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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> London Borough of Sutton v MH (No 2)  EWHC 1371 (Fam) (10 June 2016)
Cite as:  2 FLR 263,  Fam Law 1076,  EWHC 1371 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| The London Borough of Sutton
|- and –
|- and -
|- and -
The First Respondent did not appear and was not represented
The Second Respondent did not appear and was not represented
The Third Respondent did not appear and was not represented
Mr Ford (instructed by CAFCASS Legal) for the Children's Guardian
Hearing dates: 5 May 2016
Crown Copyright ©
Mr Justice MacDonald:
i) An application by NH's solicitors to come off the court record.
ii) An application by the NH to have the services of a McKenzie friend in the person of Mr John Hemming, the well-known campaigner and chair of the Justice for Families campaign group.
iii) An application by the local authority to disclose certain documents to the Zimbabwean Embassy.
i) Whether NH has left the jurisdiction of England and Wales?
ii) Whether the local authority should be given permission to withdraw its care proceedings in respect of NH in all the circumstances of the case?
iii) Whether the reporting restriction order made by Cobb J on 17 December 2015 should continue in its present form, should be varied or should be discharged?
iv) Whether this judgment and my previous substantive judgment in this matter should be now published having regard to the President's Guidance on the publication of judgments?
i) A child subject of proceedings under the Children Act 1989 or the Adoption and Children Act 2002;
ii) A child who has been the subject of allegations of abuse; and/or
iii) A child who has been removed from the care of his or her parents; and / or
iv) A child whose contact with his or her parents has been prohibited or restricted.
i) An order permitting NH to "de-instruct" his solicitor in circumstances where he had regained capacity to conduct litigation;
ii) An order discharging the interim care order in order that he could be re-united with his mother and go and live with her in Zimbabwe;
iii) A order facilitating his "transfer" from the mental health unit in which he was detained pursuant to the Mental Health Act 1983;
iv) An order giving his mother "full access to all court documents" on the grounds that he did not believe that his mother would publish any personal information that would harm him;
v) An order permitting his mother to have full access to his medical, police and social services records.
Permission to Withdraw
29.4 Withdrawal of applications in proceedings
(1) This rule applies to applications in proceedings –
(a) under Part 7;
(b) under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child or;
(c) where either of the parties is a protected party.
(2) Where this rule applies, an application may only be withdrawn with the permission of the court.
(3) Subject to paragraph (4), a person seeking permission to withdraw an application must file a written request for permission setting out the reasons for the request.
(4) The request under paragraph (3) may be made orally to the court if the parties are present.
(5) A court officer will notify the other parties of a written request.
(6) The court may deal with a written request under paragraph (3) without a hearing if the other parties, and any other persons directed by the court, have had an opportunity to make written representations to the court about the request.
Reporting Restriction Order
i) The public generally have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their jurisdiction (Re X, London Borough of Barnet v Y and X  2 FLR 998 at –).
ii) In considering whether to grant or vary a reporting restriction order the judge must balance the competing rights under Art 8 (respect for private and family life) and Art 10 (freedom of expression) (Re S (Identification: Restrictions on Publication)). Other rights in addition to those enshrined in Arts 8 and 10 may also have to be placed in the balance when reaching a decision regarding the publication of information concerning family proceedings.
iii) When conducting a balancing exercise between Art 8 and Art 10 (and any other rights engaged), the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) at , namely:(a) First, neither article has as such precedence over the other;(b) Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary;(c) Thirdly, the justifications for interfering with or restricting each right must be taken into account;(d) Finally, the proportionality test must be applied to each, known as 'the ultimate balancing test'.
iv) In applying what Lord Steyn described as the "ultimate balancing test" of proportionality it is important that the court consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve (JXMX v Dartford and Gravesham NHS Trust  EWCA Civ 96);
v) In A Local Authority v W, L, W, T and R (by the Children's Guardian)  1 FLR 1 at , Sir Mark Potter P summarised the approach to the requisite balancing exercise as follows:'The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity in that neither article has precedence over or 'trumps' the other. The exercise of parallel analysis requires the courts to examine the justification of interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test …'
vi) Within the balancing exercise, the child's best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations (Re J (Reporting Restriction)  1 FLR 531 at );
vii) In undertaking the requisite balancing exercises, the impact of publication on the child must be weighed by the court (Re S (A Child) (Identification: Restrictions on Publication) at ). Whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In particular, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child (see Clayton v Clayton  Fam 83 at , R v Robert Jolleys, Ex Parte Press Association  EWCA Crim 1135 at  and PGS (Appellant) v News Group Newspapers Ltd (Respondent)  UKSC 26 at ).
viii) Within this context, when the court is considering whether to depart from the principle of open justice it will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation (Re W (Children)(Identification: Restrictions on Publication)  1 FLR 1) although there comes a point where evidence is not merely speculative but pure speculation (Birmingham City Council v Riaz and others  EWHC 4247 (Fam)).
The Local Authority
"Several court injunctions were put in place apparently to protect me by preventing my mother or her solicitor from sharing my case information with anyone outside the court proceedings as well as to prevent the media from reporting my case. Based on my horrendous experience while in the care of the LB of Sutton I believe it is important that the public gets to know how I suffered. I am convinced that the injunctions were put in place to protect the LB of Sutton and the courts by preventing the media from educating the public about how children are being unlawfully taken into care and abused and how their parents are silinced (sic) by the UK Family Court secrecy laws. I researched on all major websites and what is in the media will not do me any harm. It is fact raising the awareness of the public regarding my case. I am therefore applying to have all three injunctions removed or set aside immediately so that the media can report my case. It is my right as per Article 10, EU Convention of Human Rights (sic)."
