England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/11/2023

The hearing was conducted by Microsoft Teams

Mrs Justice Judd :

1. This is an application by three members of the press, namely Simon Israel, Hannah Summers and Suzanne Martin for permission to report details of these private law proceedings. The parties in the proceedings broadly agree there should be reporting although there is some difference between them as to the precise details and levels of anonymisation.

The background

2. This has been a very long running case indeed, and I will attempt to summarise it as best I can from the documents in the bundle. The parties were married but separated only a few months after the child, A, was born. In order to protect her identity I have not revealed her age. There has been litigation about her for most of her life.
3. Shortly after the separation it appears that the father sought shared residence stating that the mother had been intimidating to him and frustrated contact. For her part the mother sought sole residence stating that the father drank excessively, lacked maturity and had been abusive and threatening. She also stated that he did not prepare the child's food properly and for this and other reasons should go to parenting classes. Contact orders were made but within months there were committal proceedings (which followed hearings in the interim where defined orders were made, and penal notices attached).
4. In 2013 there was a contested committal application before His Honour Judge Plunkett. He found, applying the criminal standard of proof, that the mother had breached contact orders without reasonable excuse. In the judgment it was recorded that the mother gave a number of reasons for contact not going ahead, including that the father was not displaying a 'P' plate on his car (the judge found that he was not obliged to do so), that her car had broken down (the judge found that the mother had had ample time to call the father to make other arrangements for the pick-up, and that it 'spoke volumes' about her attitude to contact that she did not do so), and that her car was vandalised outside the home of one of the father's relatives and she could not drive it (the judge found that it was 'entirely practical' for the mother to make other arrangements as she had been provided with another car by that relative, and that she did not telephone the father). Overall, the judge found that the mother repeatedly tried to undermine or unilaterally change court orders. He said he took her unjustified breaches of court orders seriously and made a committal order for 14 days, suspended for 18 months.
5. In 2014 a shared residence order was made on the basis that A was to spend 5 nights a fortnight with the father and the rest of the time with the mother. At the end of that year the mother made a complaint to the police that the father's partner had smacked A in front of the father. The police did not take any further action and there was no finding of fact hearing with respect to this. It is recorded on the face of a court order that there was no mark or bruise and that the court took the view that, if the smack took place, it was no more than a minor incident. An application by the father to commit the mother to prison was dismissed because it was clear the mother was acting on police advice to stop the contact.
6. Things became quiet between late 2015 and late 2017. There was an assessment from social services in 2015. The chronology in the bundle suggests that the mother told the social worker that the father's partner had thrown A's doll in the bin and shut her in her room. It appears that the assessment recommended an Action Plan in which A was to be offered some nurture sessions and a routine was recommended whereby A was permitted to see her mother and father, and also permitted to express her likes and dislikes.
7. In June 2017 it appears there were some discussions about mid-week contact with the father as the mother was concerned that A suffered from extreme car sickness. Shortly after this the father made another application to court, alleging that the mother had changed the child's school and surname without his consent. The court ordered the shared care arrangement was to continue but with overnight contact now 3 nights a fortnight. The following year the father applied to court again alleging that the mother was about to change A's school. At the final hearing of that application in 2018 there were recitals in which the mother stated that she was not moving from the area and would consult the father about medical matters and schooling too.
