England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/11/2007

The Hon. Mr Justice Sumner:

1. On 4 October 2007 I heard an application by the applicant Local Authority, B County Council, for an order restricting publication relating to four-named children. I granted the application and ordered a return date of 9 October 2007.
2. The application related to four children, A, S, Z and K who are respectively five, four, two and one years old. Their father is Mr WR and the mother is Ms R. They both attended on 9 October in person. The father was the spokesman as the mother does not speak English.
3. Despite the objections of the parents, I renewed the earlier order that I had made with an amendment proposed by a newspaper group. I now set out in brief my reasons for so doing.

Background

4. This is set out in the affidavit of Ms Margaret Bailey quite shortly. She is the operations manager for children in care and leaving care with the Local Authority.
5. The parents are from Pakistan. The father was educated in the UK and they are married. In November 2005 the local authority took care proceedings in relation to all 4 children. The cause was the admission of S to hospital with non-accidental injuries.
6. Care Orders were made on 16 October 2006. Placement orders as a preliminary to adoption were made in respect of the 3 older children on 17 November 2006 and in respect of K on 13 March 2007.
7. The children were by this stage with foster parents. In April 2007 K was placed with prospective adopters. The three older children joined him in May.
8. The parents were separately represented at subsequent proceedings which were resolutely defended. Both made it plain during the proceedings that they would not rest until the children were returned to them.
9. During the course of the proceedings the Local Authority obtained an injunction because of the father's threatening and intimidating behaviour. Following a breach of the order the father was subsequently found guilty of contempt and sentenced to a term of imprisonment.
10. The parents appealed the making of the care order and sought a stay of the placement orders. The appeal was dismissed in February 2007 and the stay refused in July 2007. The father tells me that he has started proceedings in the European Court of Human Rights which he believes will be heard within a few weeks.
11. The Local Authority were concerned that the parents would seek to establish the whereabouts of the children. As a result it provided limited information in relation to the prospective adopters. In particular no face-to-face meeting was proposed. This proposal was accepted by the Court in earlier proceedings.
12. The Local Authority alleged that the parents were seen in their car in the vicinity of the foster parents in April 2007. The same month it is said that they were seen hanging about the school which A attended. A parent reported being questioned by them about A and S.
13. On 23 April 2007 the parents visited the school posing as new parents. On 8 May 2007 the foster parents reported that the father had visited their home and questioned their 17 year old son about his children's whereabouts.

Present proceedings

14. On 1 October 2007 the Local Authority became aware of a website known as 'Stopinjusticenow. com.' It appeared to have been posted before May 2007. It contained photographs and the names of the four children.
15. In the text that went with it, the parents said that the children had been initially removed on false allegations of an injury which medical experts changed their opinions about. No independent medical evidence was allowed to be sought. It went on to mention the support from local Muslim communities and that the parents will never give up.
16. It included the following –

"It (the case) will go beyond this until all four children are returned to their rightful parents. DO NOT ADOPT OR EVEN ATTEMPT TO ADOPT THESE CHILDREN."

17. On 3 October 2007 the Local Authority learned of a different website showing a picture of the mother with the message underneath,

"Mr and Mrs R, who have had their children stolen… they think they are in the ...... area. Any info please telephone….."

18. There was also a short video in which the father identifies himself with the mother beside him and gives the names of the children. In summary it said

"We love you and we are trying our best. We are not going to let those unjust social workers take you away from us. In the meantime be good for your adoptive parents. We are in [...] at the moment campaigning and have been to [...]. We hope you get to see this. We are going to Europe, to Strasbourg and then the UN."

19. The father then pointed to photographs of the children naming them. He said, "It won't be long now, we are coming." There were various other messages in a foreign language.
20. On 4 October 2007 Mr Tughan appeared before me on behalf of the Local Authority on an application without notice. He sought an order restraining the parents from seeking to identify the prospective adopters and various other steps to stop them contacting the children, any school they might attend and any person or medical or professional who might know where they were.
21. He also sought an order restricting the publication across a broad spectrum of the names and addresses of the children, their parents, their doctor, the children's school, any picture or video recording or any other particulars or information relating to the children. This was if it would lead to their identification and the fact that they were in the care of the Local Authority who had placed them for adoption.
22. Restriction was also sought on anybody seeking to obtain information relating to the children or their carer. Finally a mandatory injunction was granted at my suggestion requiring any persons served with the order to remove information relating to the children from any internet website over which that person had any control.

The Law

23. In his helpful summary Mr Tughan referred me to s.12 of the Administration of Justice Act 1960, section s.97(2) of the Children Act 1989 and Articles 8 and 10 of the European Convention on Human Rights. He referred me also to a number of reported cases.
24. By s.12 of the Administration of Justice Act 1960 –

"(1) the publication of information relating to proceedings before any Court sitting in private shall not of itself be contempt of Court except in the following cases, that is to say: (a) where the proceedings (i) relate to the exercise of the adherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor."

25. Under s.97(2) of the Children Act 1989, as amended by the Children Act 2004,

"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 that has been involved in any proceedings before (a Family Court) in which any power under the (1989) Act maybe exercised by the Court with respect to that or any other child, or; (b) an address or school of being that of a child involved in any such proceedings."

