Mrs Justice Theis DBE :
- This matter concerns an application by Medway Council (the local authority) for a number of orders:
(1) A reporting restrictions order (RRO).
(2) An order preventing the father from disclosing by any means information concerning the recent care proceedings.
(3) An order preventing the father from attending J's school.
- These applications are sought against a complex background of care proceedings concerning J who is now 13 years old. The respondents to those proceedings are J's father and J through his Children's Guardian. J's mother has played no part in these proceedings, her whereabouts are unknown.
- The local authority have applied for these orders due to the father's refusal to acknowledge the conclusions reached by HHJ Hammerton in care proceedings on 7 October 2015 (after a 3 day hearing), regarding his responsibility in causing his son J to be at risk of physical and emotional harm whilst J was in his father's care. Through his relentless campaign (mainly against the local authority) I am satisfied that, very sadly, the father has lost sight of his son's needs. As a result of the father's failure to recognise that his continued behaviour risks further harm to his son, it is necessary for the court to intervene in order to protect his son from further risk of harm. In March 2015 HHJ Hammerton stated as follows '..unless the father takes steps to exclude J from involvement and protect him from the ill effects of his campaigning, there is a risk of further emotional harm to J. That risk is additional to the risks that arise from the deficiencies in the father's parenting as identified in the care proceedings.' The impact on J of the father's failure to change his behaviour is readily illustrated by what HHJ Hammerton said in the most recent judgment in October about the circumstances of J's removal from his father's care in April (only a few weeks after the March judgment) when the police attended the father's home, she said 'Father's behaviour on 9 April as shown displayed a lack of empathy or understanding in respect of J's feelings, in the early part of the film the father focuses entirely on phoning contacts with a view to publicising what was occurring with no concern for J, and when he does engage it is to shout at J in Russian to blame J for the arrival of the police and social services'. The father's behaviour has been and remains deeply damaging to his son's welfare.
- For the reasons set out below, I am satisfied the court needs to protect J and should make orders preventing the father from disclosing by any means information concerning the recent care proceedings, and be prevented from attending J's school. I also consider the application for a RRO is justified to protect J as any public debate about the issues raised by this case are not advanced by J or his carers being identified. On the contrary, J's welfare demands that neither he, nor his carers should be identified. The balance needs to be struck in such a way to facilitate public debate and enable the father, as he seems intent on doing, to continue his campaign, whilst at the same time protecting J's anonymity. J's welfare needs now are for security and stability in his placement and school, which being identified in the media or otherwise is likely to undermine.
- J has been the subject of three separate care applications instigated by the local authority. The first two judgments (and in due course the third when it is approved) have been published and can be found, available to all, on the free, open-access, BAILII website.
(1) The first in 2013 resulted in the court making a care order where rehabilitation of J to his father's care was not ruled out. The judgment of HHJ Polden is reported at  EWFC B185 (on the BAILII website). J was returned to his father's care in October 2013.
(2) The second application was an application by the LA to discharge the care order. During the currency of that application the LA view changed and they sought removal of J from his father's care. Just prior to the final hearing in March the LA reverted back to supporting the discharge application and J remained in his father's care. The judgment of HHJ Hammerton is reported at  EWFC B39 (on the BAILII website).
(3) The third care application was made a few weeks later in April 2015, after J was taken into police protection from his father's care in April 2015. J has been with foster carers since then under an interim care order, with initially weekly and then from July fortnightly contact to his father. The care application was heard by HHJ Hammerton over three days in September, she gave judgment on 7 October 2015 (soon to be published on the BAILII website) where she found the threshold criteria had been established and having undertaken the welfare analysis concluded J should remain placed long term with foster carers, with contact to his father on six occasions a year. At that hearing she made an interim care order to enable the applications to be made to me for a RRO and injunctive orders against the father. Following this judgment the matter will be listed back before HHJ Hammerton to consider final orders in the care proceedings. To complete the procedural context a further hearing will be listed (on a date to be fixed) to consider the application issued by the LA for orders under the Protection from Harrassment Act 1997. HHJ Hammerton made interim orders on 27 October 2015.
- The application for a RRO has been made on notice to the media organisations. Written representations (by way of an email to the court) were sent by the BBC Editorial Legal Department on behalf of Inside Out South East, a current affairs television programme. The focus of that representation concerned the wording of the proposed order, which was said to be unnecessarily broad. Those concerns were echoed by Ms Iten on behalf of the father. The LA accepted much of what has been said about the proposed terms and have put forward a revised version of the order they seek.
- With the agreement of all parties this hearing proceeded on submission only. Ms Iten, on behalf of the father, said he accepted the bare facts of what the LA relied upon in support of the orders I am considering. She made it clear the father denies his behaviour has been aggressive or threatening.
- I would like to express my gratitude to all the advocates in the case. The court has been greatly assisted at this hearing by the written and oral submissions made by counsel, in particular Ms Iten who presented the father's case with great clarity.
- There is no dispute between the parties as to the framework within which the court considers these applications. The dispute centres on the way the court conducts the relevant balancing exercise, in particular between Articles 10 and 8.
- During the currency of care proceedings J has the protection of Section 97 of the Children Act 1989 which provides in s 97 (2)
No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—
(a)any child as being involved in any proceedings before the High Court, a county court or a magistrates' court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or
(b)an address or school as being that of a child involved in any such proceedings.
- This protection of course comes to an end at the conclusion of proceedings (Clayton v Clayton  EWCA Civ 868).
- Whilst J would retain some protection by virtue of Section 12 of the Administration of Justice Act 1960 this provision permits publication of some information relating to a child (see Re B (A Child) (Disclosure)  2 FLR 142).
- The Court could grant an order pursuant to section 39 of the Children and Young Persons Act 1933, but the injunctive relief sought in this case is wider than Section 39 as powers in that provision do not extend to the Internet or Social Media (Re J ( Reporting Restriction: Internet: Video)  1 FLR 523 at paragraph 67).
