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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Medway Council v G & Ors [2008] EWHC 1681 (Fam) (18 July 2008) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2008/1681.html Cite as: [2008] Fam Law 1002, [2008] 2 FLR 1687, [2009] 1 FCR 230, [2008] EWHC 1681 (Fam) |
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This judgment is being handed down in private on 18 July 2008 It consists of 22 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Medway Council |
Applicant |
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- and - |
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G and Others |
Respondents |
____________________
Adam Wolanski (instructed by Times Newspapers Legal Department) for Times Newspapers Ltd
John Reddish (instructed by Stephens & Sons) for the Mother
Dylan Evans and Sara Hammond (instructed by Stantons) for the Guardian of S
Marcus Scott-Manderson QC (instructed by Martin Tolhurst Partnership LLP) attended on behalf of M but was not a party in the proceedings
Hearing dates: 12th and 13th June 2008
____________________
Crown Copyright ©
Sir Mark Potter:
The Application
The Background
a) Mother to continue to have contact with S and would sign a contact agreement.
b) Contact to be reviewed on a regular basis and would be dependent on mother's promotion of S's foster placement.
c) Mother not to place S in a position of conflict upon separation.
d) Mother not to mention or suggest to S the possibility of returning to her care unless agreed with social worker.
e) Mother to have counselling once per week.
f) Mother to co-operate with counselling with S concerning the father's gender identity issues.
g) Mother to conclude her ancillary relief proceedings.
h) Mother to obtain secure appropriate accommodation and the present former matrimonial home to be sold.
i) Mother to maintain a settled lifestyle in her new home environment, free from conflict for a period of three months within the overall six month period.
a) Overall S appears to be functioning well. He appears to be a remarkably resilient little boy who has adapted to his experience of emotional abuse, neglect and distortion of reality over a long period of time.
b) We have one serious concern with regard to his emotional welfare. S can be emotionally guarded and is clearly sensitised to others' wishes and feelings.
c) Although S clearly stated that he wished to live with his mother he was unable or unwilling to provide any positive descriptions of what his relationship with her was like beyond its 'nice' to be with her.
d) Observation of the relationship between S and his mother suggested a disorganised attachment system. There was only a low level of reciprocity between S and his mother.
e) The difficulty in the relationship between S and his father stems from the father's own emotional personality regulation difficulties. S still wishes that his parents will get back together but does not express a wish to live with his father.
f) The assessment indicates that the mother is aware of some of S's needs and can list these as a need to socialise, have a routine, boundaries and a sense of belonging. However, her awareness seems concrete and sometimes relates back to her own needs. There is a strong sense that S's needs continue to be about her own needs.
g) Overall there has been no significant improvement in mother's insight/approach to S since July 2006. Significant improvements are not possible while the mother continues to be of the opinion that much of the previous judgments has been wrong or exaggerated. She does not accept the final judgment and she minimises and excuses and blames others. The mother did not accept that she needed to make changes to her parenting.
h) The mother's new husband, M, was an unknown quantity. He could be a negative or a positive influence. He presented as well meaning but blinkered. He was closely aligned with the mother's position.
i) The intended measures of change were insufficiently tightly described in the care plan and did not target S's emotional welfare or the neglected issues. The mother was given a number of targets to achieve and she has failed to do this on a consistent basis. S has a very high need for consistency.
j) It is in S's best interest for these proceedings, which have been long and drawn out, to be final.
k) The conflict between the parents is unlikely to change in any substantial way and, with either parent, S is likely to experience split loyalties, to be hyper vigilant, untrusting of adults and cautious not to upset anyone.
l) The father does not accept the need for change.
m) The father requires long term psychotherapy for his narcissistic and histrionic personality traits.
n) We do not consider it advisable to return S to the care of either parent.
o) Contact with father and mother should be supervised and should be suspended in the event that either parent is unable to contain feelings about foster carers, each other, social services or other professionals.
p) S needs stability, predictability, security and permanency as well as his emotional, educational and basic care needs being met. Adoption would give S the best possible opportunity for permanency.
q) Long term foster placement would not offer S the same chances of permanency as adoption, but would be an appropriate alternative. There is a risk of the (current foster) placement being undermined by the parents and the court process. There is a danger that this pattern would be repeated in any foster care placement unless the parents change significantly.