26. For completeness in relation to disclosure of information and documents in children's cases I should refer to Rule 4.23 of the Family Proceedings Rules 1991 and the Family Proceedings (amendment no. 4) Rules 2005. I refer to them and their meaning in A Borough Council v Others (Chief Constable of Thames Valley Police intervening) (2007) 1WLR 1932.
27. Munby J in Re:B (A Child) (Disclosure) 2004 1 FLR 142 summarised the effect of section 12(1a) as follows:

"82… (ii) Subject to only proof of knowledge that the proceedings in question are of the type referred to in section 12(1)(a), the publication of such information is a contempt of Court.

(iii) there is a "publication" for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children".

28. Article 8 refers to the right to respect for an individual's private and family life, his home and his correspondence. Article 10 sets out the right to freedom of expression.
29. In Clayton v Clayton [2006] EWCA Civ 878 the President observed –

"The Court, after the conclusion of the proceedings, retains its welfare jurisdiction and will be able to intervene where a child's welfare is put at risk by inappropriate parental identification for publicity purposes. But where the line is to be drawn between s.1 of the 1989 Act and Articles 8 & 10 of the European Convention in this context remains to be seen, although I venture to think that in practice most parents will recognise it."

30. As Wall LJ observed in the same case at para.114 –

"The Court retains its powers… post proceedings to intervene to protect the paramount best interests of children if parental conduct crosses the line which divides legitimate parental freedom of expression on the one hand, and children's welfare and respect for their Article Rights on the other".

Purposes of the messages posted

31. I am satisfied that the parents were making the following points. The four children were wrongfully removed from their care, they were wrongfully or unlawfully placed with foster parents, they would not give up seeking their return, and no-one should adopt or even attempt to adopt the children. In the second separate video the parents wanted anyone who had any information about the four children to communicate with them because the children had been stolen from them.
32. The effect of this was an open attempt to trace the children and to discourage anybody who might be minded to adopt them. This was in circumstances where the Court, as a result of the placement order against which the parents unsuccessfully appealed, held that their consent should be dispensed with. Accordingly I made the order as requested on the application without notice.

Return Date

33. On 8 October 2007 Mr Tughan repeated his application for the order that I had made to be continued. Mr R explained that they wished to meet the adopters. That should be ordered. They also wished to cross-examine witnesses. They wanted to be assured about the adopters. Their purpose was to stop the adoption though equally I gathered that they wished to meet the prospective adopters to reassure themselves.
34. I am satisfied in the light of the whole history as I have shortly set it out, that the parents do not accept the placement order. They consider it unjustly made, and they will do all within their power to prevent the children being adopted. Far from seeking reassurance I am satisfied that the parents, were they to meet the adopters, would amongst other things seek to dissuade them from that course.
35. If the Local Authority will not permit them to meet the prospective adopters, then they intend, unless otherwise ordered, to try and find where the children are, and thus frustrate the intentions of both the Local Authority and the Court. In those circumstances, both the prohibitory and the mandatory orders originally obtained without notice should continue. Without that there is a risk that the adoption will not go ahead as the parents intend. It is a proportionate remedy to the serious threat to those proceedings presented by the parents.

Conclusions

36. This is an unusual case. It is not directly to do with freedom of speech. It is concerned with parents who do not accept the court's judgment in respect of their children and are intent on defeating their adoption. They want their children home and not placed for adoption. Appeals have failed. They therefore seek to prevent prospective adopters from pursuing their application to adopt.
37. Ordinarily the grant of injunctions to prevent publicity concerning children in the care system is the result of balancing important rights under Articles 8 and 10 of the European Convention. They are the rights to respect for private and family life and the right to freedom of expression. It is the tension between them which is usually crucial as neither has precedence.
38. The cases record how the courts have considered that balancing exercise. There has been a focus on the comparative importance of specific rights, considering the justification for any interference, and applying the proportionality test.
39. Here the parents are not seeking publicity just for their cause. They want to interfere with the court process not by appeal or other lawful means but by deterring the prospective adopters. That I am satisfied they may not do.
40. The essential reason is that the court has determined that the children's welfare lies in adoption. That is in their best interests. The parents' actions seek directly to imperil this by exhorting prospective adopters not to adopt the children. The court has to intervene after proceedings are concluded to protect the children's welfare.
41. It is always a concern when parents acting in person consider the courts have let them down and wrongfully removed their children. These parents cannot contemplate adoption and their aim is to prevent it. Mr R addressed the court with politeness and moderation. Behind it I am satisfied is the clear aim which I have set out.
42. The remedy sought by the local authority I consider both appropriate and proportionate to protect the children's welfare. It is designed to safeguard the adoption process and meet the parents' plan to defeat it. I accordingly renewed the injunctive relief.
43. The parents have important rights. Care orders and placement orders do not silence them. They believe they are the victims of a miscarriage of justice. They are entitled to express their views about this. But there are limitations.
44. I do not propose to define the parents' rights. It is sufficient to say that they can air their grievances, probably identify the local authority, though not the evidence at the hearings, the names of the children, nor the doctors who gave evidence. As it is I approve the proposed injunctive relief sought by this local authority.