RB (Adult), Re (No 4)

Both before and since my appointment to the Court of Appeal I have been hearing proceedings in the Family Division concerning an adult, referred to as RB, who lacked capacity (she has since died). Although the proceedings were begun in the Family Division, prior to the Mental Capacity Act 2005, and have since quite properly continued there, they are of a type that would now be commenced in the Court of Protection. I have, of course, been exercising the inherent jurisdiction of the High Court in respect of incapacitated adults.

Throughout the litigation there have been three protagonists: the claimant, a local authority referred to as “A London Borough”; RB, acting by her litigation friend the Official Solicitor; and RB’s partner, referred to as MF

In the course of the proceedings I have given three judgments: the first, on 30 September 2010, following the final hearing: Re RB (Adult) [2010] EWHC 2423 (Fam): the second, on 28 January 2011, explaining why I refused MF’s applications for a re-trial and/or permission to appeal: Re RB (Adult) (No 2) [2011] EWHC 112 (Fam); the third, on 11 October 2011, dealing with costs: Re RB (Adult) (No 3) [2011] EWHC 2576 (Fam). In relation to each of these judgments there are four things to be noted; first, that the heading in each case included the words “In Private”; second, that each judgment was handed down in private (in chambers); third, that I deliberately omitted the rubric on the front sheet which, with minor variations, is conventionally attached to Family Division judgments authorised to be released for publication or report; (Footnote: ¹) fourth, that, so far as I am aware, none of the judgments has yet been published or reported, whether on BAILII or elsewhere.

Following the handing down of the third judgment my clerk received a message from the Official Solicitor’s office inquiring whether I had approved the judgment for publication, followed shortly after by the following email from one of the Official Solicitor’s lawyers:

“It seems to me that the judgment contains some useful guidance on costs which may be of assistance to those dealing with COP H&W cases. However clearly this is a matter for his Lordship. If it is to be published it may need to be further anonymised.”

On my instructions my clerk sent the following reply, copied to the other parties:

“Lord Justice Munby … has not been asked by anyone to release either this or his two previous judgments for publication and has not done so. Nor has he been asked to make or made any order prohibiting publication.

He notes your comment that “clearly this is a matter for” him, but wonders whether this is so. This was a case in the Family Division under the inherent adult jurisdiction (not in the Court of the Protection). Accordingly neither section 12(1)(a) nor section 12(1)(b) of the Administration of Justice Act 1960 would seem to apply. The judge is not aware of any other provision regulating the publication of such a judgment, unless there is something to this effect in the Family Procedure Rules 2010.

Could you perhaps discuss this with the other parties and find out (i) what their views are about the desirability of publication, (ii) what their views are about the need for (or desirability of) any judicial order or decision on the point, and (iii) what their views are about the need for any further anonymisation.

I look forward to hearing from you in due course.”

MF’s response was to ask my clerk: “Will you please tell me if I can take the contents of the Judgment to The Press?” The Official Solicitor has indicated that he does not seek any direction or order. Nor does anyone else.

Plainly I cannot give the parties any advice, nor have I done so. I can, however, as it seems to me, usefully explain two things: why I deliberately omitted the rubric from my previous judgments (as also from this judgment); and why I directed my clerk to write as he did.

In the absence of any relevant statutory restriction, it is not a contempt of court to publish or report a judgment (whether in whole or in part) merely because it was given or handed down in private (in chambers) and not in open court: Forbes v Smith [1998] 1 All ER 973 and Hodgson and Others v Imperial Tobacco Ltd and Others [1998] 1 WLR 1056. Exactly the same principle applies in the Family Division: Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261.

The publication or reporting of the proceedings, and therefore the publication or reporting of judgments, in cases in the Family Division involving children, is subject to the restrictions in section12(1)(a) of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989. But none of these restrictions apply to cases in the Family Division involving adults. Nor does section 12(1)(b) of the 1960 Act apply to such cases. For section 12(1)(b) applies only to:

“proceedings … brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or a county court.”

Section 12(1)(b) accordingly applies to proceedings in the Court of Protection but not to proceedings in the High Court.

The Family Procedure Rules 2010, SI 2010/2955, contain nothing of relevance for present purposes.

