(Family Division, Sir J Munby P, 5 September 2013)
In a landmark ruling from the President of the Family Division, a contra mundum order was granted but video footage of the local authority removing a day old baby from the birth parents under an emergency protection order was permitted to remain in the public domain.
The mother and father's three older children had all been subject to care and placement orders and the youngest child was made subject to an emergency protection order immediately after birth. The father had posted material on the internet about the three older children including their names and photographs. He had used abusive, insulting and threatening language in relation to the social worker including calling her a wicked, wicked woman and referred to the local authority as being involved in snatching babies.
When the youngest child was born at home, against medical advice, the father announced the birth on Facebook and described social workers arriving to remove the child. He then made a covert film of the local authority exercising an emergency protection order and posted it on the internet. A few days later an interview with the father was also uploaded with references to the parents by name. The father subsequently gave undertakings to remove the material although footage of the parents at court was later posted.
In committal proceedings against the father he was sentenced to 6 weeks' imprisonment for each breach to run concurrently, suspended providing the father complied with the undertaking and court order.
The local authority now applied for a reporting restriction order based on the unchallenged evidence that while some material had been removed, some material about all of the children remained available on the internet. The application and supporting documents were served to the media via Copy Direct as well as to Facebook in California by way of direct service.
In carrying out the balancing exercise between the competing rights and interests involved with the application the President emphasised the pressing need for more transparency, indeed for much more transparency, in the Family Justice System.
A key consideration was that the public generally, and not just the professional readers of law reports or similar publications, had a legitimate, compelling, interest in knowing how the family courts exercised their care jurisdiction particularly so because orders of the kind that family judges were invited to make were amongst the most drastic that any judge in any jurisdiction was invited to make. The Family Justice System had to be vigilant to guard against the risks.
The widespread use of the internet created enormous challenges to the Family Justice System. The internet allowed anyone, at the click of a mouse, to publish whatever they wished to the entire world, even in exaggerated, extreme, offensive and often defamatory terms, or with only a tenuous connection with objectively verifiable truth. Material once placed on the internet remained there indefinitely and, because of powerful search engines, was easily accessible by anyone wanting to track it down. Internet providers were often located outside the jurisdiction, in countries where practical difficulties or principled objections stood in the way of enforcing orders of this court.
In relation to foreign defendants located outside the jurisdiction there was, in principle, no objection to the English court in an appropriate case granting a contra mundum injunction against the world at large, including against foreign-based internet website providers.
The local authority had made good its submissions that so long as the proceedings remained on foot, an order was required because the existing restraints had proved inadequate to control the placing of identifying material on the internet. In relation to the period after the proceedings had come to an end, this was a case where, despite what was said in Clayton v Clayton, continuing restraint was required because of the fact that identifying information, damaging to the youngest child, would remain, indefinitely and easily accessible, on the internet.
However, there was no justification for an order as wide as the one sought which provided for the anonymity of the local authority and it's social workers if revealing their identities was likely to lead to the identification of the child. That risk was merely fanciful and only served to mislead. The effect was highly undesirable and tended to confer indirectly the anonymity which the court did not intend.
There was also no need for a public domain proviso restricting the use of material already in the public domain, including the video of the baby being removed. There was a crucial difference in a case such as this, involving a baby a day old between restraining publication of the child's name and restraining publication of visual images of the child. The reality was that although anyone could identify a baby by its name it was almost impossible, unless you were the parent, to distinguish between photographs of children of that age who had the same general appearance. The reality, at least with current domestic technology where searches of the internet were by word (name) and not image, was that unless you had a name, or a mass of other identifying details, it was going to be very difficult, if not impossible, to locate anonymous postings about an individual. Although there might be a powerful argument for asserting that the baby who featured in a filmed episode should not be named, there were at least as powerful arguments for asserting that the publication on the internet of film such as this one, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it included images of the baby.
There was a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child was best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The President granted a contra mundum injunction, albeit a revised version of the one prepared by the local authority.