and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
England and Wales High Court (Family Division) Decisions
You are here:
England and Wales High Court (Family Division) Decisions >>
Medway Council v Root (4)  EWHC 1298 (Fam) (15 March 2018)
 EWHC 1298 (Fam)
[Printable RTF version
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family, save for their mother, must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The publication of this judgment is also subject to a Reporting Restrictions Order made on 11.05.18 so that this judgment is not to be published:
(a) in conjunction with any other material that names the children or identifies them by photograph or any other image; or
(b) on any on-line page containing any other material that names the children or identifies them by photograph or image where the existence of that material is known to the publisher.
||Neutral Citation Number:  EWHC 1298 (Fam)
||Case No: ME16C01327
IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE THEIS
|| Medway Council
||- and -
||Sara Jayne Root
Mr Edward Elliott (instructed by Medway Council) for the Applicant
Mr William Dean (instructed by Sternberg Reed) for the Respondent
Hearing dates: 26th & 27th February 2018; Judgment 15 March 2018
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Theis DBE:
- This matter concerns applications for injunctions prohibiting the publication of information relating to two children who are now both over 18 years, concerning care proceedings in 2011 when they were made the subject of care orders. The Respondent is Sara Root, the children's mother.
- This hearing was listed before me by Gwynneth Knowles J by order dated 28 September 2017 to consider:
(1) The Local Authority's application for an injunction under section 12
Administration of Justice Act 1960 (AJA).
(2) The application by one of the children for a non-molestation order under
the Family Law Act 1996 (FLA) to prevent the mother from displaying in public her child's name, contact details or photograph and non-molestation. An application is also made by the Local Authority on behalf of the other child for a non-molestation order under the FLA.
(3) Ms Root's deemed application to discharge the injunction made by HHJ
Polden on 13 December 2011.
(4) The question of whether there should be any reporting restrictions order in
relation to the committal proceedings that concluded on 30 August 2017.
- I heard evidence and oral argument on 26 and 27 February and reserved judgment until 15 March.
- The Local Authority are represented by Mr Elliott and Ms Root attended the hearing in February 2018 in person. Save on one occasion on 12 December 2016 Ms Root has represented herself since 2011. When asked on 26 February she did not seek an adjournment to secure legal representation. During that hearing she was able to make detailed oral submissions, cross examine witnesses and clearly had a good understanding of the background and the relevant cases. Ms Root's position during that hearing, as it has been since 2011, is her strong feelings of injustice that the care orders placing the children away from her care should not have been made. As set out in paragraph 5 below, Ms Root is now represented by Mr Dean who attended court on 15 March.
- Following the hearing before Gwynneth Knowles J on 28 September 2017 the Local Authority issued a committal application on 21 February 2018. That application was listed for directions on 26 February. At that hearing Ms Root was informed about her entitlement to legal representation in relation to that application. The committal application was adjourned until 15 March, so she could secure representation. On 12 March solicitors instructed by Ms Root, Sternberg Reed, sent a copy of an approved statement from Ms Root to the court and the Local Authority and confirmed she would be represented by counsel, Mr Dean. Prior to giving judgment Mr Dean confirmed Ms Root had approved the statement and will sign it. In that statement she raised issues that have already been determined by HHJ Polden in earlier judgments. I raised this with Mr Elliott and Mr Dean prior to giving judgment, Mr Dean took instructions and did not oppose Mr Elliott identifying those matters prior to the court giving this judgment and for this to be included in this judgment. I can summarise the position as follows:
(1) At paragraph 4 of her approved statement Ms Root raises the issue that she did not understand the order made in December 2011 and the procedure when it was made was deficient. In his judgment on 17 July 2017 HHJ Polden dealt with this issue at paragraphs 38 and 39 of his judgment whereby he rejected similar contentions made by Ms Root then. This issue was not appealed.
(2) At paragraph 7 of her approved statement she stated she did not understand what 'until further order' meant and argued the order could not go beyond the children attaining 18 years. In his judgment on 17 July 2017 HHJ Polden dealt with this issue at paragraphs 40 to 51 whereby he rejected similar contentions made by Ms Root. This issue did form part of her appeal which was dismissed on 22 November 2017.
(3) At paragraph 8 of her approved statement she stated she did not understand what she was and was not able to publish. In his judgment on 17 July 2017 HHJ Polden dealt with that issue at paragraphs 56 to 63 whereby he rejected similar contentions made by Ms Root. This issue did form part of her appeal which was dismissed on 22 November 2017.
(4) In her approved statement she stated she did not understand the undertaking she gave in December 2016 or the reporting restrictions order. In his judgment on 18 July 2017 HHJ Polden dealt with these issues at paragraphs 13,14 and 18 – 23 when he rejected similar contentions made by Ms Root. This issue was not appealed.
- There is a long history to this matter. Ms Root has five children. The youngest two were the subject of care proceedings and the applications before the court. Their father has taken no part in these proceedings. Both children are now over 18 and are in receipt of support from the Local Authority as care leavers, which they will receive until they are 25 years. They have not had contact with their mother since 2010.
- Care proceedings in relation to the children were concluded on 24 May 2011, following a contested hearing before DJ Green. The court made care orders, the children were then 13 and 12 years old. By the time of that hearing contact had broken down between Ms Root and the children, it has not resumed since.
- Following the conclusion of the care proceedings the Local Authority became concerned that the parents were seeking to disrupt the children's placements by placing notes through doors, attending the carer's place of work and leaving confidential papers from the proceedings in public places. This caused the children to be unsettled in their placements.
- The Local Authority applied for an injunction under s 12 AJA. That was granted by HHJ Polden sitting as a DHCJ on 13 December 2011. That order at paragraph 1 prohibited Ms Root until further order:
'….whether herself or by encouraging others from making any publication of court papers in the public law proceedings relating to her children (case number ME10C00342) and shall not allow copies of the papers or details specific to the proceedings as set out within them to come into possession of any unauthorised persons.'
The order had several recitals including that Ms Root accepted she had published documents from the care proceedings, that she had no further documents from the care proceedings having delivered a bundle to the Local Authority and that she assured the court that she will abide by the order and will not publish any further information about the proceedings. The order also required her in paragraph 2 in the event she had any documents from the care proceedings to deliver them up to the Local Authority. A penal notice was attached to paragraphs 1 and 2.
