Τρίτη, 18 Μαρτίου 2008

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UK FAMILY JUDGES HEARNE AND BODEY ALLOWED POSSIBLE CHILD SEXUAL ABUSE BY MOTHER TO CONTINUE

- INSTEAD HARASSMENT BY BRITISH COURTS AND POLICE AGAINST THE FATHER :: RAY BARRY ARREST

Today Tuesday, March 18, 2008 father Ray Barry (The Megaphone Dad) from the UK was arrested for a fifth time by the intimidating UK police, possibly in connection to his website Megaphone Dads of which a copy is included below.

Below is some information on Ray’s ‘case’.

Peter Tromp

Father Knowledge Centre

----- Original Message -----
From: "Matthew O'Connor" <
matt@fathers- 4-justice. org
>
Sent: Tuesday, March 18, 2008 10:05 AM
Subject: [fathers4justice] URGENT RAY BARRY ARREST

Guys and girls ­ if anyone has any info on Ray Barry who was arrested this
morning please call me on 07795 547 374

Thanks

Matt

The case of father Ray Barry (UK)

http://www.megaphon edad.net/

Unsuccessful attempts to close down (t)his web-site.
Megaphone dad – Naming and shaming
http://www.megaphon edad.net/ page6.html

My son’s future was decided by a coin tossing judge

Four in a row
Just last week, I was arrested in connection with the matters published on this web-site. That makes 4 times now. None of these arrests has ever led to a conviction, and so far I have received £1500 in compensation for wrongful arrest. You would think this would make the Police reflect before continuing to harass me, but it doesn’t. Why should it? After all, it’s only public money they are wasting, not their own.

This latest arrest
Following another complaint by my ex-wife Liz Barry, I was woken from my bed at 2.30 am last Monday, arrested, and locked in a cell for 16 hours before anyone even spoke to me about her complaint. Even now I do not know what it is I am accused of, except that it is somehow connected to this web-site.

Later that evening, I was released on bail pending further investigation, with some very odd bail conditions imposed on me, which the custody sergeant justified on grounds that there were previous injunctions against me for harassing her. I told him this was untrue; I have never committed any offence, or had any injunction against me. He explained that my ex-wife had said otherwise and that was good enough for him. She was a woman; I was a man; so she must be telling the truth and I must be lying.

The next day, I applied to the local court, and the Magistrates did over-turn these peculiar bail conditions.


What Next?
What if, as has happened before, this latest arrest ends with the Police taking no further action against me, and what if they discover that my ex-wife has lied to them in order to have me arrested? Will I receive an apology, and will they take action against her? Of course not. All she has to do is cry and say she got terribly confused, and they will let her off. As for my time in the cells, well I am a man so I probably deserved it.

Ray Barry
10th March 2008

Fuller Details of Arrests

Arrested 4 times by Wolverhampton police for peacefully protesting.

http://www.megaphon edad.net/ on-line%20police %20leaflet% 202.pdf

I’ve not been allowed to see my eldest 2 children for 8 years. Faced with injustice from the Family Courts, I resorted to naming and shaming those responsible on:

www.megaphonedad. net

On this web-site is a 4-minute covert video of my ex-wife cheating on me and deliberately turning our children against me, with the backing of the state. I have never broken any law in my life. I am a devoted father, a life-long Christian who once trained as a priest, and with a 30 year Civil Service career behind me. Yet making simple, peaceful protests, which both the High Court and Crown Prosecution Service have ruled to be lawful, has led to repeated arrests and harassment by the Police.

Ray Barry

The 4 arrests

No 1 I was handing out booklets in Wolverhampton, criticising the Family Law system which has removed my children from me; my ex-wife complained that the booklets identified her, and criticised her for poisoning the minds of my children against me. I was arrested, the CPS read the booklet, decided it did not breach any criminal law, and I was released without charge.

No 2 I stood with a placard along the route of Wolverhampton’s Civic Sunday parade, politely handing out leaflets promoting my web-site. I was arrested on grounds that many of the councillors were elderly, and I was upsetting them. I later received £1500 compensation for wrongful arrest.

No 3 At the following year’s parade, I protested with a megaphone from the roof of St Peter’s church so the Police could not so easily prevent my protest.

This time, the Police superintendent was in the congregation, and the councillors complained to him that my protest was disturbing their service. When I came down, I was arrested and charged. I knew that what I had done did not amount to an offence. The court agreed, and I was acquitted.

No 4 Meanwhile, my ex-wife had gone to the High Court to try to prevent me publishing material which identified and criticised her. After a 6-day hearing, the court found in my favour. So now, both the High Court and the Crown Prosecution Service have held that my publications are not unlawful. 2 weeks ago, my ex-wife again complained to the Police that I was publishing material which identified and criticised her. So did they tell her these matters had already been investigated, and she should go away and not waste their time?

No. They sent 6 officers to get me out of bed and arrest me at 2.30 am. They kept me in a cell for 15 hours then released me again without charge.

Am I paranoid, or have the police got it infamy?

www.megaphonedad. net

Homepage megaphone dad - Naming and shaming
http://www.megaphon edad.net/

My son's future was decided by a coin tossing judge

District Judge Hearne was the coin tossing judge. He made a decision which changed the course of my son’s life by tossing a coin in Walsall County Court on 23rd March 2001.

The press are not allowed to report this about District Judge Hearne, but they could if we had Open Family Courts. Until we have open Family Courts we have a megaphone dad instead – me.

So the secrecy which is supposed to be there to protect children from prying eyes does not protect children; instead it protects judges, like District Judge Hearne, from public scrutiny. That is why judges do not want Open Family Courts, and why I name and shame as a megaphone dad.

The coin tossing incident

Unsuccessful attempts to close down this web-site.

Arrested 4 times
See High Court Judgment


Respect

Background to the story

At present Family Courts operate in secret behind closed doors. Once a court case has ended, details of any children involved can lawfully be published, but not what went on in the court, or the disgraceful antics of judges.

See this 4 - minute video of Liz Barry, 24 Field Head Place, Tettenhall, Wolverhampton, cheating on me, and destroying the home and the innocence of our children.

click here......
to view video

VIDEO - Liz Barry - Royal Mail

if the first link takes more than 20 seconds to start playing.

or click here......

The coin tossing incident

megaphone dad - Naming and shaming

http://www.megaphon edad.net/ page2.html

My son's future was decided by a coin tossing judge

On 23rd March 2001, at Walsall County Court, District Judge Hearne made an important decision which altered the rest of my son's life by tossing a coin. This is what happened:

Background
My name is Ray Barry. Ever since my wife left our home, taking our 3 children with her, one of my sons had consistently said that he wanted to live with me rather than with her. She had been trying to win him round, and 9 months on he told me that his mother would get into bed with him at night and do things which he found confusing. I took him to the Police station the following day, 11th Feb 2001, where he repeated these allegations to the Police in a formal, video-recorded memorandum interview. I then applied to court for him to be allowed to live with me.


I believed what he had said, but I knew it was important for an independent psychologist to assess whether he was telling the truth or not, and the court had ordered that there must be an assessment by a psychologist. His mother's solicitor wanted to use a psychologist who did not specialise with children, and did not want him to investigate the allegation. I argued that the psychologist needed to be a child specialist, and that he must investigate the allegation; we needed evidence of whether it was true or not. That was the whole reason for doing the assessment.

My solicitor recorded the incident in a file note. “D J Hearne could not make a decision as to which psychologist would be best and therefore tossed a coin....”

Tossing a coin in court

Because we could not agree on who the
psychologist would be, and what he
would assess, the court had to decided,
and it came before District Judge
Hearne on 23rd March 2001.

The judge took a coin from his pocket
tossed it, and asked my solicitor to call
heads or tails. She called heads. The
judge told me I had lost the toss. The
mother's psychologist was chosen and
sexual abuse was not included in the

issues he was instructed to assess.

Para 3 of the order of Judge Hearne's records that he appoints mother's preferred psychologist and that he is amending the letter of instruction to him.

These extracts show the amended letter. Above the line is my solicitor’s proposed text. Below the line is Judge Hearne’s amended version, with all reference to sexual abuse removed.

What happened next

As a result of this decision, my son's allegation was never investigated by a psychologist. I applied again to Judge Hearne for it to be assessed.
The judge again refused. When the case came back to court for a final hearing to decide my son's future, the psychologist' s report said nothing about the allegation, and Circuit Judge John Cavell said of the report: “Dr Koch's report is in the papers, he was not called and he adds nothing to the issues in this case.” Judge Cavell then ordered that my son must return to live with his mother.

Judge Cavell delivered a 21 page judgment detailing all the facts he had taken into account in deciding who my son should live with, and explaining his reasoning. Nowhere in this long document is there a single reference to the fact that my son had made this allegation.


Anyone with common sense could see this was the wrong decision, and that this most important fact of all had been over-looked or ignored. Solicitors and Barristers had let me and my son down, so from now on, I acted for myself in court. By the time I received the papers from my solicitor, saw in detail what Judge Cavell had done, and learned about the relevant law and how to appeal, the dead-line had passed for appealing, but I applied to appeal anyway. Here is what the appeal court had to say.

Appeal Court verdict - put it behind you and move on.

Extracts from Judgment of Court of Appeal, 11/10/2002, Mr Justice Bodey:-

“The (memorandum) interview took place at a Police Station at 5.30 pm later that day (11/2/2001). The child alleged that his mother touches his penis and kisses his tummy. He outlined she usually touches his penis when he is in the bath or when he sleeps in her bed, when no-one else is around...”

“I have reflected carefully, having heard the father this afternoon, on the absence of a specific reference in the judge's judgment to the Memorandum Interview of February 2001. If it is any consolation to the father, I follow his thinking about it completely. If this had been brought up promptly it is possible that permission might have been given to go to the court of appeal but, unfortunately for the father it was not and life has moved on by 13 months. I am frankly not satisfied by the father's explanations for the delay in seeking permission to appeal. There has to be some finality in cases such as this so far as it can be achieved.”

Conclusion

Judge Bodey was wrong. Allowing an unjust decision to stand does not bring finality. There never will be finality in this case until justice is done. My son had the courage to tell what his mother was doing to him, and a family court judge decided how his allegation was to be investigated by tossing a coin. My son was made to return to live with his mother, and has remained there since. He subsequently retracted his allegation, and if I were in his shoes, I would probably have done the same.

