The hype about hyperinjunctions is just extraordinary at the moment. There is a vast amount of blogging and commentary on the topic, but I'd like to focus on the issue as it relates to family law. I'm specifically not going to comment on Baroness Deech's suggestion that women are to blame for the rise of (super)injunctions lest I should myself become a woman saying something unpleasant about another woman (although I have to observe that it takes two to "tango", and Baroness Deech appears to identify only one aspect of such mutually exploitative relationships).
The debate has been warming up for a while, but it has really kicked off as a result of John Hemming MP's various remarks in the House. Hemming is well known in the family law world as a vocal critic of the family justice system, it's secrecy and it's role in the removal of children from their families.
I think it will be helpful if I set out here some of the recent blog posts that cover this topic.
Carl Gardner at Head of Legal has published a number of posts tracking developments over the last couple of months, most of which have prompted extensive comments, many of them from Mr Hemming himself. The posts and the comment threads are worth reading in full:
John Hemming MP: Abuse of Power, and Privilege (23 March) in which Carl discusses speeches in Parliament the previous week by John Hemming concerning "Andrew France, whose rape conviction was quashed on appeal in 2009, and who Hemming says was pressurised by a local authority into agreeing not to contact Hemming:
The essence of it is that he has no real choice. If he does not agree to it, the local council, of which I used to be deputy leader, would take action to take his child into care.
Hemming calls this bullying, and a contempt of Parliament." and in which Carl notes the strong criticism of Mr Hemming by Wall LJ in RP v Nottingham (this is a blog post on which I commented at the time).
John Hemming MP: is the detail “a little bit more complex”? (28 March) in which Carl noted a subsequent speech given to the Freedom Association in the course of which it was said that Mr Hemming's remarks "risk[ed] perhaps giving the impression that the judge had been involved in threats to punish speaking to an MP by taking a child into care." Carl asked whether actually the facts might be a little bit more complex?
On 30 March Carl also commented on the ZAM superinjunction in ZAM v CFW & TFW: “suing for libel in secret”, followed up in TFW: has John Hemming changed his mind?, on 20 April.
Finally, on 27 April: John Hemming, sub judice and the public interest: “no abuse of parliamentary procedure”?, reflecting on the naming in Parliament by John Hemming of the pregnant woman involved in this case (reported very badly by the Indy I thought, I was left wondering in particular how a party who is entitled as of right to legal aid can end up with a "legal bill of around £10,000" in respect of one hearing), and the question of whether or not it was appropriate for him to have done so (There is a related post on Liberal Conspiracy here). That case centres around a heavily pregnant woman who attended a meeting of the All Party Parliamentary Group on Family in Parliament, and who had made certain remarks about her case whilst there, in the course of which she named the local authority and social worker. This led to what appears to have been an application for committal - although judging from the Indy report the LA were not in fact seeking committal, but just using an old "notice to show cause" in order to get the matter before the court for enforcement purposes.
Henry Fox at the UK Human Rights Blog has posted an excellent article entitled "Can the Media use Parliamentary Privilege to Circumvent Reporting Restrictions in Privacy Injunctions?"
And another excellent blog post on the topic (focusing in particular on the Court of Protection) can be found at The Small Places (Is publicity always the soul of justice?)
I've set out the general law on reporting family cases before in previous blog posts, so I won't repeat that here. I will go into a bit more detail about how the rules relate to communication of information to and by MPs.
The question of what can and cannot be disclosed in relation to family proceedings is set out in the Family Proceedings Rules 1991 as amended, and from 6 April 2011 in the Family Procedure Rules 2010. For our purposes the rules are essentially the same albeit with different numbering.
There is no prohibition on a party to proceedings disclosing information about the proceedings confidentially for the purposes of advice support and assistance in the preparation of his case. This might quite properly include his MP.
There is no prohibition on a party to proceedings disclosing information about the proceedings for the purposes of making a complaint about the case or someone involved in it. A complaint is not defined, but the absence of definition suggests this is meant to be all encompassing and I see no problem with that including asking an MP for help in raising or pursuing a grievance about a judge, lawyer, social worker etc.
