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.


Publicity: further scope for a criminal charge


Journalists may have been allowed by Sir James Munby, President of the Family Division, into the High Court in the recent, well publicised, wardship hearing before Baker J, concerning parents who removed their child – ‘Andrew’ let us say – from a Hampshire hospital against medical advice. But does that give them full permission – and any right – to report on the proceedings? If they or anyone else publishes information about the proceedings to what extent do they risk a criminal offence?


Rights of all concerned – the child (whose welfare is paramount), the press, the parents and other members of Andrew’s family – must all be balanced before a decision is made by the court to ‘open’ the proceedings (see explanation in the context of the House of Lords case of Re S below); and to permit the overriding of the criminal consequences of Children Act 1989 (‘CA’) s 97(6). The blushes (if any) of the police, of the hospital, of the local authority (who, whether lawfully or not, applied for the wardship order – see ) or of the family justice system are not part of that rights balance.


To my knowledge, no order nor any judgement of Sir James has been published (there is nothing on the BAILII website either for his or the 29 August judgements); so we do not know how he conducted the rights balance. Why, for example, did he think that publicity would serve the welfare of the ward, Andrew? How did he deal with Andrew’s welfare requirements under Children Act 1989 (‘CA 1989’) s 97 (see below).


Permitting anyone to attend court is one thing. What is published concerning the case – eg in the press or other media – is altogether another. Judges like Sir James, have been at pains in the past (see as Munby J eg Princess Diana’s brother’s case: Spencer v Spencer [2009] EWHC 1529 (Fam), Munby J) to stress that it is not for judge’s to advise journalists what they can publish; and it will not be Sir James – or it should not be – who deals with any criminal (CA 97(6)) or contempt (Administration of Justice Act 1960 s 12) proceedings by anyone affected by the publicity which there has been.


What can be published, even though the press etc is let in?


So the court was ‘open’ (we all assume; though we have yet to learn the terms), but does that let those present – or any of the rest of us who have information about the case – merely publish whatever and as we see fit? I do not know what newspaper’s advice is to their journalists. Certain it is, alongside this, that the family law system has got itself into a complicated – needlessly, I should say – muddle over publicity for family proceedings (see eg ). Andrew’s case does little to help that.


Almost exactly a year ago Sir James Munby P, in a case reported as Re J (A Child) [2013] EWHC 2694 (Fam) ( defended the right of individuals aggrieved by the family courts process to post their grievances on the internet, even when expressed by them in ‘vigorous, trenchant or outspoken terms’. The President set his colours to a mast he has powerfully – and rightly, in the appropriate context – erected: ‘there is a pressing need for more transparency, indeed for much more transparency, in the family justice system’.


In Re J he set out the legislative restrictions on publicity a then goes on to explain the importance to the family justice system that it should receive publicity. He starts by pointing out the ‘automatic constraints’ on publicity.


CA 1989 s 97 (prohibits publication, but only till the conclusion of proceedings (Clayton v Clayton [2006] EWCA Civ 878, [2006] 1 FLR 11)). The prohibition in s 97 relates to any children proceedings and prevents publication which will identify the child or certain details about him (s 97(2)). It can only be overridden by specific order of the court that information can be published which identifies the child, and if the court has found ‘that the welfare of the child [concerned] requires’ publicity (s 97(4)). We await hearing what Sir James said on this point (which is in line with his European Convention 1950 duties under Re S). Section 97(6) creates a criminal offence if it is breached.


The more long-lasting and over-arching AJA 1960 s 12 provides as follows:


(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 the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;


The section relates to ‘proceedings in private’, including family proceedings, but narrows those proceedings to those in relation to children, wardship etc. It is still the case that it may be contempt to publish information from such proceedings: this is the effect of the series of negatives by which the section is drafted. The person who wishes to publish must make up his or her own mind.


Relaxing the restraints on publicity


In Re J Sir James says simply (at para [22]) that ‘the court has power both to relax and to add to the “automatic [ie statutory] restraints”’. He does not state his authority in law for this. To ‘relax’ the restraints, as Sir James explains, the court must conduct a balancing exercise within European Convention 1950 terms, as explained by Lord Steyn in the House of Lords in Re S (Identification: Restrictions on Publication) [2004] UKHL 47 (at para [17]). It is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect, said Lord Steyn.


So, said Sir James, the interests of the child must be a primary consideration (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and the right of the press and a parent or others who might want (as in Re J) to publicise information (Art 10). Was this balancing exercise conducted by Sir James when he made his order in Andrew’s case, and if so in what terms? We do not yet know.