RESPECT
http://www.megaphon edad.net/ page3.html

I hadn’t seen my son Robert for 5 years, when I drove past him one day as he sat in the front passenger seat of his mother’s car. He made a 1-finger gesture at me, as his mother sat next to him laughing and egging him on.

I did not blame him at all. He was taken from me at age 8, since when I have not been allowed to see him, and his mother has fed him negative images of me. It is no wonder he sees me as a figure of fun, and has no respect for me.

What puzzled me was why the court refused me permission to speak to him about this afterwards, especially as his mother had agreed with him a series of lies to put in their statements to the court to explain why he had done this and why she was laughing. I argued that, not only was he being taught by his mother to disrespect his father, she was also making him tell lies to a court.

The judge reasoned that even if she made an order that I should be allowed to see him to speak to him about this incident, he might not comply with the order, and so she would not make the order in the first place.

60% of children have little or no relationship with their father after separation, and around 70% of youth crime is committed by youngsters who grew up without their father. Is it any wonder when Family Courts make decisions like this?

Background to Barry Case
http://www.megaphon edad.net/ page5.html

Parents often want to criticise each other after an acrimonious divorce. So, I shall stick here to the handful of facts over which there is no dispute:

My name is Ray Barry. My wife, Liz Barry, left me, taking our 3 children with her, after her year long affair with a work colleague, Steven Hewitt. I did not want her to leave, or break up our family.

I now live alone, I am retired from a 30 year Civil Service career, and I am a life-long Christian, having part-trained as a priest, and holding a theology degree. My 3 children were all christened at the Church of the Good Shepherd at Castlecroft, Wolverhampton; I used to take them to services there every Sunday, and would lead some of the family services myself. My 3 children mean everything in the world to me. We used to have a big home with a garden in a nice neighbourhood. My children now live with their mother at nearby Tettenhall Wood, in a second floor council maisonette. Steven Hewitt continued the affair with my wife after we separated, but did not leave his own wife for her.

In secret video recordings which I made in our home, shortly before my wife left, I heard that Steven Hewitt had told her to stop me seeing our children altogether if she could, and on the recording made on the day she left nearly 7 years ago, she is heard saying to her mother “I'll take it as far as need be, but I tell you, that man's not seeing my kids.” I have not seen my eldest two children from that day to this.

The recordings also revealed how my wife had been systematically destroying the love and respect which these two children had for me. She had introduced them to this man, and made them help her to keep this affair secret from me, their father.

This, together with her stated intention to stop me seeing the children was, I thought, plain evidence of her intentionally destroying their bonds with me, and I thought that anyone would be able to see how harmful that would be to a child. Amazingly, however, no-one in the Family Courts saw things the same way. While there was criticism of me for smacking my son occasionally, and sending him to his room when he was naughty, no-one thought that anything she had done was harmful to the children.

One of my sons told the police in a formal interview on 12/2/2001 that his mother got into bed with him at night and touched and kissed him in a way which disturbed him. Social Services acknowledged that what he described to the police amounted to indecent assault, but decided no action was necessary. In fact, their only criticism was of me for taking my son to the Police to make this statement, as they thought this would have upset him, and on their recommendation, I saw him for just 2 hours a week for the next 2 years at a special contact centre, watched over by a member of staff with a clip-board, noting down all we did and said. Neither would Social Services look at the video recordings, which showed my children being manipulated in the most harmful way. The City Councillors then refused to use their power to over-rule Social Services, and to have these matters properly investigated by a child expert.

The purpose of my wife's actions seemed to be to draw our children into guilty secrets with her, so that they would feel obliged to cut themselves off from me. My daughter used to call me “the best daddy in the world,” and I remember how she would run and hug me when I came home from work. In the 7 years since she and her brother were made to conspire against me, both have refused all contact with me, but have not described any mistreatment by me which might account for this refusal to see me. This is normal in this country today. 60% of children have no further meaningful relationship with their father after separation, leading to 25% of all UK children being alienated from their natural fathers. Yet neither the Government, nor the Churches see this as any cause for concern.


I do not blame any of my children for turning against me. It is not they who are to blame. It is an adult world which encouraged them to choose between their parents which must shoulder the blame. I understand that my children had to find survival strategies. After making the allegation of indecency against his mother, my son was made, against his wishes, to carry on living with her, the very person he said had abused him! He has since said the abuse never happened, and that he cannot remember making the statement to the Police. Were I in his shoes, I might well have done the same.

My son's future was decided by a coin tossing judge

High Court Judgment

http://www.megaphon edad.net/ page4.html

This judgment is published by permission of Judge Fletcher, ordering on 24th August 2006:

”Permission given for the judgment handed down on 5th July 2006 to be published.”


1.Introduction. This hearing concerns two applications made by Elizabeth Rose Barry. She is a minor, born on the 24th September 1989 and so 16 years of age. The First Respondent to each application is her father, Raymond Barry, and the Second Respondent to each application is her mother, Elizabeth Ann Barry. I shall refer to the applicant as “EB” and the parents as “the mother” and “the father” during the course of this judgment.

2.The first application, issued on the 23rd January 2006, is for a prohibited steps order. In paragraph 13 of the form C1 EB states “I wish to apply under the Children Act 1989 for an order preventing the Respondent from continuing to publish information on his website regarding myself and my brothers. I find such actions by my father to be deeply distressing. This has also had a detrimental effect on my schooling on occasions and my relationship with other children”. The application is supported by a statement made by EB on the 6th February 2006, verified by a statement of truth. Exhibited to that statement as exhibit EB 1 are indistinct copies of three newspaper articles reporting the father’s activities on two occasions, each on the roof of a church, when he was dressed in a Spider-man suit. The exhibit EB2 is said to be material printed from the father’s internet website www.megaphonedad. net. I shall deal with these documents later in this judgment.

3.The second application, an originating summons issued on the 8th May 2006, seeks an injunction under the inherent jurisdiction of this court to prohibit the father
“1…from publishing or continuing to publish those paragraphs which are highlighted in yellow on the copy attached hereto on the website www.megaphonedad. net and shall not replace those or publish any alternative paragraphs having like effect and the Defendant be ordered forthwith to remove those paragraphs from the said website.
2. The Defendant be prohibited from publishing or causing to be published (whether by way of contribution to, or any other manner howsoever) on any other website or printed matter any information relating to (EB) as is referred to in the preceding paragraph.”

4.Preparation and Presentation of the Applications. I consider that something needs to be said about the preparation and presentation of these applications. EB is legally represented. The father acts in person. He has acted in person in relation to the applications concerning his children since about 2001. He is a man of good intelligence who has developed a good understanding of the law. The mother began to represent herself in these proceedings about a year ago. In general, and these applications are no exception, she supports her children in their applications. However, difficulties may arise for parties acting in person when it comes to deciding what evidence should be produced, whether it is by way of documents or from witnesses. It remains the task of the parties to decide what evidence they wish to place before the court.

5.It is a matter of some regret that the applications of EB do not appear to have been prepared as well as they might have been. The prohibited steps application was founded solely upon the statement of EB. The scope of the prohibition sought was in terms that were too wide, seeking to prohibit publication of information about EB’s brothers. This was recognised by Mr Murray. Possibly in the light of the arguments advanced by the father in his skeleton submissions dated the 8th March 2006, the decision was then taken to issue an originating application and to invoke the inherent jurisdiction of this court, seeking an injunction to restrain publication of material mentioning EB on the father’s website. However, when the originating application was sent to the court none of the documents, let alone those highlighted in yellow, were attached to the application. I advised the court staff that the application should not be issued until the necessary documents were attached and that the solicitors for EB should be advised of this decision. This was done shortly before the hearing which took place on the 27th April 2006. The father saw the defective originating application and the passages to which objection was being taken were mentioned in court on the 27th April. On that occasion the court gave a number of directions. The need for an early hearing of the applications made by EB, who was due to sit her GCSE examinations in May and June, was recognised and the court was to try and find an early date. On the 8th May the court received the originating applications, now with attached and highlighted documents.

6.When the 10th May suddenly became available the parties were able to attend on that date and this hearing began. It continued on the 11th and 12th May and was adjourned part heard for the completion of submissions. There had not been time for service of the now complete originating application and on the first day of this hearing the father applied for an adjournment. I refused that application. Closing submissions were completed on the 16th May and judgment was reserved. This judgment, sent out in draft form on the 27th June 2006, is handed down at Coventry County Court today, the 5th July 2006.

7.The Background. These applications are among the latest in a long history of proceedings involving the children of these parents, proceedings in which the applications have been largely led by the father. There is no criticism implied in making that statement; it is simply a statement of fact. However, in order to understand the setting in which these applications come before the court it is necessary to set out the background. No chronology or case synopsis is available to the court in these applications. I indicated to the parties that I would seek to provide that background based upon my involvement in the litigation and that I would seek to do so in terms that were neutral and fair. No objection was raised to that and I hope that what follows achieves my stated aims.

8.Three children were born to the parents during their marriage. EB is the eldest child. The two other children are RTB, aged 14 years (“RB”) and CJB (“CB”) aged 12 years. All three children live with the mother and have done so since the final separation in May 2000. Even before that separation litigation had begun in relation to the children and the first of a series of 11 welfare reports, later CAFCASS reports, was completed in November 1999. The mother committed adultery with SH, a manager at her place of employment. The father began to make secret video recordings of the mother and children within the home. When this was discovered the separation in May 2000 split the family and neither RB nor EB has had face-to-face contact with the father since November 2000. Any contact since then has been limited to correspondence. Although the father subsequently issued an application for residence and contact in relation to these two children, that application was never heard and appears have been overtaken by events that arose in 2001.

9.After November 2000 CB continued to have contact with his father. In February 2001 the father reported that CB was being sexually abused by his mother and in the upheaval that followed that report CB lived with extended family members for about seven months, having supervised contact to both his mother and his father. The allegations made by the father were the subject of a fact-finding hearing in September 2001. The allegations were not proved.

10.The father became disenchanted with the family justice system, feeling ill-served by it. He ceased to instruct lawyers at about this time and began to act in person. He also began to publicise his views and his grievances about the system. The methods used to air his grievances included the publication of a booklet distributed by him close to the school attended by the children. The father became an active member of an organisation called Fathers for Justice.

