Gagging orders and how to fight back
Gagging orders make me laugh personally . Your local authority may threaten you with this even take you to court .
I will tell you a bit about my own story.
During proceedings without prior warning the Local Authority applied for a gagging order otherwise known as an injunction to prevent me talking about my case , posting pictures of my child until he was 18.
I had a useless solicitor at the time and told her to use Clayton V Clayton ruling in my defence however she was that useless she didn't even know what Clayton V Clayton was.
Anyhow proceedings were adjourned till the next day.
Having not been gagged on that day but knowing a gagging order was imminent i returned home and wrote my story naming names and spammed it on facebook , via email contacts , in groups etc asking people to copy paste and share everywhere they could on the internet knowing that even if i was gagged my story was out there ( special thanks to my friends that did this ).
Anyhow I didnt turn up in court next day as to be gagged you have to be served with the papers in person infact I went to Devon to stay with friends and Social Services did not know my whereabouts.
Funnily the social worker tried to serve me the gagging order via email which i may or may not have bothered to read :)
I then proceeded to mock them on my blog
I then thought outside the box and thought well ok the gagging order states this but it does not state that i cannot name social workers etc involved so I publicly slated them.
After a few years of research into an expert witness my story gathered alot of publicity in National Press thus making any gagging order null and void.
In further proceedings the Local Authority tried to spring it on me that they had seen my original posting on the internet and they were going to take action . My defence was that was not posted by me . I am not responsible for information copied and pasted on the internet by someone else.
They withdrew their action.
This is what I did to fight the gagging order.
You may also find the information below useful.
Identifying Children in Family Proceedings
Adam Wolanksi, of 5RB, considers the ambit s97(2) of the Children Act following the decisions in Norfolk v Webster and Clayton v Clayton
Adam Wolanski, Barrister, 5RB
Adam Wolanksi, of 5RB, considers the ambit s97(2) of the Children Act following the decisions in Norfolk v Webster and Clayton v Clayton
The subject of 'transparency' in the Family Division is back in the news. In Norfolk County Council v Nicola Webster and 5 Others [2006] EWHC 2733 (Fam) Munby J ruled that, for the first time, the media may attend a High Court care case. Over twenty journalists attended the hearing which followed on 3 November. Even though the hearing was itself unremarkable – approval was sought for an interim care plan and further directions sought – it received very wide national publicity.
But Webster was notable not merely because the judge allowed the media in. It also clarified the law in relation to the identification of children in family cases. Together with the decision of the Court of Appeal in Clayton v Clayton [2006] EWCA Civ 878 there is now considerably greater certainty over the ambit of s.97(2) of the Children Act, the statutory prohibition on identification of children in family proceedings.
Section 97(2) of the Children Act 1989
This provides 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; or (b) an address or school as being that of a child being involved in any such proceedings.
Given that identifying parents in care cases is in most instances likely to identify a child as being involved in those proceedings, the effect of this provision since its introduction in 1999 has been far reaching. Stories about, for example, the experiences of adoptive parents have been anonymised for risk of identifying children as being involved, or as having been involved, in such proceedings. More importantly, s.97(2) has prevented the publication or broadcast of any pieces about alleged miscarriages of justice in the family courts in which the accused – the parents – are identified.
In Webster parents who claimed that they were the victims of a miscarriage of justice in previous care proceedings relating to their three older children, and who were now embroiled in care proceedings relating to their fourth child, sought, with the assistance of the media, to tell their story in public.
Brandon Webster was born on 29 May 2006. His parents fled to Ireland before his birth fearing that, like his three siblings, he would be made the subject of care proceedings and taken away from them. Their story was widely and lawfully reported at the time in the press and on television, where they were interviewed for a BBC programme. Brandon and his parents were widely identified (though the wife's maiden name was used). They then returned to England on 10 June and care proceedings were commenced.
Two separate issues arose for consideration: first, should the media be permitted to attend the forthcoming hearing in the proceedings; and second, should the court permit identification of the parents (and therefore the child) as being the subject of the proceedings.
Munby J decided that the press should be permitted to attend the hearing, for reasons covered in detail in Alex Verdan QC's article 'Children Public Law – latest developments' elsewhere in Family Law Week.
The judge went on to consider the question of identification. Section 97(2) contains no distinction between hearings in private and hearings in open court – or to the novel hybrid in the Webster case, namely a hearing to which the press but not the public are allowed access. Unless specifically permitted by the court, reports of the case would therefore have had to be anonymised. The parents would have been unable openly to discuss the case in the media, for risk that their child would be identified in contravention of s.97(2).
Section 97(4) of the Children Act 1989
The media applicants – supported by the parents but opposed by the child's guardian – therefore argued that the judge should permit the parents and Brandon to be identified pursuant to s.97(4). This provides:
The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, and in the case of the Lord Chancellor, if the Lord Chief Justice agrees, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order.