In conducting that balancing exercise, the primacy of the best interests of the child must be considered. This was further explained in the Supreme Court in (not considered by Sir James) H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 where Lord Kerr said:


[144] … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….

[145] ….no factor must be given greater weight than the interests of the child.


Like ZH, H(H) related to children in immigration proceedings (ie not involved with publicity), but the principles in relation to the interests of children are parallel.


Court promoting publicity


The court was not entitled, in this jurisdiction, said Sir James in Re J, to seek to prevent dissemination. But what – as in Andrew’s case – is the court’s role in encouraging ‘dissemination’ of information (if this was any intention of Sir James: his order and judgement will show)? Where is the primacy of Andrew’s interest in dissemination (if that was the aim), and of justification for interference with Andrew’s right to respect for his family life (Article 8)? Who (if anyone) applied for the relaxation of publicity, and on what terms?


Word from Sir James is awaited. In the meantime if I was thinking of publishing anything about Andrew I would look very carefully at CA 1989 s 97 and AJA s 12(1) see if overriding those statutory provisions is covered by Sir James’s order. The police have been involved in this case too much. Their further involvement under Children Act 1989 s 97(6) must be avoided.


Powers of the local authority to apply to the High Court


Wardship has been in the news in the last few days (Mr and Mrs King and their child Aysha: wardship proceedings are still continuing, so what is said here does not relate directly to those proceedings). Two questions arise: what is the power of the High Court to exercise its inherent wardship jurisdiction over children; and can a local authority use the High Court’s to make a child a ward.


In general the High Court has more or less infinite powers to exercise an inherent and protective jurisdiction over children. It is only the High Court which has power to deal with wardship (Senior Courts Act 1981 s 41(1)), not eg the ‘single’ family court. If it does so, the usual result will be that a child becomes a ward of court. The High Court then stands in the position of a child’s parents; but the court must ensure that someone makes practical day-to-care arrangements for the child’s care, board and lodging, and so on.


If the jurisdiction of any family court to take a child into care is to be invoked by a local authority it must be by care proceedings (Children Act 1989 Part 4) save in a very narrow range of cases sanctioned by CA 1989 s 100. (Section 100 was included in the CA 1989 since, till that Act, local authorities had been using wardship, in many cases, to obtain care orders.)


CA 1989 s 100 says that the court’s inherent jurisdiction (‘wardship’ and ‘inherent jurisdiction’ tend to be used interchangeably) cannot be used, in effect, to place a child in the care of a local authority (s 100(2)), unless the court gives the local authority permission (s 100(3)). The court may not give permission, till it finds (1) that, but for an order, the child is likely to suffer significant harm (s 100(4)(b)), and (2) that there is no other order the local authority can apply for (a 100(4)(a) and (5)).


Local authorities and wardship


Children Act 1989 s 100 provides as follows:


100 Restrictions on use of wardship jurisdiction

(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children –

(a)so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)so as to require a child to be accommodated by or on behalf of a local authority;

(c)so as to make a child who is the subject of a care order a ward of court; or

(d)for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3) No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4) The court may only grant leave if it is satisfied that –

(a)the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5) This subsection applies to any order –

(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).


In Re A (Children) [2013] UKSC 60 – ; in the Supreme Court Lady Hale (also, as Brenda Hoggett, a main architect of the Children Act 1989) explained the wardship jurisdiction of the High Court. Re A related to a child born in Pakistan, the brother of children with dual British and Pakistani nationality. The question was whether he could be made a ward of the English court. The Supreme Court said that in principle he could be made a ward.


Lady Hale explained the inherent jurisdiction of the High Court by reference to ‘common law rules’ and that, in the case of a child who is a British national, the ‘Crown had a protective or parens patriae jurisdiction over the child wherever he was’. She cites Lord Cranworth LC in Hope v Hope (1854) 4 De GM & G 328, at 344-345, and Lord Denning MR in Re P (GE) (An Infant) [1965] Ch 568, in support of her proposition. The fact that a child is a British national enables the court’s jurisdiction to be called upon to protect a child.


The position described by Lady Hale remains the common law position still, unless Parliament says otherwise and by statute restricts the jurisdiction of the High Court. In the case of any application by a local authority to invoke the inherent jurisdiction of the High Court to protect children, Parliament has imposed restrictions in Children Act 1989 s 100 (as above). And if application is made to the court to make a child a ward, the effect is immediate. On filing the application the child becomes a ward (Senior Courts Act 1981 41(2)); and remains so till the court makes a further order (provided this is dealt with within three weeks).