I fought the law – what are the implications of section 12 of the Administration of Justice Act?

I was asked by the journalist Louise Tickle to consider whether or not she would be in contempt of court if she published a blog post detailing her frustrations with the way the family court had dealt with a recent application made by a number of journalists.

In brief, the journalists attended a final hearing which had come about due to a decision made by the Court of Appeal that has already been reported and is in the pubic domain. That judgement names the relevant LA and social worker and provides personal detail about the mother, including her ethnicity and the date of birth of her child. What the journalists wanted to do was to report on the final hearing but also link in their reporting to this published judgment as otherwise it was difficult to understand how the case had taken the shape it had.

The Judge at the final hearing was not minded to permit publication of anything that might identify the ethnicity of the mother nor the identities of any professional parties – which poses the immediate problem that no reference could then be made to the prior judgment already published which contained that information.

Louise was unhappy with this outcome and I had to agree it was deeply unsatisfactory. I have not held back criticising journalists who refuse to link to judgments or even read them and end up publishing something partial and inaccurate. Therefore I am troubled to be told that journalists who wished to report by reference to the actual facts already in the public domain were being told that they may not – and even worse, that their right to freedom of expression from Article 10 of the ECHR, did not appear to be given any proper consideration by the Judge or the other advocates.

I read Louise’s proposed blog post and ran this past my understanding of the consequences that followed from applying section 12 of the Administration of Justice Act. My analysis of the law follows below.

I don’t think Louise is going to be hauled before a Judge and found in contempt of court for publishing her blog. But I didn’t feel that I could offer robustly confident advice that she would not. It is clear that each case will turn on its own facts and thus there is very little guidance for the lay person or lawyer who doesn’t deal with such matters on a regular basis – which I imagine is all of us.

For so long the family court have operated without public scrutiny that I do not think it is common place for Judges to be asked to consider relaxing the requirements of section12 AJA in general run of the mill family cases.

I hope I am right about all this. But I am not sure. It seems a rather unsatisfactory state of affairs that public comment about the family justice system should operate under such a climate of fear. Being found in contempt of court is a serious business; one possible punishment is the loss of your liberty. When facing serious consequences, the law that imposes them needs to be clear and it needs to be accessible. Lawyers need to understand and apply the necessary balancing exercise between Articles 8 and 10. How many do?

I do not think that our law about reporting matters in the family court is clear, accessible or consistently applied and .I will follow developments here with interest. Louise has launched a crowdfunder to raise the costs of her proposed appeal.

My view of the law.

Section 12 of the Administration of Justice Act 1960 forbids the publication of information relating to proceedings under the Children Act 1989 or the Adoption Act 2002. There is no time limit so the prohibition operates even after proceedings end.

Sub section (2) of the AJA exempts ‘the publication of the text or a summary of the whole or part of an order made by a court sitting in private’ UNLESS the court expressly prohibits the publication. There is no other exemption or explanation of terms offered by the statute.
We therefore need to look to case law and other general principles to understand what is meant by ‘information’.

With regard to publication, something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. A blog post published on the internet would thus clearly meet the definition of publication and by publishing a general blog, Ms Tickle could not avail herself of the defence that she is communicating to a professional.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

What is meant by ‘information’? Munby J (as he then was) considered this in Re: B (A Child) (Disclosure) [2004] 2 FLR 142. He identified classes of information falling into this category as likely to be [para 66] :

  • accounts of what has gone on in front of the judge sitting in private
  • documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings,
  • Transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries

The identity of witnesses in care proceedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness.

Section 12 does not prevent publication

  • of the fact that proceedings are happening, or
  • Identification of the parties or even of the ward himself. EDIT BUT PLEASE NOTE THAT s97 of the Children Act forbids naming children in current care proceedings.
  • or the comings and goings of the parties and witnesses,
  • or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

However. at para 77 Munby J poses his final question ‘the extent to which section 12 prohibits discussion of the details of a case’. It is likely to be this question that is of most interest to Ms Tickle. He found he was assisted by Wilson J’s analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words:
“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”

Wilson J commented:

I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded.

Munby J agreed with this observation and concluded:

Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J’s discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

Consideration of the case law when applied to Ms Tickle’s proposed blog

For a lawyer asked to give advice, the heart sinks upon encountering the phrase ‘every case will, in the final analysis, turn on its own particular facts’. This clearly makes it difficult to offer firm advice.

