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Lord Justice Ward, Lord Justice May, Lord Justice Gage - Court of Appeal - Suspended custodial sentence quashed on appeal - 24 October 2005

B4/2005/1381
B4/2005/1381(A)
Neutral Citation Number: [2005] EWCA Civ 1536
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE MILLIGAN)
Royal Courts of Justice
Strand
London, WC2

Monday, 24th October 2005
B E F O R E:

LORD JUSTICE WARD

LORD JUSTICE MAY

LORD JUSTICE GAGE
- - - - - - -
C
Applicant/Respondent
-v-
M
Respondent/Applicant
- - - - - - -
(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - -
The Appellant Father appeared on his own behalf
MISS ADRIENNE BARNETT (instructed by Messrs White & Bowker, Winchester SO23 8BU) appeared on behalf of the Respondent Mother
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J U D G M E N T
(As approved by the Court)



1. LORD JUSTICE WARD: As this is a case which concerns the welfare of a young child, I would order that no one shall publish or reveal the name or address of the child who is the subject of these proceedings, or publish or reveal any particular or particulars or other information which would be likely to lead to the identification of the child. This is a fairly standard direction made in this court, and it seems appropriate to me to apply it in the circumstances of this case.
2. This is a father's appeal against a committal order made by His Honour Judge Milligan in the Southampton County Court on 8th June 2005, when he committed the appellant to prison for 28 days, suspended until 8th June 2006 if the appellant complies with the following terms:
"(a) The Respondent do not in any manner publish or distribute material given or produced in evidence in the proceedings [the number is given] whether referred to during the hearing of the case or in any judgment, or in any publication, letter, e-mail, website, booklet or leaflet or any other oral or written communication.
(b) The Respondent do within 7 days of this Order remove from his booklets and all websites currently operated by him all evidence contained in judgments in proceedings ...
(c) The Respondent do within 24 hours of service of the Order write to David Mortimer and serve a copy on the Applicant and the Court requesting him to remove from the website [which is identified] the following subsidiary website [and another web site is identified]. If David Mortimer does not do so within 48 hours, the Respondent do forthwith e-mail [some other web site] requesting to do the same."
3. That committal order was made in these circumstances, which are highly unusual, so unusual that no solace or comfort should be derived by any other party from any of the facts and circumstances of this particular case.
4. On 12th September 2002 Judge Milligan sitting in the Southampton County Court in a case involving this young child, which even then had gone on for years, granted injunctions in these terms. The father was forbidden:
"1. From disclosing or communicating details of those proceedings or details of proceedings in the Court of Appeal (2001/2837) to any third party other than
(i) Any legal advisor who he may consult or instruct
(ii) Any other person with leave of the Court
2. In particular and without prejudice to the generality of the foregoing that he be restrained from publishing any such information on the internet in booklets or pamphlets or otherwise howsoever."

That order gave the father liberty to apply to discharge it on seven days' notice. It was an order made without notice to him.
5. An application for permission to appeal that order was refused by Hale LJ on 4th April 2003, but in her judgment then, and in a later judgment of 28th July 2003, she gave the father some encouragement to his seeking a variation of the terms of that injunction. The father duly applied, but his application was dismissed by Judge Milligan. He applied for permission to appeal and that application, with the appeal to follow, was heard by Thorpe and Clarke LJJ on 30th July and the appeal was allowed.
6. The order drawn by the Court of Appeal contained the order frequently made, as I would make it in this case, that no one should publish or reveal the name or address of the child. Unfortunately, other parts of the judgment of the Court of Appeal were incorrectly recorded by the associate when drawing the order, and to understand what happened it is therefore necessary to see the judgment of the court. I shall read that in a moment. It makes it clear that paragraphs 1 and 2 of the September 2002 injunction were being discharged and replaced by new terms, which the Court of Appeal identified in paragraphs 6 and 7 of the judgment of Thorpe LJ in these terms:
"6. So the variation will be that paragraph 1 will now appear as:
'From disclosing or communicating any evidence given in the Southampton County Court proceedings SO98P00026 to any third party.'
7. And in paragraph 2 of the order, variation 2:
'In particular and without prejudice to the generality of the foregoing that he be restrained from publishing any evidence in the Southampton County Court proceedings SO98P00026 on the Internet, in booklets or pamphlets or otherwise howsoever.'"
7. The order of 30th July 2004 should now be amended under the slip rule, so that those variations can be correctly recorded.
8. I must, however, read a little more of the judgment of Thorpe LJ. He adverted to the court's practice, to be settled on a case-by-case basis, to prohibit identification. He went on as follows:
"4. I see nothing in this case to require any particular prohibition [on identification] and so, accordingly, I would simply propose that the order below be varied to delete any reference to proceedings in the Court of Appeal and, for the sake of clarity, further varied to ensure that in both paragraphs 1 and 2 there is specific reference to the proceedings in the Southampton County Court with the case number SO98P00026.
5. I would indeed, given [Mr M's] history of responsible campaigning and writing on issues relating to family relationships, go further and ensure that the prohibition distinguishes between evidence in those proceedings and judgments in those proceedings. In my view, given the noticeable trend towards reduction in privacy, that would be appropriate in the circumstances of this case."

