Strand, London, WC2A 2LL
B e f o r e :
| Medway Council
|- and -
|Sara Jayne Root
Mr William Dean (instructed by Sternberg Reed) for the Respondent
Hearing dates: 10 and 11 May 2018
Crown Copyright ©
Mrs Justice Theis DBE:
(1) The Local Authority's committal application where they allege Ms Root is in contempt of court as she has breached orders made in December 2011 by HHJ Polden and a further order on 28 September 2017 by Gwynneth Knowles J. The application was issued in February 2018 and amended on 23 March 2018.
(2) The continuation of the Reporting Restrictions Order ('RRO') dated 15 March 2018 which prevented the reporting of the applications that were considered at the hearing on 15 March 2018 and the committal application determined by HHJ Polden on 30 August 2017.
(3) The publication of the judgments of HHJ Polden dated 17 and 18 July 2017, 30 August 2017, the judgment of this court on 15 March 2018 and any judgment following this hearing.
(1) Application to discharge the care orders, dismissed by HHJ Cameron in March 2012.
(2) Application for permission to appeal that order, refused by Munby LJ (as he then was) on 3 October 2012.
(3) 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.
(4) Second application to discharge the care orders, refused by HHJ Cameron on 10 September 2013.
(5) Permission to appeal that order was refused by McFarlane LJ on 20 January 2014.
(6) Second application to discharge the injunction 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).
(7) Application for contact to the children was refused by HHJ Scarratt on 11 September 2014, when orders were made under s 34(4) giving the Local Authority permission to refuse contact and an order under s91 (14) Children Act 1989 was made to last until 20 November 2016.
(8) Application for 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.
'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. '
'The Respondent mother is prohibited whether by herself or by encouraging others from making any publication of court papers in all of the public law proceedings relating to her children or from publishing any details relating to those proceedings. For the avoidance of doubt such proceedings include the following case numbers…'
'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.'
Application to Strike Out
(1) Failure to personally serve the amended application on Ms Root as directed by paragraph 2 of the order dated 15 March 2018, which required it to be served by 12 noon 20 March 2018. Service was attempted on 27 March when Ms Root was not present. The documents were posted on 31 March 2018 and signed for on 3 April 2018.
(2) The application had not been amended in accordance with the terms of the order dated 15 March 2018. That order provided for breaches 1,2,3,4,5,6 and 7A to be deleted, in the amended application breaches 5 and 7A of the original breaches remain (albeit renumbered as 1 and 2).
(3) The failure by the Local Authority to comply with the direction to agree and lodge a bundle and file a skeleton argument within the times directed in the March order.
(1) The provision for deletion of the breaches in the March order was in the context of an application to strike out made orally at that hearing by Mr Dean due to the procedural defects. I determined the committal application should be allowed to proceed on the amended basis provided for.
(2) Both the FPR and the March order provide for the application to be served personally. That was not done and no application to dispense with personal service had been made. Mr Dean accepted that Ms Root had the application by 27 March 2018, when she had her conference with him. To dispense with such service the court needs to carefully consider, in the context of the case, whether it is just to do so. The purpose of personal service is so the Respondent knows what the application consists of, it is different to the application she had seen previously.
(3) The court needs to consider the wider circumstances of this case, including the extent of the breaches by the Local Authority, and the failure by them to seek to regularise them.
(1) Whilst the Local Authority's behaviour in failing to comply with the March order is inexcusable and wholly unjustified I need to consider whether those actions have caused injustice or unfairness to Ms Root.
(2) In the circumstances of this case I do not consider they do as it is accepted she had the amended application by 27 March, some 6 weeks before this hearing. I bear in mind Mr Dean did not seek any adjournment or further time to consider documents and material that had been filed late.
(3) Whilst I do balance the gravity of these proceedings for Ms Root, her difficult relationship with the Local Authority and the overriding objective in the FPR I am satisfied the court should exercise its discretion and refuse her application to strike out the committal application as I am satisfied there has been no injustice or unfairness to her.
(4) However, I consider the position is different in relation to breaches 1 and 2 in the amended committal application. After hearing argument in March, the order provided for those breaches to be deleted and the 'remaining' ones to be part of the amended committal application. Ms Root was entitled to proceed on the basis they would not be included, no application was made for them to be included in the amended committal application and I consider, in the circumstances, they should be struck out.