- Consequently the Local Authority has applied for a RRO from the High Court pursuant to its powers derived from Convention Rights under the ECHR (see Re S (Identification: Restrictions on Publication  1 FLR 591 and Re J (Reporting Restriction: Internet: Video)  EWHC 2694 (Fam)). In considering what order to make this court must conduct the 'balancing exercise' described in Re S (ibid). This necessitates what Lord Steyn in Re S called 'an intense focus on the comparative importance of the specific rights being claimed in the individual case'. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
- A contra mundum injunction is sought by the local authority. In Re J at paras 44 – 65 the President considered the position where some of the providers whom the order is aimed operate outside the jurisdiction. He noted at para 68 that any contra mundum injunction he was minded to make should contain an undertaking by the LA that it 'will not without permission of the court seek to enforce this order in any country outside England and Wales'. A similar position exists here, although it is not entirely clear. There is some evidence that any material that may be posted by the father or his supporters would be with providers abroad. Representatives from a UK production company that I understood to be based here were present in court. They are contracted to make films and/or reports for a news organisation called NTV, and were in the process of preparing a report about this case. My understanding is they have not taken any further steps pending this courts determination.
- This issue was further considered by the President in Re P (A Child)  EWHC 4048 (Fam) and Re E (A Child)  EWHC 6 (Fam). In Re E (ibid) at para 56 and 57 he stated
'56. In relation to foreign media the English court must proceed with very great caution. As a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible. In the first place, what justification can there be for the courts in one country seeking to control the media in another? If the media in a particular State are to be controlled that must be a matter for the relevant authorities in that State. For the courts of another State to assume such a role involves an exercise of jurisdiction which is plainly exorbitant, not least as involving interference in the internal affairs of the other State. What would we think, what would the English media think, if a family judge in Ruritania were to order the Daily Beast to desist from complaining about the way in which the judicial and other State authorities in Ruritania were handling a case involving an English mother? Secondly, the exercise of such a jurisdiction would be inconsistent with the principles I explained in Re J, paras 44-65. Thirdly, any such attempt would in all probability be an exercise in futility.
57. On the other hand, a different approach may be justified where internet or satellite technology is involved, for there the media have an extra-territorial effect. It is of the essence of the internet that, wherever the service provider or the service provider's servers may actually be located, the information is accessible throughout the world. So, in principle, attempts by a court to control the internet are not subject to the complaint that they are thereby interfering with the purely internal affairs of a foreign State.'
- Ms Iten draws the court's particular attention to what Sir Mark Potter P said in Clayton v Clayton  EWCA Civ 878,  1 FLR 11 at paragraph 51:
"Given the existence of s 12 of the 1960 Act which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save insofar as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life."
- She also relies on the way Sir James Munby, President, addresses the vital importance of transparency in the family justice system in Re J (Reporting Restrictions: Internet: Video)  EWHC 2694 (Fam),  1 FLR 523 at -. He makes the following important points:
(a) One aspect of the pressing need for more transparency is "the right of the public to know, the need for the public to be confronted with, what is being done in its name." 
(b) "We must have the humility to recognise – and 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 future miscarriages of justice." 
(c) "It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables its workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism." 
(d) "I repeat what I said in Harris v Harris […] about 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. And the same goes, of course, for criticism of local authorities and others." 
(e) "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." 
The relevant background
- I propose only to summarise the background as it is already dealt with in two detailed judgments that are reported in anonymised form and available on the BAILII website.
- J was in his father's care until 2012. He was removed following an incident at the home when he was found alone when the fire brigade were called following the report of a fire. J, was then age 10. The LA issued care proceedings. In his detailed judgment at the final hearing in February 2013 HHJ Polden found J was at risk of significant emotional and physical harm; the father had left J alone in the home on more occasions than that which prompted the proceedings and he accepted the conclusions of the assessment of Dr Van Rooyen that J was at risk of significant emotional harm caused by the father's behaviour.
- Following a careful analysis of the competing options for J's future care (return to his father's care or remaining with foster carers) HHJ Polden made a care order. The LA accepted the amendment to the care plan set out by HHJ Polden in his judgment, that the LA should 'actively review possible reunification'. As HHJ Polden stated 'This is important, in my judgment because it will emphasise that if the father does make the necessary changes then reunification is still the desired aim for J. In seeking that amendment I attach weight to the oral evidence of Dr Van Rooyen when she said, and I accept 'I think that father can get there in the end'.
- Following the father completing a parenting course in the summer of 2013 the LA concluded that it was possible to return J to his father's care. The return was on the understanding that the father would accept ongoing involvement and the support of the local authority. J returned to his father's care in October 2013.
- The LA issued their application to discharge the care order in May 2014. In early June 2014 the father sent an email to the court stating that he had always been willing to work with the LA but his efforts had been blocked by the children's guardian and by Dr Van Rooyen, and made allegations that there had been breaches of international law. Copies of the email were sent to various people including an MEP. The father informed the court neither he nor J were prepared to meet with the Children's Guardian as he was making a complaint against her. A position statement was filed on behalf of the Guardian which expressed her concern about J being returned to the father's care without the therapy recommended by Dr Van Rooyen having been undertaken. Further information was sought from the LA.
- At a hearing in August 2014 HHJ Polden directed that J should be made a party and be separately represented.
- In a statement filed at the end of August, the LA set out the deteriorating position between the social worker and the father and, as a result, the LA intended to withdraw its application for discharge of the care order. In its later position statement the LA stated that at the time this discharge application had been issued it had been hoped that the father would continue to work positively with the LA and engage with the support provided by the LA. It was said the opposite had happened, and the father had become convinced that the role of the LA in J's life had been negative. The analysis provided on behalf of the Guardian in September concluded that the father had not made the necessary changes and as a result, in her view, the risks of physical and emotional harm to J identified in the previous proceedings remained.