Thorpe LJ then went on make the two changes I have already recited.
9. Part of the campaign conducted by this father is directed towards achieving more open justice in the family courts. His campaign has extended to his publishing in booklet form and on the Internet all of six judgments given by Judge Milligan in the county court between April 1999 and July 2004, and ten of the judgments in this court. All of those have been suitably and properly anonymised by deleting the child's name and referring to the child simply under the initial E. There is no identification of the mother's name, which is, I should record, different from his. He does in that publication identify himself.
10. One of the judgments that was thus published was a judgment given by Judge Milligan on 28th July 2004, when the judge made a residence order in favour of the mother and gave her leave to keep the child out of the jurisdiction until August 2006. She and the child concerned have been living far away for some considerable time. It is, therefore, important to note that they are no longer in the jurisdiction.
11. In the course of that judgment, the judge made reference to certain behavioural problems the mother was having with the child, and to certain medical treatment he has been receiving to identify and overcome the nature of those difficulties. The judgment quotes from medical reports and opinions, and to that extent the judgment sets out parts of the evidence which was before him on that application.
12. The publication of a great deal of detail about this little boy's difficulties understandably enough upset the mother, but her reaction to it was to apply for the father's committal. Unusually, she seems to have made two forms of application. One of them, which I would have thought was inappropriate, was on a standard form, C2, which indicated that she was applying for an order for his committal and gave as the reason for that application that he breached the injunction dated 12th September as amended on appeal:
"... by publishing family court judgments in such a way that my son ... can be identified as being the child who is the subject of the proceedings."
13. She also alleged he had breached the injunction:
"... by publishing extracts from [E's] medical records that were submitted as evidence during family court proceedings."
14. She also, and correctly, filed a proper notice to show good reason why an order for committal to prison should not be made, and recited the two paragraphs of the order of 12th September as amended on appeal and as set out above. She added, however, this:
"The Respondent is subject to section 97(2) Children Act 1989 which provides that: 'No person shall publish 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 may be exercised by the court with respect to that or any other child ...'"
15. She alleged that the appellant had disobeyed the order by:
"1 Continuing to disclose and/or communicate details of the evidence given in the Southampton Court proceedings SO98P00025 on the Internet, in booklets or pamphlets or otherwise howsoever.
2. Continuing to publish evidence in the Southampton county court proceedings ... on the Internet, in booklets or pamphlets or otherwise howsoever.

Particulars of the alleged contempt are set out on the sheet annexed hereto."

16. It is unnecessary to set out all of those particulars. The thrust of it is that the appellant had published these county court and Court of Appeal judgments on the Internet and in a booklet entitled "The Welfare of the Child" in such a way that it was likely to identify the child as his son and as the subject of the proceedings in the county court. It was said that he had failed to remove all particulars from that booklet and his web site which would lead to the identification of the child. There are other particulars, but to the like effect.
17. The judge found the breaches proved. The main thrust of his judgment can be found in paragraphs 11 and 14 as follows:
"11. I am clear that leave is needed for the publication of a judgment. I proceed on the basis that the Court of Appeal's approach, so far as one can identify it, that the publishing of judgments with leave is unobjectionable (provided of course that the child and the parties are suitably anonymised - it being [Mr M's] case that he has done that), but that what must not be put in the public domain is any of the evidence given in the case. It is essentially [Mr M's] position that he is has acted in accordance with what he considers to be the Court of Appeal's position, namely, that the whole of a judgment may be published whether it makes reference to evidence or not. That seems to me to be patently unsustainable. The Court of Appeal, we see, was alert that matters given in evidence should not be put in the public domain. It seems to me idle to argue that when such evidence is contained or referred to in the judgment, it then becomes properly publishable. I do not think the Court of Appeal can have meant that.
...
14. Coming to the specifics, [Mr M] accepts that he has published judgments. It seems to me that he has done so without leave of the judges in question. It seems to me idle of him to argue that where these judgments contain evidence, about which the Court of Appeal were clear that such material should not be published, it somehow becomes legitimate to publish it provided it is referred to in the judgment. Judgments inevitably have to contain reference to evidence given. As I have said already, I do not understand how any responsible parent could think that publication of emotional, psychiatric and educational difficulties relating to his own child could possibly be anybody's business but that of his parents and the immediate family circle. So he accepts that there has been publication; he accepts that there has been promotion. The issue has been whether such activities have tended to identify the child. As I have said, I think there is nothing in his argument that some of the people to whom this material has been supplied do not actually know the child's Christian name. The question is whether it tends to identify the child. In one of the emails to which I have referred, he says quite openly: 'You can buy my booklet of the judgments called The Welfare of the Child, who is, of course, my son.' I think the Applicant mother's case is well made out, that this is a father who has got out of balance in terms of his responsibilities to his campaign and his responsibilities to his son. I am quite satisfied that the way in which he has conducted himself, as is alleged in the notice to show cause, will and has had the result that the child has been identifiable and identified in a manner which is wholly hostile to the child's best interests. Accordingly, I find him in contempt as the mother alleges."

