Case Update: Transparency Orders
news
05/03/2024
A Father v A Mother & Anor [2023] EWHC 3068 (Fam)
In the Royal Courts of Justice before Mrs Justice Judd
Sarah Blackmore and Gemma Carr instructed Pro Bono by Advocate, appeared on behalf of the Father.
For the full judgment, please see:
A Father v A Mother & Anor [2023] EWHC 3068 (Fam)
Authors
A Transparency Order has been made by Mrs Justice Judd on the application of three accredited journalists which permits reporting in the press on the details of long running Wardship Proceedings involving the Child, A, who was abducted, in January 2020 by her Mother, with the assistance of the Maternal Grandfather to the Turkish Republic of Northern Cyprus (‘TRNC’). Sarah Blackmore and Gemma Carr have been representing the Father in this matter on a pro bono basis through Advocate over the last four years. In 2021, they were partnered through the Pro Bono Connect Scheme with Julie Taylor, Partner of MEUM Law, who has become our instructing solicitor. She too is acting pro bono.
Unfortunately, despite the many Court hearings and Orders, little progress has been made in these proceedings due to the fact the TRNC does not recognise the Court Orders made in the United Kingdom and there is not currently an international mechanism to return abducted children from the TRNC to this jurisdiction, given it is an unrecognised State internationally and consequently the provisions and safeguards of the Hague Convention are unavailable to assist in securing Child A’s return. Unfortunately, due to these factors there are a growing number of British children being abducted to the TRNC by their British parents. At the hearing of the application for reporting restrictions to be lifted, Judd J agreed with the parties and the journalists that there is a public interest in the facts of this case being reported.
At the time the judgment was handed down on 30 November 2023, the Maternal Grandfather had pleaded guilty to child abduction of Child A but he had not yet been sentenced. There was some uncertainty as to whether the Crown Court had ordered reporting restrictions to prevent the identity of the Grandfather being revealed once sentence had been passed. Judd J and the parties were concerned that if his name was capable of being published, this would likely lead, by way of jigsaw identification, to the identiy of Child A, the Mother and the Father, becoming identifiable. As a consequence, Judd J directed that if the Grandfather’s name was capable of being published, following his sentencing that the matter should be restored to her as a matter of urgency to consider whether or not to make any further orders. In February 2024, the Grandfather was sentenced to 18 months imprisonment, the Crown Court confirming that there could be no reporting of any matters arising out of the criminal proceedings that could lead to the identification of Child A, which includes the naming of any of her relatives. Immediately following the sentencing hearing , the judgment of 30 November 2023 was published on the National Archives, a news report has been published by Channel 4 News and a written article by the Bureau of Investigative Journalism.
Further reporting:
Inside one family court battle over a child now settled in Northern Cyprus (Channel 4 News)
background
The parties to the case had been involved in private law proceedings over a significant number of years and for most of Child A’s young life. Paragraphs 2-17 of the judgment set out the history of the private law proceedings.
In 2019 after the Mother had moved home over a two hours’ drive away from the Father, (without telling him until after the move), the Father restored the matter to Court and sought a Residence Order. There was a contested interim hearing whereby HHJ Clayton ordered Child A should move to live with her Father so she could continue attending the same school and he ordered that she should spend time with the Mother on Saturday’s. At this hearing, both parents gave evidence, the Judge finding the Mother to be “an unconvincing witness” who had “discussed the proceedings with [Child A]” and although the Mother was, during the course of her evidence, alleging that the Father was coercively controlling, she did not give the Court any specific examples as to how, she alleged the Father to be coercively controlling. On the other hand, the Judge found the Father to be “calm, sensible and rationale”.
In December 2019, the Mother’s application for permission to appeal the order of August 2019, which changed the residence of Child A, from the Mother to the Father was refused by Mrs Justice Knowles, who determined that the appeal was “totally without merit”.
Pursuant to the order of August 2019, The Mother and Child A were due to spend the day together some time after New Year’s Day 2020. The Father duly made Child A available for that contact, during which the Mother sent a text message to the Father to say she would be delayed returning Child A, but said nothing more than that initially. Later that evening the Father received a further text to say she that she was having a holiday with Child A. The Father telephoned the Mother, receiving the international dialling tone as he did so – The Mother had travelled with Child A to the Turkish Republic of Northern Cyprus (TRNC) on 4 January 2020. They have remained there to date.
events since the abduction
Once the abduction had taken place, the family proceedings were transferred to the High Court. Child A was made a Ward of Court and remains so. There were four hearings initially before HHJ Rowlands sitting as a Section 9 Judge in Birmingham. The proceedings were then transferred to Mrs Justice Judd in around April 2020, who has dealt with the matter ever since. It was at this stage that Sarah and Gemma began representing the Father pro bono, through Advocate; he having been referred to the service by those representing Child A, concerned that he required legal representation, but being unable to afford it and there being no legal aid available to parents in his position.
