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Home > Judgments > 2019 archive

Medway Council v Root [2019] EWHC 669 (Fam) and Root v Medway Council [2019] EWHC 1640 (Fam)

Application for committal relating to breaches of orders prohibiting R publishing material in relation to her children. Consideration of the legal framework and the publication of hyperlinks. Subsequent successful application to purge the contempt.

Background
Ms Root (R) had campaigned about the LA's actions in respect of two of her children who were made subject to care orders in 2011.  There is a lengthy history of litigation, including applications for discharge of the care orders, the making of injunctions, and orders made under s.34(4) and s.91(14) CA 1989. 

R placed information on the internet from 2014-15, causing distress to the children, who expressed a wish for R to cease putting information about them on the internet, and unsettling their placements.  The LA's first committal application was issued in June 2016.  It was heard by HHJ Polden in July 2017, together with the second application of March 2017. In August 2017, R was sentenced to 6 months' imprisonment suspended for 12 months on the condition that R complied with the injunction made in 2011.  R's appeal of HHJ Polden's findings was dismissed.  The issue of reporting restrictions in respect of the committal hearing was transferred to a High Court Judge.  In February 2018, the LA issued a further committal application. 

Theis J heard the LA's applications to continue the injunction, for an RRO and non-molestation orders in February-March 2018.  In May 2018, Theis J heard the further committal application.  R was sentenced to 6 months' imprisonment suspended for 12 months on the condition that she complied with the injunction made that day. 

The instant committal application was issued by the LA in November 2018, alleging 14 breaches.  It was heard by Theis J in February 2019.

Discussion
The legal framework is set out. There were two issues in dispute: (i) whether posting a hyperlink to a judgment constitutes 'publishing' that judgment; and (ii) whether speaking words in the audio of a video recording can constitute 'displaying' that material. 

There is no binding authority on the issue of the hyperlink in the context of contempt in this jurisdiction.  Theis J considered decisions of the Canadian Supreme Court and Australian Supreme Court, both in the context of defamation.  Theis J preferred the approach taken by the Canadian court that making reference to the existence of something by hyperlink, without more, is not publication of that content. A hyperlink is a reference to the existence and/or location of the content, rather than publication of that content. To get to the content, a further step needs to be taken. It is arguable that without clicking on the link there is no publication of it. 

Theis J accepted "it could be said that the publication of the judgment citation together with the hyperlink is sufficient but, in my judgment, that does not equate with publishing the full judgment in connection with any identifying information relating to the children. It comes very close, but in the circumstances where this court is dealing with in proceedings involving contempt the position needs to be unambiguous".  In the future when considering such orders it may be sensible for the court to actively consider whether there should be an express prohibition of publication of hyperlinks.

The question of whether something can be 'displayed' when it is read out is fact dependent. 

Decision
Theis J considered each allegation in turn.  A number of the breaches were found not proved. In particular, in respect of the publication of the hyperlink: as there were competing arguments in an undecided area of law, R should be given the benefit of that uncertainty.  Ultimately, Theis J found thirteen breaches proved. This included the posting of videos of R reading material from the proceedings, posting documents from the proceedings or that gave information about the proceedings, and messages setting out her alleged injustices. Many of these were accompanied by identifying material about the children. 

Sentencing was adjourned to 6 March 2019.  R was resolute that she would not give up her campaign.  She could not see that in continuing her behaviour she was likely to alienate the children for longer and would not accept any suggestion that it was causing them distress. The court considered R's personal position, including medical reports, but concluded only an immediate custodial sentence was likely to secure compliance. R was sentenced to 9 months' imprisonment: the suspended sentence was activated, plus 3 months for each of the breaches to run concurrently but to run consecutively to the 6 month sentence. 

[2019] EWHC 1640 (Fam)
On 26 March 2019, Ms Root applied to purge her contempt on two grounds: (i) the deterioration in her health; and (ii) an unconditional apology for breaching the orders and undertaking to comply with them in the future. The matter came before Theis J on 29 March 2019.  Ms Root had removed the offending material from Facebook and Twitter, with further pages no longer publicly accessible pending their removal.  As a consequence, the local authority acknowledged that the purpose for which they sought committal had been achieved. Ms Root gave sworn evidence, apologising for her breaches and accepting that she should not behave that way in the future.  The court accepted Ms Root was truly and genuinely apologising and had taken steps to remove material from the public domain.  The court permitted Ms Root to purge her contempt and ordered her immediate release. 


Summary by Victoria Roberts, barrister, Coram Chambers

You can read the full judgment of Medway Council v Root [2019] EWHC 669 (Fam) and Root v Medway Council (Application to Purge Contempt) [2019] EWHC 1640 (Fam) on BAILII