username

password

DNA LegalHarcourt Chambers1 Garden Courtimage of 4 Paper Buildings logoGarden CourtHind CourtCoram Chamberssite by Zehuti

Home > Articles > 2014 archive

Reporting Restrictions and the New Transparency - Part 2

In the second part of her article reviewing reporting restriction orders and the new transparency Mary Lazarus, barrister of 42 Bedford Row, considers those cases involving aggrieved parties and cases with international implications.

Mary Lazarus, barrister, 42 Bedford Row


















Mary Lazarus, barrister, 42 Bedford Row

As I explained in Part 1 of this article, much of what has emerged from the High Court and in particular from the President can be seen to fall into distinct groups: 

Part 1 of this article deals with the first group of cases involving acute clashes between Articles 8 and 10, together with consideration of some recent issues arising in procedure. Part 3 reflects on the new Transparency Guidance.

This second part of this article covers recent cases involving aggrieved parties and those which have international implications.

These cases demonstrate inevitable and interesting interplay with the new transparency and raise implications for consistency of a transparent approach, improvements to the management of such cases, and significant concerns that remain to be clarified.  These issues will be covered in Part 3.

Sir James Munby P's extensive forays into this field in the last year have been focused upon his key concerns, which he expressed at the outset of J (A Child), Re [2013] EWHC 2694 (Fam) (05 September 2013): 

"This case raises important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, their complaints are about the care system. The case also raises important questions about how the court should adapt its practice to the realities of the internet, and in particular social media."

Aggrieved parties
In Re J a wide contra mundum injunction was sought relating to Child J whose removal from the family had already been publicised on Facebook and elsewhere on the internet, including a video clip.  The parents, and the father in particular, were vehement and open in their hatred and mistrust of social services, the use of care proceedings and the family justice system generally.

Munby P takes us unusually smartly through the legal framework and highlights two key areas for further expansion:

"21. What may be called the 'automatic restraints' on the publication of information relating to proceedings under the Children Act 1989 are to be found in section 97 of that Act and section 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of "material which is intended, or likely, to identify" the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child: see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para [82], A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, para [79], In re X and others (Children) (Morgan and others intervening) [2011] EWHC 1157 (Fam), [2012] 1 WLR 182, sub nom Re X, Y and Z (Expert Witness), [2011] 2 FLR 1437, para [32]. So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.

22. The court has power both to relax and to add to the 'automatic restraints.' In exercising this jurisdiction the court must conduct the 'balancing exercise' described in In re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591, and in A Local Authority v W, L, W, T and R (by the Children's Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1. This necessitates what Lord Steyn in Re S, para [17], called "an intense focus on the comparative importance of the specific rights being claimed in the individual case". There are, typically, a number of competing interests engaged, protected by Articles 6, 8 and 10 of the Convention. I incorporate in this judgment, without further elaboration or quotation, the analyses which I set out in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [93], and in Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, at para [80]. As Lord Steyn pointed out in Re S, para [25], it is "necessary to measure the nature of the impact … on the child" of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, para [33].

23. I should add two further points. The court may, by an appropriate injunction, extend the anonymity of the child beyond the point at which section 97 of the 1989 Act ceases to have effect in accordance with Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11. But it is important to note the views expressed in that case by each of my two immediate predecessors as to the likely need for specific orders protecting a child's identity beyond the conclusion of the proceedings. Both were sceptical. Sir Mark Potter P said this (para [51]):

"given the existence of section 12 of the Administration of Justice Act 1960 which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save in so far as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life."

Wall LJ, as he then was, said (para [145]):

"My impression is that there are unlikely to be many cases in which the continuation of that protection will be required."

I shall return to this below.

24.The court may likewise, by an appropriate injunction, afford anonymity to other participants in the process, for example, an expert, a local authority, or a social worker. Such injunctions, however, will not readily be granted: see the discussions in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, and In re X and others (Children) (Morgan and others intervening) [2011] EWHC 1157 (Fam), [2012] 1 WLR 182, sub nom Re X, Y and Z (Expert Witness), [2011] 2 FLR 1437. As I put it in A v Ward, para [181], any such application in relation to an expert or a social worker must be justified by reference to "the particular circumstances or particular vulnerabilities of specific individuals." What I referred to as a 'class' claim, that is, "a claim that any professional who falls into a certain class – and in the case of … social workers … the membership of the class is very large indeed – is, for that reason, and, truth be told, for that reason alone, entitled in current circumstances to have their identity protected, in plain language to have their identity concealed from the public", will not succeed. Anonymity should not be extended to experts, local authorities and social workers unless there are compelling reasons. Again, I shall return to this below."