It is my view that the thrust of the blog post is very clearly to highlight Ms Tickle’s understandable frustration with what seems like a wholly inadequate approach by the court to the necessary balancing exercise of ECHR Articles 8 and 10. I do not think that anything she proposes to publish will fall foul of the distinction identified in X v Dempster. The ‘dispute’ which she wishes to highlight is in fact removed from the actual facts of the care/placement proceedings before the court and is a dispute about an ancillary matter; the relaxation or otherwise of reporting restrictions given that risk (I assume) of jigsaw identification once any reporting of this matter is linked to an earlier Appeal Court decision already in the public domain.

I must stress to Ms Tickle that in offering my opinion as I do, cannot be seen as any kind of guarantee that she would NOT face proceedings for contempt arising out of her blog post. It may be that my opinion is not shared by a Judge hearing this matter. However, I reflect upon the fact that she has clearly taken great care to strip any identifying details from the blog. In my view it is unlikely that any such proceedings would be bought; I would consider them wholly disproportionate in all the circumstances. In my view, the LA is the only party likely to consider such action and I would hope they have better things on which to spend their time and money.

 

Further reading

The opposite of transparency – an appeal against a reporting restrictions order Louise Tickle’s post on the Open Family Court website.

For a more general discussion of the principles around transparency in the family court see this post 

Or visit The Transparency Project website. 

15 thoughts on “I fought the law – what are the implications of section 12 of the Administration of Justice Act?

  1. Pingback: The opposite of transparency | The open family court

  2. Angelo Granda

    A Parent’s View.

    I found this post interesting and emphasize the following.

    Section 12 does not prevent publication

    of the fact that proceedings are happening, or
    Identification of the parties or even of the ward himself.
    or the comings and goings of the parties and witnesses,
    or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

    However, section 12 does appear to prevent

    accounts of what has gone on in front of the judge sitting in private
    documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings,
    Transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries

    I hope my observations will be of interest to readers in general although naturally, it may seem simplistic to qualified lawyers.

    I have often said that much false ideology is spread about by the Local Authorities ( and their lawyers) and SW’s. I have expressed the view before that it is something of a myth that cases are held in private to protect the identification of children involved in their best interests.

    Justice must be seen to be done and hearings should be held in Public with total transparency in order to obtain the best justice possible particularly in public law. Any potential harm caused by embarrassment to a child does not outweigh the requirement for justice as far as I am concerned. Yet that reason is always advanced by CP professionals when respondents claim a miscarriage of justice and complain about court protocol.Section 12 as quoted above appears to give the lie to it as the specific reason for closed court hearings.
    Indeed by publishing identifying detail of the case ,the Court of Appeal showed that identification of parties is acceptable and fine to them.

    The second part of section 12 ,however, tells us the real reasons why we have closed courts.It is to keep documentary evidence private and sensitive information out of the public domain.I can see how and why a lower court prefers such protocol especially the judge. He makes a decision on ALL the evidence at his discretion and that is it, he does not want private topics published.Papers could print bits of pieces out of context etc. It should be recognized that such protocol ,designed to safeguard parties and the lower court in private law has an unintended consequence in serious public law cases which is that the Authorities use it to unfair advantage . False representations and unlawfulness as to its evidence and its actions remains hidden.

    I did notice that section 12 of the Administration of Justice Act has been in existence since time immemorial ,long before the Family Law Courts. Therefore i am guessing that it was brought into being for private law disputes such as financial disputes between business companies and similar issues such as trade disputes, commercial branding, patents etc. In particular no company would want private accounts, ledgers,balance sheets and so on made public. Companies have trade secrets also which they don’t want publicising. Possibly the rules have a place in private law tug-of-love type cases also. No one would want personal arguments , accusations ,counter allegations and petty marriage squabbles , sexual or sensitive in any other way published.I can understand that. Unfortunately ,i don’t think section 12 is right and fair ,as it stands, in public law. These should be fully transparent with full public involvement, in my opinion, in the best interests of children. The best way to correct the problem would be to open up the Family Court OR limit its power and bring an end to family liquidation plans.Keep families together.

    Whether this makes any sense to lawyers,i don’t know but i hope other readers can understand my point. Meanwhile , remember section 12 does not prevent naming of the parties or even the children themselves. So next time a CP professional comes out with that wrong idea , ask your lawyer to correct them. I look forward to all comments.

