X (A Child), Re

I have before me applications for disclosure of various documents generated in the course of care and adoption proceedings which I heard in 2008.

The proceedings before me concluded on 15 May 2008. The following day (16 May 2008) I delivered a short judgment announcing my decision: Re X (a child), Northumberland County Council v Z and ors [2008] EWHC 1098 (Fam). My fully reasoned judgment followed on 12 June 2008: Re X (a child), Northumberland County Council v Z and ors (No 2) [2008] EWHC 1324 (Fam). All references hereafter are to the latter judgment.

The proceedings related to a black African girl, X, who was born in Kenya on 29 December 2004. Within days of her birth she had seemingly been abandoned and was placed in a children’s home from which plight, as they saw it, she was ‘rescued’ by a white British couple, Mr Y and Ms Z. They brought her to this country on 23 July 2006, using a false Kenyan birth certificate and a false Kenyan passport for her and concealing her presence from the local authority.

Tipped off by the NSPCC on 21 May 2007 the local authority, with the assistance of the police, removed X from their care on 23 May 2007. She was placed with a foster carer.

The next day (24 May 2007) the local authority commenced care proceedings in respect of X. On 30 November 2007 the Government of the Republic of Kenya (the GRK) was joined as a party. On 4 December 2007 Mr Y and Ms Z issued an application to adopt X.

Both sets of proceedings came on for trial before me in April 2008. Following eleven days of evidence I ruled out Mr Y and Ms Z as future carers for X. I approved the care plans put forward by the local authority (dated 14 April 2008) and the GRK (dated 24 April 2008) providing for X’s adoption or, if adoption was not possible, long-term fostering, in either case in Kenya.

In accordance with the detailed arrangements I had approved, X returned to Kenya on 15 September 2008, where she has since been adopted in accordance with the GRK’s care plan.

I need not rehearse all my findings. They are set out in great detail in my previous judgment.

It suffices for present purposes to record my finding that, at some stage between 18 February 2006 and 15 March 2006, Mr Y and Ms Z decided to bring X to this country using illegal means – means which were, as they must have known, illegal both as a matter of Kenyan law and as a matter of English law – and deliberately behind the back of the local authority and, indeed, behind the backs of the other relevant public authorities both here and in Kenya.

I found Mr Y to be “up to his eyes in deceit and deception of both the Kenyan and the United Kingdom authorities” and Ms Z to be “a knowing and willing participant in that deceit and deception”. They were, as I found, “jointly involved, each with the same essential guilty knowledge, from March 2006 onwards.”

I spelt out exactly what I meant by my references to illegality:

“It is important to be precise as to what, in this context, I mean by illegality. It is clear that X’s removal from Kenya and introduction into this country involved breaches both of Kenyan law – Kenyan adoption law and Kenyan criminal law (the obtaining of false documents) – and of English law – English immigration law and English adoption law. It is also clear, in my judgment, and I so find, that both Mr Y and Ms Z were aware – knew – that the scheme which they jointly planned and implemented involved (i) the obtaining by deception of false Kenyan documents, (ii) the introduction of X into this country by deception of the United Kingdom immigration authorities and (iii) breaches of English adoption law (at least insofar as they knowingly omitted to notify the local authority of X’s presence, either before or after her arrival in this country, and deliberately decided to side-step the necessary process of assessment).

It is therefore clear, and I so find, that both Mr Y and Ms Z were aware – knew – that the scheme which they jointly planned and implemented involved, to the extent I have indicated, breaches of Kenyan criminal law, of English immigration law and of English adoption law.

What is not so clear is whether, and if so to what extent, they were aware that what they were doing involved breaches of Kenyan adoption law. I have my suspicions. After all, it is clear that they obtained at least some advice on this topic from [Mr M, a lawyer in Kenya], and it might be thought unlikely that he would not have told them enough for them to appreciate that what they were doing was contrary to Kenyan adoption law. But, not least because of their continuing coyness – in plain words, their continuing refusal to give a frank account of their dealings with Mr [M] – I am unable to find as a fact that they were aware that what they were doing involved breaches of Kenyan adoption law.”

That needs to be put in perspective. I had earlier observed that:

“This truly is … a case which is unique, complex and tragic. It has been a tragedy for X and has become, and, I fear will long remain, a tragic nightmare for Mr Y and Ms Z. It is all too easy to say that they have only themselves to blame, that they have brought it on themselves. But the truth – and the tragedy – is that they did it all, I am quite satisfied, with the best of motives and impelled by nothing other than care and love for X. Having in March 2006 made a fatal decision to utilise what they initially thought was a loophole but which almost immediately snared them in what they well knew was illegality, they then found themselves trapped in a nightmare from which they could see no escape.”

I also made clear that I was “quite satisfied that there was nothing sinister” in the monthly payments of £50 which Mr Y had made to the Kenyan children’s home as ‘sponsorship’ for X. It was, I said, “an altruistic and humanitarian response to an aspect of life in Kenya which he had not previously come across and which, it is clear, affected him deeply.” I added that:

“There is, in my judgment, no evidence whatsoever to implicate Mr Y (or for that matter Ms Z) in any illegal or otherwise prohibited payment in relation to X … It has never been suggested, nor was it put in cross-examination to them, that the £50 paid monthly for X, nor indeed the sums paid for [two other children], were anything other than as they were represented to be, namely bona fide sponsorship.”

As foreshadowed in my previous judgment, and in accordance with directions I gave on 4 July 2008 and 19 August 2008, both the local authority and the GRK have made application for disclosure of certain documents.

