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Family Law

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28 AUG 2014

Suffolk County Council v H [2014] EWHC 2830 (Fam)

Suffolk County Council v H [2014] EWHC 2830 (Fam)
Neutral Citation Number: [2014] EWHC 2830 (Fam)
Case No. FD14P00477

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice

8th July 2014

B e f o r e :

MR. JUSTICE MOOR

____________________

SUFFOLK COUNTY COUNCIL
Applicant

- and -

H
Respondent

____________________

Transcribed by BEVERLEY F. NUNNERY & CO. (a trading name of Opus 2 International Limited) Official Court Reporters and Audio Transcribers One Quality Court, Chancery Lane, London WC2A 1HR Tel: 020 7831 5627 Fax: 020 7831 7737 info@beverleynunnery.com

____________________

MR. I. BUGG (instructed by Legal Services Department) appeared on behalf of the Applicant
MR. A. NICKLIN (instructed by Holts Solicitors) appeared on behalf of the Respondent

____________________


JUDGMENT

MR. JUSTICE MOOR
:

[1] This is an application for the committal to prison of Mr H who is the father of T, a three year old boy born in 2010. The background involves public law care proceedings instituted by Suffolk County Council. The end result was that, on 20th August 2013, His Honour Judge Newton made a care order in relation to T and a placement order for adoption. It is quite clear that that has upset Mr. H very greatly. He attempted an appeal to the Court of Appeal but Moore-Bick LJ dismissed his appeal on 12th December 2013.

[2] In February of this year the father sent a DVD to various members of Suffolk County Council's staff. It indicated in the DVD that he was "Coming for T". He appeared at one point hooded and gagged. He read out part of the judgment that was critical of the local authority. He accused the social workers of having misled the court. The DVD included clips of people who were bound and gagged, one of whom had a gun against his head. He showed some recent photographs of T and some of T's social care records. There was an ultimatum to the local authority to reverse their plan for adoption or he said he would, "Go public".

[3] The local authority therefore applied to Eleanor King J on 3rd April 2014 for injunctive relief. She made an order on 3rd April 2014 in which the respondent, that is, Mr. H, was forbidden from doing any of the following things:

"(a) He shall not send, give or show any copy of the DVD or anything at all that is on the DVD, or any of the letters or emails about the DVD, or any of the case papers about T to any newspaper, journalist or media organisation that puts news or programs on the television, in the newspapers, on the radio or on the internet.

(b) He shall not make the DVD or anything on it or any of the case papers about T public in any way, and in particular he must not put anything that identifies T or the proceedings involving T on the internet or any social media website, or put up posters, or distribute flyers, and must not send the information to any other person or organisation that might do this for him.

(c) He must not assault, threaten or intimidate any employee, officer or person who is doing or has done work for Suffolk County Council.

(d) He must not harass or pester any employee, officer, or person who is doing, or has done, work for Suffolk County Council or act in any way that might make that other person think that he will not stop doing something designed to upset them even if they ask him to stop.

(e) He must not speak or write to any employee, officer or person working for Suffolk County Council Children's Services except through a solicitor [it is clear that that means a solicitor that he instructs rather than a solicitor of Suffolk County Council], or in a planned meeting set up by the local authority to discuss his concerns about T, and this means not speaking to them face to face, or by telephone or by writing a letter, email, text or on any social media sites.

(f) He must not ask, encourage or permit any other person to do the things listed above for him."

[4] Suffolk County Council issued a notice of committal for breach of that injunction on 22nd May 2014. The allegations are as follows: on 7th May 2014 after attending Ipswich Magistrates Court in respect of the associated charges of undertaking a malicious communication, Mr. H posted the DVD on YouTube and threatened to send the DVD to multiple media organisations. Throughout May and June, he tweeted the video to countless celebrities, politicians and media organisations. On 14th May he uploaded an updating video to YouTube disclosing information relating to the care proceedings regarding T. He continued to write to staff of the local authority in breach of the injunction, and further he threatened to expose online the details of the foster placement in which T was then placed.

[5] The burden of proof is on the local authority bringing this application. The standard of proof is the criminal standard. I have to be satisfied beyond reasonable doubt. In other words, I have to be satisfied there has been breaches so that I am sure. Mr. H does not have to prove anything or give any evidence. In fact it is quite clear that he accepts those breaches subject to mitigation on various points and I will deal with that in due course.