Then at §25-40 he set out key cogent arguments for improved transparency: the right of the public to know what is done in their name; the drastic nature of decisions made by the family courts; the role of public debate and the 'jealous vigilance of an informed media' in highlighting and therefore assisting to avoid miscarriages of justice; maintenance or improvement of confidence in the family justice system; the fact that views about the system expressed by parents are matters of public interest that should be discussed publicly; and finally (§37-40) that free speech is awarded to all, not only those thought deserving, well-informed or more likely to report fairly, i.e. the court is not to exercise any editorial function (Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam)).

So in Re J he declined to make the widely drafted order originally sought, pointing out that the naming of professionals and even local authorities would not necessarily make it likely that child J would be identified.  Clearly evidence justifying such a claim would be necessary in order to include such details in the RRO.

Equally, he was rigorous in avoiding too wide a wording that would prevent an aggrieved parent from legitimately discussing issues about himself or child J, ensuring that publication should only be prohibited if it were prejudicial to J.

Finally, he declined to prohibit publication of images of child J, being only a tiny baby, justifying it thus:

"80. For reasons I have already explained, an injunction which cannot otherwise be justified is not to be granted because of the manner or style in which the material is being presented on the internet, nor to spare the blushes of those being attacked, however abusive and unjustified those attacks may be. The only justification, as Mr MacDonald correctly acknowledges, is if restraint is necessary in order to protect J's Article 8 rights and, in particular, J's privacy and anonymity.

81. There is, however, in my judgment, a crucial difference in a case such as this, where we are concerned with a baby a day old (though the same point will no doubt apply to somewhat older children), between restraining publication of the child's name and restraining publication of visual images of the child. There are three reasons for this. First, the reality is that although anyone can identify a baby by its name it is almost impossible, unless you are the parent, to distinguish between photographs of children of that age who have the same general appearance. Second, the reality, at least with current domestic technology where searches of the internet are by word (name) and not image, is that unless you have a name, or a mass of other identifying details, it is going to be very difficult, if not impossible, to locate anonymous postings about an individual. Third, in a case such as this, although there may be a powerful argument for asserting that the baby who features in a filmed episode should not be named, there are at least as powerful arguments for asserting that the publication on the internet of film such as I am concerned with here, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby.

82. Assessing these three factors together, there is, it seems to me, a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful 'link' in the searcher's mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view."

The President adopted a similar approach in in Re P (A Child) [2013] EWHC 4048 (Fam) (17 December 2013), the notorious case of the decisions in the Court of Protection and in care proceedings respectively to authorise a birth by caesarean section to an Italian mother detained under the Mental Health Act and the baby's subsequent and rapid removal from her care. Munby P decided that the use by the mother of her maiden name and publication of pictures of her would not risk the identification of her extremely young child in foster care. Since the child was known by the mother's former married name, he considered claims that the child might be identified as 'fanciful'.  Restricting publication of the mother's name and picture would prevent her from exercising her legitimate rights to complain about her treatment, and prevents exploration of issues of immense and legitimate public interest from being fully and meaningfully aired:

"35. The public has an interest in knowing and discussing what has been done in this case, both in the Court of Protection and in the Chelmsford County Court. Given the circumstances of the case and the extreme gravity of the issues which here confronted the courts – whether to order an involuntary caesarean section and whether to place a child for adoption despite the protests of the mother – it is hard to imagine a case which more obviously and compellingly requires that public debate be free and unrestricted.

36. The mother has an equally obvious and compelling claim to be allowed to tell her story to the world. I repeat what I have on previous occasions (see most recently Re J, para 36) about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system and likewise being able to criticise local authorities and others. I repeat what I said last week (Re P [2013] EWHC 4037 (Fam), para 4):

"The mother wishes to complain publicly about the way in which the courts in this country have handled her and her daughter. The court should be very slow indeed before preventing a parent doing what the mother wishes to do in the present case."