    Reply
    1. Sarah Phillimore Post author

      YES BUT SECTION 97 OF THE CHILDREN ACT DOES FORBID NAMING CHILDREN IN CARE PROCEEDINGS
      This is an article just about section 12 of the AJA. Ms Tickle does not wish to name any children at any time.
      so please please please DO NOT NAME YOUR CHILDREN in current care proceedings.
      You will be in contempt of court and you may go to prison.

      Please refer to the general post on transparency here.http://childprotectionresource.online/category/the-law/key-legal-principles/transparency/

      I will edit the post above to make this clear as I don’t want to mislead anyone. I appreciate this is a tricky area of law.

      Reply
  3. Angelo Granda

    Thanks,Sarah.Have re-read the information and would just like to comment that the Judgment of Lord Shaw back in 1912 does not seem to apply .
    The evidence is not truly private and inter familia in Public Law cases,is it? It involves the public affairs and behaviours of families in the matter of Public Authorities,SW’s,schoolteachers ,doctors etc.plus entries in public archives,databases and so on plus assessments of guardians and other experts based on them.
    Of course,I can quite believe that some parents might like to keep names out of it but it is not in the best interests of children.
    That is false ideology because it enables biased reading of documents by professionals and unrealistic appraisals which respondents are unable to disprove unless there is full disclosure.
    Anyway,it is interesting that each court has the jurisdiction to countermand both the sections,97 and 12 AJA at will and respondent lawyers should argue for it.
    Hope this helps.Roll on complete transparency.

    Reply
    1. Sarah Phillimore Post author

      Proceedings under the Children Act 1989 and the Adoption and Children Act 2002 are very clearly within the ambit of section 12 of the AJA.

      Reply
  4. Sam

    Surely if a parent can waive their anonymity, unless children’s names are changed , the link between the parent and the child is so easy to make that the law is ineffective?

    Reply
    1. Sarah Phillimore Post author

      Possibly. All I know is what section 97 says.
      No person shall publish [F2to 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 [F3the High Court][F4 or the family court] in which any power under this Act [F5or 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.

      It is a criminal offence to breach this section.

      Reply
      1. Angelo Granda

        Sarah,You say it is a criminal offence to breach that section.You have said elsewhere that someone would need to find out about it and take it to Court.
        1. So were a lawyer or a judge to find out .
        about it,is it their duty to report it to the
        Police whose duty would be to bring it to a criminal court?
        I would have thought so .

        2. If the lawyer,judge or Police failed in their uty and covered the crime up by turning a blind ‘un would it be in contempt thus criminal in itself.
        3. Is it a criminal offence to breach any Court order under any section whosoever is the offender or do the orders only apply to parents?

        Thanks.

        Reply
        1. Sarah Phillimore Post author

          The section applies to anyone. Yes, i would have a duty to bring it the court’s attention at least if I found the section breached, but I imagine that it wouldn’t be a the top of the list of the court’s or the police’s operational priorities.

          Reply
          1. Angelo Granda

            Thanks for such honesty,Sarah when replying to my questions.
            Only a very brief answer but it tells us everything. To me,it is the language of cover-up.

            Respondents engage with their lawyers ,complain when the Authorities act unlawfully and/or in criminal contempt of the Law ; even when the lawyer does his or her duty and brings it to the Court’s attention ( and I am talking about CRIMINAL actions including perverting justice) , the matter is not acted upon by the Judge or the Police.

            Might i add ,readers, probably because of past precedent,if one has no barrister only a solicitor or trainee solicitor , often they will not even raise the contempt of court process, court orders etc. with the Court at all. I can only speculate they are so used to doing it themselves when acting for LA’s.

            So now we know why our lawyers just shrug and look away when we complain about blatant dishonesty and contempt of procedures and court orders by LA lawyers.They know the Judges too well and that any parents complaints are ignored. In fact, it will be held against them in judgment if they persist.

            Criminal contempt of Court , especially when supervised by trained lawyers, has to be done with criminal intent. This is why institutional child abuse flourishes and how miscarriages of justice fall through the net. No wonder Lord Munby and all the other high court judges are so flabbergasted when they hear appeals.