11.After November 2000 the father did not pursue applications for contact with EB and RB until August 2003. However, throughout the whole of the period since the separation the father has pursued applications for contact with CB. Although orders for contact were made the development of contact proved to be a very slow process. Contact started and stayed at a contact centre. Dissatisfied with the decisions of the lower courts, the father pursued applications for permission to appeal and appeals to the Court of Appeal. The Court of Appeal rightly identified that the courts dealing with these contact applications at first instance (including hearings at which I presided) were unduly cautious and that contact remained at contact centres for too long a period of time. So, in this respect at least, the father may well be entitled to feel that the system did not serve him as well as it might have done. However, more recently contact with CB has increased to the point where it now occurs regularly, including overnight stays and longer periods of contact in school holidays. In August 2003 the father issued an application for contact with EB and RB. He also issued an application for an assessment and report by a psychologist in relation to issues of parental alienation. That application was refused and all applications proceeded towards a final hearing which went part heard. The history of the litigation was fully set out in the reserved judgment that was delivered by me on the 10th March 2005. In that hearing the court dealt with the father’s applications for contact with CB as well as his application for contact with EB and RB. On that latter application the court made no order.

12.The Offending Material. Exhibit EB1 to the statement of EB, signed on the 6th February 2006, consists of a number of documents which I will refer to by using the hearing bundle pagination. First, at page 5, is a copy of an article that appeared in a local newspaper, the Express and Star, on 27th December 2005, entitled “Spider-man demo on church rooftop”. It records that the father spent Christmas Day on the roof of St Peter’s Church as part of a campaign directed towards the lack of concern shown by the Church towards fathers and children. A copy of the original newspaper was made available in the course of the hearing.

13.Secondly, at page 6 of the hearing bundle, is a copy of another newspaper article entitled “Spider-man denies charge over protest”. That title is prefaced by a smaller title which reads “Father’s rights campaigner faces court after climbing on church”. This article, whose source and date was not identified, appears to refer to a different and earlier occasion of protest by the father, albeit on the roof of the same church, since it refers to “the city’s Civic Sunday service”. The document on the following page, together with a document downloaded from the BBC News website, would tend to suggest that this particular demonstration occurred in June 2005.

14.The third document, at page 7 of the hearing bundle, is an illegible copy of another newspaper report, the original being produced in the course of the hearing, under the title “Spider-man cleared over rooftop protest”. This article is accompanied by two photographs, one showing a man, no doubt the father, on the roof in a Spider-man suit, complete with mask. The second photograph, possibly taken outside the court, shows the father full face in the Spider-man suit after removal of the mask. The date and source of this newspaper article is not identified. It may well be an article printed at the end of August 2005. However, the article relates the court appearance to the occasion when the father sought to disrupt the “Civic Sunday parade and service on 19 June”.

15.Exhibit EB 2 contains passages apparently downloaded and printed on the 1st February 2006 from the father’s website www.megaphonedad. net. At page 9 of the hearing bundle there is a picture of a man in a Spider-man suit with a megaphone, apparently standing on a building from which hangs a banner with the website address. This picture appears above a passage that is directed to the Church and its failure to act to restore or ensure the rights of fathers to participate in the upbringing of their children.

16.There then follow four pages, pages 10-13, of printed material entitled “Corrupting a trusting child – Stephanie Mayall’s story”. These pages purport to be an account by Stephanie Mayall of the behaviour of her father (SH) in the course of his infidelities with other women, including his adultery with the mother, and the effect of these events upon her and her family. The tone of the account reflects deep anger and contempt felt by Stephanie Mayall towards her own father. It also reflects her championship of the father as a person and also her support for his campaign. The emotions and attitudes revealed within these pages might well be felt to be likely to undermine any attempt to achieve a balanced, objective account of events – if that was ever the intention.

17.The final part of this exhibit consists of four pages (pages 14-17) entitled “One family’s story”. It is an account by the father of the events causing the breakdown of his marriage and the subsequent actions and events affecting the children. It is very much directed towards the actions of the mother and alleges that “my daughter was mis-used and corrupted by the person she trusted most – her mother”. In general terms it covers the allegations that the mother behaved in a sexually inappropriate way with a CB and argues that the mother’s actions were done with a view to securing a situation in which the children cut themselves off physically and emotionally from the father. It is apparent from the document that the father is concerned about the failure of the Church to speak out on the issue of children losing contact with one of their parents following separation: see page 15. This document goes on to cite examples of other cases where a parent has been denied contact to a child and the failure of the Church to do anything about the situation. Most of the examples cited end with the sentence “What does the church have to say about this? Nothing”. These pages conclude with an invitation to the reader to sign a petition to persuade the Church to act to protect children from the effects of separation and the destruction of their family life. There follows a list of titles that link to the other documents already described.

18.Within the hearing bundle at pages 18-39 there is reproduced the contents of the father’s website. The father required that these documents should be formally proved and that was done in a witness statement from the solicitor for EB, stating that he had obtained these pages from the website on the 27th April 2006 at 6:35pm. It is important to state that the truth of the allegations raised within this material on the website is not an issue in this application. The issue is the fact and possible effect of publication. What is said may well represent the perception and interpretation of events by the father and Stephanie Mayall.

19.These documents reproduce many of the documents exhibited to the statement of EB but the father states that there is an important difference. That difference is to be found in a section of the downloaded material entitled “Royal Mail Connection”. The opening paragraph (on page 34) would suggest that this document may have been created in 2005 but no evidence was given to confirm that fact. The father acknowledged that he was the author of the document. The document is directed towards the behaviour of SH and his conduct of his responsibilities as an employee of the Royal Mail. The document raises questions directed to the management of the Royal Mail about the activities of SH and inviting them to review their employment practices and/or rules for employee behaviour.

20.This document then proceeds, at page 35, to set out information upon which the father relies to support an allegation that “in response to what she had been told to do by this manager, my wife began to systematically alienate my children from me, especially the eldest, my 9-year-old daughter.” There then follow six paragraphs in italic font. It is to these paragraphs that the greatest exception has taken by EB. The passages in italic font describe EB’s state of distress and confusion on one occasion prior to separation of her parents. The passages also allege that that confusion and distress was attributable to the mother drawing EB into collusion with her (a) to keep the mother’s relationship with SH secret from the father; (b) to assist in persuading SH to move into the family home after separation; (c) to keep secret from the father meetings that she and EB had with SH and (d) making EB act as a lookout, so that telephone calls between the mother and SH were not overheard. The final paragraph in italic font speculates about the possible psychological effect of all this upon EB. The final paragraph (not in italic font) begins with the words “These actions were calculated to destroy my daughter’s relationship with me… after being made to lie and conspire against me, and being led to believe he she must simply swap her old daddy for a new one, how could she retain her love and respect for me?” While these passages state that EB was involved in lies and deceit, that is placed in the context of EB’s love and loyalty for her parents being compromised and manipulated by her mother and SH.

21.The Sources of Evidence. None of the parties desired that EB should give evidence and her statement made on the 6th February 2006 was received as evidence. It is of course hearsay evidence, tendered on the basis that the facts stated within it are true. It is for the court to consider what weight should be placed upon that evidence. In addition the court heard evidence from Mrs Ruth Butler, the head teacher for year 11 at EB’s High School. She had not made a statement prior to giving evidence but had written a letter, dated the 5th May 2006, to the solicitors acting for EB. The mother and the father also gave evidence, each having made statements on the 15th February 2006 in relation to this prohibited steps application and other applications affecting the children. In the event there have been no significant conflicts of fact in the evidence heard, such as would make necessary major decisions as to the reliability of the recollection of witnesses, save that there is a difference in recollection between the mother and Mrs Ruth Butler about the circumstances in which EB’s school came to learn about the website. Having heard both of them giving evidence I prefer the evidence of Mrs Butler on this issue. It is much more likely that Mrs Butler would have remembered the occasion when she first learnt of such an unusual piece of information, the father’s activities and the child’s name upon his website. The mother and EB would have been likely to have discussed these matters between themselves on occasions preceding the meeting at school, a situation likely to increase the chance of uncertainty in recollection. Also, the mother’s understanding of the school’s services was inaccurate. She spoke of EB having counselling when that was not being offered to EB by the school.

22.In many ways it is most convenient to start with the evidence given by the mother since she is in daily contact with EB and has been involved in the family litigation from the outset. By way of background she told me that EB was attending a girls’ school that prided itself upon the high academic achievement of its pupils. EB had worked hard to get admission to the school and had worked steadily since going there. She sat mock GCSE examinations in November and December last year and is under a fair amount of academic pressure, since she is taking 11 or 12 subjects in the GCSE examinations which have just started.

23.The mother told me that she could not be certain when it was that EB first became aware of her name entering into the public domain but placed that initial awareness at the time when the father published his booklet. Subsequently the father created his website. The website was in existence at the time of court hearings before His Honour Judge Warner. This means that the website was in existence during 2003. The mother said that EB was aware of the website at this time but that the father had removed and suspended the operation of the website for a period before restoring it in or about May 2005. She said that EB had been very relieved when the father suspended the website and believed that that would be an end of the matter. When the father resurrected the website last year EB, then aged 15 years, was far more aware of the father’s publicity activities, from the circumstances around her and also from her friends at school. The mother herself had also seen the website and seen EB’s name there.

24.After May 2005 the mother said that the website became “a big issue”. She took EB to see a solicitor in July 2005. EB was upset and uncomfortable because others could link her to her father and learn where she lived. She was embarrassed that her name was on the website and felt that she did not need to be a party to what was presented there. From the mother’s evidence it appears that EB’s friends had spoken to her about the website and she added “I’m sure EB stumbled on the website”. The mother has advised her not to visit the website but she said that EB continues to do so in the hope of finding that her name has been taken off and that the father was showing respect for her wishes. According to the mother EB goes straight to that part of the website entitled “One family’s story”. She told me that EB had been aware of the father’s publicity activities for some considerable time and that she had existed at the High School with awareness of the father publicising his grievances about the family justice system and about what had happened within his marriage. She said that the situation had changed because EB was now far more aware about what was going on, having previously been rather more protected. Other girls of the same age are aware of the father’s website and had spoken to EB about it. There are certain matters stated on the website that upset her, with which she does not agree and to which she does not wish to be associated. In the words of the mother “She has been very distracted by the website.”

