Lord Justice Wall lays down law on family court privacy
20 September 2011
Doncaster Metropolitan Borough Council v Watson  EWHC 2376 (Fam) (01 September 2011) – Read judgment
Sir Nicholas Wall, the President of the Family Division, has suspended a nine-month prison sentence for contempt of court given to Elizabeth Watson, a “private investigator” who published online sex abuse allegations which had been rejected by a series of judges.
The case has involved many of the foot soldiers in a bitter and public battle between the family law system and campaigners who say it is corrupt and not fit for purpose. Recognised this, Lord Justice wall used the opportunity to “dispel a number of myths”. First,
Nobody in this country is sent to prison for contempt of court “in secret”
The Family court are frequently accused of acting “in secret”. It needs to be emphasised that courts hearing cases involving children under the Children Act 1989 sit in private to hear evidence because they are democratically authorised to do so by Parliament. They do so to protect the interests and confidentiality of children. The courts thus regard – and I certainly regard – with particular seriousness any breach of a court order designed to protect the identify and confidentiality of a child.
judges believe in the rule of law and in free speech. Every child case involves a balance between the rights enjoyed by everybody to respect for their private and family lives: see Article 8 of the European Convention on Human Rights (ECHR). In each case section 1 of the Children Act 1989, enacted by Parliament, requires the welfare of the child to be paramount; that is more important than anything else.
where a judge makes an order restricting publicity and forbidding the identification of a child, he or she is duty bound to carry out what has been described by the House of Lords as “an intense focus” on the rights of a child and the rights of everybody else to free speech. It will no do harm in this judgment to read in Article 10 of ECHR which, of course, is now part of the English law as enacted by the Human Rights Act 1998…
This is a complex and sad case on its facts, but the way in which the parties and interested parties behaved prompted the robust response. Sir Nicholas took the unusual step of issuing a press release to prevent disinformation in the case in which a mother coached her child into making false allegations of sexual abuse against the father. Judgments were also published in non-anyonmised form – see Doncaster v Haigh and Doncaster v Watson.
The full background to the case, which also sucked in John Hemming MP and the Telegraph journalist Christopher Booker, can be found in blog posts by Carl Gardner (A cautionary lesson: the Vicky Haigh and Liz Watson judgments), the Ministry of Truth, barrister Lucy Reed and the on the Fighting Monsters blog.
Sir Nicholas Wall has not been afraid to criticise the family justice system, but he is now clearly on the offensive against of a particular group of campaigners, John Hemming and Christopher Booker included, who see the entire system – including judges, social workers and expert witnesses – as hopeless and corrupt.
Can any lessons be extracted from this debacle?
First and most obviously, anyone – and in particular journalists and members of parliament – who decides to wade in to a bitter family case must do with the utmost caution. It is questionable how much due diligence John Hemming MP did before he made the mother in this case, who has now been exposed as a liar, a cause célèbre in the super-injunction debate.
Secondly, there is an enormous public interest in publishing judgments online, even in anonymised form. Sir Nicholas is right to emphasise the primary importance of protecting the anonymity of children. He is also right to encourage the use of public judgments as a means of communicating important principles of family justice to the general public. To that end, the Ministry of Justice’s recent proposals on publishing more family court judgments online are, subject to practical considerations about anonymity, a good idea.
Thirdly, anyone who continues to publish damaging allegations against people which have been disproved by a court are at risk of going to prison for contempt. This applies whether or not they believe the system is hopelessly corrupt and even if they change their name and declare “lawful rebellion” against the state.
Now it is up to the press and bloggers to continue to publicise, explain and increase access to rulings. And for MPs and journalists to ensure that they have the full facts before lending their support to emotive campaigns.
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