The Relevant Legal Framework
The Alleged Breaches
(1) Breach 3: This relates to a 15 minute recording of Ms Root put on Facebook by her on 29 August 2017 where she reads out the contents of a letter she had written to HHJ Polden in March 2017. She makes numerous references to the care proceedings. This breach relies on the sharing of that video on Ms Root's Facebook on 8 September 2017.
The Local Authority submit this recording breaches both the 2011 and the 2017 order in that Ms Root has allowed details specific to the proceedings as set out within the court papers to come into the possession of any unauthorised person (2011 order) and has published details relating to the public law proceedings (2017 order).
Mr Dean accepts this recording breaches the terms of the 2017 order by, for example, Ms Root referring to the affidavit evidence of the allocated social worker as that amounts to 'any details relating to those proceedings' as provided for in that order. He does not accept it is a breach of the 2011 order, the relevant part reads as follows, Ms Root '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 person'. He submits the Local Authority have not established the link to the required standard that the information in the recording are 'details specific to the proceedings as set out within them [the court papers]'. There are references to information but not the link to them being in the court papers. In addition, he submits that the phrase 'to come into possession' implies physicality or control, rather than someone watching something. He submits this is supported by the fact that the evidential basis for the 2011 order was the distribution of hard copy court papers. Finally, he submits there is ambiguity about what is meant by an 'unauthorised person'.
Mr Elliott responded that the link is established by the details in the judgment given at the time the care order was made, and that 'possession' is not limited to physical possession so a person watching the recording could be said to come into possession of the details as set out in the 2011 order.
(2) Breach 4: Ms Root has another Facebook page specifically devoted to her campaign: 'Stop UK Social Services from Snatching Children from Innocent Parents Now'. The recording in Breach 3 appeared on this page on 15 October 2017 and then again on 15 November 2017. For the same reasons set out above the Local Authority contend that sharing the recording amounts to further publication and a further breach of the orders. It can be seen from the original post that this recording has been watched 8,700 times and shared 2,431 times. Mr Dean makes the same submissions as he did in relation to Breach 3, he accepts it is a breach of the 2017 order, but not the 2011 order.
(3) Breach 5: On 19 October 2017 Ms Root published on 'Stop UK Social Services from Snatching Children from Innocent Parents Now' Facebook page the details of her forthcoming appeal hearing on 22 November 2017. In the post she refers to the Local Authority applying for an injunction after the conclusion of the care proceedings, she has not seen her children and that they were removed from her care.
The Local Authority submit this is a breach of the 2017 order, which prohibited her from publishing 'any details in relation to the proceedings'.
Mr Dean submits this post does not amount to a breach of the 2017 order as they are only inchoate arguments relating to the forthcoming appeal and are not details 'relating to those [care] proceedings'. They had not been delivered so are not part of the proceedings.
(4) Breach 6: On 11 December 2017 Ms Root 'went live' on Facebook in a recording that lasted over 3 minutes. She sets out the names and dates of birth of the children, when they were removed, naming the police officers and the address and name of one of the foster carers. She refers to issues concerning her own health which she doesn't accept. The recording is no longer available, but the content is summarised in the statement from the Team Manager.
The Local Authority submit this is a breach of the 2011 and the 2017 order as it refers to the circumstances surrounding the children's removal from Ms Root's care in 2010, the details of former foster carers, and one of the central issues in the care proceedings, Ms Root's mental health.
Mr Dean does not accept this breaches either the 2011 or 2017 order. In relation to the 2011 order, he repeats his submissions made in relation to Breach 3. In relation to the 2017 order he submits the Local Authority have failed to establish the connection between what is said are 'details relating to those proceedings'. They could equally apply to the Local Authority exercising its functions as a public authority. The reference to the police officers and the removal of the children was prior to the proceedings being commenced.
In his response Mr Elliott drew the court's attention to the judgment when the court made care orders. He submits it is clear from the references in the judgment to the conditions of the family home, the circumstances of removal and Ms Root's mental health that these were all details that related to those proceedings.
(5) Breach 7: On 30 January 2018 Ms Root shared a 'memory' which was a post from 18 January 2016 where she exhibited a letter from her previous solicitors and in the post accused the Local Authority of denying her contact with the children and referred to a hearing in 2014.
Mr Elliott accepts the letter does not amount to a breach as there is no evidence it was filed in the care proceedings, but he does rely on the content of the post as being in breach of the 2017 order. It publishes details relating to the care proceedings in that it refers to a court hearing and issues concerning contact which related to the proceedings, as detailed in the judgment at the time of the care order.