If ever there was a case in which that right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out – and, I emphasise, to speak out, if this is her wish, using her own name and displaying her own image – would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.

40. P's welfare demands imperatively that neither she nor her carers should be identified. On the other hand, as Charles J pointed out, neither the compelling public interest in knowing about the case nor the mother's compelling claim to be allowed to tell her story, would be advanced one iota by identifying P or her carers. I repeat what I said last week (Re P [2013] EWHC 4037 (Fam), para 3):

"the arguments in favour of the continuing anonymisation of the child are overwhelming and … arguments in favour of the naming of the child, if indeed there are such arguments (and none have in fact been put forward), are exiguous and, on any basis, heavily counterbalanced by the arguments in favour of the child's anonymity being preserved."

That was as far as Charles J was prepared to go. He was not prepared to grant any injunction restraining identification of either the mother or P's father. I agree entirely with that approach. There are, as I have already acknowledged, the most obvious and compelling reasons why, in this case, there should be no stifling of the widest possible public discussion of what has happened nor any stifling of the mother if she wishes to speak out. Moreover, as I said last week (Re P [2013] EWHC 4037 (Fam), para 5):

"any argument that if the mother is identified, as has in fact happened, whether by name (by which I mean her maiden name) and/or by photograph, that would in some way lead to the identification of the child is little more than fanciful. Accordingly, … there are … very compelling arguments that the mother should not merely be enabled to tell her story to the world at large (if that is what she wants), but moreover that she should be enabled to do so by reference to her name (by which I mean her maiden name rather than her married surname), as, indeed, if this is what she wants, allowing her photograph to be published."

What, of course, is of particular note is that the absence of any earlier publication of the judgments of the Court of Protection and in the care proceedings led to two undesirable outcomes. 

The first was the grossly inaccurate and misleading reporting of events (although it would be naïve to suggest that the publication of the judgments would by itself prevent such a possibility, as noted by The President when he referred to an earlier case of his in a speech at the Annual Conference of the Society Editors in the following terms: "dare I suggest that the media should remember the great C P Scott's famous aphorism that "Comment is free, but facts are sacred." I recently gave a judgment that received coverage in the media. A legal commentator suggested that readers might wish to compare and contrast what I had actually said with how it was reported: "Compare. And contrast … And weep.""). 

The second was that commentators could take advantage of those absences to criticise the family courts as secretive, as if there were some need to conceal heinous and unfair decisions rather than openly reveal to the public gaze extremely difficult and sensitive situations:

"1. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

2. The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges."

A knotty and associated problem was discussed in detail by HHJ Bellamy (sitting as a High Court Judge) in Re K (A Child: Wardship: Publicity) (No 2) [2013] EWHC 3748 (Fam) (08 November 2013). 

The adoptive parents in this case wished to complain about the approach of Coventry City Council to the management of their adopted child's needs, and in particular the failure to provide therapy, and properly sought clarification in the form of declarations as to what they might lawfully raise with the Press.  The adoption had broken down and the child became a ward of court.  The judge confirmed that there is nothing in s12 Administration of Justice Act 1960 to prevent the parents from identifying themselves to the Press as 'MG and FG, the parents of Katie' and so linking themselves to the reported cases in the anonymised manner in which those cases already referred to them.  Taking it a stage further to refer to themselves by their actual names as 'MG Jane Jones and FG Peter Jones' (say) would put into the public domain their real identities and would lead to Katie being identified, and was neither sought nor would be permitted.  However, the judge was alert to the risks that identification as MG and FG might still hold:

"22. I acknowledge that even that limited entitlement is not without risk of identification of MG and FG as Jane Jones and Peter Jones. The print media may wish to accompany the text of a story with photographs. The broadcast media may wish to broadcast an interview with the parents. It is not only names that lead to identification. Images and voices can also lead to identification. However, these are issues which can be addressed by the media and controlled by the court. This is well illustrated in the judgment of Holman J in Re B, C and D (by the Children's Guardian) [2010] 1 FLR 1708:

'[46] …if there is any publication of the birth parents' story it must not include their names or any recognisable or identifiable picture of them. Provided, however, that a picture (whether in print or on television) is conscientiously and responsibly pixellated and/or 'rear view' or otherwise obscured or disguised, such that the depicted person cannot be recognised or identified, then a picture or image may be depicted. Similarly, since there is no evidence that any of the children would or could recognise a birth parent's voice, I do not require that their voice or speech is disguised or distorted… [50] It would be unthinkable that any sound or television or similar broadcast would be broadcast live, with the high risk of a birth parent blurting out a name or identifying feature, whether deliberately or accidentally, and any pre-recorded broadcast must be similarly rigorously edited, if necessary by brief sound distortion (as in an expletive deleted), to prevent disclosure…'

23. Similar protection can be afforded in this case. Any published images of the parents must be adequately pixellated. Voice or speech must be disguised or distorted. There must be no images of the parents' birth children, Chloe and Rachel, or any image which might identify where the parents live or work. The parents must not take part in any live broadcast. All of this is necessary and proportionate in order to guard against the risk of Katie herself being identified."

The parents also sought declarations as to what details of the case they might be permitted to discuss with the Press:

"24. I turn, finally, to the third issue raised by the parents and that is their request for a Declaration that it shall not be a contempt of court to publish the following information:

 i their reflections and feelings on the material set out in the judgments in this case that have been published on Bailii and in particular their experiences of adoptive parenting and being part of a family with a child with RAD including the implications for the adoptive siblings of that child and for wider family members;

ii their contention that better outcomes might have been possible in the case of Katie including consideration of all aspects from the availability of respite care, the accuracy of social care records (including Data Protection Act implications) and value for money;

iii their contentions about the need for greater recognition of reactive attachment disorder, treatment options and support for the families involved from social services; 

iv their relationship with Coventry City Council and their experience of dealing with that local authority since they adopted Katie and in particular their contention that the local authority's failure to accept and follow expert advice regarding RAD and the treatment of it has led to an outcome for Katie where she is now at much greater risk of serious harm; and

v their views about the secrecy order and the ex parte order forbidding the parties from speaking to the media and the subsequent variation of those orders.

In discussing these issues with the media the parents wish to be able to name Jane Dunne (a social work Team Manager), Andy Waugh (Jane Dunne's manager), Andy Pepper (Deputy Director of Social Services), Colin Green (at the relevant time the Director of Children's Services) and Bob Dhammi (the Independent Reviewing Officer). Only Mr Pepper was referred to by name in the judgment of 27 July 2012."

HHJ Bellamy considered the current legal context, including both the case law establishing the proper identification of expert and professional witnesses and the President's decision in Re J [2013], then referred back to an earlier judgment in the case for his summary of the legal framework in relation to s12 AJA: K (A Child: Wardship: Publicity) [2013] EWHC B11 (Fam) (25 July 2013) at §54-63, leading to a further helpful discussion of the implications of s12 AJA, with reference to earlier decisions by the President, and derived the following succinct analysis:

"113. Put shortly, it is not a breach of section 12 to publish a fact about a child, even if that fact is contained in documents filed in the proceedings, if what is published makes no reference to the proceedings at all. After all, as Lord Denning MR said in In re F, it is not a contempt to publish information about the child, only to publish "information relating to the proceedings in court". Or, as Scarman LJ put it, "what is protected from publication is the proceedings of the court".

114. In other words one has to distinguish between, on the one hand, the mere publication of a fact (fact X) and, on the other hand, the publication of fact X in the context of an account of the proceedings, or the publication of the fact (fact Y) that fact X was referred to in the proceedings or in documents filed in the proceedings. The publication of fact X may not be a breach of section 12; the publication of fact Y will be a breach of section 12 even if the publication of fact X alone is not."

He concluded that there was sufficient information in the public domain in the form of the earlier reported judgments in this case to enable the parents to discuss all the issues that concerned them without the need to relax the s12 restrictions further.  However, he gave permission for the social workers to be referred to by name in those discussions.

International implications
There are two key aspects to consider: the ability to meet the necessary requirements in order to obtain such an injunction; and the appropriateness of extension of the powers of this jurisdiction into a foreign jurisdiction.