In short there is, so far as I am aware, no statutory provision regulating the publication or reporting of judgments given or handed down in the Family Division in proceedings under the inherent jurisdiction in respect of adults. It follows that the publication or reporting of such judgments is covered by the general principle I have referred to in paragraph [8] above.

I am not aware of any authority explaining the operation and effect of the rubric. And on previous occasions when the matter has arisen there has been no need for me to explore the question: see Re B, X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, para [12], and Re B, X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460, para [12] (see also BBC v Coventry City Council and others (Care Proceedings: Costs: Identification of Local Authority) [2011] 1 FLR 977, para [16]). On each occasion I proceeded on the assumption, though as I emphasised without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.

The rubric is not an injunction: see Re HM (Vulnerable Adult: Abduction) (No 2) [2010] EWHC 1579 (Fam), [2011] 1 FLR 97. It is not drafted in the way in which injunctions are usually drafted. There is no penal notice. And the procedures required by section 12(3) of the Human Rights Act 1998 and Practice Direction 12I: Applications for Reporting Restriction Orders will not have been complied with. But this does not mean that it is unenforceable and of no effect. On the contrary, it is, in my judgment, binding on anyone who seeks to make use of a judgment to which it is attached. And anyone who disobeys it is, in principle, guilty of a contempt of court. This accords with, though it goes a little further than, what is said in paragraph 82 of The Family Courts: Media Access & Reporting, published in July 2011.

I can summarise my reasons for this conclusion as follows.

As I have already said, the publication of a judgment in a case in the Family Division involving children, is subject to the restrictions in section 12(1)(a) of the Administration of Justice Act 1960. To publish or report such a judgment without judicial approval is therefore a contempt of court irrespective of whether or not it is in a form which also breaches section 97(2) of the Children Act 1989.

The rubric is in two parts and serves two distinct functions. The first part (“The judge hereby gives leave for it to be reported”) has the effect, as it were, of disapplying section 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt. But the second part (“The judgment is being distributed on the strict understanding that …”) makes that permission conditional. A person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric, and will not be immunised from the penal consequences of section 12, unless he has complied with the requirements of the second part of the rubric. This is merely an application of a familiar principle which one comes across in many legal contexts and which finds expression in such aphorisms as that you cannot take the benefit without accepting the burden, that you cannot approbate and reprobate and that if a thing comes with conditions attached you take it subject to those conditions.

As I said in Re B, X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460, para [13] (a case where section 97(2) of the 1989 Act no longer applied):

“There is nothing to prevent Mrs B or J or W identifying themselves in public as people involved in the care proceedings brought by Blackpool Council or, subject to compliance with section 12, discussing in public the nature of the dispute in the proceedings. Nor is there anything to prevent Mrs B or J or W making whatever use they wish of my judgment in the anonymous form in which I gave leave for it to be reported. But what, on this view of the rubric, they cannot do – and what of course they want to do – is to link themselves with the judgment; to say that the Mrs B referred to in my judgment is in fact Mrs Brown and that the J and W referred to in the judgment are in fact James and Wilfred Brown (I use pseudonyms to illustrate the point, these are not in fact their true names).”

So someone who publishes or reports such a judgment in a way which does not comply with the second part of the rubric will, in principle, be guilty of a contempt of court: not that species of contempt committed by someone who breaches an injunction – because, to repeat, the rubric is not an injunction – but contempt in accordance with section 12.

The remedy for someone who wishes to publish material prohibited by the rubric is to apply for a suitable modification of the rubric: as was done, for example, in Re B, X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, and Re B, X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460.

It will now, I hope, be clear why I deliberately did not include the rubric in any of these judgments. Since section 12 did not apply, there was no need for me to include the first part of the rubric; and absent the first part there was neither need nor justification for the second part.

Lest there be any misunderstanding as to the implications of what I am saying I end with two important caveats. I am concerned here with proceedings in the Family Division of the High Court. The Court of Protection is governed by its own, materially different, statutory regime: see, for example, in addition to section 12(1)(b) of the 1960 Act, rules 91 and 93 of the Court of Protection Rules 2007, SI, 2007/1744. And the proceedings I am concerned with here are proceedings under the inherent jurisdiction in respect of adults. In ancillary relief and similar types of proceeding there may be other restrictions on publishing or reporting a judgment given in private: see Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261.