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Medway Council v Root (5)  EWHC 1299 (Fam) (11 May 2018)
 EWHC 1299 (Fam)
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This judgment was handed down in open court. The anonymity of the children 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of this judgment is also subject to a Reporting Restrictions Order made on 11.05.18 so that this judgment is not to be published: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 1299 (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: 10 and 11 May 2018
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Theis DBE:
- This matter concerns applications relating to injunctions prohibiting the publication of information concerning care proceedings started 8 years ago. They concerned two children, who are now both over 18 years. The Respondent to these applications is Ms Root, the children's mother.
- This hearing was listed by the order dated 15 March 2018 to consider three issues:
(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.
- The Local Authority are represented by Mr Elliott and Ms Root by Mr Dean. Mr Farmer, from the Press Association, has been present during most of this hearing. He informed the court there was no issue from his perspective regarding service of the application for an RRO, he had consulted with his manager, they did not intend to attend this hearing or make any written representations regarding the order that was being sought.
- With the agreement of counsel, I have dealt with the committal application first. I heard submissions from both counsel, no oral evidence was called by either party. Mr Dean did not wish to ask the Team Manager, who filed a statement in support of the application, any questions and Ms Root chose not to file any written evidence or give oral evidence.
- Counsel have been able to have some constructive discussions about the other two applications listed at this hearing, and the remaining issues between them are likely to be limited.
- The detailed background to these proceedings are set out in my judgment dated 15 March 2018. I will only set out such of the background as is necessary to determine the issues before me at this hearing.
- There is, regrettably, a long history to this matter. Ms Root has been involved in a campaign against those whom she regards as responsible for what she considers was the wrongful removal of her children from her care, including the Local Authority, who subsequently obtained care orders in relation to them, and the Local Authority, as well as the Family Court, whom she regards as responsible for the fact that she has had no direct contact with her children for several years.
- It was as a result of her conduct that the initial application for an injunction was made. HHJ Polden made an order in December 2011 (as amended in 2014) providing that Ms Root is 'prohibited 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…and shall not allow copies of the papers or details specific to the proceedings as set out within them to come into the possession of any unauthorised persons' ('the 2011 order'). The evidence that supported that order being made included allegations that Ms Root was distributing court papers from the care proceedings near the foster placement where the children lived.
- Between 2012 and 2016 Ms Root made several applications, each of which was refused:
(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.
- During 2014 and 2015 the Local Authority became increasingly aware of information relating to the care proceedings was being put on the internet by Ms Root.
- The Local Authority wrote to Ms Root and asked her to stop such publication of that information. Ms Root ignored that request and did not change her behaviour.
- In June 2016 the Local Authority issued a committal application with evidence in support setting out the distress Ms Root's behaviour was causing to the children, it was unsettling for their placements and reporting their express wish for her to cease putting information about them on the internet. The elder child wrote to the court setting out how upsetting the information Ms Root had put on the internet had been, and the adverse impact it had.
- The committal application took several months to be determined, due to a combination of factors including lack of court time and Ms Root's ill health. On 28 March 2017 the Local Authority issued a further committal application based on the breach of her undertaking in failing to remove material concerning her children, and in continuing to publish material arising from the care proceedings concerning her children.
- In July 2017 HHJ Polden dealt with the two committal applications and found the alleged breaches proved, namely 10 breaches of the injunction dated December 2011 and two breaches of the undertaking given by Ms Root in 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. On 30 August 2017 he sentenced Ms Root to 6 months' imprisonment, suspended for 12 months on condition she complied with the terms of his order made in December 2011.
- On 30 August 2017 HHJ Polden transferred the issue of any ongoing reporting restriction orders in relation to the committal hearing to a High Court Judge and in the interim he followed the Practice Direction: Committal for Contempt of Court dated 26 March 2015 (paragraph 13) 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. '
- In September 2017 Ms Root appealed the findings made by HHJ Polden.