The local authority seeks disclosure which, as finally formulated, is in the terms of the following draft order:

“Without prejudice to:

(a)

section 12 of the Administration of Justice Act 1960 (as amended);

(b)

section 97(2) of the Children Act 1989 (as amended);

(c)

section 98(2) of the Children Act 1989 (as amended)

IT IS ORDERED THAT:

1

Subject to the conditions set out in the Schedule to this order, Northumberland County Council (‘the local authority’) shall have permission to disclose a copy of the transcript of the judgment handed down on 12 June 2008 (‘the transcript’) to the Chief Constable of Northumbria Police and the UK Border & Immigration Agency (‘the recipients’); and the local authority is hereby directed to disclose the transcript to the recipients within 7 days of the making of this order.

2

The recipients shall have liberty to apply with a view to the discharge or modification of the provisions of the Schedule to this order. Any such application shall be made to a Judge of the Family Division of the High Court (the Honourable Mr Justice Munby if available).

3

There shall be no order as to costs save public funding detailed assessment of X’s costs.

The Schedule

The disclosure permitted by paragaph 1 of this order shall be subject to the following conditions:

(1)

The transcript is and shall remain at all times confidential.

(2)

The transcript is to be used by each recipient:

(a)

for the purpose of considering what lessons might be learned from the circumstances surrounding X’s arrival into the United Kingdom with a view to safeguarding against other children being brought into the United Kingdom unlawfully;

(b)

if they consider it appropriate, to assist in their investigations into whether any proceedings should be commenced against Mr Y and/or Ms Z.

(3)

Save with the prior leave of this court:

(a)

no part of the transcript shall be read into the public record or otherwise put in the public domain;

(b)

nothing shall be published that might lead to the identification of any of the persons referred to in the transcript;

(c)

the recipients may not:

(i)

disclose the transcript to any other person;

(ii)

use the transcript for any purpose other than those referred to in paragraph (2) of this Schedule.

(4)

The transcript is to be disclosed with a copy of this order and a covering letter drawing the attention of the recipients to the terms of this Schedule.”

The GRK seeks disclosure which, as finally formulated, is in the terms of the following draft order:

“UPON the Government of the Republic of Kenya, by its officers who may come into possession of material disclosed by virtue of this order, undertaking not to use the said material as direct evidence against Mr Y and/or Ms Z in any criminal proceedings brought against them in Kenya, or any request for extradition of Mr Y and/or Ms Z from the United Kingdom to Kenya, SAVE THAT the Government by its agencies may use the material (a) in any police inquiry or investigation into the commission of an offence contrary to Kenyan law, and (b) to challenge inconsistent statements or the credibility of Mr Y and/or Ms Z

AND without prejudice to Administration of Justice Act 1960 section 12 and to Children Act 1989 section 97(2)

IT IS ORDERED THAT:

1

The Government of Kenya shall have permission to disclose:

(a)

to its Permanent Secretary of the Ministry of Gender, Children and Social Development those documents set out in Appendix A;

(b)

to its Chief Justice of the Judiciary a copy of the judgment of Mr Justice Munby dated 12 June 2008;

(c)

to its Attorney-General, its Commissioner of Police, its Criminal Investigation Department, and Interpol, those documents set out in Appendix B.

2

For the avoidance of doubt, the Government of Kenya shall have permission to disclose to:

(a)

Mr Leonard Boiyo (First Secretary) and Mr Kenyoru (Principal Counsellor) of the Kenyan High Commission in London,

(b)

Gideon Kimilu and Lilian Kiamba of the Criminal Investigations Department,

(c)

Mr T Anyim of the Department of Immigration,

(d)

Mr Bitta of the Attorney-General’s Office,

(e)

Mrs Gatuguta of the Ministry of Home Affairs,

those documents set out in Appendix C.”

Appendix C sets out a short list of documents comprising essentially the various statements made by Mr Y and Ms Z either to the Northumbria police or in the course of the proceedings. Appendix B sets out a much longer list of documents including, in addition to those listed in Appendix C, various statements made by other witnesses in the course of the proceedings (including statements made by Mr Ahmed Hussein, Director of the Children’s Department in the Kenyan Minister of Home Affairs), various documents, some emanating from this country and some from Kenya, which had been included in the trial bundles, and, finally, my previous judgment. Appendix A sets out, in addition to the documents listed in Appendix B, various position statements and similar documents filed by the parties and the care plans filed by the local authority and the GRK.

As previously, Mr Nicholas Stonor appeared for the local authority, Mr Justin Gray for the GRK and Miss Rachel Hudson for the guardian. Mr Stonor’s submissions were set out in a position statement dated 29 September 2008 and Mr Gray’s in a position statement dated 26 September 2008, supplemented as to the substance by a further position statement dated 19 November 2008 and a skeleton argument dated 17 February 2009. Miss Hudson’s position statement dated 17 November 2008 made it clear (as did her oral submissions before me at the hearing) that the guardian was not herself seeking disclosure of any documents, but did not oppose the disclosure sought by the local authority and the GRK. Her stance on behalf of X was one of neutrality.

The hearing of the application, which had originally been listed for 21 November 2008, had to be adjourned for want of court time. The matter came on for hearing before me (by video-link: I was sitting in Liverpool, counsel were in Newcastle-Upon-Tyne) on 20 February 2009.

Mr Y and Ms Z had written me a letter dated 2 December 2008 explaining why they would not be attending or represented at the hearing and setting out their response to the applications. At my request the guardian’s solicitor contacted them again in February 2009 to ascertain their up-to-date position. Mr Y responded to the solicitor’s letter by a telephone call on 5 February 2009 the substance of which is recorded in an e-mail circulated by the solicitor later the same day.

Counsel are correctly agreed that the relevant principles I have to apply are to be found in the decision of the Court of Appeal in In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725, and in my more recent decisions in the two related cases of Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, and Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944. Mr Stonor also referred to A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 (appeal dismissed A Health Authority v X [2001] EWCA Civ 2014, [2002] 1 FLR 1045).

I need not go into the authorities. The principles are well known. I shall refer in due course to the particular principles which are most directly in play in the particular circumstances of the present case. For the moment, all I need do is set out the factors identified by Swinton Thomas LJ in Re EC at page 733 as material when deciding whether or not to order disclosure:

“(1)

The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.

