A and B (Children)

These are cross-applications by a local authority, Hampshire County Council (“HCC”), and a journalist, Stephen Green of Christian Voice (“Mr Green”), which arise out of care proceedings, PO16C00605, brought by HCC in relation to two children, A and B (“the children”), who were at the material time 13 and 6 years old. The care proceedings were in the Family Court at Portsmouth and were being heard by Her Honour Judge Black. On 1 June 2017 she made a care order in relation to B, the proceedings in relation to A having concluded with the making of a care order on 22 December 2016.

So far as concerns the matters before me, the story begins on 2 May 2017 when Mr Green attended a hearing in the care proceedings. His application to Judge Black for permission to report the proceedings was refused. Judge Black also ordered Mr Green to return to HCC by 2.30pm on 3 May 2017, all “court documents and any copies of those documents which he retains.” He failed to do so. The order also “informed” Mr Green, although not in terms ordering him to do so, that “he should remove … from the internet within 24 hours” a particular article referred to in the order (“the Article”). He did not do so and in fact, after Judge Black had made her order, put up more material about the case on the internet (“the Second Article”).

On 4 May 2017, applications were made by HCC under the inherent jurisdiction seeking injunctions against Mr Green prohibiting him from publishing “details relating to any proceedings concerning the children or information private to the children”, requiring him “immediately” to remove the Article from the internet, requiring him to return to HCC “all papers he has received in relation to the proceedings concerning the children (and any copies thereof)”, requiring him to inform the court as to “the identity of the person(s) who provided him with the information and papers relating to the proceedings concerning the children” and, finally, seeking permission to make a committal application against Mr Green “for publishing information relating to private proceedings under Children Act 1989.”

Those applications came before Baker J, as he then was, on 8 May 2017. Mr Green appeared in person. Baker J’s order recites that Mr Green agreed (i) by 11.59pm on 8 May 2017 to remove from the internet, which he duly did, both the Article and the Second Article, (ii) not to publish or broadcast “any information relating to the family proceedings in case No PO16C00605”, and (iii) by 4pm on 10 May 2017 to return to

Since February 2016, Mr Green had been a member of the British Association of Journalists (“the BAJ”). On 9 May 2017, he was notified that he had been temporarily suspended for a period of 24 hours. On 10 May 2017, he was notified that he had been permanently disqualified from the BAJ for acting in a manner that was “detrimental to

As contemplated by Baker J’s order, on 25 May 2017 Mr Green applied for various orders, which I can summarise as follows:

He identified the papers sought as follows:

On 31 May 2017, Judge Black refused, pursuant to FPR Rule 27.11(2)(g), an oral application by Mr Green to observe the final hearing of the care proceedings.

The hearing before me was on 22 June 2017. HCC was represented by Miss Nadia Tawfik, Mr Green by Miss Maureen Obi-Ezekpazu, the mother by Miss Helen Khan, and the children’s guardian by Ms Rosein Magee. The father was present in person. Broadly speaking, the mother and the children’s guardian supported HCC; the father supported Mr Green. In a statement dated 12 June 2017 he said: “I and my family have suffered grave injustice in these proceeding. I fully support the application of Mr Green for documentation and to report on this case.”

Given its contents, it would be wholly inappropriate, and indeed counter-productive, for me to set out or even summarise the Article. For present purposes it suffices to make three observations:

It is perfectly obvious that, on the face of it, the publication of the Article on the internet was a contempt of court. The effect of section 12(1)(a)(ii) of the Administration of Justice Act 1960 is that, unless a judge has previously give permission, it is a contempt of court (see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 58) to publish:

“‘information relating to proceedings before any court sitting in private … where the proceedings … are brought under the Children Act 1989.”

As set out in Re B, para 82(vi):

“Section 12 prohibits the publication of:

(a)

accounts of what has gone on in front of the judge

sitting in private;

(b)

documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the

judgment (this list is not necessarily exhaustive);

(c)

extracts or quotations from such documents; (d) summaries of such documents.

