RJ v Tigipko

Where publicity is sought as a coercive measure in family proceedings, the court must determine whether the issue concerns the child’s upbringing. If it does, the child’s welfare is the court’s exclusive consideration under section 1(1) of the Children Act 1989. Publicity need not await the exhaustion of foreign enforcement proceedings. It may be authorised where there is a reasonable prospect that it will encourage compliance and where, on the particular facts, publicity is positively in the children’s interests.

Mutual trust is the starting point when assessing the courts and administrative authorities of a state operating under the 1996 Hague Convention. Evidence of inefficiency or corruption is not thereby inadmissible, although substantial grounds are required before fundamental-rights concerns can displace that starting point.

The applicant father sought relaxation of the statutory restrictions on publication so that the mother, her new husband and the maternal grandfather could be identified in reporting the judgment. The children had been retained in Ukraine contrary to English child-arrangements and return orders, and enforcement proceedings under the 1996 Hague Convention were pending there.

The application engaged the children’s welfare, freedom of expression, the effect of publicity on compliance, and whether publication should await the outcome of the Ukrainian proceedings. The children were parties through their Guardian.

1. Application granted. The restrictions on publication were relaxed. Seven days after promulgation, or after any later determination of an application for permission to appeal, the press could report the judgment in its prepared form. The mother, her new husband and the maternal grandfather could be named and photographed. The children and the father could not be named.
2. The question whether publicity should be authorised was a question concerning the upbringing of the children. Accordingly, the paramountcy test in section 1(1) of the Children Act 1989 applied. The decision had to be based exclusively on the evaluation of the children’s best interests.
3. There was no rule requiring publicity to be postponed until enforcement proceedings under the 1996 Hague Convention had concluded. Although Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315; [2011] 1 FLR 1427 contained an obiter observation that publication should be kept separate from enforcement, that observation did not prevent an order on the facts of this case.
4. Mutual respect and trust between states operating the Brussels II Revised Regulation or the 1996 Convention was the ordinary starting point and usually the finishing point. Nevertheless, evidence of inefficiency or corruption was not impossible or inadmissible. The evidence in this case did not approach the threshold required to displace the ordinary assumption.
5. There was a reasonable prospect that publicity would persuade the mother and maternal grandfather to agree to the children’s return. Given the profound and continuing harm caused by their isolation from the father, publicity was positively in the children’s interests. The maternal grandfather’s application to be discharged as a party was refused because of his deep complicity in the abduction.

The judgment records that an earlier relocation decision was appealed. The mother was refused permission to appeal, while the father was granted permission and his appeal was allowed. The present judgment concerned a later application to relax publication restrictions.