"12. The Sentencing Judge in the instant case considered that there were a number of aggravating factors. First, the Appellant knowingly took part in breaching a Court order with the result that the hearing in October was thwarted. Second, whatever the perception of the Appellant and of the mother was, theabduction
was not in S's best interest, taken as he was from a foster home to a strange land. Third, the
abduction
as far as the Appellant was concerned was a planned offence at least in the short-term. The Judge found that once the three of them had left the village in which the mother lived and drove to Dover, the Appellant must have known what was on foot. Fourth, although he treated the
abduction
as one by parents, there were, the Judge said, some "stranger" elements; that is to say, the Appellant had never met S in any meaningful sense. The Judge refused to find that the mother must have told S who the Appellant was and of his role. Fifth, the mother and S are still on the run.
13. As to mitigating factors, the Judge rejected the submission that the Appellant was remorseful. He found that the Appellant could have helped to trace the mother and S, but had chosen not to do so. The Judge gave full credit for the Appellant's plea of guilty. Nevertheless, he regarded that as generous because the evidence, particularly the CCTV made a conviction inevitable. The Judge found that the Appellant had acted in good faith; that is to say, despite the fact that he was an outsider to the care proceedings, he could have no real picture of the case. The Judge accepted that the Appellant genuinely believed that he was doing the right thing. The Judge further accepted the Appellant's good character was "a very strong point" in the Appellant's favour. As to the effect on the Appellant's family and employees, he made some allowance for the latter.
14. Thus, the Judge refused to suspend the sentence of imprisonment. He found nothing exceptional which would allow him to pass a suspended sentence. He therefore concluded that an immediate sentence of imprisonment was inevitable and fixed the term, as we have said, at 16 months."
"The businessman's wife was heavily pregnant with their first child – and was terrified the baby would be taken at birth by social workers – when he drove his family to Dover, and then on to Paris.
She had a second reason for fleeing – she believed her 8-year old son from a previous marriage was to be adopted against her wishes."
The article stated that the plight of the mother raised disturbing questions about the "secret family courts which only last week were in the spotlight when social workers illegally snatched a new born baby from its mother." The article was strongly sympathetic to M, quoting a friend who observed that the case wasn't justice and that putting M in prison for protecting his family had made the law look an ass.
"3. This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.
4. This order prohibits the publishing or broadcasting in any newspaper, magazine public computer network, internet website, sound or television broadcast or cable or satellite programme service or any other form of electronic technology of
a. The names and address of, or information otherwise identifying, the Respondent child [S];
b. Any information relating to the following people which may result in the deliberate or accidental revelation of the identity of the child:
1. The Child [S]
2. [M]
3. [The mother]
4. [The paternal grandmother]
5. [The mother's sister]
6. [Any relative of the child]
ii Any picture being or including a picture of the Respondent child.
c. Any other particulars or information relating to the child or his personal circumstances and specifically that he is or should be living with foster carers.
5. This order prohibits any person from seeking any information relating to the child or the parents or a carer from any of the following;
a. The child,
b. The parents,
c. [M]
d. [The mother]
e. [The maternal grandmother]
f. Any relative of the child,
g. A carer
Save that TNL may seek information from [M], and [M] may provide information, concerning (i) matters relating to any part of a hearing in Court in England and Wales in which the Court was sitting in public; (ii) [M]'s current emotional state; [M's] experience in prison; (iv) the support [M] has received from friends and family.
6. No publication of the text or summary of this order (except for service of the order under paragraph below) shall include any of the matters referred to paragraph 4 and 5 above.
7. Nothing on this order shall prevent any person from:-
a. Publishing information relating to any part of a hearing in England and Wales (including a coroners' court) in which the Court was sitting in public and did not itself make any order restricting information.
b. Seeking or publishing information which is not restricted by paragraph 4 and 5 above.
c. Inquiring whether a person or place falls within paragraphs 4 and 5 above.
d. Seeking information relating to the child while acting in a manner authorised by statute or by any court in England and Wales.
e. Seeking information from the responsible solicitor acting for any of the parties or any appointed press officer for the local authority.
f. Seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this will not make lawful the provision or receipt of private information which would otherwise be unlawful).
g. Publishing information which before the service on that person of this Order was already in the public domain in England and Wales as a result of publication by another person in a newspaper, magazine, sound or television broadcast or cable or satellite programme service or on the internet website of a media organisation operating within England and Wales (save that there should be no future published references to the child's placement in foster care).
Save that it is made clear that nothing in this order shall be interpreted to in any way prohibit or impede the appropriate and necessary investigation, interviewing of witnesses and preparation of any parties case whether in Criminal or other proceedings.
8. …"
"I do not wish [M] to disclose evidence from the on-going Family Division proceedings and therefore do not seek the Court's permission to be able to do so. I do not wish to discuss child S with [M]. The essential reason that I wish to interview [M] is to understand his reaction to his experiences of the criminal justice system and to find out about his emotional state. The order TNL seeks would enable me to ask [M] about these matters without putting him [and myself] at risk of being in contempt of court."
