England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		23rd October 2015

MR JUSTICE HOLMAN:

1. Today I have been faced with a somewhat unusual and indeed undesirable situation. In briefest of summary, the essential factual background (and here I am not mentioning anything which is not already in the public domain) is that a child, now aged nearly two, was conceived as a result of a private arrangement between two men, who live together in a settled relationship, and a woman. The woman is the genetic mother of the child. She carried the child and bore the child, and indeed, as I understand it, the child lived with her for a period following her birth.
2. One of the two men is the genetic father of the child, although, as I understand it, the conception was performed by some artificial means and not normal sexual intercourse.
3. There was then a dispute and contest between the men on the one hand and the mother on the other hand as to with whom the child should be brought up. That dispute came to a head in a hearing that lasted a number of days earlier this year before Russell J. She reserved her judgment and gave judgment on 30 April 2015. Her judgment in anonymised form is freely publicly available under neutral citation number [2015] EWFC 36.
4. It is clear that Russell J was very concerned about a considerable amount of publicity which had related to the case. There is a short passage in paragraphs 38 to 40 of her judgment under a heading "Social Media" in which she refers to that. No doubt because of those concerns, she had already made, during the course of the early stages of the hearing, an order dated 23 January 2015 which, by paragraphs 10, 11 and 12, put some considerable restrictions upon the mother's freedom to communicate information about the proceedings, and also put her under positive duties to use her best endeavours to prevent other persons from disseminating information about the case.
5. It is clear that Russell J took some time to prepare her judgment which, as I understand it, was circulated to the various counsel in the case in the normal way shortly before it was handed down. At the last paragraph of her judgment, paragraph 137 she said:

"There will be a reporting restriction order to protect the identity of the child and her carers. This is put in place because of the posting on social media early in the proceedings. The judgment will be published in anonymised form."

6. At the hearing before me today, there is only one counsel present who was also present in the original proceedings or on 30 April 2015, namely Miss Alison Moore, who was, and is, counsel instructed by the child's guardian. I enquired today of Miss Moore whether any further or additional reasons had been given orally at the hearing as to the scope of the orders actually made. Miss Moore does not recall any reason specifically being given. She said, however, that in the interval between the judgment being circulated in draft to counsel and the hand down on 30 April 2015, Ms. Elizabeth Isaacs QC, who appeared then (but does not appear now) on behalf of the two fathers, had drafted a reporting restriction order in relatively conventional terms. Miss Moore says that she recalls that this was handed in to the judge who considered that it was not sufficiently restrictively drawn and who redrafted parts of it herself, or indicated the manner in which it was to be redrafted.
7. Further, the substantive order under the Children Act 1989 dated 30 April 2015 repeats, but in different and, in fact, more restrictive terms, at paragraphs 6 and 7 the essence of what had been provided for in paragraphs 10, 11 and 12 of the earlier order of 23 January 2015, to which I have referred. The later order of 30 April 2015 does not expressly discharge paragraphs 10, 11 and 12 of the earlier order of 23 January 2015, but it is, I think, tolerably obvious that the intention was that paragraphs 6 and 7 of the order of 30 April would supersede and replace paragraphs 10, 11 and 12 of the earlier order.
8. The free-standing reporting restriction order made on 30 April 2015 contained an express provision as follows:

"The parties and any persons affected by any of the restrictions in paragraphs 3-5 above may make application to vary or discharge it to Ms. Justice Russell on not less than 48 hours' notice."

That, as I say, was all done on 30 April 2015.

9. During May 2015, a firm of publishers, namely Associated Newspapers Limited, who publish, amongst other journals, the Daily Mail and Mail on Sunday, did issue an application for a variation of the terms of the reporting restriction order. That came on for hearing before Bodey J on 20 May 2015. For reasons which are not clear to me, on that day Associated Newspapers Limited decided that they would withdraw their application for a variation of the terms of the reporting restriction order. But at the same time the mother herself informed the court that she wished to make an application to vary the reporting restriction order and also the restrictions upon her in paragraphs 6 and 7 of the order under the Children Act dated 30 April 2015.
10. Bodey J made an order by consent that gave to the mother permission to make such an application and continued:

"The application shall be listed to be heard on the first available date after 1 June 2015, before whichever judge of the Family Division … made the orders concerned, unless this would cause unreasonable delay …"