8. In mid 2019 the mother contacted the police stating that she wished to speak to someone about coercive control/abuse. She said that the father had moved to within two miles of her home which made her feel intimated and uncomfortable and that this was having a huge effect on her day-to-day living. She also stated that the father's wife's family had moved to live next to her workplace making her frightened to go out. She said that this had all happened without her being informed. She said that she had suffered during the relationship, but this was before the behaviour such as that demonstrated by the father had been recognised as coercive. She said that the father's wife had been investigated for hitting their child and her (the mother's) car had been smashed up outside the father's grandmother's house, but she could not prove it was the father.
9. The mother also stated that she had left her job and sold her house to go back to her home town, that the father had isolated her from her family and that he nearly got her sent to prison for breaking a court order.
10. In the police log it is stated that the mother told the officer that she felt she could not do day to day tasks any longer without looking over her shoulder and so she had made a decision to move to a location some distance away. She had found a new property and given her notice in at work. The police officer is recorded as advising the mother to seek legal advice but that she could not see why she could not move 'provided the terms of the contact order are complied with'.
11. A month later A was refusing to be collected by her father. She stated that she had been shouted at by her stepmother for not eating her breakfast quickly enough and putting on the wrong socks. The mother made another referral to the police, saying that A was being emotionally abused and was suffering. A made these allegations to her teachers. The father lacked some trust in the school as the mother was employed there.
12. The mother then moved home over two hours' drive away without telling the father until afterwards. This meant there had to be a move of school. She said she had moved because there were safeguarding issues and A was frightened of the father.
13. The father restored the matter to court seeking a residence order. There was a contested interim hearing before Her Honour Judge Clayton. She heard evidence from both of the parties. The judge ordered that A should move to live with her father so that she could continue to attend the same school until the court had time to consider the issue further. She ordered that A should have contact with the mother on Saturdays. She found the mother to be an unconvincing witness and that she had discussed the proceedings with A. She also recorded that the mother had alleged the father was coercively controlling but that she had not given any specific examples. The judge found the father to be calm, sensible and rational.
14. The judge ordered a full report from Cafcass and adjourned the proceedings. The mother appealed the decision. In the meantime, A moved to live with her father. The mother made another complaint to the police that the father had intimidated the mother by standing outside the venue for contact and filming the mother, and also by driving after her in his car. A told staff at school that she was missing her mother, and she was said to be seeking support from the adults.
15. The Cafcass Officer found that A appeared happy and full of smiles at her father's home. A told her, however, that she wished to live with her mother and that her father would go to jail.
16. At the next hearing A was joined to the proceedings and a Guardian appointed. Contact to the mother was increased but A remained living with the father. In December 2019 the mother's application for permission to appeal the order changing residence was refused by Gwynneth Knowles J and certified as totally without merit. In giving reasons for her decision, Knowles J found that if the judge was anxious to maintain the status quo she had little choice other than to place A with her father pending an investigation by Cafcass as the mother had already moved away from the area. She found the trial judge to have approached her task carefully.
17. At the next hearing the judge made further orders as to interim contact and also ordered the parties to file schedules of allegations that each of them was making against the other in order for the court to decide whether there needed to be a fact-finding hearing. The next hearing was listed for February 2020.
18. A spend some time with her mother over the Christmas period. Just after New Year 2020 they were to spend the day together. The mother texted the father during the day to say she would be delayed returning and then later that evening to say she was having a holiday with A. In fact, she had taken A to the Turkish Republic of Northern Cyprus where she has remained ever since.