What is not permitted by the rules however, is the wider publication of information relating to the proceedings by any person if it is not for those purposes. Using material for a broad campaign against the general failings in the family justice system is in my view quite distinct from a complaint and falls foul of the rules on contempt of court and publication of information. The operation of the rules on Parliamentary privilege upon s12 of the Administration of Justice Act 1960 is a matter for constitutional lawyers to comment on, but the important point is that the Father in the France case is not protected by Parliamentary privilege, although his MP may be.
The fact of the recited agreement (read out to Parliament) tells us that the court had made no order altering the application of these rules in the France case (what would be it's purpose if an order had been made?), although the court would have been entitled to make some order if it thought that was the appropriate course of action bearing in mind the need to promote the welfare of the child, and taking into consideration the Article 6, 8 and 10 rights of ALL the parties (including the child). It hasn't and there seems to be no suggestion it had been asked to do so (although the fact that the recital came about at all suggests that an application might have been forthcoming if there had been no cooperation).
I understand that Mr Hemming says that the Father in this case was forced into giving his agreement as read out to the court (see my comment on Head of Legal - this was wrongly described as an undertaking which is wholly different). Whilst of course I have no first hand information I cannot see from the material disclosed how that can be the case. Parents involved in care proceedings are of course always under pressure. However, the barrister's attendance note appears to demonstrate that the issues were discussed and the Father given advice following which he made a decision. A choice he may not have liked perhaps, a decision he has come to regret maybe, but I don't see where the undue influence or "force" comes from. Unless the attendance note prepared by counsel at the time is a false or misleading account of what took place. I don't think that has been alleged.
From the available material, it strikes me that whatever the actual concerns that led to the request for the Father to give his assurance about disclosing information to Mr Hemming, it is a matter of concern now that the details of these proceedings have been aired in public, with very possibly the effect of rendering the child identifiable to his friends, neighbours, classmates.
I drew attention to the fact on Carl's first blog post to the distinction between an undertaking (formally offered under warning as to consequences including committal - and enforceable by application for committal) and a recital of an agreement (not enforceable but may persuade a party not to apply for injunctive relief where it otherwise might have done) in the context of the France case. The distinction between undertaking and agreement is important, and moreover I've seen nothing highlighting the following matters of legal background in respect of family cases:
- Even where the court has made no order at all the default position in family cases concerning children is that pretty much nothing can lawfully be reported or published without exposing the publisher to a risk of contempt of court (s12 AJA 1960) or a criminal prosecution (s97 CA 1989).
- If the court has not made any order backing up s12 AJA 1960 there will be nothing enforceable upon which a committal application could bite. An order with penal notice warning of the risk of committal is necessary before committal can follow.
- An injunctive order is the exception rather than the rule, since most parties do not want their intimate personal matters exposed to public scrutiny or will accept advice that is routinely given that they must not publish information about their case. An injunctive order is usually only applied for and granted after a previous breach of court rules or s12, a threat to do so or in the absence of direct threat some good reason to think there is a risk of a breach.
- An undertaking or agreement might be offered in response to an application for an injunction or a concern being raised
If a case has got to the point of an application for committal it is therefore reasonable to assume that there has previously been a prior publication, or a threat or risk of publication that has led to an injunctive order being applied for and granted (or an undertaking being given in lieu), and that there is a subsequent allegation that the order (or undertaking) has been breached. So it is reasonable to assume that the case involving the pregnant woman is more complex than the available facts might suggest - there is evidently some background which is opaque to us. We know that case involves an unborn baby, but in order for proceedings to be extant there must be at least one existing child who is thought to be at risk of significant harm by the local authority. It is highly likely that the injunctive order (or undertaking) which must have formed the basis of the application for committal was made (or offered) in order to protect that (those) sibling(s) from the public gaze. The naming of social workers and local authorities, coupled with the fact that the mother is expecting imminently could render the child identifiable to friends, family, classmate or local people. We can have no idea what consequences this might have for the child(ren). Equally we don't know if the Mother's criticisms of the Local Authority and social worker are justified, but even if it is that does not necessarily alter the risk of harm to the child(ren) arising from the publication of information.
John Hemming suggests in the comments to Carl's most recent blog post that the committal application is separate from the main care proceedings and therefore not sub judice, even though the substantive proceedings are ongoing. He says at comment 17 that:
"What I have concentrated in the public domain is one case involving [*****] and [*****] (edited to remove the names of the parties – Carl). That is the application to have her committed and associated proceedings in parliament.