- Mr Elliott, on behalf of the Local Authority, submits this order remains in force as it was to last until further order and although it has been varied twice has not been discharged.
- Ms Root made an application to discharge the care orders. That application was dismissed by HHJ Cameron in March 2012, the application for permission to appeal against that order was refused by Munby LJ (as he then was) on 3 October 2012.
- Ms Root made an application to discharge the 2011 injunction, which was determined by HHJ Polden on 11 June 2012. He discharged paragraph 2 of the order dated 13 December 2011 (which required Ms Root to deliver any documents she had relating to the care proceedings to the Local Authority). In paragraph 3 of that order it confirmed paragraph 1 of the order dated 13 December 2011 and the penal notice remained in force. This order was made upon hearing Ms Root in person and the social worker.
- Ms Root made a second application to discharge the care orders in 2013 which was refused by HHJ Cameron on 10 September 2013. Ms Root sought permission to appeal that order, that was refused by McFarlane LJ on 20 January 2014.
- Ms Root made a further application to discharge the injunction in 2014, this application was dismissed by HHJ Murdoch QC on 24 April 2014 although he did vary the injunction to allow for any communication of information as permitted by rule 12.73(1)(a) and (c), r 12.75 and PD12G Family Procedure Rules 2010 (FPR).
- Ms Root made an application for contact to both children which was determined by HHJ Scarratt on 11 September 2014 when he refused her application for contact and made orders under s 34(4) giving the Local Authority permission to refuse contact and made an order under s91 (14) to last until the youngest child's 18th birthday.
- Ms Root sought permission (out of time) to appeal the order of HHJ Polden in December 2011 and HHJ Scarratt in September 2014. Both those applications were dismissed on paper by Macur LJ on 28 July 2016 as being without merit.
- During 2014 it came to the attention of the Local Authority that Ms Root had published information on Facebook naming professionals, but referring to the children by their initials. The Local Authority wrote to Ms Root on 13 October 2014, asking her to stop such publication of information. This letter was published by Ms Root on Facebook.
- The Local Authority were alerted by Ms Root's elder children on 30 December 2014 that there had been further publication of matters relating to the care proceedings. This included a photograph of one of them, the full names of the children, details of the former foster carers and information about the children's emotional well-being and where one of them was living.
- On 2 March 2015 the Local Authority had a meeting and determined there should be no further disclosure of information to Ms Root.
- Between October 2014 and April 2015 there were approximately 120 posts on Facebook said by the Local Authority to be in breach of the December 2011 injunction. The Local Authority issued committal proceedings, setting out in their application dated 14 June 2016 the breaches relied upon, which was revised prior to the hearing before HHJ Lazarus on 5 September 2016.
- In the affidavit of Ms Hopper dated 8 April 2016 in support of the committal application she set out the concerns about the impact of Ms Root's behaviour on the children and confirmed that one of them was aware of the information. She reports that this child was very angry about this and was concerned that people would see this information. That statement also referred to the other child asking to change placements for no apparent reason and that it was the view of Ms Hopper this may be related to these ongoing proceedings. In September 2016 the elder child wrote a letter to the court setting out that she was angry and upset that information had been posted by her mother and she hoped Ms Root would stop doing it.
- The Local Authority's application for Ms Root's committal to prison was listed before HHJ Lazarus on 5 September. It was clear by that stage that some of Ms Root's Facebook posting related to Ms Root's more recent applications with different case numbers. As a result, the Local Authority sought a further injunction, it was said this was under section 12 AJA. HHJ Lazarus granted the application on the Local Authority undertaking to issue an application, which it did on 7 September. However, there are issues with this order. First, the order states it was made pursuant to s 97(2) Children Act 1989 (CA). Mr Elliott accepted at the hearing before this court that as all the relevant proceedings had concluded by then s 97(2) no longer applied. Second, the order had no penal notice attached. The application issued by the Local Authority is an application issued on C1 form, in the Family Court for an order under s 97(2) CA 1989, rather than an application for an order under s 12 AJA. That application has now been treated as an application under s 12 AJA. HHJ Lazarus's order directed the next hearing to be listed before a Deputy High Court Judge (DHCJ) and recorded the hearing had been in open court.
- The matter came before HHJ Scarratt sitting as a DHCJ on 20 September 2016, he adjourned the committal application and the injunction application to be listed before HHJ Polden on 12 December 2016 sitting as a DHCJ. HHJ Scarratt's order did not include provision for an injunction but did record the hearing had been in open court. The injunction orders were continued in the order dated 12 December 2016, although set out in the recital rather than the body of the order and referred to both s97(2) CA and s 12 AJA. The order recorded the hearing had been in open court. There was no penal notice on the face of the order.
- The hearing on 12 December 2016 could not be concluded, due to insufficient court time and was adjourned to 2 March 2017. At the 12 December hearing Ms Root was represented by counsel. The Local Authority submitted at that hearing there was evidence to suggest Ms Root was going to continue to publish relying on further posts outlined below, although not all of them are said to be in breach of any orders:
(1) 2 September 2016 as detailed in Ms Hopper's second statement dated 14
September which included personal information regarding the elder child;
(2) 14 September 2016 repeating a publishing of a Cafcass report from 2014,
the foster carer logs from 2011 and the post setting out her story from the
(3) 22 September 2016 with an account of the hearing on 20 September, stating
she would not remove her publications.
(4) 11 October 2016 Ms Root published an extract of the Local Authority's
skeleton argument on 20 September 2016.
(5) 2 December 2016 whereby she questioned the legitimacy of the injunction
and named the younger child and there was a prominent photograph of the elder child.
- It was submitted on Ms Root's behalf on 12 December 2016 that she was acting under a genuine misapprehension believing the order had lapsed and that she was entitled to publish the material as it amounted to a complaint under FPR 12.75 and as a consequence, she lacked the necessary mens rea to be guilty of contempt of court as her misunderstanding was genuine. The case was adjourned to enable further skeleton arguments to address this issue. Ms Root gave an undertaking that she would within 48 hours remove Facebook posts concerning her children and not to publish any further material. The undertaking was in the standard form and had a penal notice warning of the consequences if any terms of the undertaking were found to be broken.