- On 28 September 2017 the matter came before Gwynneth Knowles J, she made directions leading to the two-day hearing before me in February. She continued the injunction against Ms Root with a penal notice attached and extended the reporting restrictions order made on 12 December 2016. The relevant parts of her order are as follows ('the 2017 order'):
'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…'
- On 22 November 2017 Ms Root's appeal was considered by McCombe and McFarlane LJJ. As before, she was reminded of her right to legal representation, which, according to Mr Elliott, she declined preferring the hearing to proceed. Her appeal was dismissed, 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 and was listed before me for directions on 26 February. On the first day of that hearing I directed the Local Authority to give 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. I gave directions on the committal application on 27 February. Ms Root said she wished to make enquiries about legal representation in relation to the committal application. Mr Elliott helpfully gave her the name of solicitors near to her home. The court was informed on 12 March she was going to be represented on 15 March by Sternberg Reed, who instructed Mr Dean to attend that day.
- On the morning of 26 February, Ms Root filed a skeleton argument and a statement. I heard oral evidence from 3 witnesses called by the Local Authority in relation to the applications to continue the injunction preventing Ms Root from publishing information about the care proceedings, a RRO and the application for non-molestation orders.
- I reserved judgment until 15 March 2018. Ms Root's statement prepared for the March hearing raised several matters that had been previously determined by HHJ Polden. I dealt with those matters in the judgment given on that day. I made a further injunction order until the younger child was 25, a non-molestation order in favour of the older child and an interim RRO pending this hearing.
- The directions in the committal application provided for an amended committal application to be served. On 15 March I directed (i) the deletion of a number of alleged breaches from the committal application on the basis that Mr Elliott conceded they related to alleged breaches of orders that did not have a penal notice on them; (ii) personal service on Ms Root of the amended application by 20 March; (iii) the amended application would detail the remaining breaches cross referenced to the evidence and how it is said they breach any orders, and other directions leading up to this hearing.
- The Local Authority accept they failed to comply with those directions. They were 7 days late in serving the amended committal application, they did not personally serve Ms Root, as directed, instead they served the application by post and email. The Local Authority failed to comply with directions regarding the service of the bundle and the filing of their skeleton arguments and authorities, both of which were filed late.
Application to Strike Out
- After Mr Elliott had set out the details of the committal application I heard argument from Mr Dean on the application dated 3 May 2018 to strike out the committal application. He relied on the following procedural defects:
(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.
- Mr Dean accepted the court has a discretion whether to grant an application to strike out. He referred me to the relevant provisions in Part 37 Family Procedure Rules 2010 (FPR), in particular r 37.10(5) and the relevant Practice Direction paragraphs 13.1 (3), 13.2 and 13.3. His arguments can be summarised as follows:
(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.
- Mr Elliott accepted the factual matters relied upon by Mr Dean in support of his application, he candidly acknowledged wholesale non-compliance by the Local Authority with the March order. Whilst acknowledging that he submitted in exercising its discretion the court should not lose sight of the vulnerable young people who are sought to be protected by these orders. He submitted the important matter for the court to consider is whether there is any injustice to Ms Root caused by the procedural failures, or unfairness to her. The court has a discretion to waive defects where no injustice or unfairness was caused. In the circumstances of this case the alleged breaches were the same as in the original application (although in a different order). The adding back in of two breaches that had been directed to be deleted has to be seen in the context where the March order gave the Local Authority permission to amend the application, one related to a matter Ms Root had been found to have breached previously and the other was another example of a breach relating to the same facts that underpin other breaches that remain in the application and he had wrongly conceded they related to orders which had no penal notice attached.
- After hearing submissions, I informed the parties of my conclusion to refuse the application to strike out the amended committal application but permit the application to strike out breaches 1 and 2 in the amended committal application. I reached that conclusion for the following reasons:
(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 committal application therefore proceeded based on breaches 3 – 8 of the amended application dated 23 March 2018. They are set out below. In his submissions, Mr Dean confirmed Ms Root accepted she posted the material detailed in the breaches and that she had control of the relevant Facebook pages. The issues turn on whether the material has breached the orders in question to the required standard of proof.