Note that each application is to be treated as separate proceedings."
If correct this entitles him (so he would argue) to raise the case in Parliament, or at least the committal part of it. However I don't think that he is correct in his analysis of the separate proceedings point. The Local Authority in the case are saying they cannot comment, but they of course are bound by s12 AJA regardless of the sub judice point, whereas John Hemming can potentially escape those provisions IF he can argue the case is not sub judice. So the LA's position does not take us any further. However the rules applicable to committal applications are pretty clear:
(2) An application to commit for breach of an undertaking or order must be commenced by the filing of an application notice in the proceedings in which the undertaking was given or the order was made.
(3)The application notice must state that the application is made in the proceedings in question and its title and reference number must correspond with the title and reference number of those proceedings. (Pa 3.3 Practice Direction to CCR Order 29, Sch 2 CPR applied to Family Proceedings by FPR 2010 r 33)
Quite apart from the technicality of the rules themselves, a committal application is intimately bound up with the injunctive provision which is said to have been breached and which was made within the care proceedings. The committal application is part of the care proceedings and will most probably be heard within it, albeit at a discrete hearing. The parties will be the same. The factual matrix will be the same. The judge (most likely) will be the same. Even if this is an incorrect analysis it does not change the fact that because the factual matrix is intimately bound up Mr Hemmings is relying upon a technicality in order to avoid the implications of an order which will have been made on the basis that it was necessary in order to protect the child (or possibly some other person who required that protection). Mr Hemming may not agree with that order (undertaking). The Mother may not agree with that order (undertaking). The forum for airing that dispute is the court. An application for permission to publish can be made if there are matters of public interest and importance. The point goes for the France case and the pregnant mother case.
From what I have read I'm astonished that John Hemming thinks that what he has done in these cases is appropriate or helpful to anybody, but I have to base my opinion on the limited information publicly available - this is part of the problem with turning away from the court and to the court of public opinion, as many family justice reform campaigners do. These matters have been debated extensively on Carl's blog, and I struggle to understand how an MP can feel okay about brandishing information about families in Parliament like this, where there are clearly also vulnerable children who may be affected - whilst relying upon technicality about whether something is sub judice or somehow distinct from the substantive child care proceedings. For me that's a fiction and a moral fudge.
Mr Hemming complains that the courts are in contempt of Parliament by gagging parents who want to speak to their MP. As noted in relation to the France case, I think the agreement referred to as an undertaking falls far short of a gag. In the pregnant mother case we have clearly not got all the background. It is surprising that an elected MP should show so much contempt for the law passed by Parliament (AJA 1960 and CA 1989 in particular) and for the courts' attempts to enforce that law (I would hope that an MP would try to act in accordance with Parliament's intentions rather than walk the line of technicalities), and that he should feel entitled judge both whether and when material should become exposed to media attention, and what selection of information should be disclosed. Mr Hemming clearly considers himself beyond the reach of the family judiciary, protected (to some extent) by Parliamentary privilege. I worry that his approach could be unhelpful to the children involved in the cases he has highlighted, ultimately unhelpful to the parents whose case he seems to be "promoting", damaging of the public's respect for MPs, it's confidence in family courts and contrary to the public interest.
I say "could be" for a reason: Regardless of the legal position it is profoundly unsatisfactory to have bits and pieces of information snuck into the public domain under cover of Parliamentary privilege. It is profoundly unsatisfactory to be having to attempt sensible analysis of these serious issues relying on such limited information, but I do think it is important that such analysis is attempted and that the conduct of persons exposing this material to the light of day without sanction of the courts is scrutinised. In general I do think that family cases should be openly reported more often, on a carefully anonymised basis. In view of the unsatisfactory situation that now pertains perhaps these cases should be fully reported, so that we can form proper views on the basis of all the relevant material - but the court will be best placed to decide that.
I hope also the Speaker will take some steps to clarify the position on the sub judice point.
Oh. And as you will have noticed. Neither of these actually involved a super injunction at all.
Whilst I welcome comment / discussion on this post, and corrections of any errors (My autosave failed and I lost a late draft of this post so I am hoping I have not missed any necessary edits second time around). I do not invite disclosure of more snippets of information about any of the cases referred to however. I would invite anyone who would like to comment to comment only on the basis of what is already within the public domain.