There have been many hearings, since the Spring of 2020 before Judd J, at which numerous orders directing the Mother to return Child A to the jurisdiction have been made. In addition continuing requests to the authorities in the TRNC to assist by taking steps to secure A’s return have also been made, the assistance of the Foreign and Commonwealth Office has been sought and the Mother’s bank accounts in the UK were frozen. All possible efforts to secure Child A’s return to this jurisdiction have been taken on behalf of the Father and the Children’s Guardian at every Court hearing.
Despite all the hearings, which the Mother has been aware of, by way of service upon her of the orders, via WhatsApp, she has only attended one hearing herself, namely the hearing to which this judgment relates . At one previous hearing, in December 2022, she was represented by Counsel who she had instructed on a Direct Access basis, and who informed the Court that the Mother would not be returning A to the jurisdiction despite the Court Orders. The Mother did not attend that hearing but she has, from time to time (usually at the door of the court) provided statements, in which she has made increasingly serious allegations against the Father and against professionals in the case (Cafcass, the police and the Father’s legal representatives).
In April 2023, there having been little to no progress in the case, Judd J decided not to make a further return order as she was concerned that there was so little information about what was happening with Child A, that the Court was unable to know or make any decisions about her wefare and the Orders made so far over the last three years had not yet achieved her return to the jurisdiction. In August 2023 however, the Father and the Guardian applied for an urgent hearing as the Guardian was concerned, having received information from social services in TRNC, that Child A had been removed from the school she had been attending and the Mother had left her job there too. The Guardian had also been told that the school had made a referral to social services about Child A as it was not known where she was or where she was going to school. There was concern that the Mother and A would attempt to flee and perhaps seek to leave the TRNC. In these circumstances, Judd J reinstated the return Order. This order remains in place but the Mother argues that it should not have been made and that she was not provided sufficient notice of the hearing (para 28 of the Judgment sets out the Mother’s position in detail).
the law
These proceedings did not arise within an area covered by the Family Court Reporting Pilot scheme which has been running since January 2023. Nonetheless, Judd J was invited to make a ‘Transparency Order’ in this case along the same lines as has been developed in Leeds, Carlisle and Cardiff, (the original pilot courts). Judd J referred to Poole J’s judgment in Re BR and Others [2023] EWFC 9 whereby he set out the relevant extracts from the President’s Guidance on the Reporting Pilot, the European Convention on Human Rights and Fundamental Freedoms, Articles 8 and 10, S12(4) Human Rights Act 1998, S12 Administration of Justice Act 1960 and s97 Children Act 1989.
the parties case
All the parties to the wardship proceedings agreed that the court bundles in this case could be provided to the three journalists who had attended various of the hearings. All agreed the journalists could quote and report from those documents, including the Cafcass reports, subject to the names of the parties, or any member of the family being kept anonymous.
All the parties and the court agreed that there is a public interest in the facts of this case being reported, given the background to the proceedings and the fact that the mother and child are and have been for four years, in the Turkish Republic of Northern Cyprus despite numerous orders for the mother to arrange a return being made in this jurisdiction. Judd J referenced in her Judgment that “the Court is aware this mother is not alone in having travelled to the TRNC as a place where there are no reciprocal treaties with the United Kingdom.”
Judd J endorsed the agreement that reporting of the proceedings should be permitted even though, unlike under the Reporting Pilot, the proceedings have not ended. “In this case, progress has been very slow and it is impossible to say if or when there will be any resolution.”
Judd J endorsed the anonymity provisions of the template transparency order being preserved so far as identification of Child A and the parties are concerned. This was to protect the identity of Child A herself and also her Father and his family. Judd J agreed that the anonymity should not extend to the name of the State to which Child A was removed and where she and the Mother are now living. “Even though the identification of the TRNC will mean those in the community may be able to identify [Child A], it is a very significant feature of the case and a matter of some public importance.”
The Mother made an application, supported by the journalist Ms Martin to name the Cafcass Guardian. This was raised, for the first time, in the hearing itself and so Judd J did not hear a great deal of argument about it. Ultimately the Judge did not agree to name the Guardian and determined that “the rights of the Mother or any journalist to freedom of expression do not outweigh the rights of the individual Guardian to respect of their private and family life considering that the effect on the Guardian is likely to be disproportionate to any advantage gained by others”. Given the issue was only raised during the hearing, the Court will consider the request in more detail if a party or the media makes a request to do so.