18. It seems to me, therefore, that the main finding set out in paragraph 14 relates to this published material identifying, or being capable of identifying, the child concerned. It may or it may not be so capable, but that, in my judgment, is not the matter for which this appellant stood in danger of being committed to prison. The application to commit him was an application to commit him for breach of the terms of the injunction. It was not an application to commit him for breach of any other order; for example, the order of this court in terms that nothing be published which was likely to identify the child.
19. There was a reference to section 97(2) of the Children Act 1989, but as subsection (6) to that section makes clear, any breach of section 97(2) gives rise to a criminal offence liable on summary conviction to a fine not exceeding level 4. That envisages, obviously, proceedings in the magistrates' court. These were not such proceedings. It is important, therefore, to focus upon what breaches were alleged of what particular orders. The orders as varied by the court restrained the father from disclosing or communicating evidence given in the Southampton County Court.
20. Now what the father has done is disclose judgments given, both in the Court of Appeal and in the county court. Let me say a word about the way in which those matters should ordinarily be dealt with. Family Proceedings Rule 4.23, dealing with confidentiality of documents, provides:
"Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to-
(a) a party,
(b) the legal representative of a party,
(c) the children's guardian,
(d) the Legal Services Commission, or
(e) a welfare officer or children and family reporter,
(f) an expert whose instruction by a party has been authorised by the court,
without leave of the judge or district Judge."