            I really don’t know ,Sarah, what about question no. 2. in my comment above?
            Readers, in my view,the reason contempt of court won’t be their top priority is because the last thing they want and which they have to avoid is issues discussed in an open ,criminal Court. It would be disastrous for them and their careers,i guess. If forced to they will even call the whole case off to placate parents rather than enforce the law of contempt.
            As regards all the parents who publish names online, i should imagine many of them do it in the hope of forcing a day in the criminal court. The authorities won’t want this, so prefer to let the contempt pass.

            Sarah, if children and families are not granted a Police investigation and actions against institutional,criminal abuse of this or any kind, even when they HAVE neglected their children and are thought to present future risk.they are denied their civil rights,do you agree?

            This will be discrimination, in my view. Please , have you considered that if this happens and citizens are denied their domestic civil rights, this is incompatible with their ECHR rights? If so, could they dispense with the domestic remedies .

    2. Angelo Granda

      Sam,good point but ,without wishing to disrespect legal professionals,the only time laws become ineffective ,are waived or when flouting it can be ignored is when it is the LA and public officials that are the offenders.
      When it happens,their legal teams seem to be very good at negating criminality and those of the parents very coy at pushing against it.
      Its one law for the rich and one for the poor and vulnerable,as they say.
      This is not being sarcastic,it is being realistic.
      Don’t forget your question on the other thread. ” Biassed?”

      Reply
  5. Angelo Granda

    Proceedings are within the ambits of both sections but it seems very clear to me they should not be; the cases are not truly private and inter familial, they are public law proceedings between public authorities and families and contain documents,testimony etc.from members of the public ( including other public agencies and witnesses who testify). Surely such proceedings should lie within the ambits of full,public scrutiny.
    Especially when it is known cases have not been conducted correctly,why can’t the judge use his discretion and open up all documents to public view?
    Then the members of the public involved along with all others interested can check if they have been misquoted,misinterpreted or if archives and records are historically correct or not.
    Try arguing for transparency on these grounds,Sarah,or has it all been tried before?
    I’m only making suggestions and I suppose they seem very naive to you.However, I believe total transparency is what the public including all the children would prefer if that counts for anything at all.

    Reply
    1. Sarah Phillimore Post author

      You are right; closed courts should be a rare exception to the general rule which is that justice should be seen to be done. I don’t think any case in a court is truly ‘private’ as the administration of justice is a matter of relevance and importance to us all. But equally I don’t think the world needs to know details about the sexual abuse of a child for e.g. and some matters are deeply personal and should be kept as private as possible

      Therefore a balance does need to be struck. I don’t think at the moment we have the balance right but I am also uneasy about any blanket open season on family courts. I think that will cause emotional harm to many who will be embarrassed and distressed at the thought others know deeply private and personal things about their own private tragedies.

      Reply
  6. Angelo Granda

    I think you are right that some matters are best kept private but the only ones that gain from complete privacy are the Authorities.Children lose by it. What happens in Crown Courts?

    As an example, medical documents stated clearly in one child’s case that she was on the autistic spectrum but it was important to note that she was very bright and did not have severe learning difficulties. Yet the LA stated as the main fact to satisfy the criteria for neglect that she had severe learning difficulties. Now , i can only assume the Judge did not look at the medical records called for by the parents and took the word on oath of the LA because the Court declared the threshold criteria crossed. Had the parents been able to approach the consultant and show her the threshold criteria document,i have no doubt she would have been hammering on the door of the court to set the record right and discredit the LA’s false statements .In the same case, the parents had never,ever heard the child swear,indeed she barely spoke at eight years of age. The social worker stated under oath that one of the teachers had said that the child was disruptive and constantly swearing in class. The parent had a word with the class teacher who told her there had never been a problem about swearing. Had the parent been allowed to show the statement to the teacher, i have no doubt she also would have been only too willing to attend court to discredit the LA evidence.
    Of course, the parents engaged with their lawyer but what could she do .Are the lawyers unable to show documents to potential witnesses also?
    In fact,usually doctors and teachers will not even talk to parents or respond to enquiries from parents whilst proceedings are started because the LA forbids them from doing so. That just isn’t fair.
    Anyway I am sure,with your long experience you know all about these problems . Good luck with the appeal. Let’s hope the appeal judge makes a radical change. The time is right.

    Reply
  7. Pingback: Why its time to open up the Family Courts | Child Protection Resource

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