The decision in EBK v DLO [2023] EWHC 1074 (Fam); [2023] WLR(D) 218 was reported in the local press as ‘Royal marine fails in contempt proceedings against ex-partner’. The case involved a lengthy history of disputes over contact, allegations of domestic abuse, employment sanctions, and defamation actions taken against the police and Cafcass. Here, we look at important points on transparency  that emerged.

The judgment confirms that mandatory publication of the name of a contemnor (someone who is in contempt of court) under the Lord Chief Justice’s practice direction of 2015 continues to apply in family courts, despite the procedure rules in family cases being virtually the same as those in civil courts which do permit anonymity in some cases.

In so ruling,  Mr Justice Mostyn has resolved a matter that was not entirely clear from the preamble to the  Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195, which was amended in 2020 to reflect changes in the Civil Procedure Rules (CPR).

The changes introduced in 2020 to both the CPR and the Family Procedure Rules (FPR) did not affect the substantive law on what constitutes contempt of court or the penalties available to the court to deal with it. They were only concerned with the procedure for applying to commit (punish) someone for an alleged contempt. They included a number of provisions about open justice and publicity. We reported on this at the time: Contempt of Court: new rules and open justice provisions.

One of the questions we raised then was whether and to what extent the practice direction issued by the then Lord Chief Justice, Lord Thomas of Cwmgiedd in 2015 still applied in family courts after the changes to the rules in 2020.

At the time, the Judiciary website published what it said was an updated version of this practice direction, but it appeared to be worded exactly the same as it always was. What had been updated was the preamble, reproduced on the page on the Judiciary website from which you can access a PDF of the 2015 practice direction.

That preamble refers to the new rules and states that the Lord Chief Justice’s practice direction continues to have effect “Except in relation to proceedings for contempt of court to which part 81 of the Civil Procedure Rules 1998 apply” and that it “supplements the provisions relating to contempt of court, the Family Procedure Rules 2010…”

However, given that the FPR now contain a new version of Part 37 which mirrors the wording of Part 81 of the CPR, it was unclear to what extent the 2015 practice direction could continue to apply to family courts differently from the civil courts.

This is the question that Mr Justice Mostyn has now resolved.

The alleged contempt

The case concerned a claim by the father alleging contempt of court against the mother for showing documents, derived from child arrangement proceedings, to the police, in breach of section 12 of the Administration of Justice Act 1960. There is some uncertainty about exactly what section 12 does or does not permit a party to publish or disclose to a third party from cases involving children (eg under section 8 of the Children Act 1989) heard in private. In this case the question was whether the prohibition in section 12 applied where the disclosure was to a police officer  by a party who seeking protection from harassment for herself and the subject child. (Para 37, 47, 55).  There was no child protection investigation in this case, so the police were not undertaking  that specialist task.

The answer given by the judge, at para 55, showed just how “arbitrary and bereft of logic” the current law on this point is. He said:

“55. My conclusion is that the right of a party to disclose to a specialist police officer working in furtherance of child protection any information about the s. 8 proceedings, coupled with the right of such a party to disclose to a non-specialist police officer for the purpose of a criminal investigation the text or a summary of the whole or part of a judgment given, or an order made, in the proceedings, defines conclusively the extent of lawful disclosure, not falling within the Re PP taxonomy, which may be made to the police without fear of contempt. Disclosure by a party of, say, a s.7 Cafcass report to a non-specialist police officer would fall outside that freedom and be a breach of s.12, and thus a contempt, although the seriousness of the breach would be mitigated by the fact that were such a disclosure to have been made by a party to a specialist police officer or by the Cafcass officer to a non-specialist police officer, it would not amount to a breach. It is hard to understand why this aspect of the law of contempt, which, given its nature, ought to be as straight-forward and transparent as possible, appears to be so arbitrary and bereft of logic.”

In re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam); [2023] 4 WLR 48 was an earlier case in which the same judge tried to summarise cases considering breaches of section 12 of the 1960 Act where it applied independently of any other prohibition, for example because proceedings under section 8 of the Children Act had concluded. There was also a separate question whether the disclosure breached the prohibition on publishing or disclosing information about ongoing proceedings concerning a child under section 97(2) of the Children Act 1989. (Although it was not critical to the outcome of the case, and was therefore “obiter dicta”, the judge took the view that it would not.)

We were quite pleased to note that in passing the judge made approving references to our book, Doughty, Reed & Magrath, Transparency in the Family Courts (2018, but currently being updated for a second edition) — though again it was not critical to the outcome of the case.

Permission to bring contempt proceedings

Having concluded that the disclosure to the police in this case may have been a breach of section 12 of the 1960 Act, the judge then had to consider the procedural requirements of contempt of court under the updated version of the FPR.

Under FPR 37.3(3) the claimant father had to seek the court’s permission to bring contempt proceedings alleging “interference with the due administration of justice”, which is what a breach of section 12 of the 1960 Act amounted to. In deciding whether or not to give such permission, the court would take into account a number of factors, such as the seriousness of the breach, the motive of the alleged contemnor, in this case the mother, whether she had apologised, and the overall fairness and proportionality of pursuing the matter.  The judge observed, at para 75:

“75. There is a qualitative difference between a misguided unlawful disclosure to the police in furtherance of seeking personal and child protection measures and sending all the papers to a journalist or putting them up on Facebook or Instagram or other social media platforms in order to harm the other party or to denigrate the legal system. That difference is properly to be reflected in the permission decision where that is to be made.”