11. As I understand it, it was not, in fact, until 1 July 2015 that the mother did issue her formal application to vary the orders. That may in part have been the result of discussions as to the funding of the application, which, as I understand it, is in fact now funded by Associated Newspapers Limited. I, myself, am not clear how it has come about that an application concerning the Convention right of freedom of expression, which was issued on 1 July, has only been listed for hearing today, 23 October 2015.
12. The aspect of most concern to me is that although Russell J clearly provided, as I have quoted, that an application to vary it could (and implicitly should) be made to herself; and although the order of Bodey J clearly provided that the mother's proposed application should be made to "whichever judge … made the orders concerned", this has in fact been listed before myself. So far as I am aware, I, personally, have had nothing whatsoever to do with this case prior to today, and indeed, so far as I can recall, I was totally unaware of it.
13. I have today asked Mr Guy Vassall-Adams, counsel who appears on behalf of the mother today, why it is that there was not clear and specific direct communication with the Clerk of the Rules to ensure that this application was indeed listed before Russell J, but the reasons remain obscure to me.
14. I wish to make crystal clear, as I have done repeatedly during this hearing, that it is only with the utmost diffidence, and indeed reluctance, that I have engaged at all in this matter today. Of course, it frequently happens that judges - for instance when sitting as the Applications Judge - may make injunctions, whether reporting restriction orders, or freezing orders, or a range of other injunctive orders, which are then further considered by a different judge at a return date relatively soon afterwards. This, however, is not that sort of situation at all. In this case, Russell J has devoted many days to hearing this case and clearly also considerable time and thought to preparing her judgment. In other words, she, uniquely amongst judges, knows this case very well. She has heard abundant evidence from all the parties involved. If anyone is to reconsider the language and scope of her orders at first instance, then it should be her. If and in so far as the mother, is seeking, in effect, to "appeal" provisions of the order that was made in her presence, then I have neither the right nor the power in any way whatsoever to sit "on appeal" from Russell J. I wish to make crystal clear that by the steps that I have agreed to take today, I am not in any way whatsoever arrogating to myself some right or power which I do not have to sit on appeal from her.
15. If and in so far as this application is merely an exercise by the mother of the liberty to apply that was expressly given in the orders of Russell J, then that liberty to apply was expressly specified as being "to Ms. Justice Russell". The issues that arise before me today are clearly issues which require, if possible, to be considered by the fully informed judge with judicial continuity.
16. I made very plain at the outset today that I was only willing to deal with this matter at all in a limited way, and essentially only to the extent, if any, to which there was consent.
17. Associated Newspapers Limited have attended today, and there is a considerable, if not total, overlap between the positions of Associated Newspapers Limited and of the mother. More strikingly, the child's guardian has also attended today, and in advance of the hearing Miss Moore placed before the court a thoughtful position statement dated 22 October 2015. The guardian, of course, is only underlyingly concerned with the best interests of the child for whom she acts as guardian. But in essence and in summary, the position statement of Miss Moore on behalf of the guardian explains that, although the guardian is very concerned about anything which might reveal the identity of the child, she recognises that injunctions in the wide and very restrictive terms of the current injunctions are not easy to justify.
18. As I understand it also from the very balanced, helpful and thoughtful skeleton argument dated 22 October 2015 put in by the respondent/fathers personally, the area of the most concern to them is anything which might have the effect of identifying them or the child, or exposing the child to the least embarrassment or public interest.
19. At the outset of the hearing today, I made very clear on the one hand that I was not willing to adjudicate on any disputed matters which, in my view, can only be the subject of adjudication by Russell J, or ultimately the Court of Appeal. But I did also make plain that if, in fact, there was some degree of consensus between the mother, the fathers, the represented press and the guardian as to some re-drawing of the scope of the injunctions, then I would be willing to make orders today by consent. On that basis we broke off at about 11.30 this morning, and there was clearly a sustained period of discussion and negotiation outside the court room to which I am not privy.
20. When we resumed at 2 pm I was informed that there was a measure of agreement. In summary only, the essence of the agreement is that there is no opposition to the mother being able to communicate with the press, or indeed other media, with regard to the facts and circumstances of this case, provided - and it is a big proviso - that nothing is published which is likely directly or indirectly to identify the child or the fathers or other identifying aspects of any of them.
21. It has also been agreed that the mother can supply, and the press can publish, a photograph or photographs both of herself and indeed of the child, provided that it is sufficiently pixelated or otherwise obscured that it is impossible to identify or recognise either her or the child.
22. To reflect those areas of agreement, a completely fresh reporting restriction order will be drafted and, once it is made, substituted for the reporting restriction order of 30 April 2015 which will be discharged. The proposed new reporting restriction order will be less restrictive than the current order and will be in what I would call the "usual" terms of a reporting restriction order in a case such as this.
23. I will make that order by consent. I stress that I do so essentially as a rubber stamp (although of course it will have all the force of a court order) in reliance upon the agreement of all the parties present, including Associated Newspapers Limited. I make the order as a convenience and as a service to everybody directly affected by this case so that they do not have to go to the expense and delay of arranging a further hearing before Russell J.
24. The other aspect is the scope and language of paragraphs 6 and 7 of the Children Act of 30 April 2015. At the moment, the terms of those paragraphs do, in fact, completely prohibit and prevent the mother from disseminating any information about this case to anybody, including specifically newspapers and other media. Patently, therefore, effect could only be given to the agreed variation and relaxation of the reporting restriction order if there is also some relaxation of the language and effect of paragraphs 6 and 7 of that order.
25. In order to give effect to what has been agreed by all parties present today, I will also make an order to that limited extent relaxing and varying paragraphs 6 and 7 of the order of 30 April 2015. Again, I stress that I do that essentially as a rubber stamp to that which has been agreed by all parties present, including the fathers.
26. The mother would like further relaxation of paragraphs 6 and 7 of the Children Act order of 30 April 2015. I am not prepared to give any consideration to that today, which, in my view, for the reasons I have already given, can only be properly considered by Russell J. So if the mother seeks further variation or relaxation, then she must issue a fresh free-standing application and this time must expressly arrange with the Clerk of the Rules and the clerk to Russell J that it is Russell J, and no one else, who hears it.
27. For those reasons, but stressing very strongly indeed that I am not personally trespassing at all into the facts and merits of this difficult case, I will make orders in the terms discussed.
28. I am going to direct that the mother obtains an official transcript of the judgment given today, but on the basis that it is Associated Newspapers Limited, who are, in fact, underwriting her costs of an incidental to this application, who pay for it.