In Re J Munby P sets the scene and addresses the impact of the internet revolution in these terms:

"42. …It suffices for present purposes to make three points, building on what Tugendhat J said in MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB), para [11]. First, the internet allows anyone, effectively at the click of a mouse, to publish whatever they wish to the entire world – or at least to everyone who has access to the internet. No longer does the campaigner have to persuade a publisher, newspaper or broadcaster to disseminate the message. So there is very little editorial control. The consequence is that the internet is awash with material couched in the most exaggerated, extreme, offensive and often defamatory terms, much of which has only a tenuous connection with objectively verifiable truth. Second, material once placed on the internet remains there indefinitely and, because of powerful search engines, is easily accessible by anyone wanting to track it down. Third, internet providers are often located outside the jurisdiction, in countries where practical difficulties or principled objections stand in the way of enforcing orders of this court.

43. All of this, it goes without saying, poses enormous challenges. The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies. We must not simply throw up our hands in despair and moan that the internet is uncontrollable. Nor can we simply abandon basic legal principles. For example, and despite the highly objectionable nature of much of what is on the internet, we must, at least in the forensic context with which I am here concerned, cleave to the fundamentally important principles referred to in paras [37]-[40] above.

Foreign Defendants
44. I need at this point to deal with the legal implications of the fact that some of the internet providers targeted by the local authority are outside the jurisdiction. They are entities incorporated under foreign laws. They have, so far as the local authority is aware, no legal, physical or commercial presence and no assets in this country. Their only connection with this country is that the websites they host are accessible from this country by the internet.

45. This raises an important point of principle of potentially wide significance in a variety of forensic contexts in the family courts: see for a recent example, in the context of section 24(1)(c) of the Matrimonial Causes Act 1973, BJ v MJ (Financial Order: Overseas Trust) [2011] EWHC 2708, (Fam) [2012] 1 FLR 667, para [7].

46. But at the outset I make clear that there is, in principle, no objection to the English court in an appropriate case granting injunctive relief against a foreign-based internet website provider. Mr MacDonald has helpfully drawn my attention to XY v Facebook Ireland Limited [2012] NIQB 96, HL (A Minor) v Facebook Incorporated and others [2013] NIQB 25 and Tamiz v Google Inc , affirmed [2013] EWCA Civ 68, [2013] 1 WLR 2151. Other relevant cases are G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), [2010] EMLR 14, and Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753.

47. I can likewise see absolutely no reason why the same principle should not apply equally in the case of what has come to be known as a contra mundum injunction. In my judgment there is, in principle, no objection to the English court in an appropriate case granting a contra mundum injunction against the world at large, including against foreign-based internet website providers."

Central to the ability of an English court to make such injunctions is proper service regulated by FPR 6.41 and 6.43(3) which apply by virtue of FPR 6.1 and 12.1(1)(d); and evidence of the 'real possibility of enforceability':

"63. Drawing the threads together, the court is going to need evidence on two distinct matters. First, in relation to jurisdiction, the court will expect the applicant to put before the court evidence that service by email or letter or as the case may be is permitted by the law of the relevant foreign country: Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753, para [53]. Second, in relation to discretion, the court will need evidence as to the applicable law and practice in the foreign court, evidence as to the nature of any proposed proceedings to be commenced in the foreign jurisdiction, and evidence as to whether the foreign court would be likely to enforce the injunction: compare Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499. Where the injunction, as here, engages freedom of speech, the evidence will also have to detail the foreign jurisdiction's approach to such matters. Given the First Amendment, this is obviously particularly important in the case of the United States of America: cf the comments of His Honour Judge Parkes QC in Davison v Habeeb and others [2011] EWHC 3031 (QB), para [69].

64. If what is being sought is an injunction against named defendants it will usually be appropriate for all this evidence to be available before the court is invited to grant the injunction. If, however, what is being sought is, as in the present case, an injunction in contra mundum form, it may be more appropriate to adopt the same procedure as with worldwide freezing (Mareva) orders: see Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, and the form of freezing injunction in the Annex to CPR PD 25A."
(emphasis by underlining added)

If it is not possible for an applicant to provide satisfactory evidence that the relevant country will enforce the injunction granted by a court of this jurisdiction, the applicant must give an undertaking: that it will "not without permission of the court seek to enforce this order in any country outside England or Wales."

