Avoiding contempt in Children Act proceedings

EKO v DLO is a cautionary tale for parents and family lawyers alike. In summarising the circumstances in which a parent can lawfully disclose information deriving from ongoing Children Act proceedings to the police, Mr Justice Mostyn paves a way through the obscure legal landscape of contempt, signposting risks and the pressing need for reform of the relevant Family Procedure Rules 2010 (FPR) to ensure they protect children as intended. 

This case concerns a lengthy dispute between separating parents over contact with their five-year-old child. The judgment deals with the claimant father’s reconstituted application for permission to bring contempt proceedings against the defendant mother for breach of section 12 of the Administration of Justice Act 1960 (s.12); specifically, by showing documents to police officers that derived from ongoing proceedings for a child arrangements order applied for under section 8 of the Children Act 1989 Act (s.8 proceedings). 

Background 
The claimant father and the defendant mother had one child together, N. Following the breakdown of the parties’ relationship in November 2017, the claimant applied to the family court seeking contact with N in December 2017. 
Repeated allegations of domestic abuse raised by the defendant and related defamation actions brought by the claimant against both the Children and Family Court Advisory and Support Service (Cafcass) and the police followed. Both public bodies conceded liability. In December 2019, a final child arrangements order was made for N to live with the defendant and have direct overnight contact with the claimant. 

Sadly, this was not the end of the acrimony. In August 2020, the defendant recorded an allegation of harassment against the claimant, renewing her application to suspend the claimant’s contact. This application was settled on 9 March 2022, when District Judge Uppal made a second final child arrangements order comprising a shared lives-with order and a s.91(14) order preventing both parties from making further applications in respect of N until March 2026. 

The judgment concerns documents disclosed by the defendant to police officers who visited her home on 20 August, 2020 to record her allegation of harassment. These documents (the subject documents) derived from the ongoing s.8 proceedings and included: 

•    the claimant’s application for a child arrangement order; 
•    a report from an independent social worker; 
•    the claimant’s position statement; 
•    a report produced following the claimant’s suitability assessment for a ‘Domestic Abuse Perpetrator Programme’; and 
•    an email from a judge detailing, inter alia, what took place at a private hearing on 18 March 2020 and draft orders. 

On 5 December, 2022, the claimant filed his contempt application against the defendant in the Family Division of the High Court, at the same time applying for an anonymity order in respect of himself and the defendant (in main, with a view to protecting N’s identity). On 1 February, 2023, Mostyn J reconstituted the claimant’s claim form as an application for permission to proceed under Part 37 of the FPR. The hearing of the claimant’s application took place on 25 April, 2023. 

The legal position 
“It is a canonical principle that identification of the children who are the subject of family proceedings is seriously contrary to their interests and is to be avoided at all costs.” 

This mantra, as the starting point for Mostyn J, goes some way to explain the ostensibly wide prohibition on disclosing information relating to proceedings brought under the Children Act 1989 (the 1989 Act). 

Section 12 of the 1960 Act provides: 

“(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases… (a) where the proceedings… (ii) are brought under the Children Act 1989…
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having the power to do so) expressly prohibits the publication.”

Meanwhile, s.97 of the 1989 Act, as amended by s.62(1) Children Act 2004 to insert the emphasised text, and which applies only while s.8 proceedings are ongoing (Clayton v Clayton [2006] Fam 83), provides: 

‘(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify: (a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act… may be exercised by the court with respect to that or any other child…’ 
(6) Any person who contravenes this section shall be guilty of an offence…’
    
Since 1960, judicial focus on what s.12 is intended to protect: “the privacy and confidentiality: (i) of the documents on the court file; and (ii) of what has gone on in front of the judge in his courtroom” (Kelly v British Broadcasting Corpn [2001] Fam 59); and to whom disclosures ought to be permitted to promote the welfare of children (see Re B (A Child) [2004] EWHC 441 (Fam)), has limited its ambit considerably. 

Mostyn J affirmed his earlier decision in Re PP (A Child: Anonymisation) [2023] EWHC (Fam), concluding that where s.12 apples alone (ie without s.97 of the 1989 Act because, for example, the s.8 proceedings have concluded), it permits the publication of details including the name, address and photograph of the parties and subject child, the nature of the dispute in the proceedings and anything seen or heard in the public precincts outside the court (the Re PP taxonomy). 

In respect of ongoing s.8 proceedings that trigger s.97 of the 1989 Act, Mostyn J summarised the position as now crystalised in rules 12.73, 12.75 and practice direction 12G of the FPR. He held that the following “defines conclusively” the extent of lawful disclosure, not falling within the Re PP taxonomy, which a party may make to the police without fear of contempt: 

1.    To a “specialist police officer working in furtherance of child protection”, any information about s.8 proceedings (Rule 12.73(1)(a)(viii)). Rule 2.3(1) provides that “a professional acting in furtherance of the protection of children” includes a police officer who is exercising powers under s.46 of the 1989 Act or serving in a child protection unit or a paedophile unit of a police force.
2.    To a non-specialist police officer, an order made in the proceedings (s.12(2)), or “the text or summary of the whole or part of a judgment” “for the purpose of a criminal investigation” (PD 12G, para 2.1). 