25.Before the mock GCSE examinations the mother went to the school and saw Mrs Butler. According to the mother Mrs Butler had said that the school was concerned that EB’s studying and marks had deteriorated and that the school could see that the website was having an effect upon her. The mother’s evidence was that Mrs Butler called her into the office with EB and that there was a discussion for about an hour, during which EB was weeping. The website was mentioned and Mrs Butler had said that EB, who had been having counselling, was upset that her name appeared upon it. It has to be said that Mrs Butler’s recollection is rather different. The mother told me that she and Mrs Butler had last spoken about EB a couple of months ago, when the child was present and that once again EB had burst into tears.

26.As the mother described it EB was very distressed that she had been mentioned on the website. By using the word ‘distress’ the mother was seeking to convey that her daughter was agitated, weepy and introverted. She said that these behaviours could last for a day. She and EB talk about it and her daughter will be in and out of the room crying and will then go to her bedroom and stay there because she is distressed. EB feels that nobody is listening to her. The mother added that these outbursts usually occur after there has been a court appearance without progress being made. EB has spoken to her about her distress in relation to the website. About a month ago the mother had taken EB to the doctor because of her agitated and weepy state at home and the doctor recommended counselling sessions. However, EB felt that with all the pressure there was upon her at present she did not wish to embark upon counselling. She had been talking to her form tutor and also to the school mentor. After the hearing on the 27th April EB was very tired and pale the following morning before school and had been crying. Her sleep pattern had also changed. She appeared to be going to bed earlier and sleeping for longer.

27.In his cross-examination of the mother the father suggested that EB was beginning to show the effects of psychological trauma, of her alienation from her father. The mother rejected that suggestion, saying that her daughter was a happy young person but had begun to show signs of stress after the restoration of the website in May 2005. The prolongation of proceedings had produced a bit of additional stress but the bulk of the stress was attributable to her name being upon the father’s website.

28.Although she is the head of Year 11, Ruth Butler does not at present teach EB. She has in the past taught her, in Years 7 and 8, and found her to be a quiet student who found it quite difficult to ask for help, a common feature in pupils around Year 7. EB had presented no behavioural problems and was seen as a clever girl, although within this High School, which achieves results and seeks attainments above the national average, she is seen as an average pupil. She said that EB had had a learning mentor from the time that she was in Year 10. Pupils are usually referred to the learning mentor for short periods, particularly in Years 10 and 11, because there is a lot of course work to be handed in and time management becomes important. The learning mentor concentrates upon the studies but emotional issues cannot be detached and the child may talk about these. It is not counselling. The school does not provide emotional support; in the handful of cases where that is necessary it is provided by an educational psychologist.

29.The letter that Mrs Butler wrote on the 5th May is really no more than a brief and general summary. From the evidence that she gave it is my conclusion that Mrs Butler probably first spoke to the mother about EB’s welfare before the mock GCSE examinations at the end of 2005. The mother had arranged to come in and meet Mrs Butler. In that meeting she spoke to her about the website and EB was brought in towards the end of the meeting and she said that she wanted her name taken off the website before her examinations. Mrs Butler said that it was at this point that she first became aware of the website and of EB’s desire to have her name removed from it. I accept this evidence. In this meeting EB sat with her shoulders and head down. Mrs Butler felt that EB was embarrassed to begin with because this issue had been brought to the notice of the school. There were no tears shown. Answering questions from the father, she said that the fact that EB said that she wanted her name removed from the website was sufficient to tell her that EB did not like the situation. Her appearance, looking down and apparently fed up, was consistent with her comments. Her description of EB appearing embarrassed reflected features of her age group, not liking to be different to everyone else and not liking issues to be brought up with a teacher. She felt that ‘uncomfortable’ was probably a better word than ‘embarrassed’. Mrs Butler informed both the form tutor and the learning mentor about this conversation. Thereafter both the form tutor and the mentor reported EB as being down and depressed, with tears welling up in her eyes when they spoke to her about examinations and course work. This information mentioned in the second paragraph of Mrs Butler’s letter, was based on information from the form tutor who had had a meeting with EB after the mock GCSE examinations. Although it is hearsay, the information from the form tutor and mentor is not inconsistent with descriptions given by the mother. Although EB did not show tears when she spoke to Mrs Butler, I regard this hearsay as broadly accurate.

30.Mrs Butler was able to produce the mock examination results. EB had expressed anxiety about her performance in Science and Spanish. The mock examination results confirm these as her weakest areas but nonetheless show a child of quite reasonable attainment, making in general a good effort to work hard, and she is predicted to get B grades, a good pass, in the GCSE examinations. Mrs Butler was unable to attribute EB’s under achievement in some subjects to any particular cause. She said that there could be lots of reasons and she could not attribute the state of affairs to the fact that the child’s name appeared on the father’s website. She pointed out that the period between September and the end of November in Year 11 is a demanding period and one of the worst school terms because pupils in Year 11 are having to revise for examinations and also having to get coursework in on time and so the school does experience anxieties in the pupils around that time.

31.Mrs Butler remembered receiving a telephone call from the mother in March 2006 in which she was told that the hearing of EB’s application had been adjourned. Mrs Butler passed this information on to the form tutor. I should add that I do not place any weight at all on the hearsay evidence in a record of mentoring appointments for the 28th April 2006 and 8th May 2006: EB has had ample opportunity to prepare and present her case since February this year.

32.The weight to be attached to the hearsay evidence of EB has to be diminished in some degree by the fact that her complaints about the website extend to concerns about the mention of other members of the family and she also appears to object to the father’s activities in seeking publicity for his grievances and his current campaign, which is directed towards the failure of the Church to protect family life and to address deficiencies or in the family justice system. The fact that the father’s publicity activities are a matter of concern to her is supported by the newspaper articles that she has chosen to exhibit to her statement. She regards a considerable amount of the information as misleading or untrue. She states that it is her belief that the website has been established “simply as an avenue of for the Respondent to misrepresent information about me and more particularly my mother.” She goes on to state that she now finds it difficult at times to go to school and that more recently she has found it more difficult to concentrate on her school work which she says “has been deeply affected” by her father’s behaviour.

33.The father’s statement, which he confirmed in evidence, states that the website contained far more information about EB in 2003 than it does today. However, the content of the website in 2003 has not been produced or proved in evidence in this hearing. He produced two articles from the Metro newspaper, one featuring Charlotte Church, a young woman who rose to public prominence as a teenage singer, and another of the 17 year-old girlfriend of a young man selected to join the England World Cup soccer squad. These were produced to support an argument about the level of publicity that was generally acceptable these days for young women who are about the age of EB. He explained that the present focus of his website was on the failure of the Church to speak out on a legal as well as a moral issue and that it was not his purpose to cause upset or distress to EB. He was unable to say whether the website had caused distress to EB. On the evidence he was not overly concerned about the results of her GCSE examinations: he considered that she would pass. He accepted that anyone who knew the family and who read the first page of “One family’s story” and the paragraph starting with the words “In particular, the recordings show that my 9 year old daughter had been taken on secret country walks” would make the link with EB and that it was not difficult to identify and to track her down from the information on that website page. He maintained that it was necessary to identify the people involved in the story because, were he to use false names or remove the paragraphs to which objection is taken, the impact upon any reader would be diminished. This was the effect of advice that he had received from people involved in journalism. It is the father’s opinion that family breakdown has suffered by reason of lack of detail about what goes on in family courts and, if he were able to talk about what went on in family courts, it not be necessary to write on the website in this fashion. His evidence is that this is a personal description about what happened to a young child, written with the intention of catching the attention the reader, to demonstrate that children are being harmed and that the Church is sitting by and saying nothing. He did not accept that this paragraph would cause embarrassment to any 16 year-old girl, although it might cause embarrassment to some.

34.One of the sections on the website is entitled “Royal Mail Connection” and is an account, seen from the father’s perspective, of the behaviour of the man with whom the mother committed adultery. The father accepted that this section was an attack upon a character of that man and that it had nothing to do with the father’s campaign against the Church. He explained that his website had been used for other campaigns, including one against the Royal Mail urging them to take action to deal with what he saw as serious failings at their managerial level, failings that had an effect upon his children. In this section of the website, in a passage in italic font, EB is mentioned by name on a number of occasions.

35.The passage to which exception is taken starts with the phrase “In response to what she had been told to do by this manager” and ends with the words “and told my wife to bring about.” In this section the father describes EB as having been “made to lie and deceive by her own mother” and that she “had an improper relationship with a strange man – helping to exclude her own father from the home and family.” He thought that EB would not have wanted what she was said to have done, in the passages in italics, published on the website when she was nine years old; she would simply have wanted it to stop. He considered that such feelings would have changed now that she was 16 years of age. He considered that to look at the matter simply on the basis of whether the miseries of family life as experienced by children should be paraded in public was narrowing the issue too much. His position was that it was a matter of concern that these matters were kept secret and there was need for a breath of fresh air “to stop the evil that goes on in these places.” He did not know of any child who had grown up alienated from a parent and who had been as happy as if they had had both parents. He rejected the suggestion made by the mother that EB was humiliated in the descriptions on this website section. He considered that he had presented her as the victim of parental abuse for which she was not to blame. It was necessary to name her because of what, in his opinion, was the unique character of his website; it told a real story about real people and the present debate lacked that sort of story. He recognised that EB had the right to privacy but stated that that had been balanced against his right to freedom of speech. The passage in italic font was there because it had been cut and pasted from a previous version of the website.

