England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sitting at Maidstone

		18th July 2017

HHJ POLDEN:

1. This comes before me today to consider whether the Respondent, Ms Root., is in breach of the terms of the undertaking that she gave to the court on 12 December 2016 and the reporting restriction order that was made by the court on the same date.
2. Mr Elliott of counsel appears for Medway Council, the applicant, and Ms Root appears in person, together with her McKenzie friend.
3. This judgment must be read in conjunction with the judgment that I gave yesterday, where I found that Ms Root was in breach of previous orders that had been made against her and I found 10 breaches proved. That earlier judgment set out the background to the case and the chronology of these proceedings, and that is why it is necessary for it to be referred to, and that this is not a standalone judgment.
4. The matter came before me on 12 December on the hearing of the Local Authority's application, for Ms Root to show court why she should not be committed to prison for breaches of orders that were made. The matter had to be adjourned part heard on 12 December. On that occasion, the mother was represented by counsel, and a number of issues were raised which meant that we did not get the case finished. Unfortunately, it became clear that I could not re-list the matter before 2 March 2017 and I had to consider what steps should be taken between December 2016 and the next hearing on 2 March 2017.
5. Ms Root, through her counsel, offered to give an undertaking to remove the Facebook posts concerning her children by 14 December 2016 and not to publish any further material. The undertaking appears at page C149 of my bundle. She undertook to remove, by 4pm on 14 December 2016, any post on Facebook related to proceedings concerning her two children, and also not to publish any further material arising from proceedings concerning her two children until 2 March 2017. She agreed to be bound by those promises until 2 March 2017. The second page of the undertaking contains a statement which reads 'I understand the undertaking I have given and that if I break any of my promises to the court, I may be fined, my assets seized, or I may be sent to prison for contempt', and that was then signed by Ms Root.
6. On the same date, I heard submissions as to whether I should make an order limiting reporting restrictions of the proceedings and that was not agreed to by Ms Root. Her counsel made submissions, as did counsel for the Local Authority and I gave a short judgment. I determined that reporting restrictions should be put in place and the order appears at B17 of my bundle. That read, inter alia:

'Upon the court making an interim injunction pursuant to Section 97(2) of the Children Act 1989 and Section 12 of the Administration of Justice Act 1960 restraining the mother from publishing information in relation to any proceedings, to last until conclusion of the hearing on 2 March 2017, such injunction having been made as a holding position without prejudice to any submission that the mother might make that the injunction is neither warranted nor necessary'.

Then the order recites that:

'Upon the court having delivered a short judgment that there would be reporting restrictions in relation to this hearing on the basis that the court will deliver a summary of its decision at the conclusion of the hearing which may be published in accordance with paragraph 13 of the Practice Direction of 26 March 2015'.

Then the relevant part of the order is paragraph one: 'No person shall publish any information or details in relation to this hearing on the basis that the court will deliver a summary of its decision which may be published at the conclusion of the hearing on 2 March 2017'.

7. The Local Authority applied on 28 February 2017 for Ms Root to show court why she should not be committed to prison for breach of the undertaking and for breach of the reporting restrictions. The application itself can be found at B21 of the bundle and in particular at B24, it sets out what is alleged that the mother had done, mainly that she had not removed any material from Facebook and continued to post material relating to the proceedings on 13 December 2016 and 22 December 2016 and 20 February 2017 and posted material on Facebook that reported on the proceedings namely on 13 December 2016 she summarised the outcome of the hearing on 12 December 2016. On 20 February 2017, it is alleged that the respondent posted a further post which discussed the proceedings and referred to the addendum skeleton arguments of the Local Authority prepared for the last hearing.
8. The evidence in support of the application is set out in the affidavit of Ms Hopper. She is a senior social worker employed by the local authority. She sets out the background to the case and she sets out that Ms Root did not oppose the continuation of the injunction covering the publication of material relating to sets of proceedings and sets out the undertaking that Ms Root gave. The Local Authority case is that Ms Root is in breach of the undertaking that she gave to the court because she posted an entry on Facebook on 13 December 2016. The entry appears at C153 of the bundle and that is set out in the affidavit of Ms Hopper, and it reads:

'Notification of my public committal proceedings which took place yesterday, 12 December, at Maidstone County Court before Circuit Judge Richard Polden, sitting in his capacity as a Deputy High Court Judge, thus keeping the case within the inner circle to eliminate the possibility of an actual hearing taking place at the Royal Courts of Justice. First, I was concerned to note that the court failed to show public notice of the imminent criminal proceedings'.