(2)

The welfare and interests of other children generally.

(3)

The maintenance of confidentiality in children cases.

(4)

The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which s 98(2) applies. The underlying purpose of s 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given.

(5)

The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.

(6)

The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.

(7)

The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.

(8)

The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.

(9)

In a case to which s 98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.

(10)

Any other material disclosure which has already taken place.”

Mr Stonor seeks the disclosure of my previous judgment to the Chief Constable of Northumbria Police and to the UK Border & Immigration Agency. He tells me that the local authority’s approach is based upon the following considerations:

On this footing the local authority limits its application to disclosure of my previous judgment. Mr Stonor says that if, having read the judgment, either authority seeks disclosure of any further material, then it will be for it to make the application.

Mr Stonor submits that the disclosure sought by the local authority is appropriate having regard to the various factors listed by Swinton Thomas LJ in Re EC at page 733, in particular number (2) – “The welfare and interests of other children generally.” Referring to the form of order I made in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 (and see also A Health Authority v X (Discovery: Medical Conduct) (No 2) [2002] EWHC 26 (Fam), [2002] 1 FLR 383), he suggests that it would be appropriate for any order I make to contain, at least in the first instance, the conditions and restrictions set out in the Schedule to the draft.

In their letter dated 2 December 2008 Mr Y and Ms Z set out in their own words their response to the local authority’s application. One passage in this letter in particular is eloquent in expressing their feelings and deserves to be set out in full:

“As I am sure you are aware, dealing with X’s removal from our care, the subsequent court proceedings and her eventual return to Kenya have been the most difficult, exhausting and personally upsetting things we have ever had to face in our lives. Now we have been confronted with the emotionally devastating news that the Kenyan Government have not only changed their position on disclosure but have also now introduced an accusation of ‘abduction’ into the proceedings. After all we have been through we are struggling to come to terms with all this and the motivation behind it.

This has been the most traumatic and devastating time of our lives, but throughout it X has always been foremost in our minds, just as she has been from the day of our first meeting in January 2005 as an abandoned orphan in a Children’s Home in Nairobi and the life threatening problems that affected the children in that Home. We foolishly let our hearts rule our heads, something we appreciate in hindsight was a mistake, but was no more nor less than a pure act of love and care for X.

… Losing X has most certainly been the most devastating and life shattering time of our lives and everything we have lost since, ie, our business and home, are completely inconsequential. We remain very proud that in our lives we helped X with love and nurture during her time with us and who has grown and developed into an extremely bright, loving and healthy baby girl.”

Their response to the local authority’s application is as follows:

“We fully respect and appreciate that the matter of disclosure is entirely at your discretion. However we would respectfully request that amongst all other considerations you have to make, you also take account of the following:-

We have already paid the highest price for our mistakes. The loss of X has torn a huge hole in our lives and will take us many years to begin to heal the wounds the loss has left. Even the local authority in its submission has recognised there is a serious argument in this case that we have suffered enough and that we should be allowed to draw a line under this tragic episode in our lives.

We are confused as to why the local authority should want to continue to pursue us in this way regarding their request for disclosure. We have already been investigated by the Police and our case considered by the CPS. The outcome was that no action should be taken. How many more times can the subject be re-opened and re-considered in an effort to achieve a different outcome? How long can we be expected to carry on under the threat of further action? Above all, whatever the local authority thinks of us what possible benefit is any of this to X?”

In his conversation with the guardian’s solicitor on 5 February 2009, Mr Y indicated that there was nothing more they wished to say then was in their earlier response. They would, he said, defer to me.

As will be seen from the draft order, the disclosure sought by the GRK falls into two parts. It will be convenient to deal first with the disclosure contemplated by paragraph 2 of the draft before turning to consider the disclosure contemplated by paragraph 1.

I need to explain first the background to the application for the disclosure contemplated by paragraph 2 of the draft order.

As I have already mentioned, the GRK became a party to the proceedings on 29 November 2007. As a party it was, of course, entitled to see copies of all the documents filed in and generated by the proceedings.

The department within the GRK conducting the litigation was the Children’s Department within the Kenyan Ministry of Home Affairs. The Director of the Children’s Department, as I have said, is Mr Hussein. He gave evidence before me during the trial. I should set out what I said about him in my previous judgment:

“For my part I should say that I found Mr Hussein to be a very impressive and compelling witness. The fact that, despite his elevated status in Kenya, he had involved himself personally in this case and, with [one of his social workers], had travelled to this country and attended court throughout the first week of the hearing (for which I am exceedingly grateful), testified compellingly to his commitment and the commitment of the GRK generally to X’s welfare. His thoughtful, nuanced, reflective and child-centred evidence similarly testified to both his understanding of the issues in this very difficult case and to the welcome openness of mind and flexibility of thinking he was so very willing to bring to bear. Obviously I was not privy to what were plainly the very fruitful discussions he had out of court with both the local authority and the guardian, but I am not at all surprised to hear how positively they reacted to their discussions with him. It accorded entirely with the impression I had gained seeing him in court and hearing him give evidence.

I have complete confidence in Mr Hussein and my confidence in him enables me to be similarly confident about [his social worker], even though I did not have the advantage of hearing her give evidence, and, indeed, to be similarly confident about the GRK generally. The commitment it has demonstrated to one of its children is, if I may be allowed to say so, very impressive. It contrasts very favourably indeed with the lack of interest which in too many such cases is exhibited by foreign states which find themselves in similar circumstances.”

