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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 >> X (A Child) (No 2), Re [2016] EWHC 1668 (Fam) (08 July 2016) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2016/1668.html Cite as: [2016] Fam Law 1224, [2016] WLR(D) 374, [2016] EMLR 24, [2017] 2 FLR 70, [2016] EWHC 1668 (Fam), [2016] 4 WLR 116 |
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FAMILY DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
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In the Matter of X (A Child) (No 2) |
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Ms Martha Cover and Ms Katy Rensten (instructed by Goodman Ray) for the birth parents (on 4 July 2016 for the birth mother)
Mr Mark Twomey (on 4 July 2016) (instructed by Philcox Gray) for the birth father
Ms Deirdre Fottrell QC (instructed by Russell Cooke) for the adoptive parents
Mr Andrew Norton QC (on 4 July 2016) and Mr Christopher Archer (instructed by Creighton & Partners) for the child X
Hearing dates: 13, 16 June, 4 July 2016
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Crown Copyright ©
Sir James Munby, President of the Family Division :
"The rubric is not an injunction It is not drafted in the way in which injunctions are usually drafted. There is no penal notice. And the procedures required by s 12(3) of the Human Rights Act 1998 and the President's Practice Direction (Applications for Reporting Restriction Orders) will not have been complied with. But this does not mean that it is unenforceable and of no effect. On the contrary, it is, in my judgment, binding on anyone who seeks to make use of a judgment to which it is attached. And anyone who disobeys it is, in principle, guilty of a contempt of court."
"16 The rubric is in two parts and serves two distinct functions. The first part, 'the judge hereby gives leave for it to be reported' has the effect, as it were, of disapplying s 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt. But the second part, 'the judgment is being distributed on the strict understanding that ' makes that permission conditional. A person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric, and will not be immunised from the penal consequences of s 12, unless he has complied with the requirements of the second part of the rubric. This is merely an application of a familiar principle which one comes across in many legal contexts and which finds expression in such aphorisms as that you cannot take the benefit without accepting the burden, that you cannot approbate and reprobate and that if a thing comes with conditions attached you take it subject to those conditions.
18 So someone who publishes or reports such a judgment in a way which does not comply with the second part of the rubric will, in principle, be guilty of a contempt of court: not that species of contempt committed by someone who breaches an injunction because, to repeat, the rubric is not an injunction but contempt in accordance with s 12."
The text of the current version of the rubric is, as we have seen, somewhat different. But it still contains the same two essential parts: first, the permission and, second, the conditions. So the textual alterations do not, in my judgment, affect the analysis in Re RB.
"Since s 12 did not apply, there was no need for me to include the first part of the rubric; and absent the first part there was neither need nor justification for the second part."
"Please be advised that [the local authority] is applying for a RRO this afternoon before [the President]. The matter has been listed at short notice before the President at 2pm in Court 33 at the Royal Courts of Justice."
No further information was given beyond the bare statement that the matter related to "X [A Child]."
"[the] supposed 'notification' from [the local authority] arrived after 2pm and as it gave no proper details about the case, as required by the Practice Direction, and at any rate was far too late, we did not send it out the President should be aware of the fact that notification was entirely lacking."
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I draw attention in particular to the second paragraph and to the final paragraph.
Postscript
Note 1 The current version of the rubric is as follows: This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. [Back]