Alcott v Ashworth (No. 2)
Reference:  EWHC 2414 (Fam)
Court: High Court (Family Division)
Judge: Alex Verdan QC sitting as a Judge of the High Court
Date of judgment: 29 Sep 2016
Summary: 1980 Hague Convention - Children Act 1989 - Administration of Justice Act 1960 - Open Justice - Transparency - Family Courts - child abduction - privacy injunctions - reporting the courts - contempt of court
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Greg Callus (Interested Party)
Instructing Solicitors: News Group Newspapers & Times Newspapers
The Respondent mother was a children’s TV actress and personality. She had a young child, D, with the Applicant father, who was a TV producer in Australia. She moved to Australia with the child, but upon discovering apparent infidelity, flew back to the UK with the child. The father made an application to the Family Division of the High Court of Justice to summarily return the child to Australia, where he said the child was habitually resident. The application was made under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The decision of the judge, after a two-day private hearing attended by the media in which both the mother and father testified, was given in the substantive public judgment Alcott v Ashworth (No. 1)  EWHC 2413 (Fam). He found that the child was not habitually resident in Australia, and that the mother had not wrongfully removed (or abducted) the child in returning to the UK.
The media had made submissions on being able to report the case through Mr Brian Farmer on the morning of the first day of the hearing. Counsel was instructed for the second day by News Group Newspapers and by Times Newspapers, and the judge reserved his judgments.
(1) Were there any automatic statutory reporting restrictions that applied to 1980 Hague Convention cases?
(2) What material should be reportable, by way of lifting the s.12 AJA restrictions or by inclusion of material in the public judgment?
(3) Should the parents be named or anonymised, given that naming them would indirectly identify the child?
(1) The parties were agreed that in pure Hague Convention applications, the reporting restriction in section 97 of the Children Act 1989 did not apply. Accordingly, the media were (and had always been) free to report the names of the parties and the child. Any further derogation from Open Justice in making a reporting restriction would require a privacy injunction under the inherent jurisdiction, which would have to also surmount the hurdles of s.12 of the Human Rights Act 1998. The Mother and Father did not make any such application, and nor did the CAFCAS lawyer appointed by the Court on behalf of the child for the purposes of the media’s application. However, because the Family Division could at any time have recourse to the inherent jurisdiction in Hague Convention applications, section 12 of the Administration of Justice Act 1960 did apply to these proceedings, and the evidence heard in private could not be reported unless that restriction was lifted.
(2) Granting the application made by both NGN and TNL, there would be a public judgment with sufficient detail to explain the decision made. However, refusing the application made by NGN only, it was not appropriate to lift the s.12 AJA 1960 restrictions to allow reporting of the evidence – as the media conceded, if sufficient material was included in the public judgment, there was little weight to this application as against the compelling privacy rights of the parents.
(3) None of the parties (neither parent, nor the child’s lawyer) sought a privacy injunction anonymising them in reports by the media. The Court considered that, although naming only the parents would allow for indirect identification of the child, this did not override the Article 10 right to report the case with the parties’ names. Jigsaw identification was already possible from overseas reports of the case, and from the material the parents had already put in the public domain. However, to give proportionate protection to the child’s Article 8 rights, an order would be made under s.39 of the Children and Young Persons Act 1933 (as amended) so that no report of the proceedings should use the child’s name, or photograph (even if pixillated) or school or address until the child reached the age of 18.
This judgment confirms two discrete questions of reporting restrictions in Family Division proceedings, namely that:
(1) Hague Convention applications (absent any concurrent application under the Children Act 1989) do not engage the automatic statutory reporting restriction under s.97 Children Act 1989, but that
(2) evidence heard in private by the media in Hague Convention applications does still engage s.12 of the Administration of Justice Act 1960 (as the court may exercise powers under its inherent jurisdiction).
Also adds to the growing corpus of cases on children’s rights where their parents are the parties to litigation, and the question of the extent to which their Article 8 rights can be weighed against the media’s Article 10 rights. Confirms that jigsaw identification of the child need not be fatal to identification of the parents (at least where s.97 Children Act 1989 does not apply).