- A reporting restriction order was made on 12 December 2016 whereby it was ordered that '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 2/3/17'. The recital to the order also provides 'AND UPON the court making an interim injunction pursuant to s 97(2) of the Children Act 1989 and section 12 Administration of Justice Act 1960 restraining the mother from publishing information in relation to any proceedings relating to [the children] to last until the conclusion of the hearing on 2/3/17; such injunction having been made as a holding position without prejudice to any submission that mother might make that an injunction is neither warranted or necessary'.. The injunction orders were said to be made under s 97(2) CA and s 12 AJA and the reporting restrictions order in relation to the committal pursuant to paragraph 13 of the Practice Direction dated 26 March 2015. There was no penal notice on this order.
- The matter returned before HHJ Polden on 2 March 2017. The Local Authority submitted Ms Root had not complied with her undertaking as she had posted material on
(1) 13 December 2016 referring to the court hearing the previous day and that
she was being 'blackmailed' to withdraw her campaign to ensure the miscarriage of justice she alleged is established which would allow her children to 'embark upon their own legal case of misconduct, against the Medway Local Authority'.
(2) 22 December 2016 Ms Root posted a further lengthy post with photographs
setting out the history of her case
(3) 22 February 2017 about the next hearing date and quoted from counsel's
- The Local Authority issued a further application for committal dated 28 February 2017 based on the breach of her undertaking in failing to remove material concerning her children and in continuing to publish material arising from proceedings concerning her children in breach of the reporting restrictions order dated 12 December 2016.
- At the adjourned hearing on 2 March 2017 the hearing was unable to be completed. Ms Root represented herself and did not seek any adjournment to secure legal representation. The court dealt with a preliminary point raised by Ms Root that the committal application was defective and should be struck out because it had not been personally served. HHJ Polden decided that it would be remedied by dispensing with personal service, as to do so would not cause any injustice. The matter had to be adjourned again due to lack of court time. The matter was listed again for a two-day hearing on 10 May 2017. The order dated 2 March 2017 included the injunction prohibiting publication of anything relating to any proceedings concerning the children in the recital to the order and the reporting restrictions order in the body of the order. The order recorded the hearing had been in open court. It did not contain a penal notice.
- Prior to the next hearing there were further posts, which the Local Authority say were in contravention of the orders made on 2 March 2017:
(1) 6 March 2017 Ms Root published an update which appeared to set out
details about the hearing on 2 March.
(2) 8 March 2017 Ms Root published further details about the hearing on 2
(3) 18 April and 7 May Ms Root posted an invitation to the hearing on 10 May
that the Local Authority say included both children's names.
- On 10 May Ms Root attended court, was unwell and her request for an adjournment was granted. The adjourned hearing was listed on 17 July 2017 and the previous orders continued in the same terms as before.
- On 6 July 2017 the Local Authority issued an application for a non-molestation order on behalf of both children. The application was re-issued on 11 August 2017 with the elder child signing the application, the younger child, when asked, did not wish to sign the application.
- Prior to the hearing on 17 July the Local Authority stated there were further posts from Ms Root, including the following:
(1) 2 July 2017 publishing the Local Authority skeleton argument from the
hearing on 10 May.
(2) 5 July 2017 publishing details of both children's names and photographs.
(3) 8 July 2017 publishing documents served on her relating to the non-
(4) 10 July 2017 publishing the statement in support of the non-molestation
order and the EPO documents.
(5) 13 July 2017 publishing a link to an article about her case in which she
identified herself and both children.
- On 17 and 18 July 2017 HHJ Polden dealt with the two committal applications and found the alleged breaches proved, namely 10 breaches of the injunction dated 13 December 2011 and two breaches of the undertaking given by Ms Root on 13 December 2016. HHJ Polden gave a detailed judgment and adjourned sentence until 30 August 2017 to enable Ms Root to secure legal representation. HHJ Polden's order continued the injunctions in the same terms and transferred the various applications concerning the injunctions to be determined by a High Court Judge.
- Prior to the hearing on 30 August there were further posts by Ms Root which the Local Authority submit were either in breach of the order dated 13 December 2011 or the reporting restriction order, including:
(1) 20 July 2017 a link was published to an anonymised article making it clear
it was about Ms Root and pictures of both children and social worker were uploaded.
(2) 3, 21 and 24 August published information about the hearing on 17 and 18
- On 30 August 2017 HHJ Polden made a suspended committal order. He imposed 3 months concurrent on each of the ten breaches of the 13 December 2011 injunction, and consecutive to that three months concurrent for each of the breaches of the undertaking given on 12 December 2016. There was no separate penalty for the breach of the reporting restrictions. The total sentence of six months was suspended for twelve months on condition Ms Root complied with the injunction dated 13 December 2011 as amended. HHJ Polden gave judgments on 17 and 18 July and 30 August 2017.
- HHJ Polden transferred the issue of the ongoing reporting restriction in relation to the committal hearing to this hearing and in the interim he followed the Practice Direction and issued a short statement as to what could be published which was set out on the face of the order as follows:
'In relation to C00ME422. On 30th August 2017, at Maidstone County Court, His Honour Judge Polden sentenced Sara Root to a custodial sentence of six months, suspended for twelve months, for contempt of court. The basis of that sentence was that: (a) she had breached an injunction made under section 12 of the Administration of Justice 1960 on 13th December 2011 on ten occasions; (b) she was in breach of an undertaking she gave to the court on 12th December 2016; and (c) she failed to comply with reporting restrictions made at the same hearing. All of the breaches were occasioned by publishing material relating to care proceedings on Facebook and failing to remove it. '
- On 12 September 2017 Ms Root filed her notice of appeal against the findings made by HHJ Polden.
- On 28 September 2017 the matter came before Gwynneth Knowles J who made directions leading to this hearing. She continued the injunction against Ms Root with a penal notice attached and extended the reporting restrictions order made on 12 December 2016 as subsequently extended.
- On 22 November 2017 Ms Root's appeal was considered by McCombe and McFarlane LJJ. As before Ms Root was reminded of her right to legal representation, which, according to Mr Elliott, she declined preferring the hearing to proceed. Her appeal was dismissed and the short statement given by HHJ Polden was repeated in the order with the following addition:
'Sara Root subsequently appealed the order of His Honour Judge Polden in an appellant's notice dated 12th September 2017. The appeal was heard by the Right Honourable Lord Justice McFarlane and the Right Honourable Lord Justice McCombe on 22nd November 2017. They gave judgment the same afternoon dismissing the appeal.'