These prohibitions apply whether or not the information or the document being published has been anonymised.”

Mr Green’s prima facie contempt of court is aggravated by his posting after the hearing before Judge Black on 2 May 2017 of the Second Article, itself breaching section 12, though less flagrantly.

I add that Mr Green’s lengthy final witness statement dated 25 May 2017 (which is expressly stated to supersede his earlier statement) contains much detail about his involvement in the reporting of other family court proceedings but has surprisingly little to say about this case. He complains that “the freedom of the Press has been severely, unreasonably limited by the court by its order of 8^th May 2017.” He makes various legal submissions, saying that “In my mind there is a clear tension between section 12 … and the Family Procedure Rules on the one hand, and Article 10 … and the Human Rights Act 1998 on the other.” He cites my judgment in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, as implying “that parents should be able to share their story with the media and the media to receive documents.” He invites me “to consider that the media … should have the ability, in its own right, to receive and publish information within family proceedings without the need to apply for permission.” He asserts that he has “acted in a responsible and bona fide way throughout faithfully discharging the duty of the media to hold those in power to account and to raise questions of public importance.” He says nothing whatever as to his compliance with the orders of 2 May 2017 and 8 May 2017.

There is one other matter I should deal with before addressing the opposing submissions. The linked questions of Mr Green’s status (or not) as a duly accredited journalist (see FPR Rule 27.11(7)) and of his ability to attend hearings of the family court are not before me, being raised neither in his application nor in HCC’s applications. Those were matters, as we have seen, dealt with by Judge Black previously. If Mr Green disagreed with her rulings, his remedy was to appeal. Although the written submissions before me address the issue, I do not propose to do so. The point is not before me and, in such circumstances, it is better that I say nothing.

Miss Tawfik’s submissions on behalf of HCC are brisk and uncompromising. Mr Green, she says, “has shown flagrant disregard for the children, the parents, the law and indeed the court.” The court, she says, “can have no confidence that [he] will behave in a responsible and reasonable way with any information gleaned … [he] has proved himself unable to report on the proceedings in an appropriate manner.” For these reasons, she submits, I should refuse Mr Green’s application but, conversely, grant HCC the injunction it seeks.

More specifically, her submissions proceed in stages:

Both the mother and the children’s guardian, as I have said, align themselves with HCC.

Miss Khan on behalf of the mother points to Mr Green’s “flagrant disregard” for the children, the parents and the court; she submits that his behaviour demonstrates that he is incapable of reporting in an appropriate manner and that the court can therefore have no confidence that he will behave in a responsible and reasonable way with any information he may have; and she says that the balancing exercise has to be conducted having regard to the cumulative effect of everything that has happened.

Ms Magee on behalf of the children’s guardian makes similar points. The guardian, she says, is “extremely concerned” that Mr Green, in pursuit of his agenda in exposing perceived injustices within local authority children’s services and the family court system, has in this instance unlawfully published information in breach of section 12 of the 1960 Act, has distorted the facts and provided information that could readily identify the children. Ms Magee records the guardian as being “deeply concerned” about the impact on the children, A in particular, of what Mr Green has written and records A’s own view, as reported by the guardian: A “is very clear that he does not wish to have his family circumstances published. Having endured an unhappy start to his childhood he is trying to re-build his life and move on.” Ms Magee submits that the children’s Article 8 rights outweigh Mr Green’s rights under Article 10.

Putting on one side those parts of her submissions which in reality invite change in the law, a topic I return to below, Miss Obi-Ezekpazu’s submissions can be summarised as follows:

The father, as I have said, aligns himself with Mr Green. His stance appears plainly enough from the statement I have already quoted. Although in his oral submissions he said that the case was not to do with his family but with transparency, other things he said suggested that he was not averse to Judge Black’s findings being challenged.