36.Before setting out my findings of fact I need to deal with one submission made by the father in relation to the evidence. That submission was that in the absence of expert evidence the court could not reliably find that EB had suffered distress caused by the presence of her name on the website. I reject that submission for two reasons. First, in assessing whether a person has been affected by particular events one is entitled to have regard, as a question of fact, to what they say as to the effect of those events upon them and also to the evidence given by other witnesses that made bear upon whether or not the state of affairs has had an effect, has had the effect that the witness states. For the purpose of producing any report to the court an expert witness usually draws upon a number of sources of information. Those sources include the self report of the client or patient, the observations of the client contained in statements made by other people and the clinical tests and expertise of the expert witness himself. The need for expert assessment may become more apparent if one has to consider with some accuracy what contribution a particular event or state of affairs may have made to the overall condition of the client or patient. However, in my judgment, even there the court is not precluded from reaching some broad assessment of contribution. Secondly, Mr Murray reminds me of what was said by the Court of Appeal in the case of re H (Minors) (Injunction: Public Interest) (1994) 1 FLR 519. Giving the judgment of the court Ward J said at page 525
“The respondent further submits that the judge was wrong because there was no expert evidence of harm already suffered by the earlier publication or of harm likely to be suffered from further publicity which would be short-lived. We do not accept those submissions. It had been suggested in re M and N (Minors) (Wardship: Publication of Information) (1990) Fam. 211, (1990) 1 FLR 149, that the evidence to be presented to the judge at least on the inter partes hearing should include specific evidence of, for instance, psychological harm to be caused to the child by the publication proposed. Of that suggestion Butler-Sloss LJ said at pp 226H and 162D respectively:
‘… there is a misconception, both of the function of and the experience of those sitting in the Family Division … The evidence of child psychiatrists is invaluable in many of the difficult decisions to be made in child cases. In my view, it is not normally necessary in order to assist the judge in balancing the welfare of the child and the right to publish and whether child and others in the proceedings should or should not be identified.’
We respectfully agree.”


37.On the evidence that I have heard I make the following findings of fact.
1.The evidence establishes that EB has been aware of the publicity given by the father to the breakdown of the marriage with her mother and events within family life at a time prior to the suspension of the father’s website in late 2003. EB knew in 2003 that her name appeared on the father’s website. She did not like that situation and had a sense of relief when it was suspended.
2.I find that EB has been and is uncomfortable and at times distressed by the fact that she is named on the father’s website, where he is describing the breakdown of his marriage and the behaviour of the mother. Few children would be likely to want to be involved in such an event if they could avoid it, let alone named publicly and presented as having been deceitful. Teenage years are often a time of uncertainty for a child in the passage from childhood towards adulthood. That passage is usually accompanied by anxieties, uncertainties and heightened sensitivities, but that is all part of the process of development towards independence and the assumption of adult responsibility.
3.It is probable that the school only became aware of the possible effect of the father’s website shortly before the mock examinations in November 2005.
4.Apart from her discomfort and distress, on the evidence it is not possible to assess with complete accuracy the effect that the presence of EB’s name on the website had upon her academic performance. It is clear that this is an academic year that has seen EB under some pressure by reason of the examinations. The academic year itself is likely to have been a cause of anxiety and stress for her. She has received mentoring support.
5.In my view it is probable that her anxiety about the presence of her name on the father’s website has made more than a minimal contribution to her anxiety. The evidence of the mother shows that this subject was frequently in EB’s mind and that she was to some extent preoccupied with it. Against the background of a stressful and stress provoking academic year the added anxiety and distraction created by the publication of her name on the website is relevant. The institution and progress of these applications, as the mother’s evidence showed, have not reduced EB’s anxiety. (f) It is probable also, since EB takes the trouble to mention it, that her father’s publicity-seeking exploits, dressed in a Spider-man outfit, are also likely to have been another source of discomfort and embarrassment. At times children can often be quite sensitive to and liable to be embarrassed by the behaviour and even the appearance of their parents. The fact that one’s father achieves notoriety by dressing in a bright red skin-tight suit and a mask and shouting through a megaphone from rooftops may well cause many children acute embarrassment. In these circumstances a child may feel that the father is making a fool of himself, or being eccentric, and wish not to be associated with the father.
6.I find also that the father has not deliberately set out to cause distress to EB; he has made use of her name because he has wanted to present, as he sees it, the true story about the breakdown of his marriage and its effect upon the family. By doing so he seeks to draw attention of the Church and society in general to what he considers to be deficiencies in the family justice system. For the reasons that he explained, he considered that that story would lose impact if names were changed or the involvement of EB was not mentioned.
7.I find that the father has used his website to gain publicity in relation to different campaigns and concerns at different times. The passages in italic font have been cut from a previous document on the website and pasted into the current presentation.
8.The assertion by EB that the website has been established “simply as an avenue for the Respondent to misrepresent information about me and more particularly my mother” is not proved. This is not a finding that there has been no misrepresentation; it is a finding that that has not been the purpose of the father.

38.Jurisdiction: The Prohibited Steps Order. The first issues that need to be decided are whether the court has jurisdiction to entertain these applications. The first application, for a prohibited steps order, is made under s 8 of the Children Act 1989. Since EB is over 16 years of age the father reminds me that s 9 (7) of the 1989 Act comes into consideration. That sub- section states “no court shall make any section 8 order, other than one of varying or discharging such an order, with respect to a child who has reached the age of 16 unless it is satisfied that the circumstances of the case are exceptional.”

39.This sub-section does not remove the jurisdiction to entertain s 8 applications; it restricts the ability of the court to make s 8 orders to those cases where it is satisfied that the circumstances are exceptional. The father argues that nowhere in her application for a prohibited steps order does EB allege that the circumstances of her case are exceptional and set out any grounds on which the court is invited to reach that conclusion. In those circumstances he says that the court should not make any order on the prohibited steps application.

40.More important, the father also contends that the court does not have jurisdiction to entertain the application for a prohibited steps order because the activity that the application seeks to prohibit, his publication of material on his website, is not an action “which could be taken by a parent in meeting his parental responsibility for a child.” Publishing the material which he has on his website is not an action in relation to the upbringing of a child and is not taken by him as part of meeting his parental responsibility for EB. In support of his argument the father relied upon two decisions of the Court of Appeal. The first was Croydon London Borough Council v A (No. 1) (1992) Fam. 169, (1992) 3 WLR 267, in which an appeal was allowed where the family proceedings court had granted a prohibited steps order forbidding the father, inter alia, from having contact with the mother. The court held that there was no jurisdiction to make such an order because contact between the parents was not a step which could be taken by a parent in meeting his parental responsibility towards a child and was, as a result, outside the terms of s 8 (1) of the Children Act 1989. The second authority, mentioned by the father in his closing submissions, is the case of re W (Wardship: Discharge: Publicity) (1995) 2 FLR 466. In this case three children who were wards of court were in the care and control of their father. An injunction was granted preventing the father and the wards from giving information about the wardship proceedings to the media. The father appealed against the dismissal of his application to discharge the wardship. One of the issues before the Court of Appeal was whether the welfare of the wards required the continuation of the wardship or whether adequate protection could be achieved under the Children Act 1989. My attention was invited to the judgment of Balcombe LJ, with whom Waite LJ agreed, where he set out the reasons for his conclusion that the welfare of the wards would be protected by the continuation of the wardship because comparable protection could not be achieved by orders under the 1989 Act. He says at page 472
“It is by no means clear that a prohibited steps order under s 8 of the Children Act would be effective to restrain the father from seeking publicity of the kind that appeared in the article in the Independent. The prohibition under such an order relates only to ‘a step which could be taken by a parent in meeting his parental responsibility for a child’. ‘Parental responsibility’ is defined by s 3 (1) as ‘… all the rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. It is at least arguable that a prohibited steps order may not be used to prevent some non-parental activity such as publishing information about the child, because this is not a step in meeting parental responsibility.”
41.This passage is, of course, obiter and although Hobhouse LJ, as he then was, agreed with the majority decision he expressed a different view about the application of the 1989 Act. At page 476 he said, after summarising the relevant sections of the 1989 Act,
“It follows that if there is some aspect of the child’s upbringing which falls within the scope of the authority or powers which a parent has in relation to a child, or involves the discharge by the parent of his responsibilities in relation to the child, there is jurisdiction to make an order addressed to the parent which prohibits him from doing so in a specified manner without the leave of the court. As with the other s 8 orders, the order should only be made of the welfare of the child so requires (s 1(1) and (5)). Welfare includes the risk of suffering harm.
The present case illustrates the situation in which such an order may properly be made under the Act. Whether or not an immature child should become involved with the media is something which clearly can affect the welfare of the child and falls within the scope of the proper discharge of parental duties. It is a truism that the media has both the power and the tendency to intrude into the privacy of individuals and that such intrusion can cause distress and psychological harm. An immature child will often be unable to judge when it is truly to his advantage to invite the media into his life; he may not appreciate the distress and harm it may cause him and not be able to cope with it when it occurs. There is a risk of harm to the child which requires the exercise of parental responsibility in the interests of the child’s welfare. A parent has the responsibility and the authority and power as part of his upbringing of the child to control, if needs be, his child’s contacts with the media. If the parent fails to exercise that power, or abuses that power, an order may need to be made.
Similarly, a parent may choose to conduct himself in a way which has insufficient regard to his responsibilities to his children. If a person has no parental responsibilities, he is at liberty to conduct himself as he chooses. He can turn his home into a refuge for ‘battered men’; he can discuss his private affairs with any journalist who will listen to him. But if he has parental responsibilities, those responsibilities may restrict his freedom of action. He is required, where his children’s upbringing is involved, to have regard also to the welfare of his children. The welfare of his child may require that he refrain from discussing the affairs of his children with the media and from inviting the media to invade his children’s privacy.
It is these types of consideration which justify the injunctions ordered in the present case; in my judgment equivalent and appropriate orders could have been made under s 8 of the Act.”

42.He then proceeded to find an analogy with the case of re H (Minors) (above), stating that although the case was decided and argued on a rather different basis “the effect of the decision was that the father was required to act responsibly towards his children”

43.On behalf of EB Mr Murray conceded that the father’s publication of material on his website was not an act taken by him in meeting his parental responsibility for EB. However, the authorities that he cited to me give support to the proposition that acts taken by a parent in meeting his parental responsibility for a child may extend to and include a the disclosure of confidential information about a child; see re Z (A Minor) (Identification: Restrictions on Publication) (1997) Fam. 1; sub nom re Z (A Minor) (Freedom of Publication) (1996) 1 FLR 191, CA. In that case the Court of Appeal considered re W and, says Mr Murray, cast doubt upon that decision. He invited my a attention to the judgment of Ward LJ, at pages 26C and 210F, where he is considering parental responsibility and prohibited steps orders and where he says
“Giving consent to medical treatment of the child is a clear incident of parental responsibility arising from the duty to protect the child. Arranging for education commensurate with the child’s intellectual needs and abilities is a further incident of the parental responsibility which arises from the duty of the parent to secure the child’s education. Placing this particular child at this institute is a proper discharge by this mother of her responsibility to secure her medical and educational advancement. It then becomes her duty to respect the confidence of her treatment and/or education at the institute. It is an incident of her parental responsibility to decide whether to preserve or to publish matters relating thereto which are confidential to the child.
If, as I find, giving permission for the making of this film of the child is an exercise of parental responsibility then it follows that a prohibited steps order could be made to control it.”