The skeleton argument of counsel stated that the subject matter of the interview was not to be "directly related to the child, his carers or his upbringing … it wishes to publish the fruits of an interview with [M] and impart information about what he says to its readers". Finally:
"It is difficult to see how child S's Article 8 rights would be engaged at all by the giving and publication of the information set out in the proviso. The interview will not cover private matters concerning child S. It will not delve into the matters arising in the Family Division proceedings."
"(Although for the avoidance of doubt the saving provision does not in any way affect the prohibition upon identification of individuals as set out in paragraph 4 of the publicity order)"
"Release into the public domain of the judgments handed down in the proceedings to date, suitably anonymised."
The Proviso
The release of the judgments in the care proceedings
"Publish any material which is intended, or likely, to identify … any child as being involved in any proceedings before [the Family Court] in which any power under [the 1989] Act may be exercised by the Court with respect to that or any other child."
Save that under S. 97(4):
"The Court …. may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of subsection (2) to such an extent as may be specified in the order."
Furthermore, so far as publicity and disclosure are concerned the proceedings and judgment therein are subject to s.12(1)(a) of the Administration of Justice Act 1960 which renders it a contempt of court to publish information relating to Children Act proceedings before the court sitting in private.
"It may be that the practice of giving judgment in private is partly due to the parties not asking for it to be heard in public and partly because in the County Court, where the vast majority of children cases are heard, it is less likely that there will be issues of public interest. Where issues of public interest do arise it would seem entirely appropriate to give judgment in open court providing, where desirable in the interests of the child, appropriate directions are given to avoid identification."
"Where applications for the variation, discharge or revocation of final orders are made, Judges should consider issuing in public at the conclusion of the case suitably anonymised judgments …
It is also worth giving consideration to increasing the frequency with which anonymised Family Court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law which in the opinion of the Judge makes the case of interest to law reporters. In view of the current climate and increasing complaints of "secrecy" in the Family Justice system, a broader approach to making judgments public may be desirable."
Besides gaining the emphatic endorsement of Munby J in Kent County Council v (1) the Mother (2 )the Father(3) B (By Her Children's Guardian) [2004] EWHC 411 Fam, the desirability of promoting open justice by this means was strongly urged by Wall LJ in Clayton v Clayton [2006] EWCA Civ 878 [2006] FLR 2 405 in order
"(1) to enable informed and proper public scrutiny of the administration of (Family) justice;
(2) to facilitate informed public knowledge, understanding and discussion of the important social, medical and ethical issues which are litigated in the Family Justice system;
(3) … to facilitate the dissemination of information useful to other professions and organisations in a multi-disciplinary working of Family Law. ( Paragraph 85)"
He added at paragraph 86:
"In 1994, I saw "no difficulty in promulgating a rule" that the evidence in family proceedings could continue to be heard in private, whilst the judgment or decision of the Court should always be given in public unless the Judge, for reasons to be explained in public, decided otherwise."
"31. Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts and the lack of knowledge about what happens in them, easily lead to the accusation of "secret justice". Moreover, a Judge is communicating carefully reasoned judgments, not sound-bites. Even when a judgment is published, it is likely to be read in its entirety only by lawyers …
33. What is manifestly unacceptable is the unauthorised selective leakage of one parties' case or selective and tendentious reporting in breach of the rules relating to the confidentiality of the proceedings. This, in my experience, inevitably leads to unbalanced mis-reporting of the difficult and sensitive issues with which the Courts have to grapple. In my judgment, therefore, the best way to tackle the problem is by greater openness in the decision-making process along the lines that I have described."
"It is for the local authority to establish a convincing case for an injunction to restrain the media publishing something which is prohibited neither by the general law nor by Section 12 [of the Administration of Justice Act 1960]. It cannot establish such a case merely by demonstrating – even assuming that it can – that there is no public interest in the identity of the local authority."
Munby J went on to state at paragraph [126] that the fact that identification of a local authority may make it easier for those in the know, or for those who are part of the child's close family, domestic or social circle, to realise that something is being published about that particular child, is not in itself a sufficient reason to keep the identity of the local authority a secret. Thus it is the position that, when considering the likelihood of identification of S simply by reason of publishing the identity of the Council, the Court must concentrate on the position of those who do not already know who the child is. In this case it is clear that the mother and M live in a small village community in which they are well known. However, although Medway is a geographically small area, there are over 300 "looked after" children within its area, and I do not consider that the evidence placed before me establishes the likelihood of any widespread identification of S or knowledge of his involvement in proceedings by the general population outside that village (who are already well aware of it) as a result of the provision sought.
The position of M