- Following the Court of Appeal hearing the Local Authority issued a further committal application on 21 February 2018. That application alleged breaches set out in the attached Annex. That application was listed before me for directions on 26 February. I directed on the first day that there should be notice to the press of the application for a reporting restriction order regarding the committal application. That was served by the Local Authority on 26 February and I gave directions on the committal application on 27 February. Ms Root said she wished to make enquiries about legal representation. Mr Elliott helpfully gave her the name of solicitors near to where she lived and the court was informed on 12 March she was going to be represented at this hearing by Sternberg Reed, who instructed Mr Dean to attend the hearing today.
- On the morning of 26 February Ms Root filed a skeleton argument and a statement.
- As well as reading the court bundle I heard oral evidence on 26 February from Ms Conn who was both childrens's Leaving Care Personal Adviser up until November 2017 and Ms Kemp who has been both childrens's Leaving Care Personal Adviser from November 2017. Ms Conn and Ms Kemp had filed statements, each setting out the impact of Ms Root's actions on the children. In Ms Conn's statement at paragraph 3 and 4 and Ms Kemp's statement at paragraphs 3,4 and 5. Both children are in receipt of leaving care services and support, which they will receive until they are 25. Their written and oral evidence confirmed neither child wanted personal information about them and the care proceedings being published by Ms Root. Ms Conn confirmed she had discussed the non-molestation application with the elder child who had signed the application not wanting personal information shared on social media. In their oral evidence they each rejected any suggestion by Ms Root that the children's distress and anger is only due to them being removed from her care and/or not seeing Ms Root.
- I also heard oral evidence from Ms Hopper, she was the allocated social worker from April 2012 to early 2016. She has filed four statements. She was clear in her oral evidence that during the time when she was dealing with both children they were consistent that they did not want their personal information shared and did not want to see Ms Root, even though they would be given support if they wished to do so.
- It is accepted that the relevant legal framework if the court is considering making an injunction that extends beyond that provided by s 12 AJA 1960 and/or s 97(2) CA 1989 aimed at restricting the reporting and publication of proceedings involving children the court 'is obliged in the face of challenge to conduct a balancing exercise between the Art 8 rights of the child and the Art 10 rights of the parent asserting such right, and/or, where press or media interest is involved, the Art 10 right to report and discuss the circumstances surrounding, as well as the issues arising out of, a case of public interest'. (per President, Sir Mark Potter Clayton v Clayton  1 FLR 11 ). In undertaking that balance the court should apply the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication)  UKHL 47 at , namely:
i) First, no article has, as such, precedence over the other;
ii) Secondly, where the values under the articles are in conflict, an intense
focus on the comparative importance of the specific rights being claimed in the individual case is necessary;
iii) Thirdly, the justifications for interfering with or restricting each right must
be taken into account;
iv) Finally, the proportionality test must be applied to each, referred to by
Lord Steyn as "the ultimate balancing test".
- I have been referred to two recent authorities that consider this balancing exercise.
- The President, Sir James Munby, in Re J (Reporting Restriction: Internet: Video)  EWHC 4694 (Fam) made an order preventing the child who had been the subject of care proceedings being identified in video footage the parents wanted to publish. At paragraphs 21 – 24 the President said:
' What may be called the 'automatic restraints' on the publication of information relating to proceedings under the Children Act 1989 are to be found in s 97 of that Act and s 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of 'material which is intended, or likely, to identify' the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton  EWCA Civ 878,  Fam 83,  3 WLR 599,  1 FLR 11,  UKHRR 264. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child: see Re B (A Child) (Disclosure)  EWHC 411 (Fam),  2 FLR 142, para , A v Ward  EWHC 16,  1 FLR 1497, para , Re X and Others (Children) (Morgan and Others Intervening)  EWHC 1157 (Fam),  1 WLR 182, sub nom Re X, Y and Z (Expert Witness)  2 FLR 1437, para . So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.
 The court has power both to relax and to add to the 'automatic restraints'. In exercising this jurisdiction the court must conduct the 'balancing exercise' described in Re S (Identification: Restrictions on Publication)  UKHL 47,  1 AC 593,  3 WLR 1129,  1 FLR 591,  UKHRR 129, and in A Local Authority v W, L, W, T and R (by the Children's Guardian)  EWHC 1564 (Fam),  1 FLR 1. This necessitates what Lord Steyn in Re S (Identification: Restrictions on Publication), para , called 'an intense focus on the comparative importance of the specific rights being claimed in the individual case'. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention). I incorporate in this judgment, without further elaboration or quotation, the analyses which I set out in Re B (A Child) (Disclosure)  EWHC 411 (Fam),  2 FLR 142, at para , and in Re Webster; Norfolk County Council v Webster and Others  EWHC 2733 (Fam),  1 FLR 1146,  EMLR 199, at para . As Lord Steyn pointed out in Re S (Identification: Restrictions on Publication), para , it is 'necessary to measure the nature of the impact ... on the child' of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  2 WLR 148,  1 FLR 2170, para .
 I should add two further points. The court may, by an appropriate injunction, extend the anonymity of the child beyond the point at which s 97 of the 1989 Act ceases to have effect in accordance with Clayton v Clayton  EWCA Civ 878,  Fam 83,  1 FLR 11. But it is important to note the views expressed in that case by each of my two immediate predecessors as to the likely need for specific orders protecting a child's identity beyond the conclusion of the proceedings. Both were sceptical. Sir Mark Potter P said this (para ):
'given the existence of section 12 of the Administration of Justice Act 1960 which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save insofar as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life.'
Wall LJ, as he then was, said (para ): 'My impression is that there are unlikely to be many cases in which the continuation of that protection will be required'. I shall return to this below.