The Relevant Legal Framework
- There is no dispute between the parties as to the relevant legal framework when considering applications for committal. The application is founded in the disobedience of the respective orders. The burden of proof is on the Local Authority to establish each of the breaches it relies on in respect of each order it is said to contravene to the required criminal standard, namely that I must be sure. The terms of the order must be clear on its face as to precisely what it means and what it prohibits or requires to be done. Any ambiguity is likely to result in the contempt not being established to the required standard.
The Alleged Breaches
- The alleged breaches are as follows, as set out in the amended application dated 23 March 2018:
(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
- Ms Root accepts that Breaches 3, 4 and 8 contravene the 2017 order.
- The submissions by Mr Dean that the recording of Ms Root in Breaches 3, 4 and 6 do not contravene 2011 order are on three grounds:
(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.
- Turning to Breach 5, which was Ms Root's post about her forthcoming appeal. The question is whether the information in that post includes any 'details relating to those [public law] proceedings' which the 2017 order prohibited Ms Root from publishing. In that post Ms Root refers to the care proceedings, that she had not seen her children and her view is they were illegally removed and kept from her. Mr Dean submits these are inchoate thoughts about her forthcoming appeal and were not part of any proceedings. Mr Elliott submits the information in the post relates to points made by Ms Root in the proceedings, as detailed in one of her statements. In my judgment, this post is a breach of the 2017 order as it publishes 'details relating to those proceedings'. The post refers to the care proceedings and details relating to them, for example contact.
- Mr Dean also took issue as to whether Breach 6 contravened the 2017 order. Mr Dean submitted there was insufficient information in the record of the contents of that recording to establish the connection with what was reported to be said as being 'details relating to those proceedings'. The court was not able to view the recording as it had been removed from Facebook. The actual proceedings were not mentioned and what was described could equally have related to the exercise by the Local Authority of its functions. Mr Elliott drew attention to what was in the judgment and said it clearly did relate to the proceedings. I am persuaded by Mr Dean's submissions; the court can only look at the evidence available, in particular the note of the recording. What is set out there is not expressly said to relate to the proceedings.
- Breach 7 is limited to the content of the post which refers to the Local Authority terminating Ms Root's contact illegally and a 'final hearing in September 2014'. Mr Dean submits this does not provide any obvious connection with the public law proceedings as required by the 2017 order. Mr Elliott submits it can only relate to the original care proceedings and the hearing before HHJ Scarratt in September. I accept Mr Dean's submission that there is insufficient connection in the content of the post to the public law proceedings which means the court can't be satisfied to the required standard that it publishes 'details relating to those proceedings'. I therefore do not find Breach 7 proved.
- Turning, finally, to Breach 8 and whether it contravenes the 2011 order, Mr Dean accepts it breaches the 2017 order. Mr Elliott accepts he cannot prove that the documents posted are court papers but submits that the references in the detailed post from Ms Root to the psychologist and the police officers can only relate to details from the court papers, as they each filed evidence within the public law proceedings. This, he submits, is clear when considered with the content of the judgment at the time the care order was made. Mr Dean submits it is difficult to make that connection to the required standard to come within the terms of the 2011 order. I agree with Mr Dean's submissions the actual content of the post on 31 January 2018 does not specifically refer to details connected to the court papers.
- Therefore, I do not find established to the required standard any breaches of the 2011 order but do find established Breach 5 contravenes the 2017 order. This is in addition to the agreed breaches of the 2017 order by Breaches 3, 4 and 8. In summary, the following breaches of the 2017 order are established:
(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.
- I have considered carefully the mitigation by Mr Dean on behalf of Ms Root. He set out her personal circumstances, which have changed little since the position described by HHJ Polden in August last year. She remains living with her eldest child who is reliant on her for accommodation (which is in her name) and she is reliant on her child for financial support.
