Contempt of court: ‘publication’ and children proceedings

20160422_155058The tentacles of court contempt


Administration of Justice Act 1960 s 12 is about ‘publication’ of information where it is part of court proceedings which are held in private. The most obvious of these for the family lawyer is children proceedings; but a few days ago the President of the Family Division, Sir Andrew McFarlane, referred to the long line of cases which run indirectly from the main common law source of Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; and which say that if publicity would destroy the purpose of the litigation (eg patent cases or anonymity claims) privacy may demand that press freedom be overridden (Venables & Anor v News Group Papers Ltd & Ors [2019] EWHC 494 (Fam), Sir Andrew McFarlane P) especially at [42]. It is a line of cases which is reflected in s 12(1)(d) and (e) (below).


This post concentrates on children proceedings (s 12(1)(a)). I had hoped to be able to set out a list of rules as to what s 12(1) means. It is not easy. There is no tidy statute or official guidance. You have to string together a series of case law, touched on here. And from that case law you distil the contours of the legal principles engaged; or you define the extent of contempt law’s tentacles.


If the court says you’ve breached s 12(1) it will lead to you being found in contempt of court. If that happens, you could – in theory – go to prison. At the least you could be required to pay the costs of the lawyers for the party (or the Attorney-General) who applies for your committal. In the updated version of s 12(1) says (in full):


12 Publication of information relating to proceedings in private

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings— (i)relate to [wardship and other such children cases]; (ii)are brought under the Children Act 1989 or [in adoption proceedings]; or (iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b) where the proceedings are brought under the Mental Capacity Act 2005, or [where reference is authorised to the First-tier Tribunal [etc] or the county court;

(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;

(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.


Unhelpful negative drafting


Section 12(1) is an example particularly unhelpful drafting. It is in a negative style, beloved of some Parliamentary drafters. Something won’t be a contempt of court, unless it is in the list in s 12(1); but does that mean, if it is in that list – eg s 12(1)(a) and children proceedings – it positively will be a contempt of court. Yes, ‘probably’ is what you must assume. But ‘probably’ is not a fair basis for defining the possibility of going to prison. That is what makes it so unfair to journalists of the likes of Louise Tickle who try to expose what is going on in and around England’s secret children courts.


However, that ‘probably’ is not the end of the story. This post is an attempt to identify the tentacles in the secrecy with which the subject is often shrouded.


Publication of information: the Surrey ward, her parents and the Daily Telegraph


If you breach s 12(1)(a) (children cases in private) by ‘publication of information’ – which can be by journalists or other media; but it could be you or me who publish on Twitter, Facebook or other social media – then you might, if you do it often enough, end up in prison for contempt of court. But you can only be found guilty of contempt if you ‘publish’ – ie newspapers, twitter-feed etc – if you know you are breaching s 12(1)(a) (ie you know the proceedings are ‘private’).


Guilty knowledge is the law, but you can’t know that from a reading of s 12(1). You have to go back to a 1976 case when s 12was considered for the first time at Court of Appeal level (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA). Re F had a classic 1970s cast: a fifteen year old Surrey girl who was warded by her parents; she was ‘in love’ with 28 year-old drug-taking hippy car thief (who ‘wore his hair long’, said the bald bewigged Lord Denning); she was assisted by a broad-minded social worker (who admitted her to a hostel and thought she should go on seeing her hippy); all topped off by the Daily Telegraph. Surrey/Daily Telegraph values against the still ‘swinging’ world of 1970s values, perhaps?


This cocktail of social and press attitudes was taken on by their lordships and provided the setting for a review of what s 12 – especially s 12(1)(a) – means. A side point: the editor of the Telegraph at the time who, had appealed from the earlier High Court contempt finding, was Bill Deeds who – for Private Eye readers of the 1980s – will know was ‘Dear Bill’ with whom ‘Dennis Thatcher’ corresponded. The applicant Official Solicitor (ie prosecuting the contempt application) was represented by a very junior Lord Wilson (now in Supreme Court) and lead by Lord Justice Waite (as neither of them then were); and Leon Brittan (later a minister in Mrs Thatcher’s cabinet) represented a local paper which was also involved.