 The court may likewise, by an appropriate injunction, afford anonymity to other participants in the process, for example, an expert, a local authority, or a social worker. Such injunctions, however, will not readily be granted: see the discussions in A v Ward  EWHC 16 (Fam),  1 FLR 1497, and Re X and Others (Children) (Morgan and Others Intervening)  EWHC 1157 (Fam),  1 WLR 182, sub nom Re X, Y and Z (Expert Witness)  2 FLR 1437. As I put it in A v Ward, para , any such application in relation to an expert or a social worker must be justified by reference to 'the particular circumstances or particular vulnerabilities of specific individuals'. What I referred to as a 'class' claim, that is, 'a claim that any professional who falls into a certain class – and in the case of ... social workers ... the membership of the class is very large indeed – is, for that reason, and, truth be told, for that reason alone, entitled in current circumstances to have their identity protected, in plain language to have their identity concealed from the public', will not succeed. Anonymity should not be extended to experts, local authorities and social workers unless there are compelling reasons. Again, I shall return to this below. '
- In Southend Borough Council v CO and Another  EWHC 1949 (Fam) MacDonald J eloquently conducted the Art 10 and Art 8 balancing exercise in circumstances where the parents wanted to pursue an online petition. The parents had agreed to remove the name of the children from the petition and obscure their photographs, so they could no longer be identified. The Local Authority sought an injunction that the petition was removed, which MacDonald J refused. After outlining the Art 10 rights and the principles that underlay those important rights at paragraphs  –  MacDonald J sets out what the parents in that case were seeking to do at  as follows:
'43. Before considering in detail the three points of justification for interfering with the parents' Art 10 rights advanced by the local authority, it is important to be clear what the information the parents seek to publicise in this case now comprises of. The information comprising the petition consists, essentially, of (a) a statement that the children were the subject of care and placement proceedings, (b) a statement that the parents do not agree with the decision of the court, (c) a statement that they do not think the proceedings were fair, nor the decision evidence based, (d) a statement that they are seeking to try and overturn the decision and (e) statements by a number of people expressing agreement with them, a small number of which statements refer to the children by their forenames notwithstanding the parents agreement to remove the children's names from the front page of the petition. The information in the petition contains no details of the evidence and submissions the court heard during proceedings, no details of the significant harm the court found the children to have suffered and no details of the children's current circumstances, save that two of the children are the subject of a plan for adoption. The mother is referred to by both her forename and surname as the instigator of the petition and, thus, in circumstances where a limited number of responses to the petition mention the children using their forenames, the children are, in places, identifiable as having been the subject of proceedings (a situation that is not prohibited by the terms of the Administration of Justice Act 1960 s 12 (A v Ward  1 FLR 1497)). Finally, the petition has been in the public domain since May 2017. It has been signed by 160 people. There have been no new signatures since 30 May 2017.'
- In that case he did not consider the Local Authority had produced sufficient evidence to justify the interference with the Art 10 right, at paragraph 49 he said as follows:
'49. In the circumstances, I am satisfied that there is very little cogent evidence before the court that each of the children or any of them will suffer embarrassment, much less emotional harm if the petition on the Change.org website remains in place online. Within this context, once again, it must be remembered that what the court is examining is whether there is evidence which amounts to a justification for interfering with the cardinal right of freedom of expression for the purposes of Art 10(2). Whilst it is, of course, possible to formulate a number of common-sense assumptions with respect to the potential impact on each of the children of persons accessing the online petition, the reality is that the justifications on which the local authority seeks to rely for interfering with the parents' right to freedom of expression under Art 8 are poorly evidenced and largely speculative in nature.'
- At paragraphs  to  he conducted the balancing exercise as follows:
57. With respect to the justifications for interfering with the children's Art 8 right to respect for private life, the discussion of the importance of the Art 10 right to freedom of expression has already resulted in these contended for justifications being articulated in broad outline. Within this context, beyond the fact that the court must, pursuant to s 12(4) of the Human Rights Act 1998, have regard to the importance of the right to freedom of expression generally, the following contended for justifications fall for consideration.
58. It is important that citizens whose lives have been the subject of State intervention, in this case parents who have been the subject of public law proceedings under the Children Act 1989 brought by the State, are able to express their opinions about that intervention, and to protest such intervention where they contend that it has worked an injustice (whether that intervention has, in fact, worked an injustice or not). The reasons that this must be so were eloquently articulated by Lord Steyn in R v Secretary of State for the Home Department ex parte Simms and Another  2 AC 115 at :
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market": Abrams v United States (1919) 250 US 616, at 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country."
59. Within the context of the right of the citizen to petition Parliament or the Government in respect of a personal grievance being of fundamental constitutional importance, it is also important that citizens in the position of these parents, who consider that they have a personal grievance, can express themselves by articulating their grievances fully and effectively by way of petition, gain support for their views and, by doing so, seek redress. Further, in circumstances where, as the parents do here, a person seeks to petition the State for redress in respect of a personal grievance arising out of alleged actions of the State, it is particularly important that the State should not, without very good reason, be permitted, as it seeks to be permitted here by way of an application for injunctive relief, to restrain that person from petitioning. Indeed, once again, whilst I did not hear detailed submissions on the point, it is arguable that the prohibition on "commitments and prosecutions" with respect to petitions seeking redress contained in the Bill of Rights of 1689 would render such restraint unlawful.
60. Finally, in respect of the contended for justifications for interfering in the Art 8 right of the children for respect for private life, in this case one of the main factors driving the interference in the children's Art 8 right is the fact that the mother's name appears on the front page of the petition and the children are referred to by their forenames in a limited number of the responses to that petition. Against this, the ability of a parent to make clear who is speaking out or seeking to petition for redress is self-evidently very important, it being very difficult, if not impossible, to effectively protest a contended for injustice or petition for redress of a personal grievance if the protester or the petitioner must remain anonymous and prevented from providing any salient details of their grievance that may breach that anonymity.
61. Having regard to the foregoing parallel analysis of the importance of the rights engaged in this case and the respective justifications for interfering with the same set out above, in which I have considered each of the children's best interests as a primary consideration, and applying the ultimate balancing test of proportionality, I am satisfied that the local authority's application for an injunction compelling the parents to take down their online petition must be dismissed.
62. Balancing the Art 10 right to freedom of expression of the parents (in the context of the importance of that right, the importance of parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress) against the Art 8 right of the children to respect for their private and family life (in the context of the importance of that the right for the psychological integrity, personal development, development of social relationships and physical and social identity of the children and the court not being satisfied, having regard to the nature of the information and the children's prior knowledge of it, that the evidence establishes that publication will cause emotional harm to C and W and potentially de-stabilising their respective foster placements, disrupt efforts to find adoptive placements for T and N or cause ongoing embarrassment to the children as they get older) leads me to conclude in this case the Art 10 right to freedom of expression outweighs the Art 8 right to respect for private and family life when it comes to the question of the online petition being taken down. Applying the ultimate balancing test of proportionality, in my judgment it cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother's name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains. '
- Each of these cases are highly fact dependent and the balancing exercise must be conducted taking account the circumstances of each case.