21. So the rule is quite clear: a judgment of the county court ought not to be published without leave. That is the general law, and that is the rule which should be applied. I emphasise it, lest anyone be foolish enough to think that from the circumstances of this particular case there is general leave to publish judgments of the county court. There is not such general leave. Permission must be given for any disclosure of the judgment.
22. The position in the Court of Appeal is different, because the Court of Appeal sits in open court and consequently our judgments are capable of being published, subject to the important caveat that if the court imposes a restriction on identification of the child or the parties, as we have imposed it here and as Thorpe LJ imposed it in July 2004, then the report has to be anonymised so that there is no danger of the child concerned being identified.
23. A second general point. If there is to be an attempt to commit for breach of the order which prohibits the disclosure of information tending to identify the child, or if there is to be an attempt to punish with imprisonment any contempt alleged to arise from the publication of a judgment, then there needs to be a specific order warning the party that he is in danger of prison if he does the forbidden act. There is usually the need for a penal notice. There is no order expressly restraining the publication of these judgments, still less a penal notice attached to it. The breach of the Rule 4.23 would not automatically and without more give rise to an application for committal. It needs a specific order to say so.
24. There may be a further source of confusion. Section 12 of the Administration of Justice Act may make it a contempt to publish information relating to proceedings before any court sitting in private. These were not proceedings for contempt brought under section 12, and that provision is immaterial for our purposes.
25. So the appeal boils down to this crucial question: has this father broken an order of the court restraining him from disclosing or communicating any evidence given in the Southampton proceedings? The question is whether publishing a judgment containing that evidence would be a breach. It seems to me that one must look to what the Court of Appeal was saying on 30th July to find the correct answer. The appellant tells us that during the course of argument on that occasion he was given to understand that he had permission to disclose all judgments, including county court judgments. He points to a letter from the respondent in which she wrote to the court suggesting her understanding of what happened on 30th July to be that:
"The terms of the injunction were changed on appeal so that judgments made in family courts can now be made available to the public, so long as they are published in such a way that the child is not identified."
26. We have no transcript of the argument that took place before the Court of Appeal on 30th July 2004. For my part, I would wish to see that transcript before I was able to conclude that Thorpe LJ had said anything which went as far as the mother's understanding of what took place. She was not present and she was not represented at that hearing.
27. So we are left simply with the order that was made, but also with the explanation for it that was given in paragraph 5 of that judgment, which I repeat:
"... given [Mr M's] history of responsible campaigning and writing on issues relating to family relationships, [I would] go further and ensure that the prohibition distinguishes between evidence in those proceedings and judgments in those proceedings."
28. It seems to me that a distinction was being quite clearly drawn by the Court of Appeal that publication of a judgment containing excerpts evidence was something quite different from separate publication of the evidence in the case. Judge Milligan was, in my judgment, therefore quite wrong to say as he did that it was patently unsustainable to take that position. On the contrary, that is exactly the position the Court of Appeal did take. The consequence is that the father has been led to believe that he could publish the judgment with impunity; what he was not allowed to do was separately publish evidence.
29. Since committal involves depriving the citizen of his liberty, the proceedings need to be strictly interpreted, and given that at least misunderstanding of what the Court of Appeal was sanctioning, I would be reluctant to find that a breach has occurred in this case. I emphasise that I see nothing in what happened as tantamount to giving this father permission to have published the county court judgments; he needed the leave. But that breach of the rules does not justify his being under threat of being sent to prison. The judge was wrong, in my view, to find the breach proved. Accordingly, I would allow the appeal and discharge the suspended committal order made by the judge.
30. Lest there be any doubt about it, I repeat: judgments of the county court are not to be published without leave. This litigation, sadly, shows every sign of continuing to engage the courts, and the Southampton County Court in particular. Any future judgment being given in the county court will be on the usual terms that it remains confidential, and it shall not be published without specific leave of the judge of the county court or of the Court of Appeal. For the future, therefore, this father must be strictly aware of the limits of his right to publish the judgments, but I would take no action on the alleged breaches set out in this application to commit him.
31. I would allow the appeal.
32. LORD JUSTICE MAY: I agree that this appeal should be allowed on the limited basis which Lord Justice Ward has described.
33. In these proceedings concerning a child, Mr M has published a number of judgments in the proceedings in the Southampton County Court. He reckons that he has the permission of the Court of Appeal to do so, but he has not satisfied me that this court went that far. I agree with what Lord Justice Ward has said on this topic.
34. I am satisfied, however, that publication of these judgments without the permission of the court in which they were made was contrary to Rule 4.23 of the Family Proceedings Rules 1991, but that is not the main point.
35. The proceedings currently before the court are an appeal in committal proceedings before Judge Milligan on 8th June 2005. The committal application was upon a notice to show cause why a committal order should not be made. This alleged breach of an order of 12th September 2002, as amended by the Court of Appeal. The original order of 12th September 2002 forbade Mr M:
"1. From disclosing or communicating details of these proceedings or details of proceedings in the Court of Appeal (2001/2837) to any third party other than
(i) any legal advisor who he may consult or instruct
(ii) any other person with leave of the Court
2. In particular and without prejudice to the generality of the foregoing that he be restrained from publishing any such information on the internet in booklets or pamphlets or otherwise howsoever."

36. The varied order resulted from a hearing in this court before Thorpe and Clarke LJJ on 30th July 2004. The varied terms were, paragraph 1, he was forbidden:
"... from disclosing or communicating any evidence given in the Southampton County Court proceedings SO98P00026 to any third party."
And paragraph 2:
"In particular and without prejudice to the generality of the foregoing that he be restrained from publishing any evidence in the Southampton County Court proceedings SO98P00026 on the Internet, in booklets or pamphlets or otherwise howsoever."
37. This has been erroneously carried into the order of the court as drawn, and I agree that the order should be amended to record the terms of paragraphs 6 and 7 of Thorpe LJ's judgment.
38. The committal application alleged that Mr M was in breach of the 2002 order as amended, because he had published the county court judgments which contained evidence. Judge Milligan held that Mr M was in breach of the order of 2002. He said in paragraph 11 of his judgment:
"11. I am clear that leave is needed for the publication of a judgment. I proceed on the basis that the Court of Appeal's approach, so far as one can identify it, that the publishing of judgments with leave is unobjectionable (provided of course that the child and the parties are suitably anonymised - it being [Mr M's] case that he has done that), but that what must not be put in the public domain is any of the evidence given in the case. It is essentially [Mr M's] position that he is has acted in accordance with what he considers to be the Court of Appeal's position, namely, that the whole of a judgment may be published whether it makes reference to evidence or not. That seems to me to be patently unsustainable. The Court of Appeal, we see, was alert that matters given in evidence should not be put in the public domain. It seems to me idle to argue that when such evidence is contained or referred to in the judgment, it then becomes properly publishable. I do not think the Court of Appeal can have meant that.
...
14. ... It seems to me that he has done so without leave of the judges in question. It seems to me idle of him to argue that where these judgments contain evidence, about which the Court of Appeal were clear that such material should not be published, it somehow becomes legitimate to publish it provided it is referred to in the judgment."