- At a hearing in September HHJ Polden rejected the application by the father and the solicitor for J to discharge the care order. The matter was set down for a hearing in November. The order in September contained the following recital
'Upon the Court indicating to all parties that these proceedings are confidential and that they must not disclose the evidence in the case, including the written evidence, nor discuss the evidence or submissions, written or oral, in this case with any third party without the express permission of the court.'
- The father appealed the order of HHJ Polden. He sought an order that the case be remitted to the High Court and an order for the court to consider the section 31 threshold, which is now different from that at the time of the making of the care order on 26 February 2013. The application for permission to appeal was refused by Macur LJ. It was said that the application was totally without merit so the application could not be renewed with an oral hearing. In her reasons, Macur LJ emphasised that the decision made by HHJ Polden was a case management decision which was entirely reasonable and rejected any suggestion that HHJ Polden had given the appearance that he had prejudged the case.
- In October 2014 the LA made an application for an injunction, forbidding the father from disclosing documents or information that would lead to the identification of J. There was a statement from the social worker in support of the application, which set out the escalation of the public protest made by the father against the LA; it was said this was conducted in a way which was likely to lead to the identification of J, in addition to protests in the street, the father was in constant contact with reporters from the BBC and there was information he was planning to attend before a committee of the European Parliament.
- The matter returned to court on 3 November, due to the unavailability of HHJ Polden the hearing was dealt with by HHJ Hammerton. She heard evidence from two social workers, the father was due to give evidence but there were difficulties in the interpreter staying and the matter, unfortunately, had to be adjourned. The father stated he intended to appear before the Petitions Committee of the European Parliament before the next hearing. Following discussions between the parties as to the arrangements for J whilst he did this resulted in the following recital in the order
'The father will provide to the social worker, Miss Palles, with prior notice, of the names, addresses and telephone numbers of the child minders he intends to use to care for J during any period that he intends to spend in Brussels or abroad pending the adjourned hearing.'
- HHJ Hammerton made the following orders
(1) The father be forbidden from disclosing any documents or evidence from this case and case [number] to any third party without the permission of the court, save to a qualified legal advisor with the purpose of obtaining legal advice.
(2) The father be forbidden from disclosing any information to any third party which might lead to JS's identification to the public, or any section of the public, as a child involved in these proceedings.
(3) The father be forbidden from allowing, encouraging or otherwise facilitating the recording of JC's purported views about the professionals in the case, whether such recording be visual or sound or written or otherwise, and whether by way of interview with JC or otherwise, for the purposes of dissemination to the media or onto the internet or to any third party, and he shall be forbidden from disclosing any such recording to any third party, including media organisations, and from posting the same onto the internet.
For the avoidance of doubt, such prohibition includes any recording made by J himself.'
- In fact the father took J to Brussels, no information was provided to the LA or to J's school. Although the appearance before the Petitions Committee was filmed, it did not show J. The film was placed on the internet.
- On the morning of the 14 November the LA made a without notice application to the High Court for a Reporting Restrictions Order (RRO). It was heard by Jackson J who refused the application on the basis that it should have been made on notice and, further, that the issues could be appropriately dealt with in the Children Act proceedings.
- At the resumed care hearing later that day the LA served a statement from the allocated social worker which had been made that day. It stated the care plan had changed, the LA was now of the view that it was impossible work with the father and, accordingly, they sought removal of J into foster care. This change was based on what the LA said was the failure by the father to communicate matters in an honest way to the LA, together with the concern that J may be lying and being left alone by the father.
- As HHJ Hammerton records in her judgment, this change in plan presented the other parties with a number of difficulties. The father was, understandably, extremely distressed. He did not have legal representation. The solicitor for the child was without instruction. The Guardian was clear the matter could not proceed without further investigation. She was increasingly concerned she was not able to meet with J, she sought the father's co-operation to enable her to do so. Notwithstanding her inability to meet with J she was clear that the circumstances did not justify a peremptory removal of J to foster care. HHJ Hammerton agreed further investigation was required and that immediate removal of J to foster carers was not justified. The matter was adjourned for a three day hearing in January. It was hoped the father would be able to secure legal representation. The injunctions were continued.
- In December the LA sought enquiries to be made for an earlier hearing due to what they considered was a deteriorating situation for J. Earlier dates were not possible. In the event that January hearing had to be adjourned, due to the unavailability of the social worker. The matter was re-listed for March.
- The father's application for legal aid was refused in early February. At a directions hearing in February Counsel who appeared for the father pro bono invited the court to transfer the issue of funding for the father's representation to the High Court. In the event that application was not pursued. As was noted by HHJ Hammerton whilst there were difficulties in the father remaining unrepresented they were, to some extent, ameliorated by the fact that J was a party and legally represented. The judge was, rightly, concerned about the impact of any further delay.
- Prior to the final hearing in March the Guardian's analysis concluded that she had changed her position and could no longer support J's removal from the father's care into foster care. Her view was that was likely to cause more harm to J than him remaining in his father's care. She was clear the involvement of J in the legal proceedings and in the father's campaign against the LA had been emotionally harmful to J. She believed it was essential the proceedings were brought to a swift end. In a statement filed on the eve of the hearing the LA had reached the same view. They concluded that J's needs could be met by a referral to CAF (Common Assessment Framework) which would require the father's agreement. The support under this framework would involve professionals from health and education, which would ensure some support being available ensuring removal from any interaction with the LA, which had caused such division and distress.
- Although there was no issue between the parties HHJ Hammerton gave a judgment, which is in the papers. She sets out at paragraphs 65 – 68 her analysis of the position regarding discharge of the care order. At paragraph 68 she states
'I have no doubt that, as set out by the guardian, this is a case in which it is imperative that the conflict comes to an end. It may well be that notwithstanding the conclusion of the proceedings, the father will continue with his campaigns against the local authority. In that case unless the father takes steps to exclude J from involvement and protect him from the ill effects of his campaigning, there is a risk of further emotional harm to J. That risk is additional to the risks that arise from the deficiencies in the father's parenting as identified in the care proceedings. Given the premature return of J to his father's care it is not possible for the local authority to ameliorate these risks. J has now been in his father's care for 15 months, he has always expressed a wish to remain in his father's care and as a result of recent experiences has adopted an increasingly negative attitude towards social workers. A change in residence would have a profound effect on him and on close analysis is not viable. Neither is it workable for a care order to remain as a framework for additional support and protection. It is clear there is no benefit in retaining the care order indeed the opposite is the case. Hence the agreement of all parties that the care order should be discharged.'
