Limiting the scope of injunctions in family cases – Hugh Tomlinson QC

5 November 2013 by Guest Contributor

Re J (A Child) ([2013] EWHC 2694 (Fam) – read judgment

In this case  the President of the Family Division, Sir James Munby, considered an application for a contra mundum injunction by Staffordshire County Council. He emphasised that the only proper purpose of such an injunction was to protect the child and refused to make an order in the wide terms sought by the Council. As a result, he allowed the publication of video footage and photographs of a baby being removed from its parents.

Background

The case concerned a child, J, who was born in April 2013. Two of J’s siblings had been adopted (following care and placement orders) and a third, born in April 2012, was made the subject of an emergency protection order on the day of birth.

J’s father had posted a considerable amount of material about J’s siblings on the internet, using language which ‘on occasions was abusive, insulting, threatening and, indeed, highly offensive’. In particular, he had published a covertly taken video of the child being removed from his parents’ care under an Emergency Protection Order. The father announced J’s 4 April 2013 birth on Facebook, including the words: “SS banging on the door we’re not answering” and “ss gone to get epo”.

The Council sought a “contra mundum’ injunction until J’s 18th birthday in extremely wide terms to prevent

“the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite service for the purposes of preventing the identification (whether directly or indirectly) of the child”

The order which was applied for included the names and addresses, not only of the child and its parents but also of anyone having day to day care or medical responsibility for the child, the local authority in question or any employee or other specified class of such person (including social workers and the authority’s legal representative), the child’s Guardian and any venue at which the parents have contact with the child. The order also sought to prohibit publication of any “picture, image, voice and/or video recording of and including the child, the child’s parents, any employees of the Local Authority…. and the Children’s Guardian” and any “…. other particulars or information relating to the child”.

Legal framework

The Judge noted that: “. . .the ‘automatic restraints’ on the publication of information relating to proceedings under the Children Act 1989 are to be found in section 97 of that Act and section 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. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child [21]

The Court had to conduct a balancing exercise which required “an intense focus on the comparative importance of the specific rights being claimed in the individual case” (seec[17]). This required an “intense focus on the comparative importance of the rights being claimed in the individual case”. It is “necessary to measure the nature of the impact.… on the child of what is in prospect” Although the Court could grant orders anonymising other participants in the process, this “should not be extended to experts, local authorities and social workers unless there are compelling reasons“. [24]

Transparency

The Judge emphasised a number of “critically important matters” under this heading.

First, there is a pressing need for more transparency, indeed for much more transparency, in the family justice system [26]. There is a right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life [27]. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction [27].

Although the courts “strive to avoid miscarriages of justices” nevertheless, “human justice is inevitably fallible” [29] The Judge said that the courts

must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice [29].

It is vital that public confidence in the family justice system is maintained or, if eroded, restored [32]

Second, the workings of the family justice system and the views about the system of those caught up in it are matters of public interest which can and should be discussed publicly [36] He emphasised

the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system [36].

Third, it is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish [37]. As the Judge observed

Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful, there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press, there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar.

He went on to say that a “much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism” [38]. It was no party of the jurisdiction of the Family Division to prevent the “dissemination of material because it is defamatory or because its dissemination involves the commission of a criminal offence” [39].

Freedom of speech was not something to be awarded to those who are thought deserving and denied to those who are thought undeserving [40]

The Internet

The Judge made three points. First, the internet allows anyone to publish whatever they wish to the whole world – so there is very little editorial control. Second material once placed on the internet remains there indefinitely and is easily accessible. Third, internet providers are often located outside the jurisdiction where there are legal or practical difficulties in enforcing court orders [42].

As a result,

The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies … We must not simply throw up our hands in despair and and moan that the internet is uncontrollable. [43]

Nevertheless, he made it clear that basic legal principles could not be abandoned.

Foreign Defendants

The Judge said that there was no objection to the English court, in an appropriate case, granting injunctions against a foreign based internet website provide. There were, however, two basic principles to be borne in mind

First, that the person who is to be injuncted must be amenable to the court’s jurisdiction. That goes to jurisdiction. Second, and because equity does not act in vain, that the court will not grant an injunction which is idle and ineffectual. That goes to discretion [52]

On jurisdiction, the fundamental question was whether there had been service out of the jurisdiction [56]. On discretion, there must be a “real prospect that something will be gained”. As a result, the Judge held that there needed to be evidence on two matters. First, that service by email or letter was permitted by the law of the relevant jurisdiction. Second, that the foreign court was likely to enforce the orders. In particular

Where the injunction, as here, engages freedom of speech, the evidence will also have to detail the foreign jurisdiction’s approach to such matters. Given the First Amendment, this is obviously particularly important in the case of the United States of America [63]

In the case of a contra mundum injunction the Court can adopt the freezing order procedure and require the applicant to give an undertaking not to seek to enforce the order outside England and Wales without the permission of the Court [64-65].

Decision

The central issue was whether there was any justification for extending J’s anonymity beyond the point at which section 97 of the 1989 Act ceased to bite? [73]

He pointed out that the only evidence on this point was in the social worker’s witness statement, which says only this:

The Authority is concerned that the material that is currently available on specific internet sites and available on the World Wide Web identifies these children as children who are or have been subject to proceedings under the Children Act 1989.

The Authority is extremely concerned that such media exposure not only is in breach of the children’s right to privacy but may also put the children at risk of harm now or in the future.

The Council’s submission fell into two parts. First, so long as the proceedings remain on foot, an order was required because the existing restraints have proved inadequate to control the placing of identifying material on the internet. Second, in relation to the period after the proceedings have come to an end continuing restraint is required, essentially because of the fact that identifying information, damaging to J, will remain, indefinitely and easily accessible, on the internet [77].

The Judge held that both submissions had been made out but was not prepared to make an order in such a wide form as the one sought by the Council was required. He held that

the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view [82]

As a result he granted a ‘contra mundum’ injunction covering the width of publication sought and to last until J’s 18th birthday. But the order was simply in relation to the names and addresses of the child and the child’s parents.

The injunction was in these terms

“This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite service for the purposes of preventing the identification (whether directly or indirectly) of the child of:

(a) The names and addresses of:

(i) The Child, whose details as set out in Schedule 1 to this order;

(ii) The Child’s parents (“the parents”), whose details are set out in Schedule 2 to this order;

Comment

This judgment provides an important discussion of the principles of transparency which should be applied in family law cases. The President makes it clear that the proper purpose of protecting the privacy and well being of the child should not be extended to the prevention of the publications which are abusive and insulting to the authority and or its staff do not affect the interests of the child.

The effect of this judgment is that a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening. This will only happen where the publicity impacts on the proper interests of the child. Third parties who are insulted or abused have their remedies in defamation or the criminal courts but these are not the concern of the family courts.

The President’s solution to the complaints of “secret justice” made by disappointed litigants in the family courts is ”more transparency; putting it bluntly, letting the glare of publicity into the family courts“. It will be interesting to see if this judgment produces the required culture change in the approach of the family courts.