England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
CARDIFF DISTRICT REGISTRY
(MR JUSTICE HEDLEY)

		Royal Courts of Justice Strand London, WC2
		8th December 2005

1. LORD JUSTICE WALL: This is an application by Mr SC for permission to appeal against one part only of an order made by Hedley J in Cardiff. The order itself was the subject of a judgment which the judge handed down with the express purpose of enabling it to be publicised anonymously. The reason for that was that the parties had reached what is a highly unusual but extremely sensible agreement about shared parenting, which enabled the proceedings themselves to be discharged. For the purposes of this judgment I need go no further in the matter, save to say that the proceedings concern a little girl who was called by Hedley J "Z", born on 28th September 1998 and so rising seven.
2. There was a background to the proceedings which the parties have been enabled to overcome, because Z's father had at one point -- in circumstances which are not clear to me from the papers and do not I think matter, particularly for today's purposes -- removed Z out of the jurisdiction without her mother's agreement, as a consequence of which there were criminal proceedings. There was also an application before Hedley J for an injunction against further publicity, since obviously Z's name had been fully in the public domain during the abduction proceedings themselves. The result was an injunction against Mr C restraining him from discussing matters and publicising matters in relation to Z, in what are I think reasonably conventional terms. The injunction was expressed to last effectively until Z's 18th birthday. Mr C has a complaint about the way in which the injunction was granted, because he was not present or able to be present although he had been served. The injunction, as I say, was granted in November 2004.
3. When the matter came before Hedley J in July 2005, the only point of disagreement between Mr C and his former wife was the question of the continuation of the injunction. By this stage the child was separately represented, I think by NYAS. Mr C wanted the injunction discharged; the guardian, acting on behalf of Z, was strongly against the injunction being discharged; and it appears that Z's mother took something of a middle course. In the event the judge refused to discharge the injunction, and it is against that refusal that Mr C seeks permission to appeal. He may technically I think be out of time for a day or so, but I have already indicated to him that I would extend the time for appealing.
4. This case, it seems to me, raises in an acute form the purpose and function of long-term injunctions in Children Act proceedings and the circumstances in which a litigant finds him or herself when restrained by such an injunction, namely precisely what they can and what they cannot say and to whom, and also of course what function the injunction itself actually is to fulfil.
5. Mr C, perfectly properly, has adopted something of a campaigning role -- I hope that is not said pejoratively or dismissively, it is not meant to be -- because he wishes to encourage others to go down the route that he and his former wife have adopted, and reach agreements on shared parenting which obviate the need for proceedings. That is an entirely laudable goal. He has also become something of an expert, despite his modesty this morning in explaining that he is not a particularly clever chap, in relation to social security law as it affects children and parents. He also campaigns in relation to that.
6. It may well be arguable that the injunction, as drafted, prevents none of these activities and is a useful protection for Z against further publicity, her name already having been in the public domain in the earlier aspects of the proceedings. On the other hand, there may well be a legitimate confusion on Mr C's part as to what he can say and to whom, and it may well be that he can mount an effective argument against the continuation of the injunction in its entirety. These, it seems to me, are all matters which are of public importance and should be before this court. In those circumstances I have decided that, irrespective in one sense of the merits and whether or not Mr C will ultimately succeed, this is a point of particular significance at the present time, when publicity and confidentiality are up for debate, for the matter to be placed before the full court. I think it should be before a court of three judges, two of whom (if possible) should have family experience.
7. It also seems to me that if this case is to be used as a forum for discussion of wider issue, two things should if possible should occur. Firstly, if there are any other cases pending in the list raising the injunction issue they should be listed together with this case. Secondly, that CAFCASS Legal should be invited to appoint a friend to the court to assist the court in its deliberations on the wider issues relating to injunctions of this nature. I have explained to Mr C that CAFCASS Legal is a particular branch of CAFCASS dealing with legal issues, and is not directly or immediately connected with the CAFCASS reporting officer who dealt with his case.
8. I propose to direct that a copy of this judgment be prepared at public expense and given to Mr and Mrs C and to CAFCASS Legal.
9. I should record that Mrs C has written to the court today, in a letter dated 6th December, making it clear that she does not wish either her or her child's name to be published in any legal or other documentation, books, web sites etc, available to the public because she does not feel that to be in the interests or benefit of her child. Mr C has assured me that the shared-parenting arrangement is working well, and he does not think that this issue of the injunction being litigated in this court would put those arrangements in jeopardy. I sincerely hope he is right about that. Of course it will be for Mrs C to decide what role she takes in the proceedings. She was previously represented by extremely experienced leading counsel, who undoubtedly from reading the documentation appears to have been of substantial use in ensuring that the agreement was reached in the way that it was, and Mr C has paid a generous tribute to him in the papers. So if Mr Kirk QC is reinstructed on public funding, no doubt he will be able to assist the court in his usual moderate and helpful fashion. Of course that is not a matter for me, that is a matter for Mrs C and those whom she chooses to instruct.
10. In these circumstances I will grant permission to appeal. I anticipate that it would be sensible to set aside in the first instance half a day for the case, although if other cases are added to it that estimate may need to be reconsidered.
11. What I ought to add is that as an injunction is in force (and will remain in force until the hearing of the appeal) for the time being and unusually I will continue the reporting restrictions so that this case may only be reported under initials. If there is any application to adduce further evidence that can be dealt with in due course. At the moment, all that Mr C has produced in the bundle seems to me to be material which pre-dated the hearing before the judge and therefore permission is not required for that to be included in the documentation.

ORDER: Application for permission to file the appellant's notice out of time granted; application for permission to appeal granted; constitution for the appeal to be a court of three judges, two of whom (if possible) should have family experience, with a time estimate of half a day; a copy of this judgment to be provided at public expense to Mr and Mrs C, and to CAFCASS Legal.

(Order not part of approved judgment)