Events since the abduction

19. Once the abduction had taken place the father reported it to the police. The family proceedings were transferred to the High Court. There were three early hearings before His Honour Judge Rowlands sitting as a section 9 judge. The first hearing was without notice to the mother. A was made a ward of court and has remained so. The mother was ordered to return A to the jurisdiction forthwith. A Guardian was appointed. The second hearing took place two weeks later, also said to be without notice because the mother had not complied with the order (I simply recite what is recorded on the face of the order). There was an order for A's return, and the mother was ordered to attend the next hearing in a further two weeks' time. A third order recorded much the same thing. The orders all record that they were made without notice to the mother, but this seems to be inconsistent with other parts of the order.
20. A fourth hearing took place where it was recorded that the mother was aware of the hearing because she had been informed through court proceedings that the father had commenced in the TRNC.
21. The matter was then transferred to me, and since then there have been many hearings in which orders have been made directing the mother to return A to the jurisdiction. There were also orders made freezing her bank account in the UK. The mother only attended one hearing ( the latest one) and remotely, although she was fully aware of the proceedings here (albeit there were difficulties in ascertaining her postal address in the TRNC). On one further occasion she was represented by Dr. Charlotte Proudman but the mother herself did not appear, saying she had work commitments. At that hearing Dr. Proudman informed the court that the mother would not return A to the jurisdiction despite court orders requiring her to do so. At all other times the mother has been neither present (either in person or remotely) or represented although she has provided statements for the court from time to time.
22. Numerous orders of the court have respectfully requested the authorities in the TRNC to assist by taking steps to secure A's return. This includes requesting the court there to decline jurisdiction save as to order A's immediate return here. The assistance of the Foreign and Commonwealth Office was sought, but there are limits to what can be done.
23. There were a significant number of hearings in 2020, when attempts were still being made to try and find out what was happening in the TRNC and to make enquiries about A's welfare. Progress was slow and dates for hearings appeared to be repeatedly adjourned. These reduced somewhat in 2021 and again in 2022. At each hearing a series of orders were made including directing A's return, and also continuing the freezing of the mother's bank account.
24. In May 2020 the mother filed a statement in which she alleged that A had made 'abhorrent' allegations of abuse against her father. She states that there is an abundance of evidence to support this. Further she said, 'I will not be returning to the UK as it is clear that my daughter [A] will never receive justice for the abuse she has been subjected to and she will not be safe whilst her father persists in presenting false information, hence misleading the courts and judges, all whilst denying the abuse he has caused her'.
25. The father has been represented pro bono by his solicitors and counsel for many hearings. They have done a great deal of work in this case for no remuneration and must be commended for the dedication they have shown in so doing. The Guardian was initially represented but legal aid was withdrawn in July 2022. It has now been reinstated, but this is likely to be temporary.
26. In August 2022 the mother filed a further statement reiterating what she had said previously. She complained that the police and authorities had failed to investigate extremely serious allegations of child abuse. It is worth saying at this point that the police have informed the mother and the court that they wish to investigate the allegations but to do so they state that A will need to be spoken to in person by specially trained officers. Either A would need to be returned to the UK or arrangements would need to be made with the Consular authorities in the Republic of Cyprus. The mother wishes A to be interviewed by video link from the TRNC.
27. In April 2023, I decided not to make a further return order as there was so little information about what was happening to A and the series of orders had not achieved anything so far. The mother had produced reports to say that A was doing well at school. In August, however, the father and Guardian applied for an urgent hearing as the Guardian was concerned that A had been removed from the school she had been attending, and the mother had left her job there too. The Guardian had also been in touch with social services who informed her that the school had made a referral to social services about A as it was not known where she was or where she was going to go to school. There was a concern that the mother and A would flee. The officer in the case was also present at that hearing and reiterated those concerns. In the circumstances I reinstated the return order.
28. The mother has since stated that she was given insufficient notice of that hearing, having only had notice and been sent the hearing link the day before when she had returned from holiday. In her most recent statement for this hearing, she stated that the Guardian and father's legal team had created a false narrative and misled the court. She accused them of fraudulently obtaining legal aid. She denied being missing at all and produced documents to show that social services had asked to visit her, that she had attended the police station in the TRNC, and that she had been in WhatsApp communication with the Guardian earlier in August. She said that social services had been removed from the court case in the TRNC due to causing secondary trauma to A which she said had been diagnosed by a lead child psychiatrist on the island. In her statement she produced photographs of A and said she was doing well and was mature, articulate and intelligent. Finally, she stated that, due to a protection order in the TRNC, no information was permitted to be shared with the UK. She said that A is old enough to have her own legal representation and made a number of requests for disclosure of documents and statements from the police, the father's place of work, court documents that she has not received, social services records and for the block on A's passport to be removed. She attached numerous documents to that statement.