- Turning to the breaches she has admitted, and the one the court found established. He does not seek to excuse her behavior, but explains it in the context of having exhausted her rights of challenge to the order through the courts she turned to social media. She took this action as she believes the care orders are wrong and she experiences ongoing distress at the loss of her children, as she believes they do as a result of losing her.
- It is right that, as a result of my findings, there is no breach of the 2011 order, as a consequence the suspended committal order is not activated.
- I have considered the following matters:
(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.
- In considering what sentence is appropriate I remind myself that sentencing in these circumstances is twofold; to mark disapproval of the disobedience of the court order and to secure future compliance with the order.
- It is clear from the information the court has that the children remain distressed by their mother's actions and continued posting of personal material about them is not something they want to continue. The history of the case makes it clear Ms Root has repeatedly disregarded orders made by the court, Breach 3 occurred only 9 days after the last committal hearing. Breach 4 was only a short period after the hearing before Gwynneth Knowles J. However, I do recognise the recent reduction in material and hope that position continues, and Ms Root removes any remaining material.
- In all the circumstances I have concluded that considering the background and repeated breaches only a custodial sentence is appropriate. I impose a 6 month prison sentence in relation to each of Breaches 3 and 4, to run concurrently, and a 3 month prison sentence in relation to each of Breaches 5 and 8, to run concurrently. The total sentence is therefore 6 months. I have given careful consideration as to whether that sentence can be suspended. Bearing in mind the recent reduction in material on line I am persuaded by Mr Dean that it's the right course to take, and I will therefore suspend that sentence for a period of 12 months, on condition Ms Root complies with the injunction order made today. I will discharge the suspended committal order made by HHJ Polden.
- I make it clear to Ms Root that this is probably the final opportunity she will have to comply with the order without being at serious risk of an immediate custodial sentence if further breaches are found proved. This is not what anyone wants, and it is in Ms Root's hands to ensure that doesn't happen.
- Finally, it is important to stress that the order preventing Ms Root from publishing material relating to the care proceedings remains in force. No matter how strongly she may feel about the circumstances relating to her children she should be in no doubt that if there is any further repeat of the conduct which has led to the findings in this case Ms Root is liable to be brought back before the court again, and if further breaches are proved she is at risk of an immediate custodial sentence.
Publication of the Committal Judgments
- No party seeks to suggest the judgments should be not published and put on BAILII. The parties have been able to agree suitable anonymisation to protect the children, prevent their identification and the rubric which will be the subject of approval by the court. That position accords with the very clear guidance to the courts set out in the relevant Practice Direction dated 26 March 2015 that requires committal judgments to be published (see paragraphs 13 and 14). Paragraph 14 provides:
'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.
- There was an issue about whether the Local Authority should be identified. I concluded it should be as there was (i) already some material that identified them in the public domain; (ii) other material was also available to give the regional location where the Local Authority are based; (iii) I have made some criticism of the actions of the Local Authority and there is a legitimate public interest for them to be identified in such circumstances.
- Whilst the 15 March judgment does not deal with the committal application, other than by giving directions, it was agreed that when looking at the criteria set out in the Guidance issued in 2014 Practice Guidance (Family Courts: Transparency)  1 WLR 230 ("the Practice Guidance") issued by Sir James Munby P in relation to the publication of judgments in family courts and the Court of Protection the March judgment falls into the first category identified in that Guidance, and should be published unless there are 'compelling reasons' not to do so. No one advances any such reasons. The relevant anonymisation of the judgment will ensure only those details necessary to be in the public domain will be so.
- The rubric on each of these judgments will make specific reference to the need for the children not to be identified and the fact there is a reporting restriction order.
- The court undertook the relevant balancing exercise in the judgment dated 15 March 2018. No party, nor Mr Farmer, has sought for that balancing exercise to be re-visited. The RRO has been amended to ensure that the publication of the committal judgment and the March 2018 ensure the children who were the subject of the care application are not identified.