The Children's Guardian
The Press Association
Permission to Withdraw
Reporting Restriction Order
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
"(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the public interest for the material to be published, [and] (b) any relevant privacy code."
"It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice". "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial". "The security of securities is publicity". But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise." I myself should be very slow indeed (I shall speak of the exceptions hereafter) to throw any doubt upon this topic. The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary – and they appear to me still to demand of it – a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves. I must say frankly that I think these encroachments have taken place by way of judicial procedure in such a way as, insensibly at first, but now culminating in this decision most sensibly, to impair the rights, safety, and freedom of the citizen and the open administration of the law."
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
"Private life, in the court's view, includes a person's physical and psychological integrity; the guarantee afforded by Art 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings."
"Art 8 protects the right to identity and personal development, and the right to develop and establish relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to the effective enjoyment of the right to respect for private life."
'… truly private affairs; the transactions are transactions truly intra familiam and it has long been recognized that an appeal for the protection of the court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.'
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market": Abrams v United States (1919) 250 US 616, at 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country."
i) There is permission to the local authority to withdraw its application for a care order in respect of NH;
ii) The interim care order in respect of NH is discharged;
iii) The final hearing listed on 11 July 2016 with a time estimate of five days is vacated;
iv) The reporting restriction order of 17 December 2016 shall be varied in the terms set out in the Schedule to this judgment.
v) Anonymised versions of this judgment and my judgment of 22 March 2016 will be published on Bailii.
IN THE HIGH COURT OF JUSTICE Case Number: ZE15C00253
BEFORE Mr Justice MacDonald on 5 May 2016
IN THE MATTER OF THE COURT'S INHERENT JURISDICTION
The London Borough of Sutton
REPORTING RESTRICTION ORDER MADE BY MR JUSTICE MACDONALD ON 10 JUNE 2016
If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order 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.
A On the 5 May 2016 the Court considered an application to vary a reporting restriction order.
B The following persons and/or organisations were represented before the Court:
(a) The London Borough of Sutton was represented by Ms Anne-Marie Lucy of counsel
(b) MH, the mother did not appear and was not represented;
(c) RH, the father did not appear and was not represented;
(d) NH the child did not appear;
(e) The Children's Guardian was represented by Mr Jeremy Ford of CAFCASS Legal;
(f) Mr Brian Farmer of the Press Association made representations on behalf of the Press Association.
C The Court read the documents filed in the proceedings.
D The Court directed that copies of the attached Explanatory Note and be made available by the Applicant to any person affected by this Order. The explanatory note is in plain English. It forms part of this order. The Explanatory Note must always be supplied to any person affected by this order.
E For the avoidance of doubt this reporting restriction order supersedes the reporting restriction order made in this case on 17 December 2015. The order of 17 December 2015 is discharged with immediate effect.
This order shall have effect in respect the child until the child's 18th birthday, namely until […].
2. Who is bound
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. Territorial Limitation
In respect of persons outside England and Wales:
(a) Except as provided for in sub-paragraph (ii) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.
(b) The terms of this order will bind the following persons in a country or state outside the jurisdiction of this court:
(i) the first and second respondents or their agents;
(ii) any person who is subject to the jurisdiction of the court;
(iii) any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court;
(iv) 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;
(v) 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.
The applicant will not without permission of the court seek to enforce this order in any country, state or territory outside England and Wales.
6. Publishing restrictions
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 otherwise of:
(a) The name and current address of:
(i) the child, whose details are set out in Schedule 1 to this order;
(ii) any place of residence, school or hospital or other establishment in which the child is being cared for, educated or treated ('an establishment');
(b) Any picture of the child or an establishment;
(c) The name and current addresses of the child's parents;
(d) The fact of the child's relationship to BD.
7. Publication of this order
No publication of the text or a summary of this order (except for service of the order under Paragraph 7 below) shall include any of the matters referred to in Paragraph 6 above.
8. Restriction on seeking information
This Order prohibits any person from seeking information regarding the child from any of the following:
(a) MH and RH;
(b) the child;
(c) a carer;
(d) the staff, or students, or patients, or residents of an establishment.
9. What is not restricted by this Order
Nothing in this Order shall prevent any person from:
(a) reporting the facts of the case (save for the information referred to in Paragraph 6 above);
(b) publishing information (save for the information referred to in Paragraph 6 above) 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;
(c) publishing or seeking information which is not restricted by Paragraphs 6 or 8 above;
(d) inquiring whether a person or place falls within paragraph 6 above;
(e) seeking information while acting in a manner authorised by statute or by any court in England and Wales;
(f) seeking information from the responsible solicitor acting for any of the parties or any appointed press officer;
(g) 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 paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful);
(h) publishing information (save for the information referred to in Paragraph 6 above) 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 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.
Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the Applicant (and may be served by any other party to the proceedings):
(a) by service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think 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 or 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.
8. Further applications about this Order
The parties and any person affected by any of the restrictions in Paragraphs 6 to 8 above may make application to vary or discharge it to a judge of the High Court on not less than 48 hours notice to the parties and the press via the Copy Direct service. Such application is to be reserved to Mr Justice MacDonald if available.
Child: NH (DOB…)