- Following the conclusion of those proceedings in early March the duty team at the LA were contacted by the police on 26 March. The father had called an ambulance seeking assistance stating that J was violent and smashing up the house, with reference to J having mental health difficulties. The police had been contacted by the ambulance service; the police attended and reported the unsuitable home conditions.
- The police were called by the father on 5 April. The father advised the previous day J had trashed the house with a hammer and shot at his father with pellets from an air gun. When the police arrived J was noted to be hiding under a piano and was emotional when the police spoke to him. J reported to them the demands made on him by the father regarding extra homework, attending Russian schooling were too much. The officers noted when J tried to talk to the father he shouted him down. The officers sought to mediate; they noted the unkempt state of the home, and a hole in a glass pane. They noted the father continued to refuse to accept he was in any part to blame for the parenting concerns regarding J, insisting the full blame was on the LA. A further referral was made by the police to the LA.
- A further call was made to the police by the father on 8 April. He reported that J was causing damage to the property, smashing items and using matches and was threatening to set himself on fire. He wanted the police to discipline J. He was advised to contact the LA but he said they would not help him. The police attended the next morning, social services were asked to attend and a decision was taken for J to be placed in police protection. The father was arrested on suspicion of child neglect and the LA made an application for an EPO on 10 April.
- The EPO was granted until care proceedings were issued. Interim care orders were made until a contested two day hearing before HHJ Scarratt in June when the interim care order was continued. A hearing in July determined that contact between J and his father should be fortnightly.
- The final hearing was listed before HHJ Hammerton in September. Permission had been given for an expert assessment. Initially that was to be conducted by another psychologist, when they become unable to carry it out Melanie Gill, psychologist, was instructed in her place. Ms Gill had been the father's original suggestion for the assessment.
- The September hearing took place over 3 days before HHJ Hammerton. She gave judgment on 7 October. This court has the benefit of counsel's note of the judgment. At the start of the hearing in September HHJ Hammerton refused an application to adjourn put on three basis: (i) she should await the determination of appeals against her case management decision, (ii) to enable the recommendations of the expert witness to be implemented (for Video Interactive Guidance (VIG)) and (iii) J's voice was not being heard. She considered any further delay was detrimental to J's welfare and J's wishes were available to the court through the Children's Guardian. She also refused an application that in the event that she found the threshold satisfied she should recuse herself.
- HHJ Hammerton heard evidence from the previous and current allocated social worker, Ms Gill, the father and the Children's Guardian. In addition, she considered the police records and the film footage of the attendance by the police on 9 April.
- In her judgment she sets out the findings she made that underpinned her conclusion the threshold criteria had been met. She made findings that supported her conclusion that J was at risk of significant physical and emotional harm.
- HHJ Hammerton accepted the social workers evidence of what J had told her about how he found the father's campaigning embarrassing; the father maintained any child would enjoy being a celebrity and he gave an example from his own childhood when he was on the radio. As HHJ Hammerton stated in her judgment 'Father's behaviour on 9 April as shown displayed a lack of empathy or understanding in respect of J's feelings, in the early part of the film the father focuses entirely on phoning contacts with a view to publicising what was occurring with no concern for J, and when he does engage it is to shout at J in Russian to blame J for the arrival of the police and social services'.
- HHJ Hammerton largely accepted the evidence about what occurred on the occasions the police attended the family home and the dangerous and unsafe condition of the home for a child of J's age and development.
- As set out in the judgment of HHJ Hammerton the evidence of Ms Gill was J is suffering compulsive compliance entirely due to the parenting from the father. She explained the effect of compulsive compliance was to bring its own problems; children can appear as though doing well, but when something happens the child will explode, in what she considered would look like psychotic behaviour. In her judgment HHJ Hammerton found the father was suffering from intense preoccupation that J was being harmed, particularly in relation to the LA, that caused him to be overwhelmed and on those occasions everything disappears and he has no insight into himself, J's needs or their relationship and the effect on J is to cause him significant emotional harm.
- HHJ Hammerton concluded that many of the findings she had made reflected findings that had been made by HHJ Polden in 2013, as a result she considered the behaviour on the part of the father is entrenched and the father lacked any insight into the effect of his behaviour.
- She considered the harm suffered by J was significant, J's behaviour that caused the police to attend the home were 'reactions, being uncontrolled and severe, were due to father's treatment of him and to his earlier parenting. In addition to significant harm to J when father reacts in anger, there is additional harm from the need to appease the father so as to avoid confrontation, it was further the expert's view that this is a cause of depression. F volatility and the ferocity of his outbursts have been in evidence during these proceedings and that is notwithstanding the contained environment of the court. The unpredictability of father's outbursts makes it self evident they would be damaging to any child living with the father. I am satisfied the harm and potential harm is described as significant and threshold is crossed'.
- HHJ Hammerton considered the welfare checklist, weighed the advantages and disadvantages of J returning to the care of his father or remaining with the foster carers. She rejected the allegation by the father that the Children's Guardian had fabricated her evidence regarding the contact visit in July or was prejudiced against the father. Having considered and weighed the relevant considerations she reached the conclusion that she was satisfied J's placement in long term care was the order that met his welfare needs as being 'not only proportionate but in fact is the only order to be made in this case'. She did not make a final care order, but adjourned the matter to enable the LA to make an application for a RRO in the High Court.
- Following the conclusion of the evidence and prior to the judgment on 7 October the LA issued applications on 30 September seeking injunctive orders against the father.