In the process of seeking to establish an understanding of X’s circumstances in Kenya, the Children’s Department disclosed some of the case papers (those listed in Appendix C to the draft order; in particular, as I have said, the various statements made by Mr Y and Ms Z to the police or in the course of the proceedings) to other limbs of the GRK as follows:

There was some debate before me as to whether permission for this disclosure was, or is, required. Mr Gray accepted that it was arguable that the GRK (in the guise of the Children’s Department) required permission to disclose the papers to other departments of the GRK. He referred in this context to Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, at paras [77]-[80], where I explained my reasons for making an order giving a local authority which, acting through its children’s services department, had been involved in care proceedings, permission to disclose court papers to its adult services department. (Mr Gray reads the report of Re X as indicating that I had “required” the local authority to apply for such permission. That is not in fact so. The local authority chose to make the application and everyone – and I include myself – simply proceeded on the assumption that the local authority needed judicial sanction for what it sought. Certainly no-one argued to the contrary.)

Be all that as it may, Mr Gray was at one stage minded to submit that the GRK did not require the permission of the court to disclose the papers to relevant officials in other departments, specifically to those I have referred to in paragraph [33] above. His argument proceeded as follows:

At the end of the day Mr Gray, although not, as I understood it, formally abandoning this line of argument, preferred to concentrate his submissions on the proposition that, even assuming that permission was required before the disclosure in question could be made, the case was one in which the court should retrospectively grant permission, as it is sometimes said by an order nunc pro tunc. Such an order was justified, he submitted, by reference to:

On this basis Mr Gray submitted that the disclosure sought was plainly justified by reference to the factors identified by Swinton Thomas LJ in Re EC, in particular having regard to factors (2) (“the welfare and interests of other children generally”), (6) (“the public interest in the prosecution of serious crime and the punishment of offenders”) and (8) (“the desirability of co-operation between various agencies concerned with the welfare of children”). As he put it, the GRK submits that disclosure to those of its limbs investigating the crimes that it suspects Mr Y and Ms Z have committed is fully warranted having regard to the factors set out in Re EC. Further, Mr Gray submits, on any proper application of the ‘balancing exercise’ as I described it in the two Re X cases – an approach which, at least in its current form, is a creature of the Convention and thus post-dates the decision in Re EC – the balance comes down clearly, indeed heavily, in favour of the disclosure being sought.

Kenyans, says Mr Gray, reflecting the evidence I heard during the trial from Mr Hussein, place high importance on compliance with the law. The criminal legal process must take its course. I should not hinder that process. On the contrary, I should facilitate it: see Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, at paras [35], [43], and Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, at paras [31]-[32].

I turn now to the disclosure contemplated by paragraph 1 of the draft order. What is sought, as we have seen, is permission to disclose a much larger body of documentation as follows:

Mr Gray says that there are three principal aims to the application for disclosure:

More specifically, Mr Gray explains the rationale for the disclosure being sought as follows:

Mr Gray’s submissions in support of this limb of his application mirror those deployed by him in support of the other limb, though as he correctly appreciates, so far as concerns the application for disclosure to the Chief Justice of Kenya and to the Permanent Secretary of the Kenyan Ministry of Gender, Children and Social Development the key factors in Re EC which are here in play are (2) and (8), not (6).

In this connection, Mr Gray rightly reminds me again of the provisions of the 1990 African Union Charter on the Rights and Welfare of the Child, specifically in this context the relevant provisions of Article 29 which impose on the GRK important obligations binding in international law:

“Sale, Trafficking and Abduction

States Parties to the present Charter shall take appropriate measures to prevent:

(a)

the abduction, the sale of, or traffick of children for any purpose or in any form, by any person including parents or legal guardians of the child … ”

For my part I would draw attention also to the corresponding provisions to be found in Articles 11 and 35 of the 1989 United Nations Convention on the Rights of the Child, an instrument binding as a matter of international law both on the United Kingdom and, for that matter, on Kenya:

“Article 11

1

States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

2

To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

Article 35

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”

Mr Gray told me that the GRK was also minded to seek disclosure of transcripts of the oral evidence given before me by Mr Y and Ms Z, but he recognised that notice of this elaboration of his application had not been given to them. Accordingly he indicated that he was not going to press the point at this stage but would be content if the GRK was given liberty to apply on notice for further disclosure.

I have already set out that part of the letter dated 2 December 2008 from Mr Y and Ms Z in which they set out their response to the local authority’s application. The letter continues in relation to the GRK’s application as follows:

“Much of the above also applies to the position of the Kenyan Government, but in addition we would respectfully point out that on past record, disclosing information to the Kenyans carries no guarantee that this information will not find its way into the public domain. We well recall one occasion when, having given assurances to the Court the information provided in the proceedings would not be made public, it was immediately released to a Kenyan National newspaper.

Once again, what possible benefit could there be for X were this to happen, and what impact would this have on the likelihood of us receiving a fair trial were we to be extradited as seems to be the Kenyan Government’s wish.”

As I have said, in his conversation with the guardian’s solicitor on 5 February 2009, Mr Y indicated that there was nothing more they wished to say.

As appears from my previous judgment, the question of disclosure had in fact been canvassed before me during the proceedings at a time when Mr Y and Ms Z were represented, Mr Y by Miss Lesley McKenzie and Ms Z by Mr Tim Spain. I recorded the fact that, as Mr Gray had very frankly made clear, documents had already been disclosed within the GRK as described in paragraph [33] above and how this had given rise to a certain amount of debate before me, the outlines of which I sketched out in my judgment.

In the circumstances it is only fair that I should set out the preliminary submissions made at that stage on behalf of Mr Y and Ms Z as I recorded them in my previous judgment. I said:

“Miss McKenzie and Mr Spain, on behalf of Mr Y and Ms Z, observe that it is clear from the concessions, admissions or submissions made by Mr Gray that information from the proceedings has been fed back to various Kenyan authorities in Nairobi in circumstances which may not have been appropriate, assuming, as they submit, that as the GRK has appeared as a party in the proceedings it is bound by the same restrictions which would apply to any other corporate litigant in such proceedings.”