Before proceeding any further, I need to deal with two of the points made by Mr Green in his witness statement and picked up by Miss Obi-Ezekpazu in her submissions, namely his contention that “there is a clear tension between section 12 … and the Family Procedure Rules on the one hand, and Article 10 … and the Human Rights Act 1998 on the other” and his invitation to me “to consider that the media … should have the ability, in its own right, to receive and publish information within family proceedings without the need to apply for permission.” Miss Obi-Ezekpazu submits that it should not be necessary for a journalist to have to seek the permission of the court to publish; that where information has come to light about the family justice system which should be placed in the public domain the media should have the freedom to publish the information without threat of sanction; and that the current regime – a system which requires a journalist to apply to the court, which in turn requires him to pay a fee – infringes Article 10. “Having to negotiate a freedom is not a freedom at all.” She submits that only Guidance or a change in legislation will meet the requirements of Article 10.

In relation to Mr Green’s first point, there is simply no basis at all for the suggestion that there is any “tension” between, let alone any incompatibility of, the 1960 Act (and the FPR) with the Human Rights Act 1998. Ample authority, which there is no need for me to cite, both in the Strasbourg court and in our domestic courts, is absolutely clear on the point. In relation to the second point, I can only agree with Miss Tawfik’s pithy submission that it is “both wildly ambitious and wholly unjustified”, given the by now well-established jurisprudence. I am, with all respect to her, quite unable to accept Miss Obi-Ezekpazu’s submissions, except that if there is to be any change in the law of the kind she postulates that can, in my judgment, be achieved only by primary legislation.

There is no dispute as to the principles I have to apply; they are by now so well established as to require neither great elaboration nor the citation of authority. I have to have regard to all the interests in play, whether public or private, and whether protected by Article 6, Article 8 or Article 10. None of these interests is intrinsically of any greater weight than any other; in particular, public interests do not take precedence as such over private interests. All these interests have to be evaluated and balanced before the final balance is struck. What weight is to be attached to any particular interest will depend upon an intense scrutiny of the circumstances of the particular case, as will the final determination as to how, at the end of the day, the balance is to be struck. An important aspect of the exercise is an evaluation of the impact on the children of what is proposed: Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591, para 25. I make clear that in this, as in every, case my duty is faithfully to apply the law as it is and not as some, like Miss Obi-Ezekpazu, might think it ought to be, and that is what I have sought to do.

Before proceeding any further, I need to clear the ground by disposing at the outset of some of Miss Tawfik’s less convincing submissions.

As will by now be apparent, the balance at the end of the day lies within quite a narrow compass.

I deal first with Mr Green’s application. For reasons I have already explained, a number of the factors identified by Miss Tawfik and Miss Obi-Ezekpazu carry, in my judgment, either no or very little weight. Focusing on what, at the end of the day and looking at matters in the round, seems to me to be the essence of the matter, four factors are, in my judgment, of magnetic importance:

In these circumstances, in my judgment, the balance comes down clearly and decisively against granting Mr Green the relief he seeks. Recognising, as I do, the importance of all the public interest arguments that Miss Obi-Ezekpazu has appropriately deployed on his behalf, they do not, in my judgment, begin to counterbalance the combined effect of the four magnetic factors I have just identified.

I turn to the relief sought by HCC. I have, of course, considered Miss Tawfik’s submissions very carefully, but have nonetheless concluded that I should not make the order sought. My reasons are two-fold:

There is one final point. I would not in any event have been prepared to grant an injunction in the very wide form proposed by HCC: “any details of the children.” It is wrong in principle in this kind of case to prevent the publication of information about a child which is neither confidential nor linked in any way, explicitly or implicitly or by way of a ‘jigsaw’, with the family court proceedings or with the matters which were the subject of those proceedings: see Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, para 71 (to which Miss Tawfik very properly directed my attention). Otherwise, for example, the person injuncted would be prevented from publishing, in a ‘stand-alone’ story, wholly innocuous, and indeed entirely positive, information about the child.