The law

29. These proceedings did not arise within an area covered by the reporting pilot scheme which has been running since January 2023. Nonetheless, I am invited to make a Transparency Order along very much the same lines as has been developed in Leeds, Carlisle and Cardiff. In Re BR and Others [2023] EWFC 9 Poole J set out relevant extracts from the President's Guidance on the Reporting Pilot (RP), the European Convention on Human Rights and Fundamental Freedoms, Articles 8 and 10 (the right to respect for private and family life and the right to freedom of expression respectively), s12(4) Human Rights Act 1998, s 12 Administration of Justice Act 1960 and s97 Children Act 1989.
30. Since the judgment in Re BR and Others the Reporting Pilot appears to have been working well and it is currently proposed that it will be extended to other courts. As Sir Andrew McFarlane P stated in the Transparency Reporting Pilot Guidance issued in November 2022:

"My overall conclusion is that the time has come for accredited media representatives and legal bloggers to be able, not only to attend and observe family court hearings, but also to report publicly on what they see and hear. Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives. Openness and confidentiality are not irreconcilable, and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continuing confidentiality".

31. A key part of the reporting pilot is the maintenance of anonymity for children and family members. Subject to that (and unless ordered otherwise) accredited reporters are permitted to report on the proceedings themselves, including oral evidence and submissions, and to be provided with copies of written documents such as position statements, skeleton arguments and closing written submissions.
32. The template transparency order (TO) attached to the President's Guidance may be adapted to suit the case. The template TO provides that reporting may only be permitted once a particular hearing has been concluded and that the following information may not be reported:

"a. The name or date of birth of any subject child in the case;

b. The name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child(ren) being identified;

c. The name of any person who is a party to, or intervening in, the proceedings;

d. The address of any child or family member;

e. The name or address of any foster carer;

f. The school/hospital/placement name or address, or any identifying features of a school of the child;

g. Photographs or images of the child, their parents, carer or any other identifying person, or any of the locations specified above in conjunction with other information relating to the proceedings;

h. The names of any medical professional who is or has been treating any of the children or family member;

i. In cases involving alleged sexual abuse, the details of such alleged abuse;

j. Any other information likely to identify the child as a subject child or former subject child."

33. The template TO provides that unless the Court orders otherwise the following agencies or professionals may be named:

"a. The local authority/authorities involved in the proceedings.

b. The director and assistant director of Children's Services within the LA (but usually not the social workers working directly with the family, including the Team Manager, unless the Court so orders);

c. Senior personnel at Cafcass but not normally the Guardian named in the case.

d. Any NHS Trust;

e. Court appointed experts;

f. Legal representatives and judges;

g. Anyone else named in a published judgment."

34. The template TO does not overturn s 97 of the Children Act 1989 which provides, in relation to proceedings under that Act:

"(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—

(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates' court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b) an address or school as being that of a child involved in any such proceedings."

Contravention of these requirements is a criminal offence but by s 97(4):

"(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it and, in the case of the Lord Chancellor, if the Lord Chief Justice agrees, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order."

35. This has been held to mean, in both Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam) and Griffiths v Tickle [2021] EWHC 3365 that the court is permitted to dispense with the requirements of s97(2) if the Convention rights required it.
36. The leading case as to the balancing of competing rights pursuant to Articles 8 and 10 of the ECHR is Re S (A Child) [2004] UKHL 47, At paragraph [17] Lord Steyn said:

"The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] UKHL 2WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test".