- The LA sought an injunction against the father preventing him from disclosing details about the care proceedings. Pending the hearing before this court HHJ Hammerton on 30 September and 7 October made an order forbidding the father from
(i) 'disclosing to the general public (save for those permitted by virtue of the Family Procedure Rules) by way of leaflets, placards, speech, electronic communication including emails and Facebook, or by any other means, J's name in association with the fact of there having been Care Proceedings or Local Authority involvement (including by way of there being orders regulating contact etc) from April 2015 (it being acknowledged that the fact of the previous Care Proceedings is already in the public domain'). (ii) 'displaying or drawing the attention of the Public to the [production company] documentary simultaneously with mentioning J's name and the fact of there having been further Care Proceedings.'
- At the hearing on 21 October HHJ Hammerton made directions for the injunction against the father and the expected RRO to be listed before me on 4 November. She made directions as to the filing of skeleton arguments and a court bundle. Medway failed to comply with the court direction that required the bundle, skeleton arguments and authorities to be filed on 2 November. I received the bundle just before 10.30 on 4 November, the day I was listed to hear these applications. The LA's failure to comply with the courts direction is wholly unacceptable.
- At the end of October the LA sought an order under the Protection from Harassment Act 1997 due to the father's behaviour towards those employed by the LA. The evidence in support of this order is set out in the statements filed on behalf of the LA. HHJ Hammerton made an order on 27 October 2015 that the father is 'forbidden whether by himself or by instructing or encouraging or permitting any other person from displaying to the public in any way in any place the Names, Contact Details (telephone number, e-mail, home postal address) or photographs of any employees of Medway Council'. This orders it to last until 30 December unless before it is revoked by a further order of the court. A further hearing is due to be fixed to further consider orders in those proceedings.
- In addition to these two applications on 30 October the LA applied for a further injunction against the father to prevent him from attending at or going within a specified area around J's school. The evidence filed in support of this application includes details of a recent attendance by the father outside J's school on his birthday, where he had a sandwich board which stated that he wished his son happy birthday. The detailed messages on the board whilst not specifically naming J set out information where, the LA submit, it was very easy to identify J (it referred to him being in care, his age, and his nationality). The evidence demonstrates that at least one child was able to establish who he was. The father's attendance attracted a considerable amount of attention from pupils at the school, with photos being circulated on social media.
- Finally, the LA issued an application for a RRO on 29 October 2015. This application was served on the media organisations (including Russia Today). I have set out above the written representations received on behalf of the BBC.
Evidence and Submissions
RRO and Personal Injunction
- The LA submits the father has throughout these proceedings sought to involve the media. They rely on a number of emails in the bundle (for example, those sent by the father on 2.7.15, 18.9.15, 25.9.15) where the media and others (not parties to the proceedings) have been copied in to emails from the father to the LA, where J is identified as well as information given from the current proceedings (for example details regarding contact).
- They submit it is very clear unless the orders are granted the father will continue to seek to publish details about these care proceedings in such a way that J will be identified as being involved in the proceedings, together with details from those proceedings. The father has shown no boundaries in what he is prepared to put in the public domain.
- In his oral submissions to the court on 21 October 2015 (which there is a note of in the bundle) the father's opening words were 'I will visit every media outlet in London..' indicating, the LA submits, that there is no sign of any change in his behaviour. Once the protection afforded by s 97 is removed Mr Chaloner, submits there is every likelihood, based on the behaviour to date by the father, that he will identify J and put details about the case in the public domain and seek out the media to publish this information. He submits the statutory framework provided by s 12 AJA 1960 provides insufficient protection for J and s 39 CYPA 1933 does not include material on the internet.
- Mr Chaloner whilst, of course, acknowledging the balancing exercise the court has to undertake between Arts 10 and 8 and the importance of the media being able to report matters concerning the family justice system submits there are a number of key considerations in this case which bring the balance down in favour of protecting J's Art 8 rights to private and family life.
- First, HHJ Hammerton in her judgment in March 2015 stated that '...unless the father takes steps to exclude J from involvement and protect him from the ill effects of his campaigning, there is the risk of further emotional harm to J..'. Following that judgment the father agreed to publication on line of a documentary showing J at Russian School, featuring him on the telephone to his then solicitor and also showing the father reading a page of what is said to be the Guardian's report from the previous proceedings. It is clear from the evidence accepted by HHJ Hammerton that J has found this embarrassing and there is no sign that the father is going to refrain from similar actions in the future. On the contrary as HHJ Hammerton noted in the October judgment 'Father refuses to accept J's view, when asked about this and in particular the disadvantages of publicity, father maintained any child would enjoy being a celebrity and gave an example from his own childhood when he was on the radio.'
- Second, the report from Ms Gill sets out her conclusions regarding J's psychological state, she states (at paragraph 40)
'J … has adapted throughout childhood, and now organises his relational behaviour using what is termed as compulsive type 'A' attachment strategies … The type 'A' strategy is often termed a 'distancing' or 'avoidant' strategy in that J has learned (unconsciously) to distance himself from his own true emotions, to an extent that revealing or even acknowledging them is often experienced as 'dangerous';
'… The failure of his attachment functioning to sustain consistent sensitive parenting from his father has also resulted in partial depression'
' J's strategic functioning continues to be characterised by an over-control of negative emotions, and recently a deactivation of attachment seeking behaviour, so that the appearance given is now one of 'self-reliance'… Without predictability in his relationship with [Father] as his only current attachment figure, he will be at substantial risk for psychological disorder as he enters his teenage years...'.
- It is submitted the risk to J's welfare if the father was permitted to identify J is clearly established on the evidence such that his right to private and family life under Art 8 will be interfered with. It is acknowledged there is a considerable amount of information already in the public domain regarding the father and J. The LA submits this requires the court to be extra vigilant about the dangers of jigsaw identification, and the further harm that would be caused to J's welfare if the orders are not made.