Mr Dean submits there is no specific reference to the care proceedings in the text of the post, there are generalised references to contact and what the obligations of the Local Authority are under the Children Act. He submits that does not establish a breach of the 2017 order to the required standard.
(6) Breach 8: On 31 January 2018 Ms Root published a lengthy post on her Facebook making references to the court hearings and the evidence relied upon by the Local Authority. She also attached copies of minutes from two meetings. The Local Authority accept there is no evidence that those documents were filed in the care proceedings.
Mr Elliott submits this content of the post amounts to a breach of the 2011 and the 2017 orders.
Mr Dean accepts the post is a breach of the 2017 order but does not accept it is a breach of the 2011 order as there is insufficient material for the court to be satisfied that the content of the post relates to the contents of the court papers.
In response Mr Elliott submitted the details in the post clearly related to what was in the court papers when considered with the judgment when the care orders were made as, for example, the psychologists named by Ms Root was an expert in the care proceedings.
Discussion and Decision on Committal Application
(a) First, they do not provide details specific to the proceedings as set out in the court papers, as the Local Authority have failed to establish the link between what was said and the content of the court papers. In relation to Breaches 3 and 4 that, in my judgment, is difficult to sustain when there is a direct reference by Ms Root to the contents of the affidavit of the social worker and I therefore reject that submission. That detail is not apparent from the summary of the recording in relation to Breach 6 and I accept Mr Dean's submissions in that respect.
(b) Second, Mr Dean submits that the phrase 'come into the possession of' denotes some physicality or control and does not lend itself to information heard in a recording. It is distinct from, for example, coming into the knowledge of. This is supported, he submits, when the evidence that supported the 2011 order is considered, which was the distribution of hard copy court papers. He submits it is at least ambiguous and in those circumstances the benefit of that doubt should be in favour of Ms Root. Mr Elliott submits coming 'into the possession of' a person can include someone watching a video which results in them coming into possession of that information. In my judgment, in the context in which the original injunction was sought, it is far from clear, as it needs to be, that 'come into possession' included words spoken rather than documents. That uncertainly is supported by the evidence at that time which focused on hard copy court papers. In those circumstances, I am not satisfied to the required standard that Breaches 3, 4 and 6 contravene the 2011 order.
(c) In those circumstances, it is not necessary for me to consider Mr Dean's submissions about any uncertainty about who is an 'unauthorised person' in the 2011 order.
(1) Breach 3: On 8 September 2017 Ms Root shared a recording of herself on her Facebook in which she published details relating to the public law proceedings relating to her children by referring to an affidavit of the allocated social worker.
(2) Breach 4: On 15 October 2017 and 15 November 2017 Ms Root shared a recording of herself in which she published details relating to the public law proceedings relating to her children by referring to an affidavit of the allocated social worker.
(3) Breach 5: On 19 October 2017 Ms Root put a post on Facebook where she published details relating to the public law proceedings relating to her children by referring to the care proceedings being concluded, that she had not seen the children and they had been illegally removed from her.
(4) Breach 8: On 31 January 2018 Ms Root put a post on her Facebook where she published details relating to the public law proceedings relating to her children by, for example, referring to the circumstances of the children's removal from her care and her contact with them.
(1) Breaches 3 and 4 are more serious. They represent an escalation from the previous breaches found by HHJ Polden in that they involve a detailed recording which was shared only days after the hearing before Judge Polden on 30 August 2017.
(2) Breaches 5 and 8 are less serious. Breach 5 gives limited reference to the proceedings and whilst the post in Breach 8 is more detailed it remains in a category less serious that the recording.
(3) Whilst I take into account that there have been no recent postings and much of the material has been removed, I am told out of respect for this court, I can't ignore the continued sharing of the recording that forms Breaches 3 and 4.
(4) Mr Elliott has made it clear, whilst recognising sentence is a matter for the court, the Local Authority do not support an immediate custodial sentence. They regard the recent removal of material as a positive step and do not doubt Ms Root's sincerity. They also draw the court's attention to the way she has conducted herself throughout these proceedings, as before. She has always attended court and conducted herself with admirable clarity.
(5) Whilst there has been no breach of the previous suspended sentence it is a relevant factor to bear in mind.
Publication of the Committal Judgments
'In addition to the requirements at paragraph 13, the court shall, in respect of all committal decisions, also either produce a written judgment setting out is reasons or ensure that any oral judgment is transcribed…'
Paragraph 15 requires the judgment to be sent to the parties, the media and put up on BAILII.