I continued:

“Picking up a comment I had earlier made, they submitted that merely because Northumberland County Council is a party to the proceedings it does not follow that every officer and elected member is entitled, ex officio, to see the papers. There must be a legitimate need to have access for some proper purpose and the same, they submit, goes for the GRK.”

I have borne these submissions very much in mind, together with their letter dated 2 December 2008, when considering the position in which Mr Y and Ms Z now find themselves.

I am very conscious of the fact that Mr Y and Ms Z are no longer represented. It seemed to me that it was accordingly my duty to raise with Mr Gray a point which it occurred to me might properly have been raised on their behalf had they been represented. By an e-mail sent to counsel on 2 February 2009 I accordingly invited Mr Gray to consider:

“what (if any) undertakings the GRK is prepared to offer the court to ensure that Mr Y and Ms Z have the same protection if proceeded against in Kenya as they would have in this country by virtue of section 98 of the Children Act 1989.”

A little elaboration of this is perhaps called for.

Section 98 provides, so far as material, as follows:

“(1)

‘In any proceedings in which a court is hearing an application for an order under Part IV [of the Act], no person shall be excused from –

(a)

giving evidence on any matter; or

(b)

answering any question put to him in the course of his giving evidence,

on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

(2)

A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.”

I had to consider the effect of these provisions in the two Re X cases. In the first, Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, I said this at paras [49]- [50]:

“[49] In the first place, s 98(2) of the 1989 Act gives protection only against the use of such statement or admission ‘in evidence’. It does not, for example, protect against use in a police inquiry into the commission of an offence: see In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725, at 85 and 733 respectively …

[50] Secondly, it is to be noted that putting inconsistent statements to a witness in order to challenge his evidence or attack his credibility does not amount to using those statements ‘against’ him within the meaning of the section: Kent County Council v K [1994] 1 WLR 912, sub nom Re K and Others (Minors) (Disclosure) [1994] 1 FLR 377, at 916 and 380 respectively, followed in Re L (Care: Confidentiality) [1999] 1 FLR 165, at 167.”

In the second case, Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, I said at para [35] that:

“although s 98(2) shows that the evidence he gave in the family proceedings cannot be used against the defendant ‘in evidence’, this does not altogether preclude its use in connection with criminal proceedings.”

Having then recited the relevant passages from Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, as I have set them out above, I continued at para [65]:

“Disclosure in these circumstances is not in any way inconsistent with s 98 of the Children Act 1989. Indeed, it serves to illustrate the statutory scheme working as it was intended to work. The Crown cannot use the material which is to be disclosed in order to make its case against the defendant, for, as s 98(1) provides, it cannot be used ‘against’ him ‘in evidence’, but the Crown can, as permitted by Kent County Council v K [1994] 1 WLR 912, sub nom Re K and Others (Minors) (Disclosure) [1994] 1 FLR 377 and Re L (Care: Confidentiality) [1999] 1 FLR 165, use the material to challenge any account he seeks to put forward in the Crown Court inconsistent with his evidence in the family proceedings.”

In response, Mr Gray very helpfully and properly refined his proposed order to include the undertaking the terms of which are set out in the draft order at paragraph [16] above. And he was able to tell me that he had the instructions of the GRK, acting for this purpose through the Director, Mr Hussein, to give that undertaking to the court. As will be appreciated, the undertaking which Mr Gray proffers has been drafted with my analysis in the two Re X cases very much in mind.

It is, I think, important to consider not merely the particular circumstances of the present case but also the particular context in which these issues arise for consideration.

The illicit transfer, abduction, sale or trafficking of children and young persons across international boundaries is rightly and understandably a matter of the greatest and most pressing concern to judges, law enforcement agencies, governments, non-governmental organisations and international governmental and non-governmental organisations throughout the civilised world. The problem has been addressed in many international Treaties and Conventions. For present purposes it suffices to refer to the provisions of the 1989 United Nations Convention on the Rights of the Child and the 1990 African Union Charter on the Rights and Welfare of the Child which I have already set out, though there are many others that bear on the problem.

The problem takes many forms of very varying gravity. At the comparatively benign end of the spectrum there is the parent who removes their own child across an international boundary without the agreement of the child’s other parent – the problem of child abduction as it is addressed, for example, in the 1980 Hague Convention on International Child Abduction. At the other, and most vicious, end of the spectrum there are the children and young people trafficked – bought and sold almost as chattels, tricked, coerced or forced – across international boundaries by criminals for appalling sexual exploitation in circumstances of depravity and virtual slavery or worse. In between there are many gradations. There are the people-traffickers who assist the young people who – or whose parents – are desperate to better themselves by moving to so-called advanced countries even if this means manipulating or evading border controls. There is the kind of problem exemplified (as it happens also in a Kenyan context) by the so-called ‘Miracle Baby’ case: see Haringey London Borough Council v C, E and another intervening [2004] EWHC 2580 (Fam), [2005] 2 FLR 47, and Haringey London Borough Council v C, E and another intervening [2006] EWHC 1620 (Fam), [2007] 1 FLR 1035. And there is the problem of international adoption, too often linked with what can only be called the international adoption trade: see, for example, Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111, and the other cases cited there. Internationally, this is now regulated by the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, which contains the following sobering recital:

“Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children”.

The vicious, the criminal, the depraved and the merely desperate are adept at manipulating legal and border-control procedures for their own purposes. Sadly, as judicial experience in the Family Division sometimes illustrates, the ingenious manage to cloak their criminality in a deceptive veneer of seeming legality and even, on occasions, a cloak of legality made all the more convincing – for instance in the eyes of border and immigration officials – because seemingly clothed with the judicial sanction of an order of some foreign family court. I once had to deal with a case where a depraved sexual pervert had bought a baby girl from a prostitute mother in a third world country for use by him in this country as what can only be described as a living – a human – sexual toy. But this unspeakably sordid commercial transaction was, with considerable cunning, dressed up with such a convincing veneer of seeming legality (including genuine orders of the foreign court, itself utterly deceived) as to deceive Her Majesty’s Government into granting the child a British passport in the belief that she was the man’s daughter, when in fact she was no such thing – he had simply bought her. This was a particularly revolting and wicked case but analogous methods are often used in less egregious circumstances, for example in the cases of commercially driven international adoption of which every judge of the Family Division is unhappily all too likely to have had experience.