‘Proceedings’ and Ford Maddox Ford


For the person who publishes (journalist, Twitter-person etc) the next question is: what, in context, is meant by ‘proceedings’. In part this is answered by a late the nineteenth century case of Re Martindale [1894] 3 Ch 193, North J. A ward, Elsie Martindale, eloped with the novelist Ford Maddox Ford. She married him as Hueffer which was his real name then and till after the First World War; and as he is known in the case. Hueffer told a journalist friend about the wedding and the wardship. ‘He allowed, I am sorry to say’ explained Lord Justice Scarman in Re F, ‘an element of fiction, with which he was, of course, professionally familiar, to creep into his account of the proceedings’.


Talking about the fact he had married a ward was fine. However – and this was the contempt – what was finally reported in the newspapers referred to what had happened in the judge’s room (in ‘chambers’, now ‘private’). That was not fine. To report on the marriage, or of the 1976 ward and her hippy boyfriend, was not a contempt; but to report without permission of the judge what had been said or done in court sitting in private (‘chambers’) was, on the facts of the case, contempt. Hueffer and three of the newspapers which published the story (but not the journalist) were liable.


In modern terms, because a child is in care, does not mean nothing can be said publicly about the child (eg that she is in a successful football team or has swum on Christmas day, if that is newsworthy); nor do special arrangements have to be made because the police want to interview a ward about an alleged crime (Re a Ward of Court [2017] EWHC 1022 (Fam), [2017] Fam Law 725, Sir James Munby P). Involvement in court proceedings – wardship or any other – does not give the child a special status as against other children: ‘The existence of wardship does not give the ward a privilege over and above other young people who are not wards’: Lord Denning the Master of the Rolls said in Re F.


On the other hand any report on the proceedings in which that child is involved raises quite other issues; and will generally engage s 12(1).


Rules on what is contempt?


In Re F, Scarman LJ extracts legal principle from the cases he had mentioned in his judgment. He suggests guidelines for dealing with s 12(1)(a) cases (applicable to all children cases, not just to wardship) as follows:


  • If a court decides to hear a wardship case in private (as will almost invariably be the case, and as with Children Act 1989 proceedings) it will be ‘a contempt of court to publish an account of the proceedings unless the judge expressly authorised publication’;
  • Any outcome of the proceedings or the court’s order can be published, unless the court specifically says not;
  • It is not a defence to say that you did not intend to commit a contempt of court; but, he added –
  • You were not guilty of contempt if you did not know that what you said or published contained information relating to children proceedings which were held in private; or that, as in Re F, you didn’t know the wardship order was still in force.


Scarman’s rule (4) is likely to be to only a narrow category of case: most people know, and certainly most professional journalists know, that proceedings about children are private and that they may not be reported upon. However, as Scarman LJ points out, wardship can be used for publication of a child being hidden away (as can Twitter in 2019 per Mr Justice Williams). The same is the case, very occasionally, in Children Act 1989 proceedings. Wardship can be a short-term remedy – as the journalists and newspapers genuinely thought was the position in Re F: they thought the girl was no longer a ward. If the wardship has been discharged, the s 12(1) restrictions ease.


‘Proceedings’ and what is not being said; and what of children who want to publish?


Anyone seeking to publish must concentrate on what is ‘proceedings’ – ie what goes on in court – and what is not. It is not ‘proceedings’ if it is what local authorities, police or hospitals are doing in relation to children, unless there are court proceedings.


A more interesting question may be what is not being said. For example, what about where a child wants to tell her story? There is clear law which says she or he can do so after the hearing (so long as other family members are protected: Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J); but what happens if a child want to talk about proceedings which are still continuing?


Suppose the child – in the proceedings – says she is not being listened to? Suppose the child talks to journalists? And where does a parent stand who wants to talk to the press about (say) that parent’s view that the child (his or her child) is not being listened to? Where has the law in 2019 got to on these questions? Strictly in relation to a child’s views this is an open question (save for Roddy and one or two other cases). It is an important question – for another day – when, in many children courts, many judges are not moving forward on the subject of listening to children, as the law now requires them to do.