44.He then proceeded to consider the case of re W and the passages from the judgments of Balcombe LJ and Hobhouse LJ that I have already cited before continuing at page 211F
“Whatever doubts the majority in that case had, and their views appear obiter, I am in no doubt whatever that the mother’s decision to permit this child to be filmed and to appear on television is one taken in the exercise of parental responsibility over the child.”

45.The authorities cited to me and the law show that the court has jurisdiction to grant a prohibited steps order to restrain a parent who fails to take a step that needs to be taken by a parent to meet his parental responsibility for his child or exercises his parental responsibility, which includes a responsibility to protect his child from harm, in ways that affect or are likely to affect the upbringing of his children,. Of course, whether the court exercises its discretion to grant a prohibited steps order, the welfare of the child being the paramount consideration, will depend upon the factors in it considers under s 1(3) and (5). This may extend to the publication of information affecting the upbringing of a child. There may be instances where information normally considered confidential, such as medical conditions or paternity, may need to be restricted. There may be less obvious cases, and publication of material such as is found in this case is probably one of them, where it is much harder to decide where the line is drawn. That was recognised by Ward LJ in re Z, at pages 25F and 209H, where he said
“Whilst there is no difficulty in recognising that a doctor and medical staff owe their patient a duty to keep confidential all aspects of medical treatment, and that the parent of a child owes the child a similar duty, it is far from clear how far this duty extends.”

46.However, he was not called upon to investigate those limits because the finding at first instance that the child had the right of confidentiality in respect of her treatment and/or education was conceded in the Court of Appeal.

47.In the course of submissions I pointed out that suits for dissolution of marriage in the not-too-distant past were heard in open court and that the petitioner was expected describe in public the events that proved that the marriage had broken-down and should be dissolved. The events that might be described might well include conduct by the respondent towards children of the family. The conduct might include evidence that the child had been sexually abused. Further, even today a procedure exists whereby a case can be removed from the “special procedure” undefended divorce list and heard in open court, as are defended suits for dissolution of marriage. If family life can be displayed in open court in this way one has to ask why it is not open to the father to discuss his family and matrimonial life on his website. Mr Murray’s response to that was that there was a grey area where the law had to proceed on a case by case basis. In this case the references to the behaviour that EB is said to have been made to indulge in by her mother, lying to the father, acting as lookout, lying about where she had been and who she had seen, transcended the level of a run-of-the-mill divorce case. The father had descended into such a wealth of detail that he had broken EB’s confidentiality, disclosing information about her of a confidential nature. Mr Murray sought to draw a distinction between situations where evidence about family life might be heard in public because it involved the legal process necessary to seek relief as distinct from publishing material to the world at large mainly to promote a particular cause. I am by no means certain that it is easy to maintain such a distinction; in each case the evidence is being produced for a particular purpose. If it is legitimate and can be heard publicly in one setting it is difficult to see why cannot equally legitimately be heard publicly in another.

48.The father’s position is that a step in relation to one’s parental responsibility is about meeting something in one’s role as a parent. His publishing this material, which is something that anyone else could publish, is not a step in meeting parental responsibility. For the step to fall within the range of meeting parental responsibility there has to be something in the act, the step, which is peculiar to parenthood, is directly connected with the fulfilment of parental responsibilities. If his publication of this material referring to EB is a step in meeting parental responsibility and is prohibited by the court, the father contends that not only he, but anyone else who sought to publish that information would be unable to do so without the permission of the court.

49.In my judgment to the father’s arguments on this issue are correct. The definition of a ‘prohibited steps order’, read normally, is clear. It is an order “that no step which could be taken by a parent in meeting his parental responsibility for a child… shall be taken by any person without the consent of the court.” The order is directed towards the prohibition of certain actions, certain steps. The steps which may be prohibited are those which are of a type which could be taken by a parent in meeting his parental responsibility for child. In re Z the Court of Appeal was dealing with a child who had special educational needs that were difficult to meet. It is apparent from any reading of that decision that the child’s upbringing, in terms of the exercise of parental responsibility for meeting her medical and educational needs, was directly in point and the involvement of the child herself and her upbringing was central to the issues that were before the court. This is apparent from the judgment of Ward LJ, at pages 30E and 214G, where he says
“This case is not simply about some third person (the television company) publishing without parental involvement information about the way in which this child is being cared for and brought up as in re M and N and re W (Wardship: Publication of Information) , etc. This is not a case where the parent stands by acquiescing in competent teenagers taking their story to the press as they did in re W (Wardship: Discharge: Publicity). If there was more than mere acquiescence and if there was active encouragement by the father in that case, it was not argued or presented on that basis. This is not a case like the transsexual father in re H who tells a family story but who does not require the children to participate in its telling. This case is one where the mother wishes her child to perform for the making of the film. The mother wishes to bring up her child as one who will play an active part in a television film. There is a case where the mother wishes to exercise her parental responsibility and waive the confidentiality which the child otherwise enjoys in keeping her medical treatment and/or education private. This is a case, quite unlike any of the other cases I have discussed, where the court is being asked to decide whether a child should take part in the activity. The court is, therefore, required to determine a question with respect to the upbringing of a child.”

50.This present case is different. The steps taken by the father in publishing information about the breakdown of his marriage, including his perception of how EB came to be involved in events, is not a step “taken by a parent in meeting his parental responsibility for child.” The father is not exercising rights, duties, powers, responsibilities and authority which by law he has in relation to EB. He is not requiring her to take part in any particular activity directly connected with her upbringing. In my judgment the court does not have jurisdiction to entertain the application for a prohibited steps order since the step that it seeks to prohibit is not one that could be taken by a parent in meeting his parental responsibility for child.

51.Jurisdiction: The Inherent Jurisdiction. When the inherent jurisdiction of the court is invoked two issues arise. The first issue is whether the court has power to exercise the jurisdiction. The second issue is whether the court has the power to make the orders sought. If the court has the power to exercise the inherent jurisdiction but does not have the power to make the order sought it will decline jurisdiction. The court may refuse to exercise its inherent jurisdiction where there is a competing public interest, such as the freedom to publish information; re X (Wardship: Jurisdiction) (1975) Fam. 47; sub nom re X (a Minor) (Wardship: Restriction on Publication) (1975) 1 All E R 697. The father’s submission is that a court may only grant injunctions on an application that invokes the inherent jurisdiction for the purposes of (a) protecting proceedings before it or its own administrative process and (b) ensuring the protection of a child within its jurisdiction, giving protection of a type which could be given by a parent. In relation to the first purpose, the protection of proceedings, the jurisdiction must already exist. The father’s submits that it does not do so here because there are at present no substantive orders of the court in relation to EB. The originating summons invoking the inherent jurisdiction is inviting the court to create a new jurisdiction. In support of his argument the father relies upon the case of R v Central Independent Television plc (1994) Fam. 192. In that case the Court of Appeal was concerned with an injunction to restrain a television company from broadcasting a television programme that included material about the detection and arrest of the child’s father, a convicted paedophile. The child’s mother applied for an injunction to restrain publication of material that identified the father. At first instance the judge granted the application but the Court of Appeal allowed the appeal by the television company. The head note of the report accurately summarises the effect of the judgments, stating that “the parental jurisdiction of the court could only be invoked to restrain publication of matters relating to the care and upbringing of children over whose welfare the court was exercising a supervisory role, where publicity might threaten the effective working of the court’s jurisdiction, but that it should not be extended to protecting children from publicity which was not directed at them or those who cared for them.”

52.Hoffmann LJ, as he then was, stated in the course of his judgment, at page 204G
“I would not for a moment dispute… the fact that a right of privacy may be a legitimate exception to freedom of speech. After all, other countries also a party to the Convention have a right of privacy for grown-ups as well. But we do not and there may be room for constitutional argument as to whether a matter so fundamentally trenching upon the freedom of the press as the creation of a right of privacy, it would not be more appropriate for the remedy to be provided by the legislature rather than the judiciary. In recent years Parliament has not been slow to act in the interests of children. However that may be, the existence of a jurisdiction to restrain publication of information concerning a child and its upbringing is no longer open to dispute in this court. But this new jurisdiction is concerned only with the privacy of children and their upbringing. It does not extend, as Lord Donaldson of Lymington MR made clear in In re M and N, at page 231B to ‘injunctive protection of children from publicity which, though inimical to their welfare, is not directed at them or those who care for them’.”

53.The reference to “and those who care for them” arises because the Court of Appeal considered a number of authorities that involved wards of court and publication of the identity of those who were caring for them. The activities that were restrained were not only likely to affect the welfare of the wards but also the ability of the carers to carry out their obligations to the court for the care of the wards.

54.Waite LJ said at page 207H
“The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have nevertheless found it necessary to set self-imposed limits upon its exercise for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages.”

55.He then proceeds to recognise that a limitation on the exercise of the inherent jurisdiction has been imposed in the field of interference with freedom of publication. After reviewing the authorities he says, at page 208E,

“These authorities establish, in my judgment, that anonymity or confidentiality for a child or its circumstances can only be enforced by injunction in cases where publicity would, or might, in the view of the court threaten the effective working of the court’s own jurisdiction; whether it be in deciding a question about the upbringing of the child, or in exercising, as in In re C (1990) Fam. 39, a continuing supervisory role over a child whose future has already been determined. A mere desire to secure for a child the advantages of confidentiality cannot of itself supply such an issue. Confidentiality is an aid to administration of the jurisdiction, and not a right or status which the jurisdiction of itself has any power to confer.”

