G (a child)

In Children Act proceedings, publication under section 12 of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989 is not confined to formal public dissemination. A private oral communication may amount to publication, depending on the surrounding circumstances. The statutory provisions and Rule 4.23 of the Family Proceedings Rules 1991 provide the applicable boundary between privacy and free speech. A court may make a specific protective order for an unrepresented litigant where particular protection is required. Any order carrying a penal notice must be clear and readily intelligible. The appeal was allowed and a precise replacement order substituted.

Long-running proceedings concerning contact between a father and his daughter were conducted in the Manchester County Court. On 2 May 2003, His Honour Judge Hamilton prohibited the father, subject to a penal notice, from disclosing papers or their contents to named experts or organisations concerned with parental alienation and to organisations such as Families Need Fathers, without the court’s permission.

The father appealed the restriction. The Court of Appeal granted permission on the limited disclosure issue. The central questions were whether the statutory and procedural confidentiality provisions justified an additional order and whether the order was sufficiently precise and enforceable, particularly for a litigant in person.

1. Disposition. The Court of Appeal allowed the appeal on the disclosure issue. Thorpe LJ’s replacement order was substituted for paragraph 3 of the county court order. The father’s wider renewed applications for permission to appeal were dismissed.
2. Meaning of publication. Thorpe LJ held that publication under section 12 of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989 was not restricted to formal public notification or media dissemination. An oral communication between individuals could amount to publication. The result depended on the surrounding facts and circumstances. The approach in Re M, [2002] EWCA Civ 1199, was reached by a different route but was consistent with that conclusion. The definition of publish in section 97(5) did not resolve the issue.
3. Statutory and procedural framework. The statutory provisions and Rule 4.23 of the Family Proceedings Rules 1991, read together, supplied a comprehensive boundary between privacy and free speech. Where a party was unrepresented, the court could make a specific order applying those restrictions to aspects of the case requiring particular protection. The court adopted the tailored approach reflected in Re G, [2003] 2 FCR 231.
4. Clarity and enforceability. An order carrying a penal notice had to be clear and easy to understand, especially where it imposed obligations on a litigant in person. Paragraph 3 was too general and imprecise. Its combination with the separate restriction on further residence or contact applications risked preventing the father from obtaining advice about how to seek the court’s permission in future.
5. Replacement order and wider observations. The substituted order prohibited disclosure, until further order, of documents held by the court and the text or summary of judgments and orders. It permitted disclosure of limited summaries when seeking advice about the conduct of the case, including the orders made, a proposed application, the issues for determination, and the positions of the parties and experts. The President and Rix LJ agreed. The observations inviting reconsideration of Rule 4.23 to assist litigants in person were policy observations rather than necessary grounds of decision.

• Court of Appeal (Civil Division). The appeal from the Manchester County Court was allowed on the limited disclosure issue, and a replacement paragraph 3 was substituted. Other renewed permission applications were dismissed.
• Manchester County Court. His Honour Judge Iain Hamilton made the relevant order following a hearing begun on 10 March 2003 and handed down judgment on 2 May 2003. Paragraph 3 imposed a broad prohibition on disclosure without specific permission and carried a penal notice.
• Earlier permission decision. Hale LJ had refused permission on paper on 5 March 2003 in relation to the November 2002 and January 2003 directions orders.