The common feature of all these forms of abuse is that their remedying and eventually, one hopes, their eradication requires the closest co-operation, nationally and internationally, not merely at the level of policy making but also, at an operational or case-work level, between all the relevant governmental and non-governmental agencies, including the agencies responsible for border and immigration control, the police and other law enforcement agencies and, not least, the courts – both the criminal courts and family courts.

The international adoption of children can be problematic at the best of times. Even if there is no exploitation and no breach of any applicable law, and even if everyone involved believes that they are acting from the best of motives, there are still very real concerns which we have to face up to. There are, for instance, the views expressed by the Parliamentary Assembly of the Council of Europe on 26 January 2000 in Recommendation 1443(2000) – International Adoption: Respecting Children’s Rights, where the Assembly affirmed that:

“The purpose of international adoption must be to provide children with a mother and father in a way that respects their rights, not to enable foreign parents to satisfy their wish for a child at any price.”

The Assembly went on to express its fierce opposition to:

“the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries.”

It drew attention to the fact that:

“In many cases, receiving countries perpetuate misleading notions about children’s circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country.”

That is a European view. But similar views, albeit expressed from the perspective of very different experience, are reflected in certain other provisions of the 1990 African Union Charter on the Rights and Welfare of the Child to which Mr Gray also drew my attention:

“RECOGNIZING that the child occupies a unique and privileged position in the African society and that for the full and harmonious development of his personality the child should grow up in a family environment in an atmosphere of happiness, love and understanding,

…

TAKING INTO CONSIDERATION the virtues of their cultural heritage, historical background and the values of the African civilization which should inspire and characterize their reflection on the concept of the rights and welfare of the child,

…

Article 24: Adoption

States Parties which recognize the system of adoption shall ensure that the best interest of the child shall be the paramount consideration and they shall:

(a)

establish competent authorities to determine matters of adoption and ensure that the adoption is carried out in conformity with applicable laws and procedures and on the basis of all relevant and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and guardians and that, if necessary, the appropriate persons concerned have given their informed consent to the adoption on the basis of appropriate counselling;

(b)

recognize that inter-country adoption in those States who have ratified or adhered to the International Convention on the Rights of the Child or this Charter, may, as the last resort, be considered as an alternative means of a child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;

(c)

ensure that the child affected by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d)

take all appropriate measures to ensure that in inter-country adoption, the placement does not result in trafficking or improper financial gain for those who try to adopt a child;

(e)

promote, where appropriate, the objectives of this Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework to ensure that the placement of the child in another country is carried out by competent authorities or organs;

(f)

establish a machinery to monitor the well-being of the adopted child.”

As I noted in my previous judgment, the thinking and the policy which underlies this is, as will be appreciated, very similar to that espoused by the Parliamentary Assembly of the Council of Europe. And it is a principle and a policy which demands careful and respectful consideration by this court, indeed by every judge of a family court wherever he or she may be sitting, whether in a court in a member state of the African Union or not

In reality international adoption too often involves abuse and exploitation of the vulnerable. Even if the prospective adopters are acting from the best of motives, in an entirely open and ‘above-board’ manner and without the slightest intention of becoming involved in anything illicit let alone criminal, they may in fact, unbeknownst to themselves, become unwitting tools in or victims of the illicit or even criminal activities of intermediaries who, however successfully they may present themselves to the inexperienced or naïve as motivated only by altruism, are in fact running exploitative and criminal trafficking rackets: consider the facts about the international adoption of Cambodian children as described in R (Charlton Thompson and others) v Secretary of State for Education and Skills [2005] EWHC 1378 (Admin), [2006] 1 FLR 175.

The sad reality, as I pointed out in my previous judgment, is that, unhappily, as the experience of the judges of the Family Division all too frequently demonstrates, inter-country adoptions can involve dishonesty, subterfuge, criminality and exploitation of the vulnerable: see for a striking example, Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111.

The Conventions to which I have referred enshrine important principles of public policy, in both the domestic and more importantly the international sphere, to which the court must have close regard. And there are important principles of comity here in play. This is a context in which, to generalise from the point made by Balcombe LJ in Re F (A Minor) (Abduction: Jurisdiction) [1991] 1 FLR 1 at page 6, courts should, as a general principle, act in comity to discourage the illicit transfer of children across international borders. And in addition to the driving imperatives of judicial comity, there is the wider comity between nations – comity with the judicial and other public authorities of a friendly State – to which a judge must have appropriate regard. As I observed in my previous judgment, Kenya is a friendly State, a nation with a similar welfare system and similar principles to our own and, indeed, a member of the Commonwealth. So the demands of comity rank high. After all, if the tables were turned, if the boot had been on the other foot, if it was one of our children who had been taken from the United Kingdom to Kenya as X was brought from Kenya to the United Kingdom, would we not be making the same request of the Kenyan judge as the GRK is today making of me? And would we not be disappointed, to put it no higher, if in those circumstances our request was refused?

Against this background I can deal quite shortly with the local authority’s application.

The disclosure sought by Mr Stonor is limited. And it is to be subject to the important safeguards which Mr Stonor has himself suggested. The policy considerations I have mentioned point strongly in my judgment in favour of the disclosure sought. It falls comfortably within the principles summarised by Swinton Thomas LJ in Re EC – in particular, what in my judgment is the pressing need to take all appropriate steps to protect other children from what befell X. The balance, in my assessment, falls plainly in favour of permitting the disclosure sought by the local authority.