- Mr Chaloner argues such interference in the father's Art 8 and 10 rights is proportionate, as it doesn't prevent or inhibit the father from expressing his concerns about the actions of the LA in general terms and the functioning of the family justice system. As Mr Chaloner submits the LA and social workers have been identified. There is no curtailment on the father being able to protest generally as to 'forced adoption' as he believes the situation to represent. Although as Mr Chaloner observes, adoption has never been part of the LA plan in this case.
- Ms Cox on behalf of the Children's Guardian supports the application by the LA. In her report for the September hearing the Guardian observes that she has seen an escalation within the current proceedings of threats and intimidating behaviour by the father in a bid to have J returned to his care, rather than engaging constructively with professionals. The father denies threats or intimidation. J has continued to experience emotional harm due to the father's disruptive behaviour around contact and that the father will continue to seek to disrupt J's placement in foster care, undermining his sense of stability and safety. This has to be viewed in the context where, despite the passage of time, the father is unable to accept he has contributed in any way to J being in the care of the LA; he will remain driven by his own highly personal grievance of perceived unfairness. He remains oblivious to the impact his actions and behaviour may have on J. From his perspective J will enjoy being a 'celebrity'.
- Ms Iten, on behalf of the father, makes a number of important points.
- Firstly, she reminds the court of the importance of transparency in the family justice system, relying in particular on the matters set out in Re J (ibid) at paras  – . There needs to be freedom to be able to express views about the family justice system and how it functions.
- Secondly, she reminds the court of what Sir Mark Potter said in Clayton v Clayton  EWCA Civ 878 para 51 in the context of section 12 AJA '..I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life'.
- She submits on behalf of the father there is no need for a RRO to protect J's privacy as the father has respected the orders made to date, J's position could be adequately protected by any orders that can be made against the father personally. The father, she submits, does not seek to identify J but he does say a number of matters raised by this case are of great public interest. There are a number of matters about the way the LA have managed this case under the interim care order that the father fundamentally disagrees with. In her oral submissions she said the father considered the restrictions placed on his contact with his son were not justified and were considered by the father to be inhumane. The father takes great issue with some of the rationale that underpin the conclusions reached by Ms Gill, although the parts that caused the father the most difficulty regarding his own background were expressly not determined by HHJ Hammerton in her recent judgment.
- The circumstances of this case, she submits are unusual. Some information regarding the previous proceedings is already in the public domain; in particular that J was the subject of proceedings previously. The father has been identified so it is more likely than not that J would be identified. Placing restrictions on J being identified would impose far reaching restrictions on the father's ability to protest and express his views about the way he has been treated. The court needs to carefully consider how effective an RRO will be, when much of the material is abroad which is likely to severely limit the court's ability to enforce its own orders.
- She submits the father doesn't accept there is any evidence of the father's actions, or likely actions, being harmful to J. The father doesn't accept the evidence about what happened at school as being harmful, or that J was even embarrassed by what the father did outside the school gates in October.
- The publication of the two judgments, with the expectation of the most recent one being made public, even in anonymised form means that it will be very difficult to prevent the identification of J.
- Finally, she submits the father seeks to work with the LA but feels driven into a corner by the actions of the LA. He considers this LA is working against J and does not afford respect to their right to family life, as a result he feels he needs to protest. If his fears were allayed he would not feel the need to protest. Mr Iten submits the father does not seek publicity for its own sake; he takes the actions he does for a clear purpose because of what he considers is the LA's failure to keep an open mind.
- If the court was minded to make either of these orders Ms Iten makes helpful submissions about the terms, much of which has been accepted by Mr Chaloner.
- The LA seeks this order to protect J when he is at school. They rely on evidence, which is not disputed, that the father has attended J's school on a number of occasions.
- The first was in June, as set out in the statement of the deputy Head Teacher. The father was said to be on the school premises asking a student where J was, he was spoken to by a member of staff and was taken to the reception area. The Deputy Head Teacher spoke to him. The father informed him his bail conditions no longer applied, he denied he was wandering in the school grounds and had only seen a student he recognised and was asking about J's whereabouts. The Deputy Head says he explained that the school did not usually facilitate requests by parents to come and speak to the children.
- The second occasion was as reported by the Assistant Headteacher. He received a request to ring the father which he did. The father is reported to have expressed his frustration at not being allowed to see his son, and was ringing to say he might come to the school to visit J. The Assistant Headteacher advised that following their guidelines that would not be possible. The father did not visit the school.
- The most recent occasion was on J's birthday when the father protested outside J's school. Whilst he did not name J it is submitted there was sufficient information on the boards carried by the father to make him readily identifiable. The LA was alerted to this from two sources. First an email from one of its employees, who has a child at the same school. The second was an email from J's foster carer who describes J's reaction to what his father was doing. Although J had not been aware of it on the day, the foster carers considered he should be informed before the next day at school. At that time J didn't make any comments. On his return from school the next day J reported to the foster carer that he had not had a good day at school because lots of students had asked him about his father. When asked what J had said to them, he had told them he didn't know who this man was. J said he was embarrassed by this, and that his father had asked students if they knew J. He said his father had asked a boy in his class whether he knew J, when he said he did the boy reported the father asked him to give J his regards. The foster carers reported J appeared embarrassed and annoyed by his dad's actions and he did not like the other students knowing he was in care. There is an email from one of the other parents to the school following the father's protest. This parent reported being sympathetic to the father's plight and emailed the address on the board, he was surprised that the father responded and asked this man to ask his son to contact J, when the father didn't know this man or his son. The parent reported this to the school, as he was concerned about security in the school.
- Whilst it is accepted J's name was not on the boards, it is submitted, there was sufficient information on it to readily identify J; that it was his birthday, his age, that he was not living with his father, the link to the video with a production company and Medway were named. This is supported by the fact that the students the following school day had readily put two and two together, to identify J.
- Ms Iten submitted the circumstances of the father attending the school in June, was that his bail conditions had just been lifted and he thought he was at liberty to go to the school. As regards the attendance outside school on J's birthday it was very clear his main purpose was to wish his son a happy birthday. She said the boards did not name J and this indicated the father understood the restrictions on him not to identify J. He denied approaching any student, his instructions were a student approached him, he thought he recognised him and the father responded that if he knew who it is to give him the father's regards.