The parties' respective cases

37. As I set out at the beginning of this judgment, all the parties to the wardship proceedings agreed that the court bundles in this case could be provided to the three journalists who have attended these hearings. All agreed that the journalists could quote and report from those documents including the Cafcass reports subject to the names of the parties, or any members of the family being kept anonymous.
38. This was not contentious, nor was a provision that the journalists should not disclose copies of the bundle to anyone else, save any lawyer instructed by them or, in the case of Ms Summers and Mr Israel, their editors.
39. All the parties are agreed that there is a public interest in the facts of this case being reported, given the background to the proceedings and the fact that the mother and child are now in the Turkish Republic of Northern Cyprus despite numerous orders for the mother to arrange a return. I understand that this mother is not alone in having travelled to the TRNC as a place where there are no reciprocal treaties with the United Kingdom.
40. Within that, each party has their own perspective. So far as the father is concerned, A was abducted from his care almost four years ago and since then he has barely been able to see her. He has spent time travelling to the TRNC to engage in legal proceedings there which have in practical terms achieved very little in terms of his application for A to be returned. He has also engaged in the legal proceedings here which have also had little practical effect. He has been unable to fund lawyers and has been represented without charge by counsel and solicitors for many hearings. The mother now makes very serious allegations against him indeed but will not return A to this jurisdiction for them to be investigated by the police or this court. The father is anxious to protect the privacy of himself and his family, but the provisions of the transparency order should be sufficient to do that. So far as A is concerned, he is anxious about the effect of publicity on her but has come to the view that as long as she is not named in any reporting, there will be some protection for her. Her mother has spoken about their situation to others in their community in the TRNC in any event.
41. As to the mother, she states that the family courts in this country have failed her and A, and that this led her to have no choice but to abduct A to the TRNC, a country with which the United Kingdom has no treaty or diplomatic relations. She makes complaints against the courts, Cafcass (including at least two Cafcass Officers), and the police. From her latest statement I deduce that she has had some disagreement with social services in the TRNC too. She wishes to identify the names of the professionals involved in the proceedings, including the police officer and Cafcass officers. She wishes to expose what she considers to be their malpractice and unlawful behaviour.
42. She considers that her story needs to be told, and informed the court that A's situation is well known within the community where they are living in the TRNC as there are other families in the same situation.
43. The Guardian has been very concerned indeed about A's welfare, being kept away from all of her family for so many years. It has been extremely difficult to engage the mother in these proceedings and certainly she has made it absolutely clear that she will not abide by court orders to return. The Guardian has spoken to some of the professionals involved with the family in the TRNC and this has added to the worries that she has. The Guardian believes that the community with whom the mother and A mix in the TRNC have been made aware of their situation, at least from the perspective of the mother. She has not been able to see or speak to A, and so her views about the effect on her of publicity are necessarily constrained. Nonetheless she believes that on balance publicity will at least highlight A's plight as a child who has been abducted in this way. The damage that has been done to her by the mother's actions is incalculable and her continued retention in the TRNC is making things worse. The mother and A should return so that the allegations can be fully investigated.
44. Ms Summers and Mr Israel are content with the standard terms of the template order for the pilot areas. They do not seek to name anyone or to give other identifying details. Nor do they seek to set out the details of the allegations of sexual abuse.
45. Ms Martin is content not to name any family members or give identifying details but she does ask to name the individual Cafcass and police officers. She said that the mother had contacted the police with allegations of coercive behaviour by the father, and before that, allegations against the father's partner, and that this was an important part of the history.
46. Ms Summers asked for any transparency order to be clear in its terms so that they are all aware as to what in particular cannot be reported. It is particularly important in this case because there is some possibility of jigsaw identification given the fact that the TRNC is a very small place. Under the pilot, and by analogy, the transparency order that will be made in this case, reporters, like everyone else will remain subject to.