There are two specific points which require some further elaboration.

Mr Y and Ms Z ask how any of this is going to benefit X. The plain answer is that it is not going to be of any benefit to X but that, with respect, is largely beside the point. Disclosure of the kind being sought here is not confined to those situations where it is for the benefit of the child who was the subject of the proceedings. That is clear enough from Re EC itself. There are many public policy reasons why disclosure may be appropriate, many of which may hardly impact on, let alone benefit, the child whose case has been before the court. And there is no plausible case for suggesting that the disclosure being sought here will in any way be damaging to X. It will not. So, even taking into account that in this case, unlike in some superficially similar cases, there is no suggested benefit to the particular child involved, the balance, as I have said, comes down plainly in favour of disclosure.

Mr Y and Ms Z say that they have already been punished enough and dispute that there is any basis for returning the matter to the police. I can understand why they say that, but it misunderstands the proper role of the family court in this situation. It is not for me to decide whether there is a case against Mr Y and Ms Z fit to go before a jury, let alone to decide whether or not they should be prosecuted. That is a matter exclusively for the relevant authorities – the police and the CPS – to consider. Indeed, it would not be right for me to refuse to direct disclosure otherwise appropriate merely because it seemed to me that there should not be a prosecution – that is not my function, and were I to arrogate it to myself I would be acting in an entirely inappropriate and, indeed, unprincipled manner.

The proper role of the family court in this context, as I explained in the two Re X cases, is to work together in co-operation with the criminal justice system to ensure the proper administration of criminal justice without unnecessary let or hindrance by the family court and, on the contrary, extending all proper assistance to the criminal justice system: see Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, at paras [35], [43], and Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, at paras [31]-[32]. My task is to decide whether there should be disclosure so that the proper authorities can consider whether or not to prosecute; my task is not to decide whether or not there should be a prosecution. The criminal justice system must take its course. If Mr Y or Ms Z wish to assert that there is no case against them, or that there should in any event be no prosecution – matters on which, I emphasise, I express no views whatsoever – then that is something for which they must look to the procedures of the criminal justice system (including those procedures which protect a defendant against an inappropriate, unfair or oppressive prosecution) not to the processes of the family court.

I will make an order essentially in the terms proposed by Mr Stonor.

I do not propose to decide the interesting and important question of whether the disclosure referred to in paragraph [33] above required the prior sanction of the court. I have not heard full argument on a point which is not altogether straightforward and which in the event was not pursued by Mr Gray. So the less said the better. I confine myself to two observations, for what they are worth.

In the first place, I remain of the view which I expressed at an earlier stage of the proceedings (see paragraph [48] above), that merely because a local authority is a party to care proceedings it does not follow that every officer and elected member is entitled, ex officio, to see the papers. There must, at the very least, be a legitimate need to have access for some proper purpose – and even that, I should observe, will not necessarily suffice to permit disclosure without prior judicial sanction. And the same, I am inclined to think, must go for any other corporate litigant, including a foreign government. Whether that means that the GRK should first have sought permission in this case is not a topic which it is profitable to consider. It is enough that I make quite clear that the GRK, as I am satisfied, acted at all times responsibly, in good faith and with complete propriety.

The other point in a sense flows on from the first. The ‘lesson’ which perhaps we should all take away from this experience is the need in future such cases for the court to spell out precisely – as I failed to do here – the limitations and conditions attached to the use by a corporate litigant of the documents generated in family proceedings to which it is a party. This is perhaps particularly important if the relevant party is a foreign government, which may not be as familiar with the minutiae of English family law as a domestic litigant.

This point out of the way I return to the application as it is put before me by Mr Gray.

For reasons which will by now be apparent, and which in large measure mirror those in relation to the disclosure sought by the local authority, this is a case where, as I am satisfied, the disclosure sought by the GRK for the reasons it has indicated is in principle plainly appropriate. Again, the balance in my judgment comes down plainly in favour of such disclosure. Through Mr Gray the GRK has articulated precisely why it seeks disclosure. Its reasons are compelling and, in my judgment, they fall comfortably within the principles spelt out in Re EC and the other case-law. The fact that the disclosure sought is by a foreign government is no reason for refusing to make the order. On the contrary, given the context in which the application is made – an illicit and, indeed, illegal international adoption – there is every reason why such disclosure should, in particular, be made to the relevant foreign government. And Kenya, to repeat, is a friendly State, a nation with a similar welfare system and similar principles to our own and, indeed, a member of the Commonwealth. So, as I have said, the demands of comity rank high. And only by international cooperation at all levels – including international judicial cooperation – will the evils which too often attend even seemingly benign international adoptions be stamped out.

There is one qualification which, as it seems to me, should be attached to the order sought by the GRK. The order should be expressed to be subject to conditions similar to those which Mr Stonor accepts should be attached to the order in favour of the local authority. The conditions which I have in mind are completely consistent with the stated reasons for which the GRK seeks disclosure and will not in any way fetter its ability to use the disclosed materials for those purposes. On the other hand, such conditions are, as it seems to me, desirable as a matter of principle and will give Mr Y and Mr Z appropriate protection against the kind of media attention which they fear. If it turns out that these conditions are unduly onerous the GRK will be able to apply to this court for their relaxation under the liberty to apply which I propose to include in the order.

Accordingly, in the draft of this judgment I indicated that, subject to any further submissions which Mr Gray might wish to make as to the precise form of the order, and subject to the GRK being willing to give the further undertaking required, I proposed to make an order in the terms set out below. In the event Mr Gray was able to indicate that the GRK was content with an order in the form I had proposed.

In addition to this amendment to the order sought by Mr Gray I have made a number of very slight alterations to the two orders to ensure consistency in the language used.

The order in favour of the local authority will be in the terms set out in Schedule 1, the order in favour of the GRK in the terms set out in Schedule 2.