- The applications for non-molestation orders are made pursuant to section 42 Family Law Act 1996 (FLA) as Ms Root and each of the children are associated persons within s 62 (3) (g). What is said is that any further publication of personal information which may not be covered by the injunction is likely to cause harassment, alarm or distress whilst deeply personal information remains on Facebook.
- Mr Elliott submits r 10.2 Family Proceedings Rules 2010 provides that an application for a non-molestation order must be supported by a witness statement, it does not require that statement to be from the applicant. In relation to the younger child, who did not wish to sign the application, Mr Elliott's submits the court could still make an order as the Local Authority and Ms Root are parties to the same proceedings under s 62 (3) (g) FLA and could therefore be associated persons. Under s 42 the applicant (as in the case of the Local Authority making the application on behalf of the younger child) does not necessarily need to be the person to be protected.
- In my judgment there are difficulties with that interpretation as the younger child is not a party to these proceedings and is not a 'relevant child' unless he could be brought within the provisions of s 62 (2) (c) as 'any other child whose interests the court considers relevant'. The difficulty with that is the younger child is no longer a child and he has not signed the application.
- The applicable principles relating to any reporting restrictions order are those set out above regarding the balance to be struck between the Art 10 and Art 8 rights as articulated by Lord Steyn in re S (ibid) but obviously and very importantly looking at the Art 10 rights in the context of freedom of the press as against restricting what SR's Art 10 rights are, which the injunction does.
- In relation to committal applications the Practice Direction dated 26 March 2015 makes clear in paragraph 5 that all committal hearings shall be listed and heard in open court. Paragraph 8 provides that where the court is considering derogating from the general rule there should be notice to the press setting out the nature of the proposed derogation and at the outset of the hearing the court shall hear submissions regarding any proposed derogation. Paragraph 9 provides that where the hearing may involve disclosure which ought not to be published that in itself does not justify a hearing being in private if such publication can be restrained by an appropriate order. Paragraph 13 provides for the minimum information that should be provided in public following a finding of contempt and paragraph 14 provides for a written judgment to be produced setting out the reasons for the decision which paragraph 15 requires should be sent to the parties, the press and put up on Bailli.
- Mr Elliott on behalf of the Local Authority submits the injunction order dated 13 December 2011 remains in force, as varied by the orders of HHJ Polden in 2012 and HHJ Murdoch QC in 2014. The order made by HHJ Lazarus on 5 September 2016 did not discharge the 2011 order, it added the case numbers of the subsequent applications which then became the more general injunction made on 12 December 2016 prohibiting Ms Root publishing information relating to 'any proceedings' concerning the children.
- He submits in the circumstances of this case the court should not discharge the 13 December 2011 injunction and it should remain in force until further order. This is not a case where Ms Root has shown any moderation in her behaviour or any willingness to restrict the information she publishes, as the parents did in the case of Southend Borough Council. The background cannot be ignored, as Mr Elliott states, there has been no let-up in Ms Root's behaviour. Up until 2014 she pursued repeated applications to the court and since then continuing her applications to the court coupled with repeated postings on social media of detailed information about the proceedings concerning the children. Both children are at a crucial stage of their development, still in receipt of support from the Local Authority wanting to get on with their lives without the distress and disruption caused by Ms Root's repeated postings about the proceedings concerning them and these ongoing proceedings.
- The Local Authority acknowledges and recognises the importance of the Art 10 right that Ms Root relies upon but submits in this case there is evidence that justifies the interference with that right under Art 10 (2) which is proportionate. Mr Elliott relies on the written and oral evidence of Ms Hopper, Ms Conn and Ms Kemp which provides an evidential foundation for the distress and emotional harm caused by the publication of material by Ms Root. The evidence in relation to the elder child's distress is more obvious than for the younger child but the clear message from both has been consistent during the period of each social worker's involvement, that they do not want their personal information published. They wish to get on with their lives with the support that is available. The continued publication of material about them by Ms Root is making that much more difficult for each of them, particularly when some of the material involves deeply personal information about them relating to the court proceedings, their history and their current circumstances. The Local Authority point to the recent postings of videos by Ms Root which contain very personal information about the elder child which has been viewed over 8,000 times and shared over 2,000 times.
- The Local Authority submits the history of Ms Root's behaviour is relevant. She has shown no moderation of her position to recognise the Art 8 rights of the children. This is not a case where limited identifying information is relied upon to justify the interference with the children's Art 8 rights to private life. Ms Root has no filter to what she publishes and is oblivious to the evidence of the harm and distress it has caused the children.
- In addition to the injunction remaining in force the Local Authority support the making of non-molestation orders to cover any publication of personal information as the repeated publication of this material, some of which may not be covered by the injunction regarding the court proceedings, amounts to intimidation, harassment and pestering. They submit what Ms Root is doing amounts to molestation.
- In her detailed written argument and her oral submissions Ms Root was resolute about her position. She regards her Art 10 rights as being, effectively, absolute. She can see no basis for them being interfered with. From the way she questioned the witnesses and in her oral submissions she is clear the care proceedings should never have been started, there was in her view no evidence to justify the children being removed from her care. She says she does respect the authority of the court, she pursued the appeal route and it was only when that ran out did she turn to other ways to challenge what she considers is an unjust decision. What she seeks is an investigation into why the proceedings were taken in the first place.
- She considers the injunctions should be discharged. She can see no justification for them continuing as they limit her right to free speech and she appeared to show no empathy or understanding for the children and what is reported to be their distress about what she is doing. From her perspective their distress is just as likely to be caused by their removal from her care and their wish to see her.
Discussion and Decision
- These cases are difficult, involving the complex balancing exercise between the Art 10 rights of Ms Root and the Art 8 rights of the children.
- Applications for and orders restricting the publication of information whether against an individual or the press is a highly technical area of the law. Save in emergencies they are not applications that should be made without consideration of the appropriate procedural steps that should be taken and care must be given to the terms of any orders to ensure they comply with all the requirements under the applicable statutes, procedural rules, practice directions and guidance and decided case law. That has not always happened in this case.
- The same applies in relation to any committal application. This is, rightly, highly technical as it involves the liberty of the individual and great care is required in considering the form of any orders alleged to be breached, the application to commit and the nature of the alleged breaches as they relate to any orders alleged to be breached, the evidence in support and the compliance at any hearing with the 2015 Practice Direction and Practice Guidance.