Mostyn J suggested that a disclosure falling within category 2 would not contravene s.97(2) of the 1989 Act because “the police, acting as police, are not a section of the public”; further, given that Re B (A Child) prompted the legislative amendments to s.97(2), the disclosure of any information relating to s.8 proceedings to a non-specialist police officer is “probably” not criminalised by s.97(2). 

The risks of contempt
Mostyn J was right to denounce this aspect of the law of contempt as “arbitrary and bereft of logic”. In the instant case, the defendant disclosed the subject documents (which fell outside category 2) to a non-specialist police officer. Had she disclosed the same documents to a specialist police officer, she would have acted lawfully. Given the domestic nature of the defendant’s allegation and the context of the subject documents, including a recent non-molestation order against the claimant, one would reasonably expect any attending officer to prioritise the welfare of the defendant and N, irrespective of their specialism. Indeed, it is common and proper for a disclosure to a non-specialist officer, for example, at the front desk of a police station, to subsequently result in a referral to a specialist officer. The flow of information in these circumstances should be encouraged, not stymied. 

Mr Justice Baker applied a similar logic in S v SP and Cafcass [2016] EWHC 3673 (Fam), concluding that a disclosure made by a Cafcass officer to a police officer investigating allegations of domestic abuse between adults fell within Rule 12.73(1)(a)(viii). Without reference to Rule 2.3 or the status of the police officer, Mr Justice Baker determined that the officer was acting in furtherance of the protection of children because his investigation inevitably involved consideration of the impact of the allegations on the children. It appears to follow that had a Cafcass officer disclosed the subject documents to a non-specialist police officer in the instant case, perhaps upon the defendant making an unsupported allegation to the police and the police following their own lines of enquiry, the disclosure would have fallen within category 1 and not breached s.12. 

One struggles to blame a worried parent for missing these nuances, or for calling the police seeking protection for themselves and their child without first obtaining legal advice. Even if aware of the legal position, a parent appears forced to risk their safety or that of their child if they do not provide full details to the first-attending police officer, or else committal proceedings and the consequences thereof. Undoubtedly, the latter is exacerbated by Mostyn J’s determination that the Practice Direction (Committal for Contempt: Open Court) [2015] (PD 2015) continues to apply in family courts, mandating the public naming of any defendant found to have committed contempt in proceedings governed by Part 37 of the FPR. 

Family lawyers should tread with caution, too. Though permitted to disclose information relating to Children Act proceedings to another “professional legal advisor” (Rule 12.73(1)(a)(iii)), a Cafcass officer or a specialist police officer (Rule 12.73(1)(a)(viii)), a party’s legal representative may only share with a non-specialist police officer the text or summary of a court order (s.12(2)). Thus, the ambit of permissible disclosures is narrower for a party’s legal representative than it is for a party, because the former is not covered by PD 12G para 2.1 (which permits the disclosure of the text or summary of a judgment given in proceedings which relate to children for the purposes of a criminal investigation). Given these complexities, if approached by the police or asked by a client to liaise with the police, the importance of consulting a criminal defence lawyer to ensure the safe passage of information cannot be understated. 

The need for reform
In the instant case, Mostyn J’s neat application of the test for permission to bring committal proceedings resulted in minimal civil and reputational backlash for the defendant: the claimant’s application was refused and the defendant walked away with an admonishment, having admitted her breach of s.12. However, this palatable outcome conceals the extant risk that parents will inadvertently commit contempt and face significant consequences or, worse still, that an informed fear of this risk will deter parents from reporting harmful behaviour to the police. In these circumstances, the arbitrary rules governing communications between legal representatives and the police threaten parties’ access to justice by making professional help harder to reach. 

We should, therefore, echo Mostyn J’s call for a reform of the FPR insofar as they govern what, and to whom, parties and legal representatives can disclose information deriving from ongoing Children Act proceedings, to ensure the flow of information intended to protect the children concerned. The devil is in the prescriptive detail of the FPR, which precludes them from accommodating the “qualitative difference” between well-meaning disclosures to the police and malicious disclosures to the wider public, as the looser language of s.97(2) of the 1989 Act appears to allow. Just as the rigour and scrutiny of criminal proceedings should be reserved for the latter defendant, so should the punitive sanctions and reporting requirements of the FPR and PD 2015. 

Rebecca Hughes is an associate at Corker Binning.