The order in favour of the local authority will be as follows:

“Without prejudice to:

(a)

section 12 of the Administration of Justice Act 1960 (as amended);

(b)

section 97(2) of the Children Act 1989 (as amended);

(c)

section 98(2) of the Children Act 1989 (as amended)

IT IS ORDERED THAT:

1

Subject to the conditions set out in the Schedule to this order, Northumberland County Council (‘the local authority’) shall have permission to disclose a copy of the transcript of the judgment handed down on 12 June 2008 (‘the transcript’) to the Chief Constable of Northumbria Police and the UK Border & Immigration Agency (‘the recipients’); and the local authority is hereby directed to disclose the transcript to the recipients within 7 days of the making of this order.

2

The local authority and the recipients shall have liberty to apply with a view to:

(a)

the discharge or modification of the provisions of the Schedule to this order; or

(b)

obtaining further disclosure.

Any such application shall be made to a Judge of the Family Division of the High Court (the Honourable Mr Justice Munby if available).

3

There shall be no order as to costs save public funding detailed assessment of X’s costs.

The Schedule

The disclosure permitted by paragaph 1 of this order shall be subject to the following conditions:

(1)

The transcript is and shall remain at all times confidential.

(2)

The transcript is to be used by each recipient:

(a)

for the purpose of considering what lessons might be learned from the circumstances surrounding X’s arrival into the United Kingdom with a view to safeguarding against other children being brought into the United Kingdom unlawfully;

(b)

if they consider it appropriate, to assist in their investigations into whether any proceedings should be commenced against Mr Y and/or Ms Z.

(3)

Save with the prior leave of this court:

(a)

no part of the transcript shall be read into the public record or otherwise put in the public domain;

(b)

nothing shall be published that might lead to the identification of any of the persons referred to in the transcript;

(c)

the recipients may not:

(i)

disclose the transcript to any other person;

(ii)

use the transcript for any purpose other than those referred to in paragraph (2) of this Schedule.

(4)

The transcript is to be disclosed with a copy of this order and a covering letter drawing the attention of the recipients to the terms of this Schedule.”

The order in favour of the GRK will be as follows:

“UPON the Government of the Republic of Kenya, by its officers who may come into possession of material disclosed by virtue of this order, undertaking (unless authorised by a further order of this court):

(1)

to use the said material only in accordance with the conditions set out in the Schedule to this order; and

(2)

not to use the said material as direct evidence against Mr Y and/or Ms Z in any criminal proceedings brought against them in Kenya, or any request for extradition of Mr Y and/or Ms Z from the United Kingdom to Kenya, SAVE THAT the Government by its agencies may use the material (a) in any police inquiry or investigation into the commission of an offence contrary to Kenyan law, and (b) to challenge inconsistent statements or the credibility of Mr Y and/or Ms Z

AND without prejudice to:

(a)

section 12 of the Administration of Justice Act 1960 (as amended);

(b)

section 97(2) of the Children Act 1989 (as amended);

(c)

section 98(2) of the Children Act 1989 (as amended)

IT IS ORDERED THAT:

1

Subject to the conditions set out in the Schedule to this order, the Government of Kenya shall have permission to disclose:

(a)

to its Permanent Secretary of the Ministry of Gender, Children and Social Development those documents set out in Appendix A;

(b)

to its Chief Justice of the Judiciary a copy of the transcript of the judgment handed down on 12 June 2008 (‘the transcript’);

(c)

to its Attorney-General, its Commissioner of Police, its Criminal Investigation Department, and Interpol, those documents set out in Appendix B.

2

For the avoidance of doubt, and subject to the conditions set out in the Schedule to this order, the Government of Kenya shall have permission to disclose to:

(a)

Mr Leonard Boiyo (First Secretary) and Mr Kenyoru (Principal Counsellor) of the Kenyan High Commission in London,

(b)

Gideon Kimilu and Lilian Kiamba of the Criminal Investigations Department,

(c)

Mr T Anyim of the Department of Immigration,

(d)

Mr Bitta of the Attorney-General’s Office,

(e)

Mrs Gatuguta of the Ministry of Home Affairs,

those documents set out in Appendix C.

3

The Government of Kenya shall have liberty to apply with a view to:

(a)

the discharge or modification of the provisions of the Schedule to this order; or

(b)

obtaining further disclosure.

Any such application shall be made to a Judge of the Family Division of the High Court (the Honourable Mr Justice Munby if available).

4

There shall be no order as to costs save public funding detailed assessment of X’s costs.

The Schedule

The disclosure permitted by paragraphs 1 and 2 of this order shall be subject to the following conditions:

(1)

Subject only to paragraph (4) below the documents set out in Appendix A, Appendix B and Appendix C (‘the documents’) and the transcript are and shall remain at all times confidential.

(2)

The documents are to be used:

(a)

to inform the Government of Kenya as to how X’s removal to the United Kingdom came about, in order to minimise or prevent a risk of further abductions;

(b)

to assist the Government of Kenya in formulating and implementing policy whether domestically or internationally;

iii)

to investigate and (if thought appropriate) to pursue criminal proceedings (whether in Kenya or in this country) including but not limited to criminal proceedings against Mr Y and Ms Z.

(3)

Save with the prior leave of this court or as permitted by paragraph (4) below:

(a)

no part of the documents or the transcript shall be read into the public record or otherwise put in the public domain;

(b)

nothing shall be published that might lead to the identification of any of the persons referred to in the documents or the transcript;

(c)

the Government of Kenya may not:

(i)

disclose the documents or the transcript to any other person;

(ii)

use the documents for any purpose other than those referred to in paragraph (2) of this Schedule.

(4)

Neither paragraph (1) nor paragraph (3) shall prevent the use of the documents or the transcript in any proceedings (whether in Kenya or in this country) in any court sitting in public.”