- If the order is granted Ms Iten made sensible submissions about the terms. The LA seeks an order that names the school and the roads that lead up to it. Ms Iten submits that the order should only apply during school hours, with a margin of time either side.
Discussion and Decision
- The central issue here is readily identified: Is there any justification for extending J's anonymity beyond the point at which s 97 ceases to bite?
- It is readily recognised the need for transparency in the family justice system and the need for there to be effective scrutiny of how it works. As Sir James Munby said in Re J at para 38
"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."
- However such a position is not without limitation in cases where the court is satisfied that in exercising that right is inimical to the welfare of the child.
- There can be little doubt having read the trial bundle that the father in this case feels particularly aggrieved about the actions taken by the LA in relation to his son. Despite the clear findings of HHJ Hammerton he does not accept any responsibility for the position he and his son now find themselves in, he lays the blame entirely at the door of the LA. He is unable to recognise that J may be caused distress by any action he takes, on the contrary he takes the view J is likely to enjoy any publicity. There is no recognition or acknowledgement by him of any of the evidence available of the distress his actions have caused J to date and that the continuance of them risks doing so in the future.
- Having considered the competing considerations I am clear the balance comes down firmly in favour of the orders sought by the LA being granted. The need to prevent interference with J's Art 8 rights by restraining the publication of information that identifies J outweighs the need to prevent interference in Art 10 rights by not restraining such publication. Equally, I am satisfied that the need for personal injunctions restricting the father's dissemination of information is also required as is the order sought restricting his ability to attend at J's school. I have reached these conclusions for the following reasons:
(1) To date neither s 97 or the injunctions that have been granted have been effective to control the father's behaviour. He has continued to copy emails to the media naming J and giving details of what has taken place during court hearings. He made it clear in his oral submissions on 21 October that he will visit every media outlet in London. The perpetuation of what has already occurred and the real possibility by the father or others continuing such behaviour engages J's Art 8 rights.
(2) I accept the evidence regarding J's welfare needs require him to be afforded stability and security in his placement and school. Those welfare needs would be put at serious risk if details of his personal circumstances (that he is living with foster carers under a care order) become more widely known. I recognise that some information regarding the previous proceedings is already in the public domain. Its existence clearly causes J embarrassment, and if further information regarding the most recent care proceedings went in the public domain with him being identified that would undoubtedly cause him further distress and may risk the stability of his placement and education.
(3) Whilst there is some force in Ms Iten's submission that personal injunctions against the father would go some way to meeting the justification for a RRO, I am satisfied that that protection has not been sufficient to date and still leaves J's Art 8 rights being put at an unacceptable risk. There is a real risk the father would seek to circumvent the personal injunctions and engage the media, which increases the risk of jigsaw identification.
(4) I have considered that jigsaw identification is in any event a significant risk in this case due to the amount of information that is already in the public domain, but that in itself doesn't bring the balance down in favour of J being identified.
(5) I have balanced the impact of the orders sought on the father's ability to protest and comment on what he sees is the unfair treatment of him by this LA regarding his relationship with his son, and his wider criticisms regarding the family justice system. Whilst I accept it will mean he will not able to identify his criticisms with his own particular case, he will still be able to make more generalised criticisms about these issues.
(6) The detailed judgments that chart the way this case has developed are already in the public domain on the BAILII website, albeit in anonymised form. Therefore there can be public scrutiny about how the court has reached its decision at each stage in the context of a wider discussion about the workings of the family justice system; that legitimate scrutiny does not require J to be identified.
(7) As J gets older his discovery and knowledge about his circumstances will not be assisted by him being identified. It carries risks to his welfare by, for example, bullying and risks further his psychological difficulties and fragility as outlined by Ms Gill.
(8) The important rights of the media and the public protected by Art 10 are acknowledged, as is the importance of permitting critical comment concerning the family justice system. But none of this can be allowed to be at the expense of the rights of the individual children involved. The important distinction is on the one hand freedom to discuss the operation of the family justice system and the conduct of individual cases and, on the other hand, the freedom to disseminate identifying particulars of specific children which serves to cause, or risk causing, harm to them. Art 10 cannot be allowed to justify conduct which interferes with a child's Art 8 rights to an extent that is harmful to him.
(9) In relation to the injunction concerning the school I am quite satisfied that unless he is restrained from doing so, the father is very likely to attend the school again, particularly if he feels aggrieved by a decision made by the LA. The risks to J's welfare if he does are obvious. J was clearly distressed by what happened recently and the questions that were raised with him by his fellow students. Such repeated behaviour by the father is very likely to adversely impact on J's welfare, as it puts in jeopardy him remaining settled in the school where he is clearly doing well at.
- As to the precise terms of the orders I agree with many of the points made by Ms Iten.
- The relevant parts of orders made by the court are set out below:
(1) Reporting Restrictions Order
IN THE MATTER OF CHILD J
IN THE MATTER OF THE ADMINISTRATION OF JUSTICE ACT 1960
AND IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE HUMAN RIGHTS ACT 1998
REPORTING RESTRICTION ORDER MADE BY MRS JUSTICE THEIS ON 10 NOVEMBER 2015
After hearing Mr Chaloner who appeared on behalf of the local authority, Ms Iten who appeared on behalf of the father and Ms Cox on behalf of the Children's Guardian
And Upon reading confirmation that the application had been served on the Media and Russia Today
IMPORTANT WARNING: ANY PERSON OR BODY WHO KNOWS OF THIS ORDER AND DOES ANYTHING TO BREACH ITS TERMS MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
IF YOU ARE SERVED WITH THIS ORDER YOU SHOULD READ IT EXTREMELY CAREFULLY AND ARE ADVISED TO CONSULT A SOLICITOR AS SOON AS POSSIBLE. YOU HAVE THE RIGHT TO ASK THE COURT TO VARY OR DISCHARGE THE ORDER.