56.In relation to the second purpose the father submits that this is based upon the court’s power, seen in wardship proceedings, to protect a child. The powers that the court is able to exercise are limited to those that would be within the power of a parent. The court could not use the inherent jurisdiction to grant legal privileges to a child, privileges that would not be available to other children. In support of this argument the father relies on the case of re R (A Minor) (Wardship: Restrictions on Publication) (1994) Fam. 254 and a passage from the judgment of Millett LJ, as he then was, where he says at page 271C
“… the control of the wardship court over the person of its ward is far from absolute. It is ousted in a wide variety of situations in which the law has entrusted such control to persons other than those having responsibility for the upbringing of the ward. This limiting principle may be expressed more generally by saying that the wardship court has no power to exempt its ward from the general law, or to obtain for its ward rights and privileges not generally available to children who are not wards of court; or by saying that the wardship court can seek to achieve for its ward all that wise parents or guardians acting in concert and exclusively in the interests of the child could achieve, but no more.”

57.Mr Murray submits that under the inherent jurisdiction the court has jurisdiction to make an order of the type sought by EB. He relies upon the decision of the House of Lords in the case of In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593. S was the subject of care proceedings brought following the death of his brother. The brother’s death was caused by salt poisoning and the mother of the children was indicted for murder. In the course of the care proceedings the guardian, concerned that the publicity would have a serious effect upon the welfare of S, applied for relief under the inherent jurisdiction. The judge made an order prohibiting any identification of S my name or the identification of his school. He also made an order forbidding the identification of the mother or the deceased child, later varying the order to allow the names and photograph of the mother and the deceased child to be published. The Court of Appeal affirmed the judge’s order, holding that the interference with S’s rights to respect for private and family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) was proportionate and justified in the light of public interest and the rights of the press under article 10 of the Convention. The House of Lords dismissed the appeal. Mr Murray relies upon part of the speech of Lord Steyn, with whom all other members of the House agreed, where he says at page 605, para. [22]
“At all stages in this litigation the provisions of the ECHR have been carefully taken into account. But at first instance, and in the Court of Appeal, much of the debate centred on the inherent jurisdiction of the High Court to restrain publicity. Hedley J and the Court of Appeal were asked to exercise this inherent jurisdiction. Hale LJ (with the agreement of the other members of the court) observed [2004] Fam. 43, 69, para. 40: ‘Now that the Human Rights Act 1998 is in force, the relevance of the jurisdiction may simply be to provide the vehicle which enables the court conduct the necessary balancing exercise between the competing rights of the child under article 8 and the media under article 10’. In their printed cases, and in oral argument, both counsel adopted this approach. This is the context in which in oral argument the House was taken on a tour of the following decisions on the inherent jurisdiction” – he proceeds to list them, and continues – “The question arises whether such an exercise, in a case such as the present, is still necessary or useful.
[23] The House unanimously takes the view that since the 1998 Act came into force in October 2000, the earlier case law about the existence and scope of inherent jurisdiction need not be considered in this case or in similar cases. The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR. This is the simple and direct way to approach such cases. In this case the jurisdiction is not in doubt. This is not to say that the case law on the inherent jurisdiction of the High Court is wholly relevant. On the contrary, it may remain of some interest in regard to the ultimate balancing exercise to be carried out under the ECHR provisions. My noble and learned friend, Lord Bingham of Cornhill, invited the response of counsel to this approach. Both expressed agreement with it. I would affirm this approach. Before passing on I would observe on a historical note that a study of the case law revealed that the approach adopted in the past under the inherent jurisdiction was remarkably similar to that to be adopted under the ECHR. Indeed the ECHR provisions were often cited even before it became a part of our law in October 2000. Nevertheless, it will in future be necessary, if earlier case law is cited, to bear in mind the new methodology required by the ECHR as explained in Campbell v MGN Ltd [2004] 2 AC 457.”

58.Following, as I do, the decision of the House of Lords in In re S I am satisfied that I do have jurisdiction under the inherent jurisdiction entertain an application seeking an injunction to restrict publication of material and publicity in relation to a child. I accept and prefer the submissions of Mr Murray. The jurisdiction is no longer to be seen as being confined to wardship. Any person, be he adult or a child able to instruct solicitors, may invoke the jurisdiction of the court, alleging that his Convention rights under article 8 have been infringed by a particular publication.

59.The Interaction between Articles 8 and 10 of the Convention. The rights given by the articles 8 and 10 are in each case qualified rights, and that is to say that they may be the subject of interference or restriction by public authorities in accordance with law and to the extent necessary in a democratic society.

60.Article 8- Right to respect for private and family life, states “1. Everyone has the right respect for his private and family life, his home and correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

61.Article 10- Freedom of expression, states “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

62.In the course of his speech in the case of In re S Lord Steyn said at page 603, para. [17]:
“The interplay between articles 8 and 10 has been illuminated by the opinions of the House of Lords in Campbell v MGN Ltd. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications are interfering with for restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

63.The Human Rights Act 1998, s 12 (4), contains particular provisions regarding freedom of expression, providing that when considering whether to grant relief which, if granted, might affect the exercise of the rights given by the Convention to freedom of expression, the court must have particular regard to the importance of that right.

64.It is relevant to bear in mind that different situations were under consideration by the House of Lords in the cases of In re S and in Campbell v MGN Ltd. Re S involved an application seeking to limit newspaper reporting that would identify the defendant and victim in a criminal trial in order to protect the privacy of a surviving child. The right of the press to report a criminal trial in circumstances where they would normally be free to report the trial without restriction was in issue. The child in respect of whom the application was made was one who was not within the provisions of s 39 of the Children and Young Persons Act 1933. In Campbell the House of Lords was concerned with newspaper reporting of therapeutic and drug addiction treatment being received by a famous woman model. Mr Murray contends that the situation in the S should be distinguished from the present case because an attempt to restrict publicity surrounding a criminal trial for murder, where there was likely to be significant public interest, is different from an attempt to restrict publicity surrounding family break-up. There is, he says, an overriding public interest in open and public reporting of criminal cases but when the law deals with personal, private and family life restrictions are imposed by the law. Of course, I accept that there is likely to be a distinction in cases where an attempt is being made to restrict publicity attendant upon a criminal trial. Article 10 is generally likely to prevail over Article 8 in such circumstances. In the course of his speech in In re S Lord Steyn said, at page 604, paragraph [20]:
“There are numerous automatic statutory reporting restrictions, eg in favour of victims of sexual offences: see, for example, s 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, s 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.”

65.Although the application in In re S involved an attempt to restrict publicity in relation to criminal proceedings, the application itself was made by the guardian to Hedley J in the Family Division and it was his injunction that was under consideration in the House of Lords. In the course of his judgment Hedley J also recognised, see page 600 para. [11] of the speech of Lord Steyn, that;
“Where a set of circumstances arise not covered by those provisions the court should in my judgment be slow to extend the incursion into the right of free speech by the use of the inherent restriction.”

66.In my judgment the views just cited apply in principle not just to cases involving the restriction of publicity in relation to criminal trials but also in relation to civil and family hearings. This is reinforced by Article 6 – Right to a fair trial, which reads “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing.” This is qualified by a provision to exclude the press and public from a trial “where the interests of juveniles or the protection of the private life of the parties so require.”

67.In family proceedings statutory restrictions on the publication of information are to be found in s 97 (2) of the Children Act 1989 and in s 12 of the Administration of Justice Act 1960. Section 97 (2) states that “No person shall publish to 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 the High Court, a county court or a magistrates’ court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child…” The Administration of Justice Act 1960, s 12(1)(a), provides that the publication of information relating proceedings before any court sitting in private is not a contempt of court except where the proceedings “(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor”.

68.These provisions do not seek to restrict discussion about the causes or effect of the breakdown of a marriage; they seek to restrict the publication of information about proceedings where the welfare and upbringing of children is directly involved. There is no suggestion that the father has acted in breach of either of these statutory provisions. These provisions simply restrict publication of information about children who are the subject of court proceedings under the inherent jurisdiction or the specified statutes. These provisions indicate a position, one I also adopt, that the court should be slow to resort to use of the inherent jurisdiction for the purpose of restricting the right to freedom of expression, particularly where the extent of the appropriate restriction has already been considered by Parliament

69.The welfare of the child is the paramount consideration of the court when determining any question with respect to the upbringing of a child: s 1(1) of the Children Act 1989. The fact that the welfare of the child is paramount when questions of upbringing of the child arise does not mean that when this becomes the test the freedom of publication is not to be taken into consideration at all. However, if the welfare of the child is not the paramount consideration, because an issue in relation to upbringing does not fall to be decided by the court, then the welfare of the child has to be balanced against the freedom of expression and publication: see re Z, at pages 29F and 213H.

70.For EB the justification for interfering with her Article 8 rights and restricting the father’s freedom of expression under Article 10 is that her name on his website contributes towards the anxiety and distress that she feels at present and is unwarranted interference with her private life. That is not her only concern; she is concerned that the website is being used by the father to misrepresent and unfairly to attack her and her mother. This brings one to the point that the father makes. His argument is that the passages to which EB takes exception are directed at the behaviour of the mother in drawing EB into collusion and deceit with her for the purpose of concealing from the father her relationship with SH. The passages are directed towards the mother’s behaviour and even if it is not helpful to the welfare of EB, the passages are not directed to her and are not an act taken in relation to her upbringing. There can be no automatic assumption of privacy and confidentiality for events just because they occur within a family or take place within a private setting as opposed to a public setting. In the course of conducting our daily lives all of us expose ourselves to observation, comment or assessment by others. Inevitably the observations and comments made sometimes extend to matters that are considered to be private. Yet the behaviour between adults in the course of a marriage may become public in the course of divorce proceedings. Had the father chosen to institute divorce proceedings against the mother relying, for example, upon evidence of unreasonable behaviour to prove irretrievable breakdown, in slightly different circumstances he might have been able to give evidence, as an instance of unreasonable behaviour, of the mother compromising and influencing the loyalty and love of EB so that he became alienated from her affection.