- I am satisfied this court does have jurisdiction to make orders that last beyond the children attaining the age of 18 years, the separate question of whether it is exercised or not will depend on the facts of each case. The statutory protection provided by s 12 AJA which prevents some information about the care proceedings being published is set out in paragraph 49 and 50 of 'Family Courts: Media Access and Reporting' as follows:
'49. Section 12 does not operate to prohibit the reporting of the identity (name, address and photograph) of those involved in proceedings, whether as the child concerned or as a party or witness; it does not prohibit the identification of expert witnesses; nor does it prohibit reporting of the fact of that person's involvement in proceedings, including, in the case of witnesses, the party on whose behalf they gave evidence; the dates, times and places of hearings, what is observed by those lawfully in the open areas of the court building; the nature of the dispute; and the order or a summary of it.
50. Instead, it operates to prohibit dissemination of what went on in front of the judge and the documents filed for the proceedings, including written evidence, reports and written submissions. It also prohibits notes or transcripts of evidence and submissions, extracts from documents filed and summaries of them. The prohibition operates even if the documents are anonymised.'
- It is without limit of time (see paragraph 47 the Family Courts: Media Access and Reporting). It is accepted that this court has power to limit or extend that statutory protection. If that is right it would make no sense if that power of the court stopped when the child attained the age of 18 years, when the statutory protection doesn't.
- Ms Root's Art 10 rights and the need for them to be read in the context of s 12 (4) Human Rights Act 1998 underscores the importance of the right of freedom of expression. The importance of that right has been emphasised in a number of cases, in particular by the President in Re J (ibid) in relation to the workings of the family justice system and the views of the mothers and fathers caught up in it. For Ms Root the Art 10 right is important to her in circumstances where she wishes to speak out against intervention in her family life by the State in circumstances where she considers the intervention to have worked an injustice. The importance of this right remains irrespective of the merits of the views expressed. In the context of this case this right is important because it protects the ability to make clear who is speaking out.
- However, it is important when considering this issue to consider what information is sought by Ms Root to publish. In effect Ms Root seeks no limitation on what she is able to publish. She put documents from the care proceedings or related applications on line and has posted details about what has taken place within those proceedings. To date Ms Root has not proposed or accepted any limit to what she wishes to publish. On the facts this case is different to those such as Re J and Southend where there was some limit on the information sought to be published. For example in Southend the information in the petition contained no details of the evidence and submissions the court heard during the proceedings, no details of the significant harm the court found the children to have suffered and no details of the children's current circumstances, save that two of the children are the subject of a plan for adoption.
- The justification for interfering with the Art 10 rights of Ms Root is based on the combined evidence of the social workers who have been allocated to the children, including the elder child's letter to the court. I accept their evidence. Each witness was measured in what they said, and all confirmed the distress to children of what Ms Root has continued to do by publishing information about them. Whilst the children expressed their distress in different ways I accept the evidence of Ms Conn, Ms Kemp and Ms Hopper that it mainly relates to what Ms Root is doing relating to publishing this information. It is having an adverse impact on them when they each have the vulnerabilities of being children who have been in care and are now being supported having left care to seek to establish their own independent lives. It is right both children are aware that Ms Root does not agree with the decision reached by the court in 2011 to make a care order, but that knowledge does not undermine the evidence the court has about the distress to them of Ms Root's actions. Whilst it could be said on behalf of Ms Root that the fact that information is already in the public domain so what is the need and justification for further injunctive relief it is clear from recent posts the repetition of known facts about an individual, amounts to an unjustified interference with the private life of that person. The recent evidence shows an escalation in what Ms Root has put on line, in particular the videos that have been posted and the number of times they have been viewed, in excess of 8,000 times. The evidence from the social workers demonstrates that the material already in the public domain will continue to cause both the children ongoing embarrassment and emotional harm where that information will remain on the internet in an easily and repeatedly accessible form.
- I am satisfied that there is evidence before the court that both children will suffer embarrassment and emotional harm if no order is made. By her actions Ms Root has continued to show no respect for the provisions of s 12 AJA and the limitations that provision makes, without limit of time, on what information relating to the care and related proceedings can be published.
- It is now necessary to consider the Art 8 rights of the children. As a number of cases have made clear (as set out in the Southend case at paragraphs 51 and 52) the ambit of the right to respect for private life is wide. As MacDonald J observed in Southend  it encompasses 'not only the narrow concept of personal freedom from intrusion but also psychological and physical integrity, personal development and the development of social relationships and physical and social identity.' For the children this includes being able to establish their life as care leavers. The publication of personal and sensitive information, involving private matters concerning family life, is likely to cause upset and emotional harm. As I have said Ms Root has not sought to suggest that the information she has published and that which she wishes to continue to publish should in any way be limited.
- With respect to the justification for interfering with the children's Art 8 right to respect for family life, the discussion of the importance of the Art 10 right of freedom of expression has considered some of the justifications for the interference in the children's Art 8 rights. In considering this aspect the court is required to have regard to the importance of the right to freedom from expression generally, as required by s 12 (4) Human Rights Act 1998. Within this context it is important that parents who are subject to public law care proceedings, initiated by the State are able to express their opinions about that intervention, particularly as in this case where it is said it has worked an injustice (whether in fact that intervention has, in fact, worked an injustice or not). The main factor driving the interference with the children's Art 8 rights is the fact that Ms Root wishes to identify who she is and the children in connection with the proceedings as to seek to do so anonymously with limited or no information about the salient details severely limits her ability to protest about a contended for injustice.
- Having carefully considered the parallel analysis of the importance of the rights engaged in this case and the respective justifications for interfering with the respective rights and applying the ultimate test of proportionality I am satisfied the 13 December 2011 injunction should continue, as amended, and should include the case numbers of the subsequent proceedings concerning the children (including these proceedings) so there is one order going forward. In my judgment the order should last until 20 November 2023, when the youngest child is 25 years old or further order, and a penal notice must be attached. I have balanced the respective Art 10 and Art 8 rights as set out above and the respective justification for interference with them. This must be considered in the context where Ms Root's position is that there should be no limit on what she should publish about the proceedings, including in effect, that which is prohibited by s 12 AJA. Ms Root does not accept any steps that would limit the interference with the children's Art 8 rights, whilst still proportionately enabling her to exercise her Art 10 rights. In those circumstances I consider the right and proportionate balance is to make the injunction until November 2023, when the youngest child is 25 years old. This will cover the period when both children are in receipt of leaving care support from the Local Authority. It will enable both children to have the best chance of being able to establish their own independent lives and 'get on with their lives' as they have repeatedly expressed the wish to do. It leaves open the question of any further application to extend and it also proportionately interferes with Ms Root's Art 10 rights by limiting the time.