Anonymity

The claimant father, having issued his contempt application, sought an order anonymising himself and the defendant mother. That raised the issue whether the court could lawfully anonymise the defendant if the court found that there had been a contempt of court, which in turn depended on the continue effect of the 2015 Practice Direction.

This inquiry prompted the judge to trace the recent history of the procedural rules governing contempt. “Back in the day” he began, speaking about a rule dating back to 1966, “a committal application could be heard in private but an actual order of committal could never be made secretly”. The “invariable rule of naming a guilty contemnor” continued through several subsequent rule changes and an earlier practice direction, until we get to what the judge describes as the “all-important” Practice Direction on Committal for Contempt of Court in Open Court  [2015] 1 WLR 2195. This makes clear that

“13 (1) In all cases, irrespective of whether the court has conducted the hearing in public or in private, and the court finds that a person has committed a contempt of court, the court shall at the conclusion of that hearing sit in public and state: (i) the name of that person; (ii) in general terms the nature of the contempt of court in respect of which the committal order, which for this purpose includes a suspended committal order, is being made; (iii) the punishment being imposed; and (iv) provide the details required by (i) to (iii) to the national media, via the CopyDirect service, and to the Judicial Office, at judicialwebupdates@judiciary.gsi.gov.uk, for publication on the website of the Judiciary of England and Wales.

(2) There are no exceptions to these requirements. There are never any circumstances in which any one may be committed to custody or made subject to a suspended committal order without these matters being stated by the court sitting in public.”

Then, on 1 October 2020, a new CPR Part 81 and a new FPR Part 37 were substituted for the existing versions. On 1 January 2023 a new Court of Protection Rules (CoPR) Part 21 was substituted for the existing version. The new CPR 81.8(6), FPR 37.8(11) and CoPR 21.8(11) are identical. They all state: “At the conclusion of the hearing, whether or not held in private, the court shall sit in public to give a reasoned public judgment stating its findings and any punishment.”

As the judge notes, at para 89, “These rules do not insist on the naming of a guilty defendant. Whether this was intended is debatable. If it was, then it represented a major departure from an ancient principle.”

Nevertheless, having examined the way the new rules was published, Mostyn J concludes that the departure from the mandatory naming of the defendant under the 2015 practice direction was intended only in respect of the CPR – governing cases in civil courts but NOT courts whose procedure is governed by the FPR or CoPR. This is clear from the updated preamble to the 2015 practice direction, which now reads:

“Except in relation to proceedings for contempt of court to which Part 81 of the Civil Procedure Rules 1998 apply, this Practice Direction applies to all proceedings for committal for contempt of court, including contempt in the face of the court, whether arising under any statutory or inherent jurisdiction and, particularly, supplements the provisions relating to contempt of court in the Family Procedure Rules 2010, the Court of Protection Rules 2007, and the Criminal Procedure Rules 2014 and any related Practice Directions supplementing those various provisions. Except to the extent that Part 81 of the Civil Procedure Rules 1998 applies, this Practice Direction applies in all courts in England and Wales…

The bold bits are the 2020 amendments. (NB These are not visible in the original reported version of the practice direction in the Weekly Law Reports but only in the new version published on the Judiciary website, which reproduces this preamble in the cover page from which the document can be downloaded.)

The changes to the preamble made it clear that, for committal proceedings in civil courts under CPR Part 81, the mandatory naming in public of a guilty defendant no longer applied. But the rule continued in force for committals in other courts.

The preamble reflected the promulgation of the new Part 81 of the CPR, but no equivalent amendment was made when the new FPR Part 37 or CoPR Part 21 or practice directions thereunder were promulgated. Therefore, said the judge, the 2015 Practice Direction “remains fully in force for committal proceedings issued under FPR Pt 37 or CoPR Part 21”.

It followed that, if a defendant in such proceedings is found to have committed a contempt, the judge emphasised, “then that defendant must be named in open court and in general terms the court must state what is the nature of the contempt of court and what punishment, if any, has been imposed”.

The upshot, said the judge, was that the defendant mother in the present case faced the proceedings knowing that she would be named in open court if she were to be found guilty of contempt. By contrast, the judge had already agreed not to name the claimant for reasons connected with his role in the armed forces. “The asymmetric position of the parties will need to be weighed in the permission exercise balance.”

That might help explain why the judge spent so much time and energy exploring the particular issue of anonymity, even though it would only really matter if the contempt application was granted.

Conclusion

Having decided that the imbalance of anonymity was itself a factor, the judge then went on to carefully weigh all the other relevant factors in the balance, and concluded that, on balance, they did not justify granting permission for the contempt claim to proceed. His list of reasons [para 124] begins with the ‘technical and arbitrary’ aspects of the mother’s breach of section 12.  However, he gave her a stern warning about not disclosing court papers from private child proceedings to non-specialist police officers, and ‘admonished’ her for the breach.

In the circumstances, the 2015 practice direction did not apply and the court was able to make an order preserving the anonymity of all the parties, i.e. both parents and the child.

The judgment ends with a rather frustrated-sounding appeal to the Rule Committee to take a proper look both at the rules covering what parties can disclose and the way the 2015 Practice Direction continues to apply in some courts but not in others.

A version of this post has also been published on the Transparency Project blog. 

Featured image: The Royal Courts of Justice, Strand, London WC2 © Barbara Rich