It is not proposed to rehearse here all the cases involving foreign nationals and reporting restrictions which have been reported in recent months.  But of particular note is the case of Re E (A Child) [2014] EWHC 6 (Fam) (14 January 2014).  The case concerns E who has both Slovak and British nationality.  The facts are highly unusual and would, if fully divulged in this country, result in disastrous identification for child E.  He  is in his early teens and so older than many children subject to care proceedings and has been subject to formal hospital detention under the Mental Health Act. The Slovakian mother had already raised her concerns vociferously and publicly in the Slovak media (in print, on the internet and on television, and all in Slovakian).  Those reports contained some inaccuracies along with some correct key facts, including the name of the child E and his aunt (also Slovakian) who now cares for him in this country. 

In this case the President granted a RRO and took the opportunity to address some fascinating and important side issues (given the ambit of this article), namely: the importance of considering that the courts, experts, child protection agencies and professionals of other (particularly Hague and EU) nations are of equal status to those of this jurisdiction; the necessity of international judicial comity and co-operation; the mandatory nature of Article 17 BIIR as to which EU state has jurisdiction; co-operation via central authorities on matters of parental responsibility; and the application of the Vienna Convention on Consular Relations to care cases.

This last means that where a parent or party is 'detained', for example under the Mental Health Act, practitioners must be alert to certain steps, no less where a RRO is sought in care or public law cases:

"47.Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case:

i) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state. In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

ii) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for

a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or

b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

iii) Whenever a party, whether an adult or the child, who is a foreign national

a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or

b) is detained, the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay."

Returning to issues more directly germane to RROs, the President reiterated his position set out in Re J and Re P as to the importance of the parent's ability to express her views as to the family justice process. However, he also made some important observations about foreign media and arrived at a solution limited so as to avoid inappropriate interference with another State's media while tightly aimed at minimising the mischief of damaging disclosure in the British Press or accessible in English on the internet:

"56. In relation to foreign media the English court must proceed with very great caution. As a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible. In the first place, what justification can there be for the courts in one country seeking to control the media in another? If the media in a particular State are to be controlled that must be a matter for the relevant authorities in that State. For the courts of another State to assume such a role involves an exercise of jurisdiction which is plainly exorbitant, not least as involving interference in the internal affairs of the other State. What would we think, what would the English media think, if a family judge in Ruritania were to order the Daily Beast to desist from complaining about the way in which the judicial and other State authorities in Ruritania were handing a case involving an English mother? Secondly, the exercise of such a jurisdiction would be inconsistent with the principles I explained in Re J, paras 44-65. Thirdly, any such attempt would in all probability be an exercise in futility.

57. On the other hand, a different approach may be justified where internet or satellite technology is involved, for there the media have an extra-territorial effect. It is of the essence of the internet that, wherever the service provider or the service provider's servers may actually be located, the information is accessible throughout the world. So, in principle, attempts by a court to control the internet are not subject to the complaint that they are thereby interfering with the purely internal affairs of a foreign State.

58. Applying this approach, proviso (ii) to paragraph 15 makes clear that the English court is not seeking to interfere in any way with the print or broadcast media in any foreign country, including but not limited to Slovakia, even if it is the English language which is being used. And in relation to internet and satellite services, proviso (iii) confines the potential application of the order to those services using the English language.

59. So the mother can publish whatever she wants in the foreign print or broadcast media or, so long as it is not in the English language, on the internet. The only restriction on the mother's freedom to publish her story is that she must not do so in the English print or broadcast media or, using the English language on the internet, in such a way as to identify E in one or other of the ways referred to in paragraph 15 (including by the use of her married surname)."
(emphasis by underlining added)

Part 3 of this article will go on to consider the impact of the President's Transparency Guidance, issued subsequent to and no doubt stimulated by these judgments and the principles considered within them,  and will reflect on its implications, including those relating to aggrieved parties (the President's 'disgruntled parents') and the internet and social media.

To read Part 1 of the article, please click here. To read Part 2, please click here.

4/3/14