39. In my judgment Judge Milligan was wrong here. In his short judgment Thorpe LJ explained that in this court the practice relevant to the publication of its own judgments has moved on, so that each case is assessed on its individual facts, except in so far as publication might lead to the identification of the child. Thorpe LJ then said, paragraph 4 of his judgment:
"4. I see nothing in this case to require any particular prohibition and so, accordingly, I would simply propose that the order below be varied to delete any reference to proceedings in the Court of Appeal and, for the sake of clarity, further varied to ensure that in both paragraphs 1 and 2 there is specific reference to the proceedings in the Southampton County Court with the case number SO98P00026.
5. I would indeed, given [Mr M's] history of responsible campaigning and writing on issues relating to family relationships, go further and ensure that the prohibition distinguishes between evidence in those proceedings and judgments in those proceedings In my view, given the noticeable trend towards reduction in privacy, that would be appropriate in the circumstances of this case."

40. In my judgment, Thorpe LJ was distinguishing between evidence in the proceedings on the one hand and judgments in the proceedings on the other, without excepting from the latter any content of judgments which might recount evidence. That makes it plain that the reference to evidence in the immediately following variation of the order was a reference to evidence in the proceedings which did not extend to evidence which might appear as part of a judgment. That appears also to have been the view of Scott Baker LJ in paragraph 5 of his judgment of 4th November 2004. It follows that in my judgment Mr M was not in contempt in the manner mainly alleged in the application to commit.
41. This is important for two reasons. First, since contempt proceedings are penal, the question whether a person is in contempt is to be strictly judged. Second, I would make it plain that my view that Mr M was not in contempt as alleged in the present proceedings does not mean that he was at liberty to publish these judgments without the leave of the court in which they were made, still less that our decision in the present proceedings somehow might carry with it a general licence to publish county court judgments given in private without permission from the court in which it was made. It does not.
42. LORD JUSTICE GAGE: I agree that this appeal should be allowed on the limited basis for the reasons given by both of my Lords.
43. For my part, I only add that I find it understandable that the judge, on the evidence before him, should have found that the father had published material which did disclose the identity of the child. I am persuaded by the reasons for so finding given by the judge in paragraph 14 of his judgment, to which my Lord, Lord Justice Ward, has referred. But as my Lords have pointed out, that was not the contempt that the father was alleged to have committed.
44. In the circumstances, as I say, I agree that the appeal must be allowed.
(Submissions as to costs)
45. LORD JUSTICE WARD: Whereas costs follow the event as the ordinary rule, there are exceptions to that. Family cases frequently are treated as exceptional. In this case one has heard of the mother and child's predicament. Without suggesting that the father can be paying child support, that is a matter for the Child Support Agency to investigate, but we think in the circumstances of this case, especially where the discharge of the order means the discharge of the order that he pay the costs in the court below, that is as much of a benefit as he can expect and we think no order for costs should be made.
ORDER: Appeal allowed; no order as to costs; a copy of this judgment to be made available to the parties at public expense. 
 
(Order not part of approved judgment) 
______________________________   

MONDAY 24TH OCTOBER 2005

IN THE COURT OF APPEAL
4018/05
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
S098P00026
BEFORE LORD JUSTICE WARD LORD JUSTICE MAY And LORD JUSTICE GAGE

COURT 74
application No. B4/2005/1381(A) Appeal No. B4/2005/1381
ON READING the Appellant's Notice sealed on the 28 June 2005 filed by the Applicant on appeal from the order of His Honour Judge Milligan dated 8 June 2005 AND ON READING the Application Notice sealed on the 7 September 2005 filed on behalf of the Respondent applying for an extension of time to file Respondent's Notice AND ON HEARING Mr K A V Miller the Applicant appearing in person and Miss A Barnett counsel on behalf of the Respondent
IT IS ORDERED that:

1) the appeal be allowed in part and the order of His Honour Judge Milligan dated 8 June 2005 whereby a suspended order was made against the Applicant be discharged
2) the order of this Court dated 30 July 2004 be amended in accordance with the slip rule 
3) a transcript of Judgment be provided to the Applicant at public expense 
4) there be no order for costs

AND IT IS FURTHER ORDERED that no one shall publish or reveal the name or address of the child who is the subject of these proceedings or publish or reveal any particular or particulars or other information which would be likely to lead to the identification of the said child
 ______________________________