She continued: 'I make it clear I am represented by a very accomplished female barrister', and then she summarises the outcome of the hearing and refers to the fact that she had promised to the court that, by four o'clock the following day, she would remove the Facebook entries, and then she alleges: 'In essence, I am being blackmailed to withdraw my almost seven-year campaign to ensure that this miscarriage of justice is firmly set in stone in a public domain', and adds:

'On further consideration, I now understand that the Judge in essence tried to illegally force me into admitting liability by removing my story for alleged contempt of court before I had been found guilty, which may or may not happen on 2 March. That was outrageous', and did everyone not agree?

9. On 22 December 2016 at 3.42pm, Ms Root posted a further lengthy post with photographs again setting out the history of the case and details of that post are now an exhibit to Ms Hopper's affidavit beginning at page C156 in my bundle. That makes reference to the public committal proceedings and the hearing taking place 'yesterday, 12 December', and she sets out thereafter a long entry dealing with the background to the case and making reference to the proceedings and the complaints that she has against Medway Council.
10. On 20 February 2017, the Local Authority says that Ms Root uploaded a further post. Again, that is exhibited to the affidavit. The full post is at C158 of my bundle but again it is reproduced in Ms Hopper's statement. That read:

'Notification of my impending hearing for alleged breach of my injunction, gagging order taken against me by Medway Council in 2011 to keep their illegal witch-hunt to destroy my family a secret, sanctioned by His Honour Judge Richard Polden, it being the Administration of Justice Act Section 12 and the Children Act 1989. The alleged punishment is a custodial sentence with a maximum of two years in prison…'

She then quotes from the skeleton argument on behalf of Medway Council prepared by their barrister, Mr Elliott.

