regard to the foregoing parallel analysis of the importance of the rights engaged in this case and the respective justifications for interfering with the same set out above, in which I have considered each of the children's best interests as a primary consideration, and applying the ultimate balancing test of proportionality, I am satisfied that the local authority's application for an injunction compelling the parents to take down their online petition must be dismissed.
62. Balancing the Art 10 right to freedom of expression of the parents (in the context of the importance of that right, the importance of parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress) against the Art 8 right of the children to respect for their private and family life (in the context of the importance of that the right for the psychological integrity, personal development, development of social relationships and physical and social identity of the children and the court not being satisfied, having regard to the nature of the information and the children's prior knowledge of it, that the evidence establishes that publication will cause emotional harm to C and W and potentially de-stabilising their respective foster placements, disrupt efforts to find adoptive placements for T and N or cause ongoing embarrassment to the children as they get older) leads me to conclude in this case the Art 10 right to freedom of expression outweighs the Art 8 right to respect for private and family life when it comes to the question of the online petition being taken down. Applying the ultimate balancing test of proportionality, in my judgment it cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother's name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains. '
Submissions
Discussion and Decision
'49. Section 12 does not operate to prohibit the reporting of the identity (name, address and photograph) of those involved in proceedings, whether as the child concerned or as a party or witness; it does not prohibit the identification of expert witnesses; nor does it prohibit reporting of the fact of that person's involvement in proceedings, including, in the case of witnesses, the party on whose behalf they gave evidence; the dates, times and places of hearings, what is observed by those lawfully in the open areas of the court building; the nature of the dispute; and the order or a summary of it.
50. Instead, it operates to prohibit dissemination of what went on in front of the judge and the documents filed for the proceedings, including written evidence, reports and written submissions. It also prohibits notes or transcripts of evidence and submissions, extracts from documents filed and summaries of them. The prohibition operates even if the documents are anonymised.'