71.Although the father’s argument was that the passages were directed towards the behaviour of the mother there is, in my judgment, another aspect which was not developed or addressed in the course of the hearing, but which is also of relevance. While recognising that EB would be likely to resent being described as deceitful and a liar, she is cast in that role because she was drawn into an adult conflict. In broad terms, the description of someone as being deceitful or a liar in certain situations goes to reputation and in the nature of things reputation is not private. It is a public perception. Most people value a good reputation and see it as a quality that they wish to maintain and project to those with whom they come into contact. Most people, for example, wish to be seen as honest, considerate and respectful of others. In many circumstances there may be a legitimate public interest in such an image being dispelled. EB may argue that the father’s portrayal of her as deceitful and untruthful is false but, it is an opinion which, in my judgment, the father would be entitled to express publicly. If his opinion were false EB would have remedies provided by the law of defamation. It seems to me that it makes little difference that he publishes the information in circumstances where he says that EB has shown these qualities because she was manipulated by her mother, a nine-year-old girl drawn into collusion with her mother. If anything, that context transfers responsibility for the presentation of EB to the mother and EB’s behaviour is mitigated.

72.Further, the offending passages do not describe matters where confidentiality would necessarily be expected, as would be the case, for example, in relation to medical treatment or financial affairs. In my judgment the passages to which objection has taken do not fall resoundingly within the area where the court would be likely to provide a remedy. In the case of R v Central Television plc (above) Waite LJ, at page 208B, noted that limitations on the exercise of the inherent jurisdiction had been imposed in the field of interference with freedom of publication. Having reviewed the authorities he says
“These authorities establish, in my judgment, that anonymity or confidentiality for a child or its circumstances can only be enforced by injunction in cases where publicity would, or might, in the view of the court threaten the effective working of the court’s own jurisdiction, whether it be in exercising a question about the upbringing of the child, or in exercising, as in In re C [1990] Fam. 39, a continuing supervisory role over a child whose future has already been determined. A mere desire to secure for a child the advantages of confidentiality cannot of itself supply such issue. Confidentiality is an aid to administration of the jurisdiction and not a right or status which the jurisdiction of itself has any power to confer.”

73.That passage has to read in the light of the speeches of the House of Lords in In re S, but the need to be circumspect about extending the jurisdiction remains clear.

74.The father maintains that the interference with his Article 10 rights to freedom of expression is not justified. He uses his website as one platform for giving public voice to his campaigns, campaigns that he is free to conduct. He is concerned about the working of the family justice system and the lack of support given by society and various bodies with it to supporting the links between children and both their parents in the event of family breakdown. This is a perfectly legitimate subject for public discussion and, provided he does not fall foul of the statutory restrictions, he should be allowed to maintain the material on the website. It would be difficult, if not impossible, to conduct his campaign and to illustrate the deficiencies of the family justice system or the apathy of the Church without resorting to illustrations. He would have difficulty in obtaining public support without discussing specific instances of family breakdown and the ensuing events. Illustrations based upon actual events, in which people are identified rather than given anonymous references, are likely to attract more interest, just as is the case where criminal trials are reported giving the identity of the defendant and the victim. Further, as the father observed, granting the relief would not give any certainty that the anxiety and distress experienced by EB would diminish, the content of his website being not the only source of stress for her.

75.In many ways the damage has already occurred. EB and her mother were aware of the presence of EB’s name on the father’s website at least three years ago and, save for the period of suspension, her name has remained on the website. This fact is known to those who know EB, including school friends. The father’s publicity seeking activities have been described in newspaper articles. These activities are perfectly legitimate and embarrassing and upsetting as they probably are for EB, since she took the trouble to mention them, those activities cannot be restrained.

76.I am driven to the following conclusions. The rights been claimed by EB for her private and family life are in respect of a publication that is not directed at her and is about a part of family life unconnected with court proceedings relating to her. The passages are directed at the behaviour of the mother and, insofar as EB’s reputation is involved, it is in the context of her as a young girl, being manipulated by her mother. Even if the offending material is a source of upset and distress for EB it is not possible to quantify the degree of distress and is clear that there are other factors contributing to her overall distress, to the point where one cannot say that granting the injunction she seeks would alleviate her situation. The father has kept himself within the field of freedom of expression without contravening the statutory restrictions. The material published on the website is not on matters related to upbringing or welfare of EB or the discharge of parental responsibility. It is comment upon matters where there is no automatic expectation of privacy. The information about EB is out in the community and known to those who matter most to EB, her family, friends and fellow pupils. Her status as the daughter of this father is known and his appearances in newspapers following publicity seeking escapades are likely to continue. The causes which the father seeks to bring to public attention are matters of legitimate public interest and concern. It is appropriate for him illustrate the deficiencies with illustrations drawn from real life experience. Such illustrations are likely to carry greater weight if people are identified, rather than made anonymous. As it happens, the issue about holding hearings concerning the welfare of children in private is likely to attract parliamentary attention in the near future. The father and the organisations of which he is or has been a member, such as Fathers for Justice, may have by their public actions raised public awareness of the issue. If so, it shows the value of freedom of expression. It is an important and necessary public right in a democratic society as a protection against state oppression, against malpractice, as a means of identifying social problems and as an engine for promoting social change. I do not consider that EB establishes that the restriction on the father’s freedom of expression is, in the circumstances of this case, justified. Given the length of time over which, apart from the suspension, she has known that her name has been on the father’s website and the fact that it is already known to others associated with her, it is my judgment that the application, if granted, would be a disproportionate result. The application smacks of bolting the stable door after the horse has gone. This court can have no idea about how many people have already read these passages on the website or downloaded the information. Although what the father says about EB and the mother may be unpalatable, distressing or even untrue, civil remedies exist. The application for the court to exercise its inherent jurisdiction and to grant an injunction must be refused.

77.Had I found that I had jurisdiction to grant a prohibited steps order in this case I should make it clear that I would have exercised my discretion not to do so, relying upon the reasoning and the balancing exercise that I have applied to the application under the inherent jurisdiction. Had the balancing exercise and the reasoning favoured the grant of a prohibited steps order, I would not have found the existence of exceptional circumstances, given the length of time that EB has been aware of the presence of her name on the father’s website and the real difficulty in showing that her present anxiety and distress are attributable largely to that fact. Although Mr Murray sought to argue that the case was exceptional by reason of the family history I do not consider that that is a sufficient ground here. There has been litigation fairly continuously over a period of seven years but the vast majority of it has been centred upon the contact between the father and the youngest child, CB. EB has not been the subject of an application between early 2001 and August 2003.

78.I deal finally with one matter raised by the father in the course of his closing submissions. The father argued that EB’s arguments in relation to Articles 8 and 10 should not be admitted by the court because there had been a failure to comply with rule 10.26(2) of the Family Proceedings Rules 1991. The relevant part of the rule states
“a party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act (a) shall state that fact in his originating document or (as the case may be) answer; and
(b) shall in his originating document or (as the case may be) answer – (i) give precise details of the Convention right which he is alleged has been infringed and details of the alleged infringement;
(ii) specify the relief sought;
(iii) state whether the relief sought includes a declaration of incompatibility.”

79.Neither the prohibited steps application nor the originating summons, both of which are within the definition of “originating document”, comply with this paragraph of the rule. The father stated quite frankly that he was not saying that he was unaware that EB was raising arguments under the Convention, but he contended that the requirement of the rule was specific and since reliance upon Convention rights had not been pleaded the court should not now allow them.

80.In my judgment there are a number of points that can be made about this submission. First, it lies ill in the mouth of the father to raise this point for the first time in the course of closing submissions, assuming that he knew about it at an earlier stage in this hearing. Secondly, as he acknowledged, he is not taken by surprise on the issues and arguments being pursued by EB. His skeleton submissions of the 8th March 2006 show clear awareness of the Article 8 and Article 10 jurisprudence. Thirdly, one of the clear and major purposes of the rule is to deal with cases where declarations of incompatibility are sought or likely to arise and to give the Crown or, in the case of a judicial act, the Lord Chancellor, the opportunity to be represented: see rule 10.26 (4) (5) (6) (18). No such issue arises here. Fourthly, Mr Murray invited me to consider a case familiar to him, namely, Hannigan v Hannigan, an unreported case in the Court of Appeal, decided on the 18th May, 2000. The case involved proceedings under the Inheritance (provision for Family and effect dependants) Act 1975 and an application issued shortly after the Civil Procedure Rules 1998 came into force. The application, issued using a form under the old county court rules and not the form required by the Civil Procedure Rules, was issued on the last day of the limitation period for applications under the 1975 Act. There were also a number of other defects in the application. The defendants applied to the district judge, successfully, to strike out the application. The claimant appealed to the circuit judge who dismissed the appeal, although he had power under the Civil Procedure Rules to grant relief against the order of the district judge and to remedy the error made by the applicant’s solicitor. The claimant obtained leave to appeal to the Court of Appeal and, while the appeal relates to the application of the Civil Procedure Rules it is perfectly apparent from paragraphs 33 and 36 of the judgment of Brooke LJ that the court laid emphasis on the fact that the claimant had given the defendants all the information they required in order to understand what was being claimed and why it was being claimed. It seems to me that the father finds himself in a similar position in this case. He is not disadvantaged; he is well aware of the arguments being advanced by EB and it was open to him to take this point earlier than his closing submissions. I do not consider that the interest of justice would be served by allowing a procedural point arising in the closing moments of the hearing to lead to an abandonment of the proceedings at that point.

81.The orders that this court makes, subject to any arguments as to costs, are
(a) The application for a prohibited steps order issued on the 23rd January 2006 is dismissed.
(b) The application under the inherent jurisdiction issued on the 8th May 2006 and seeking an injunction is dismissed.
(c) There shall be no order for costs save public funding assessment for the costs of the applicant E B.

82.During the course of this hearing the court suggested to the father that, without prejudice to his arguments, he might consider withdrawing the offending material from his website because EB was on the point of sitting her GCSE examinations. Initially, the father was reluctant to do so but was ultimately persuaded that he could and would take this step. Through Mr Murray EB expressed her gratitude for that.

83.This judgment was sent out in draft form. The parties are reminded that the papers in this application, the draft judgment and this judgment are confidential documents. They may be read by the parties to the applications and their legal advisers. It is a contempt of court, pursuant to the Administration of Justice Act 1960, s 12 (1)(a)(i)(ii) , punishable with imprisonment, to publish information relating to the proceedings before this court, without the permission of the court. Although the papers within these applications and this judgment remain confidential documents, the judgment has been prepared in a form that preserves the anonymity of all parties and in that form may be amenable to being handed down in public should such a request be made.


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