My decision

47. I endorse the agreement that reporting of the proceedings should be permitted even though (unlike under the Transparency Pilot) the proceedings have not ended. Progress has been very slow, and it is impossible to say if or when there will be any resolution.
48. I also endorse the agreement of the father, Guardian and all three journalists present that the anonymity provisions of the template TO should be preserved so far as the identification of A and the parties is concerned. This is principally to protect the identity of A herself but also the identity of the father and his family. They all have a right to respect for their private and family lives, which would undoubtedly be affected not least by the fact that the mother makes very serious allegations against the father. The mother is not so concerned about her own privacy but of course any identification of her would undoubtedly lead to identification of A. The anonymity should not extend to the name of the state to which A was removed and where she and the mother are now living. Even though the identification of the TRNC will mean that those in the community there may be able to identify A as the subject of the reporting, it is a very significant feature of the case and a matter of some public importance. If and when A returns to this country it does not follow that people are likely to identify her here so she will still retain some privacy.
49. I then turn to the application by the mother supported by Ms Martin as to the naming of the Cafcass Guardians. This was raised during the hearing itself, and it is fair to say that I did not hear a great deal of argument about it, particularly from the father's team. Nor did I hear any argument from Cafcass. My conclusions are therefore to be taken as interim ones which will receive further consideration upon the request of any of the parties or the media.
50. There is undoubtedly a balance to be struck between the rights to freedom of expression under Article 10 and the right of the individuals concerned to respect for private and family life pursuant to Article 8. So far as the former is concerned, the proposed transparency order permits the publication of information about how the case is being dealt with by professionals including the police, Cafcass and the court. It permits the reporting of the mother's allegations against everyone. It permits the reporting of how she has put her case in her documents as well as the case put on behalf of the father and child, and the judgments and decisions of the court. It permits the reporting of the difficulties that arise when a child is abducted to a state with which the UK does not have diplomatic relations or reciprocal treaties.
51. The restriction is simply upon the identity of the individuals involved. When assessing what publication of the identities of the individuals would add to the debate, it is worth considering what the mother herself wishes to be published. So far as the first Guardian is concerned the mother has made very serious allegations against her which she maintains. She made a formal complaint to Cafcass about her shortly after the abduction in 2020. The letter from Cafcass responding to these is in the bundle, and it gives some details of the allegations the mother made. These included claims of dishonesty, misconduct in public office, fraud, and committing deliberate harmful acts to endanger a child. The mother also stated that the Guardian was to be exposed in the criminal court in a hope that she would never be permitted to work with children again. The letter records that the mother stated that she was aware of a number of complaints regarding her practice in which the Home Secretary and a number of MPs were heavily involved in. She said that she would pursue this 'relentlessly'.
52. None of the complaints were upheld and the mother was advised to challenge the conclusions of the Guardian in court if she considered that they were wrong. The mother has only attended one court hearing remotely since she removed A. As it happened the original Guardian withdrew from the case, and a new one was appointed. Nonetheless the mother has repeated the pattern and has made complaints about her. In her most recent statement, she suggests that the Guardian and the father's legal team have falsified documents and that they have breached a protective order made by the court in the TRNC. She also accuses various lawyers and the Guardian of misleading the court.
53. At this stage of the proceedings and on the basis of what I have heard and read so far, I do not consider the rights of the mother or any journalist to freedom of expression outweigh the rights of the individual Guardians to respect for their private and family life. The effect on the Guardians is likely to be disproportionate to the any advantage gained by others. I am concerned at this stage that the ability for anyone to name the individuals could lead to the mother using this to ventilate (to journalists or on social media) very serious and unproven allegations against them, even if the journalists themselves do not report in this way. Although they are professionals acting in that capacity, I am concerned that placing them in the spotlight in that way could be very difficult for them. It might impede the ability of the current Guardian to act in A's best interests in these proceedings.
54. These are my interim conclusions although they are reached without full argument.
55. The parties agreed that the police force could be named as Staffordshire. The mother and Ms Martin sought to name the individual police officer concerned. That officer did not have a chance to respond. I am not prepared in the meantime to permit the reporting of the officer's name, given all the circumstances of this case, and given the fact that the complaints against the police force generally can be reported.
56. There is one further matter. There have been ongoing criminal proceedings in relation to this case. The maternal grandfather has been prosecuted for a criminal offence relating to this matter, to which he has pleaded guilty and is awaiting sentence. To date his name has not been published. I am concerned about so called jigsaw identification if this happens. I recognise that there is a public interest in the reporting of criminal proceedings but if his identity is not protected therein it could lead straight to the identification of the child if the two cases are reported together. I will therefore require that, if publication of the grandfather's name is permitted by the Crown Court Judge, the matter should be referred to me as a matter of urgency for me to consider whether to make any further orders.
57. After this judgment was circulated in draft the mother sent in a number of proposed corrections and additions which supported her narrative of past events. She also asked for more documents and statements to go in the bundle. The request for additions to the bundle came too late. So far as the additions and corrections are concerned, the draft judgment was circulated to all parties to identify typographical and minor factual errors, not to provide an opportunity to reopen the arguments in the case. This practice is well understood by lawyers but perhaps not by the mother as a litigant in person. I have not made any substantial alterations to the draft circulated in response to any of the parties, albeit I have amended the last paragraph following some representations from the journalists about reporting after the sentencing hearing.