The court was, however, faced with a difficulty: on the face of it, s.97(4) only permits a court to allow identification where the welfare of the child requires it. Typically this will be a case where a child has been abducted and a public announcement is sought to be made calling for information helping the authorities to trace the child.
Webster, however, was not such a case. It could not be argued that the welfare of Brandon required that his parents should be able to speak publicly and openly about their case, with the inevitable consequence that he would be identified as the subject of the care proceedings.
The media applicants therefore contended that s.97(4) must be construed in such a way as to permit the court to lift the prohibition in section 97(2) where Convention rights require it. Munby J agreed. He held that Wall LJ accepted a submission to like effect in Clayton v Clayton. He pointed to the fact that, unless the section were construed in this way, judges who believe the interests of justice are served by the identification of parties in Children Act proceedings would be unable to do so – thus, for example, Ryder J would have been wrong to permit the identification of the parties in Blunkett v Quinn. He also referred to the practice in the Court of Appeal where s.97 does not apply, and where the Court must conduct a balancing exercise in deciding whether parties in Children Act cases should be identifiable .
Identification of children involved in ongoing Children Act proceedings: a summary
The welfare of the child is therefore an important factor in deciding whether to permit identification of a child as being involved in ongoing proceedings. But it is not the only factor. Nor is it the paramount factor, a fact stressed by the judge in Webster. Where an application is made by the parents, or the media, to permit identification of the child pursuant to s.97(4) the court will have to balance the child's welfare with other factors, including the wishes of the parents; the public interest in the subject matter of the case (particularly where it is a care case in which the state is seeking to take children away from their parents); the effect on others, such as siblings, of identification; the effect of identification on the conduct of the proceedings themselves (if, for example, there was a suggestion that it would deter witnesses from giving evidence); and the existence of identifying material already in the public domain.
The 'intense focus' which the court must apply to the comparative importance of the specific rights being claimed will require the court to look carefully at whether the risk of harm to the child arising from identification is real or merely speculative. InWebster Munby J cited what Wall LJ said in Clayton:
"I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life."
Wall LJ was referring to the harm that would result from identifying a child as having been involved in proceedings. Why, Munby J suggested, should it be assumed to be harmful to a child to be identified as being currently involved in proceedings? The court will in future need to be satisfied that harm is a likely consequence of identification.
In Webster Munby J found that the risk of harm to the child was "in significant measure speculative", particularly given the amount of material already in the public domain and the child's age (under four months at the time of judgment). Such risks were in the judge's view heavily outweighed by the other factors, including the legitimate public interest in the case and the desire of the parents to tell their story.
Identification of children after the conclusion of Children Act proceedings
Prior to Clayton v Clayton there was a common belief that s.97(2) outlasted the existence of the proceedings. As Munby J put it in Webster, following Clayton, this belief (which he admitted to have shared) has been "exploded for what it always was – yet another of the many fallacies and misunderstandings which have tended to bedevil this particular area of the law".
The Claimant in Clayton wished to be able openly to discuss the 'shared care arrangement' he had reached with his ex partner over their child, Esti. Hedley J restrained him from doing so, primarily on the basis that s.97 of the Children Act made it unlawful for him to identify his child as having been the subject of Children Act proceedings. The Court of Appeal overturned the order, ruling that s.97 did not prevent the identification of children as having been the subject of proceedings after those proceedings had come to an end.
Once Children Act proceedings are over, a child is therefore identifiable as having been involved in the proceedings. Anyone wishing to prevent identification will have to seek an injunction from the court. They will need to notify the media that such an application is being made (see Practice Direction – Application for Reporting Restriction Orders [2005] 2 FLR 120). They will need to justify the proposed injunction on the grounds that the child's welfare requires it and that it is a necessary and proportionate interference with the rights of others (meaning, in all probability, the Article 10 rights of freedom of expression).
https://www.familylawweek.co.uk/site.aspx?i=ed2315
However, Wall LJ said in Clayton at paragraph [145]: "My impression is that there are unlikely to be many cases in which the continuation of that protection will be required." Some may be deterred from making speculative applications by the risk of having to pay the costs if unsuccessful.
Conclusion
Section 97(2) is not as restrictive a provision as has until recently been assumed. Parties can no longer assume that their involvement, and their children's involvement, in Children Act proceedings will remain private. Meanwhile the government is reviewing the topic of publicity and the family justice system. The Department of Constitutional Affairs Consultation Paper has proposed extending the rights of privacy of participants, including adult participants, in all family proceedings. Further developments are awaited with interest.
Adam Wolanski is a barrister at 5RB specialising in media law. He acted for the BBC in Webster and was junior counsel for the Appellant in Clayton.