- I have carefully considered Ms Root's position, which is to discharge the injunction. As a matter of law this would leave the s 12 AJA statutory restrictions on publication of information relating to the care proceedings in force. An argument in favour of such a course is that by discharging the order it removes the prospect of returning to court regarding any future breaches and may in due course remove much of the conflict created by ongoing proceedings. This position could be more credible in circumstances where there was some prospect of moderation by Ms Root about what she wants to publish, even some confidence that she would comply with the statutory restrictions imposed by s12 AJA would be a promising start. Sadly, there is no sign of that position from what Ms Root has said to date. In those circumstances having regard to the matters set out above I have reached the conclusion the injunction should remain in place until 2023.
- Turning now to the question of the applications for non-molestation orders under the FLA 1996. In relation to the application by the elder child I am satisfied that it should be granted. The evidence filed by the social workers demonstrates a long course of conduct of behaviour by Ms Root that amounts to molestation. The repeated publication of deeply personal and sensitive information on line about the elder child shows no sign of abating. Whilst the injunction will cover information relating to the court proceedings, it does not cover personal information outside the court proceedings. Ms Root has known about this application since August 2017 and has shown little change in her behaviour and if anything, an escalation of it by the posting of the videos on line where she discusses personal information. Leaving to one side any applications for committal for contempt s 42A (1) FLA 1996 makes clear a person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence and if proved can be imprisoned for up to 12 months or up to 5 years on indictment. In my judgment Ms Root's behaviour in relation to the children also risks criminal proceedings for the offence of harassment under the Protection from Harassment Act 1997.
- In relation to the application for a non-molestation order made by the Local Authority for the younger child, for the reasons set out above I do not consider the court has jurisdiction to make such an order.
- Turning finally to the reporting restrictions order. The important additional consideration in relation to this order is the Art 10 rights of the press, particularly in the context of committal proceedings where the liberty of the subject is at stake. Both the Committal for Contempt of Court Practice Direction dated 26 March 2015 and the Practice Guidance dated 24 June 2015 emphasise the need for such proceedings to be in open court. In this case all the hearings regarding the committal applications before HHJ Polden were in open court, but a reporting restrictions order was made on 12 December 2016 and each committal hearing thereafter restricting the right to report any information or details about the hearing, save for the notice endorsed by HHJ Polden on 17 July that the committal hearing had taken place involving Ms Root, the breaches that had been proved and a further hearing to consider sentence would take place. On 30 August 2017 a similar order was made at the conclusion of the sentencing hearing, the notice on that occasion included details of the sentence of 6 months suspended for a period of 12 months. That order was made until 28 September, then further extended by Gwynneth Knowles J until this hearing. The form of order giving details about the committal order was repeated in the Court of Appeal on 22 November 2017, with an addition recording the dismissal of the application by Ms Root for permission to appeal.
- When the matter first came before me on 26 February I was concerned that the reporting restrictions order had been made without any notice to the press, as required by paragraph 8 of the Practice Direction. I directed the Local Authority to give the press notice that afternoon, which was done and directed the press should be given notice of the date of the judgment when the reporting restriction order would be further considered. That was done on 14 March 2018. The press did not attend on 27 February, Mr Farmer (Press Association) did attend today.
- The Committal Practice Direction refers only to giving the press notice of any hearing and details of the nature of the proposed derogation from the hearing taking place in public. The requirements of Practice Note 'Applications for Reporting Restriction Orders' dated 18 March 2005 and Practice Direction 12I Family Procedure Rules 2010 require not only notice to be given but also for the applicant to serve a Part 8 claim, statement in support, draft order and an explanatory note. Whilst that is not specifically required by the Committal Practice Direction my view, subject to any further representations made from the parties, is that must be done. In addition, it is crucial the press must be served with any order made, which does not appear to have happened here. Without that being done how could they be said to know about it? It is concerning that these basic procedural steps have not been done. In addition, prior to the order made by Gwynneth Knowles J there has been no penal notice attached to any order.
- Turning to the merits of the order continuing, at least in the interim until the current committal application can be listed to be heard. In balancing the Art 10 rights of the press I recognise the importance of the press being able to report applications to commit for contempt of court as they involve the liberty of the subject and the relevant Practice Direction and Guidance make it very clear this is expected to be the position. The justification for interfering with that right is the fact that there is an order preventing Ms Root publishing any information about the care proceedings. As the alleged breaches that found the application to commit involve consideration of material she has published about those proceedings if that was reported it would risk rendering that injunction meaningless. The Art 10 rights of Ms Root also need to be considered but for the reasons outlined above in relation to the injunction interference in those rights are justified for the same reasons. The Art 8 rights of the children remain as set out in relation to the injunction, as does the analysis of the justification for interference with them. Whilst the Art 10 rights of the press add a further dimension of those rights at this stage and in the absence of further argument it does not significantly change the analysis of the competing rights however the position is far from straightforward. In considering proportionality it is relevant to recognise that the public notice gives some information and, subject to any further representations, the judgments given by HHJ Polden in relation to the findings and sentence within the committal proceedings are required by the relevant practice directions and guidance to be put on Bailli. The difficult issue is whether they should be in their current anonymised form.
- Therefore having balanced the competing rights, in particular having regard to s 12(4) HRA, I am satisfied at this stage there should continue to be an order preventing the publication of information that will identify Ms Root as being the subject of committal proceedings other than the information set out in the orders of HHJ Polden dated 17 July and 30 August and the Court of Appeal dated 22 November 2017. This should be on the basis that (1) the Local Authority issue, file and serve on Ms Root and the press by 12 noon 20 March 2018 an application and a statement in support that complies with the 2005 Practice Direction (2) that a reporting restrictions order is made in the conventional form which has a penal notice attached and sets out clearly what has taken place and the press must be given liberty to apply to vary or discharge.