Thurs 22 January 2015 : Daily Mail reports that “Judge defies the rules by jailing woman for contempt of court in secret because naming her will lead to her daughter being identified” and “decision made after judge was reminded of the Appeal Court directives” and “Lib Dem MP John Hamming [sic] calls the decision a “coup against justice””.

Later on 22 January 2015 : Bailii publish a judgment in the case (London Borough of Richmond v Howell [2015] EWHC 104 (Ch) (20 January 2015)), but the woman jailed is named as Olive Howell. The judgment makes no reference to a reporting restriction order being in place or having been in place. The judgment contains no rubric. The  committal was heard and the judgment handed down in open court. This means that s12 Administration of Justice Act 1960 does not apply (publication of information relating to private children proceedings), although s97 CA 1989 does still apply (ID of child).

Enquiries with the Judiciary Press Office confirm that this is not an inadvertent release of the name but the result of a variation of a reporting restriction order (RRO) initially made on 20 January 2015, but revisited on 22 January 2015. (I’ll spare you the entertaining tale of my attempt to juggle a serious telephone conversation with the Judicial Press Office on this topic with an even more serious and simultaneous conversation with the small child appearing at my hip to interject with an urgent report of the fact that his brother had just pooed his pants.)

Yesterday evening Suesspicious Minds blogged on this case here.

The Judicial Press Office state that no further judgment relating to the decision firstly to impose a RRO or subsequently to vary it is planned for release.

23 January 2015 : The Press Association report that the reporting restriction order was initially sought on 20 January by the Local Authority, and was agreed by Ms Howell herself. The apparent breach of the Guidelines appears to have been raised by the Press Association rather than the woman jailed and was reconsidered on 22 January. It appears that (rightly in my view) the judge then reconsidered and relaxed her order. I infer that the quotes from John Hemming MP were probably sought and obtained by the PA, as John Hemming is the go to man for a quote on a secret family court story. I am fortified in this supposition by the fact that John Hemming MP confirmed to me on twitter that he was not at the hearing or even in London at the time (no doubt he was performing vital services for the good people of Yardley).

The revised RRO dated 22 January 2015 (which I have now seen) broadly covers territory that would ordinarily be covered by s97 Children Act 1989 – it prohibits the naming of the child, date of birth, address or school – and in addition the name, address or date of birth of the father. It is not drafted as some orders are with the confidential details in a separate annex to allow for publication of the terms and body of the order, and as such it cannot be published (an example of an order with an annex was in the Re P case – this was on the judiciary website, although it appears subsequently to have been removed. Ironically this was inadvertently published with the annex attached for a small number of hours before officials realised their error).

The Press Association also report that Liberal Democrat MP John Hemming had complained that the judge had breached guidance relating to hearings in which people are accused of being in contempt of court, and said journalists should not have been prevented from revealing the name of someone who was jailed for contempt. It is said that the judge stated it to be “clear” that her original order was “too wide”. From this I infer that a judgment or reasons of some sort were given, and indeed the PA do refer to a balancing of the relevant human rights (as one would expect) and quote the judge as saying “My concern was the protection of the identity of this child. I believed that once the identity of the mother was revealed it would be the simplest of steps for the child’s identity to become public knowledge“. Whilst it is helpful to have these snippets (which may represent the entire gist of the judgment) it is a shame we aren’t apparently going to get the whole thing so we can assess that for ourselves.

What is unclear is whether the RRO made on 20 January 2015 was stated at that stage to be a temporary order pending a further hearing at which the matter was to be reconsidered (well I’ll put an order in place whilst I have a proper think about it and you all prepare fuller submissions sort of thing), or whether it was intended to be a final order but was subsequently reconsidered as a result of representations / a request for a further hearing by the Press Association.

So. What does this all tell us?

Firstly, one could have a rather dry argument about whether it is technically a breach of the guidelines on Committal to hold a hearing in open court, announce the name in public and state it publicly on the court list (whilst in reality only a handful of people will attend) and then impose a RRO on the further naming of that person. I’m not going to have that argument because it seems to me that there might be circumstances in which such a course of action were justifiable – but the facts would have to be pretty extreme, and it appears that this was not such a case. The breach, whether of spirit or letter, has been remedied. And remedied within 24 hours of the first rather breathless news reports emerging. So far so good.

But, though it pains me to say so, I find myself agreeing just a little with Mr Hemming and the Daily Mail. It is wrong of them to state that this “means that the courts have returned to the practise of secret imprisonment” – that really is to rather over-egg it since the press were in attendance and perfectly well able to report the whole thing – minus the name. But, the guidance is pretty clear that committals MUST be in public. And whilst the Transparency Guidance does allow for anonymity of children and adults where justified, it is unfortunate that the RRO was not more well defined to begin with. In a world where there is much fear and skepticism about the Family Courts they must be seen to be doing justice as well as be doing it behind closed doors (albeit doors which one could open and enter through if you happened to be at the RCJ on the right day). So whilst my choice of language would not be a la Hemming (“a coup against justice”) this is very bad PR for the Family Justice System. The Family Justice System does not need more bad PR. It needs to pull up its socks, in the eyes of many members of the public (see post on the Transparency Project only last week on another anonymity “scandal” gasp horror horror story : The curious case of the judge with no name).

More to the point, I am surprised that where there has been (as it appears that there has) a change of judicial mind as a result of a reminder from the Press Association of the terms of the Guidance, there is to be no published judgment explaining, firstly, the basis for the decision and secondly, the basis upon which it has been concluded that such an exceptional order should be varied. Those matters and the sequence and thrust of legal argument on those points are, it seems to me, matters of public interest. Of course the press are not prohibited from reporting them, and the PA have done so in part – but if the Press choose not to run the rather less exciting headline – “Judge corrects own error when pointed out, thus restoring the karmic balance” – where does that leave the public? (at the time of writing I can’t find such a story).

I’d like to understand the submissions and Guidance the judge when she first made the order (for example did counsel point out the terms of the Guidance to her? They should have – the Daily Mail reports on 22 Jan that “Mrs Justice Roberts made her ruling after being reminded by lawyers about the Appeal Court directions” but they later say “High Court Officials announced that a new hearing in the case will be held today “where the judge will bring the attention of counsel to the mandatory aspect of the 2013 guidance”” which rather pulls in the opposite direction). I’d like to understand what changed the judge’s mind the second time around. Had there been a change of circumstances, more extensive legal submissions, or just time to reflect?

However, it doesn’t sound as if we are going to get very much more information about this particular case. Let us hope that there are not further examples of blips in the seamless transition to transparency, because every time they happen they generate a feeding frenzy in the media where the (often quite legitimate) basis for concern becomes blown out of all proportion and makes people disproportionately fearful and cynical about our flawed system and what it does in our names.