11. The Local Authority case is that it is clear that all of these three Facebook posts are in breach of the undertaking that Ms Root made to the court on 12 December 2016 and that they are in breach of the reporting restriction. One of her children is aware of the post and they have found that to be distressing and it has made them angry. Ms Hopper sets out that it is self-evident that Ms Root's actions are in clear contradiction of the best wishes of her children. That is why the Local Authority felt compelled to issue the second application.
12. I heard oral evidence from Ms Hopper. She said that she can confirm that both children are aware of the applications made by Medway Council. and they support the application being made. The elder child is distressed by the mother's actions on Facebook and wants to be left alone. The younger child has spoken less but does not want contact and information from family members. Ms Hopper got this information from Ms Conn, who had spoken to the children rather than her herself. Ms Conn is the personal advisor for the Leaving Care Service.
13. I turn now to the position of the Respondent. I gave her a warning against self-incrimination and reminded her that she did not have to give evidence to me, it was her right to say nothing and to put the Local Authority to proof of their case, but she decided that she wanted to give evidence to me and she has done so. In her evidence today, she has told me that she does not remember signing the undertaking at court on 12 December 2016. She was not well, and she did not understand what the undertaking means. She has a problem with her thyroid gland and was not taking her tablets and all she wanted to do was go home. She conceded that she had the comfort of being represented by a barrister at the hearing. She denies that she has done anything wrong and she maintains her position that it is the Local Authority who has acted in the wrong and not her. It is her evidence that the lives of the children subject to the care proceedings and their older brother and two sisters as well as her own life have been destroyed by the actions of Medway Council over a number of years and that she will never be quiet about this.
14. She does not understand the reporting restriction. She says, and this is understandable, there has been a lot of material for her to have to deal with in this case. The court must appreciate that this has been going on for almost seven and a half years. She maintains that she has a legal right to go to the press.
15. In submissions that have been made, the Local Authority say that it is clear that there were breaches of the undertaking and the reporting restrictions by Ms Root and that the court should therefore find the allegations proved. It is submitted that for Ms Root to say that she was unwell and did not understand the undertaking is not something that the court should accept in view of the contents of the postings that she subsequently made and in particular the one the day after she gave the undertaking namely on 13 December 2016. The Local Authority accepts that the mother did write to the court before the March hearing making reference to the fact that she was unwell at the December hearing but they say if that was true, she would have mentioned that at an earlier stage in the postings that she made and would not have left it until March before she made that complaint.
16. Ms Root in her submissions to me says that she was not legally competent at the hearing on 12 December 2016. She reiterated that she had a problem with her health and not taken her medication. Her position is that she is not guilty of contempt of court and is not guilty of anything and she says that she is not going to say that she regrets anything or that she has changed her mind because she has not. She has been fighting this matter for seven and a half years and is not going to stop now and submits that the court cannot gag her for the rest of her life.
17. I have considered the evidence in this case and the submissions that I heard very carefully. I remind myself of the burden and the standard of proof. The burden of proof is on the Local Authority to prove the breaches and the standard of proof is the criminal standard, that they must make me sure that these breaches have been proved. In other words, they must prove the case beyond a reasonable doubt.
18. I turn now to the findings that I make in this matter having considered the evidence and the submissions. I find that there is no dispute that an undertaking was given to the court by Ms Root on 12 December 2016 in the terms that I have read out. There is no dispute that a reporting restriction order was made on the same date. Ms Root does not dispute that the Facebook entries made on 13 December, 22 December and 20 February 2017 were made by her and Ms Root accepts that she did not take the Facebook entries down as promised in the undertaking to the court.
19. What is in dispute is whether Ms Root understood the nature and effect of the undertaking that she gave to the court and did she or ought she to have reasonably recognised that she was also making the Facebook entries in breach of the reporting restrictions that had been imposed? I find that I am sure that Ms Root did understand the nature and effect of the undertaking at the time that she gave it to the court on 12 December. Not only was she represented by counsel but I well remember that I explained to her that I had a separate duty to explain the nature and effect of the undertaking to make sure that she understood it before she signed it. I explained to her what she was promising to the court to do and I explained to her that an undertaking had the same effect as a court order and I explained to her the consequences if it was to be alleged on a future date that she had breached the terms of the undertaking. I explained that the matter could be brought back to court and that the court could hear evidence and if the court found that she was in breach of the undertaking, she would then be in contempt of court.
20. I do not accept the defence put forward by Ms Root that she was not legally competent on 12 December and was not sufficiently well enough to understand what she was agreeing to. As I have said, she was represented by a barrister at that hearing. She was able to give her barrister instructions during the course of the hearing and there was no indication that she was unwell at the time.
21. The undertaking was written in clear simple terms and is not difficult to understand. In my judgment, the post on 13 December, the day after the hearing, is enlightening because in that post, she clearly sets out the promise that she made to the court and she states:

'On further consideration……', so it is clear that she has had time before she made that post to consider what had taken place at the court hearing on 12 December. In my judgment, the reality of the situation is that she changed her mind very soon after the hearing and she decided that she was not going to comply with the terms of the undertaking. It is quite clear that in the post that she sent on 13 December, she was saying, 'In essence, I am being blackmailed', and, 'The Judge in essence tried to illegally force me into admitting liability'. As the Judge, I did no such thing and I explained that no findings had been made by the court at that stage but that an undertaking was an appropriate way in dealing with the position until we could come back to court on 2 March.

22. I find that it was not until Ms Root wrote her letter to the court, which I find at C171 of my bundle on 1 March, so the day before it came back to court on 2 March, that she made reference to the fact that she was unwell and she states:

'Unfortunately I have very little recollection of the last hearing as I unfortunately had stayed with my older daughter the night before in preparation for the hearing, and had forgotten to take all of my medication with me, so sadly, I was not able to mentally function as I should be'.

In my judgment, if that had been a true explanation, then she would have notified the court of that position prior to 1 March. It is noteworthy that there was no application for an adjournment on her behalf by her counsel on 12 December, so her counsel was certainly satisfied that she was able to take part in the hearing and she did indeed give instructions to her counsel.

23. I find that I am sure that the postings on Facebook on 13 December 2016, 22 December 2016 and 20 February 2017 were made by Ms Root and that they breached the terms of the undertaking and that the reporting restriction was also breached by the posts on 13 December 2016 and 20 February 2017. The Local Authority have therefore proved their case that the Respondent is in breach of the undertaking and in breach of the reporting order. That is the decision that I come to for the reasons that I have given.