1. a) The Applicant is Medway Council ("the Local Authority")
b) The First Respondent is L ("The Father").
c) The Second Respondent is J ("the Child)
2. The lead lawyer employed by the Local Authority is [JS], whose direct telephone number is [x] and email address is [x], and to whom all enquiries about the scope and effect of this order should be addressed.
3. On 4th November 2015 the Court considered an application for a reporting restriction order and gave judgment on 10th November 2015.
4. This order was made at a hearing with notice having been given to the Press Association. Both the First and Second Respondent had also been given notice of this hearing.
5. The Judge read the following documents: [details omitted]
6. Schedule 1 to this order is an explanatory note in plain English. It forms part of this order. The note must always be supplied to any person affected by this order but otherwise is not to be published.
7. At present the address of the child and the names and address of his carers are not public knowledge. Those names and address are therefore not set out in this order. Those details must remain strictly confidential.
8. Subject to the following paragraph, this order binds all persons and all companies or unincorporated bodies (whether acting by their directors, employees or in any other way) who know that the order has been made.
9. In respect of persons outside England and Wales:
(i) Except as provided in sub-paragraph (ii) below, the terms of this order does not affect or concern anyone outside the jurisdiction of this court.
(ii) The terms of this order will bind the following persons in a country, territory or state outside the jurisdiction of this court:
(a) the First Respondent or his agent;
(b) any person who is subject to the jurisdiction of this court;
(c) any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court;
(d) any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and
(e) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.
Undertakings to the court
10. The Applicant undertakes to pay damages as assessed by the Court in the event it is found there has been deliberate or careless misrepresentation by the Applicant leading to the making or enforcement of this Order and that loss has thereby been occasioned in respect of which the Court orders compensation should be paid.
11. The Applicant will not, without permission of the Court, seek to enforce this order in any country, state or territory outside England and Wales.
IT IS ORDERED THAT:
12. The Applicant is granted permission pursuant to the Children Act 1989 s100 to apply for an order in the exercise of the Court's inherent jurisdiction.
13. Subject to the "territorial limitation" above, 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 program service any information, that reveals
(1) the identity or name or address or whereabouts of the child (whose details are set out in Schedule 2), or
(2) the name of the father (set out in Schedule 2), or
(3) the identity or name or address or whereabouts of his carers, or
(4) any pictures of the child or his carers or
(5) the name of any school or contact centre which the child attends or any other information which might identify those premises, including a picture, or
(6) any other particulars or information relating to the child
IF, BUT ONLY IF:
such publication is likely, whether directly or indirectly, to lead to the identification of the child as being:
(a) A child has been subject of proceedings under the Children Act 1989 since April 2015; and/or
(b) A child who has been removed from the care of his father; and/or
(c) A child whose contact with his parents has been prohibited or restricted.
This order prohibits any person from seeking any information relating to the child or the father or carer for the purposes of publication pursuant to this paragraph from any of the following:
(i) the child
(ii) the father
(iii) the carer
14. No publication of the text or summary of this order or the supporting documents (except as provided for below under "service of this order") shall include any of the matters referred to in the preceding paragraph.
15. Nothing in this order shall prevent any person from:
(a) publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;
(b) seeking or publishing information which is not restricted by the section "prohibited publications" above;
(c) enquiring whether a person or place falls within the section "prohibited publications" 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 lead solicitor acting for the local authority, whose details are set out under "the parties" above, or from any press officer employed by the local authority;
(f) seeking or receiving information from anyone who before making of this order had previously approached that person with the purpose of volunteering information (but this paragraph 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 legally in the public domain in England and Wales as a result of publication by another person in any 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
Duration of this order
16. Subject to any different order made in the meantime, this order shall have effect until 6pm on 16 October 2020, or further order of the Court. .
The right to apply for variation or discharge of this order
17. The parties and any person affected by any of the restrictions in the section "prohibited publications" above of this order may make application to vary or discharge it to a judge of the High Court on no less than two working hours' notice to the Applicant and the Press Association and, if practicable, to the other parties. Any such application shall be supported by a witness statement endorsed with a statement of truth.
Service of this order
18. Without prejudice to the terms of the "territorial limitation" above, copies of this order (which is endorsed with the notice warning of the consequences of disobedience) shall be served by the Applicant (and may be served by any other parties to the proceedings):
(a) by service on such newspaper and sound or television broadcasting or cable satellite or programme services as they see fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting, cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or
(b) on such other persons as the parties may think fit, by personal service.
19. There shall be no order as to costs.
Schedule 1: Explanatory Note
Schedule 2: Parties Details
(2) Personal Injunction
- There be an injunction pursuant to the Inherent Jurisdiction until 6pm on 16 October 2020 or further order of the Court, forbidding the Father whether by himself or by instructing or encouraging or knowingly permitting any other person from:
a. Disclosing to the general public (save for those permitted by virtue of the Family Procedure Rules 2010) by way of leaflets, placards, speech, electronic communication including emails and Facebook, or by any other means, J's name in association with the fact of there having been Care Proceedings or Local Authority involvement (including by way of there being orders regulating Contact) from April 2015 (it being acknowledged that the fact of previous care proceedings is already in the public domain).
b. Displaying or drawing the attention of the public to the [production company] documentary showing J simultaneously with mentioning J's name or the fact of there having been further Care Proceedings relating to J, the child who appears in the [Production Company] documentary.
(3) School Injunction
- There be an injunction pursuant to the Inherent Jurisdiction forbidding the Father from entering the grounds of [School] or entering the following roads between 7am and 10pm Monday – Friday:
Save only that the Father may attend for any prearranged visit with school staff and utilise the roads above for entry and exit only provided that he has received a letter from the school on headed notepaper inviting him to such a meeting with start and finish times and that he shall not enter the area set out above more than 15 minutes in advance of the start time and shall leave 15 minutes after the finish time of the meeting as set out within that letter.