[6] The application came before the court on 23rd June 2014. It was heard by His Honour Judge Bellamy. Mr. H appeared in person. It is clear that he became distressed during the hearing. As he was leaving the court, he said to Mr. Jacobs, the local authority service manager, "If anything happens to T in this placement, I will fucking kill you". The judge found that to be a contempt of court but adjourned sentence to today. I make it clear that the judge made that finding after Mr. H had left, but as I have already indicated, Mr. H accepts the contempt. Indeed, it is not only a contempt in the face of the court, it is also in breach of the order of Eleanor King J.

[7] By way of mitigation I have looked in detail at the various exhibits to Mr. Jacobs' affidavit. On 7th May 2014 the DVD was uploaded. It is right that parts of it were anonymised and that is to the credit of the father, but it says the following:

"It is exposing the lies that Suffolk County Council use to get people's children. As you will hear in this film, four members of Suffolk County Council lied on oath in a court of law that put my son into forced adoption against mine and my family's wishes. This DVD has been censored in certain places to protect my son's identity. That is, and will be, the only concession I make. In two weeks the unedited version will be sent to various news agencies and journalists. No one is above the law no matter who you are. Please leave your messages as I will be using them in court as a reference when I get back into court. Please make them constructive and keep it clean please. Thank you."

It is right to note that he has not in fact sent the unedited DVD to the news agencies and journalists.

[8] On 14th May, part two was published. The accompanying message says this:

"Part two of my first film. An update since the first was created in late February 2014, only released after gagging court order hearing. No one is above the law and Suffolk County Council lied on oath in a court of law to get my son."

[9] Those are clearly both serious breaches to which there can be no defence. The letters are as follows: on 9th May a letter was sent from an anonymous email address but it is quite clear that it is from Mr. H because it is signed, "Yours, H!". It is addressed to Mr. Innes and Mrs. Cook. It says:

"The consequences of your actions relating to four Suffolk County Council staff members lying on oath in a court of law are as follows. The film has now been made public via two online mediums and, at present, it has had 62 views. It will now be winging its way to all the journos. I gave you all a chance to come clean about your unprofessionalism. You have taken all that matters away from me anyway, so I have nothing else to lose. I warned you all of fallout… T is my main concern. He remains in care. No adoption is sorted out yet, another lie to the court. My son will be in care for another 20 months. I will be making a part two DVD to highlight more lies that Suffolk County Council used to get my son. The bogus NSPCC referral will also be made public. So will a copy of Mr. Jacobs' statement; also a recorded conversation with a Sergeant of Suffolk police, where he says this, that and the other. You will not use the law to cover up your own failings and lies, etc. etc. etc. You will not hide behind the law. I love my son and I won't stop until he is in mine and my family's care. No more warnings. Public. Public. Public, I've gone. Kind regards lying public servants."

[10] The email of 22nd May which ends, "The truth will come out, Mr H." is of a similar nature. It starts:

"Now then public servants who have broken the law, used the law to cover the breaking of laws by yourselves… and you, Mr. Innes, who covers for their lies, it implicates you too. You all know I can prove the lies you told, not just in my son's hearing in May 2013 and August 2013, and then the lies told by Mr. Jacobs in the latest injunction hearing. Suffolk Constabulary have also been implicated in the crimes. The order of the court is to seek out the truth, not to bend the will of the state."

[11] Mr. H says he will be filing an application for contact under the new law that came into force in April of this year. He says he is well informed. He says the DVD has now had over 350 views. It has been tweeted to Conservative, Labour, Liberal Democrat and UKIP politicians, and also the CPS, the Ministry of Justice, Sky News, BBC News, ITV News, etc. He refers to the fact that his trial will be in open court and says the truth about the lies and the misleading of the court will come out. He says, "I will not stop until my son is back in my care". Again, those are two serious breaches.

[12] Today Mr. H was ably represented by Mr. Nicklin. Mr. H made some points to me himself. He told me he had put his neck on the line in taking the actions that he had. He says he regrets making the comment in court on the last occasion but he does not regret anything he did to expose Suffolk County Council. He said it is not an attack on Mr. Jacobs but an attack on Suffolk County Council. I certainly gained the impression from what he said that, although he was apologising to me for what he said to Mr. Jacobs in court, he was indicating that he intended to carry on his campaign. It certainly appeared that he intended to break this injunction further in the future. I will not, of course, be sentencing him for that. I have found all the breaches proved to the criminal standard. I make it clear, however, that I will sentence Mr H only for what has happened in the past.

[13] Mr. Nicklin submitted to me that it was important for me to remember that he had made a retraction and an apology of what he said to Mr. Jacobs in court. He said Mr H was deeply upset by the position he was in but it was not to minimise the seriousness of the situation in respect of the breaches. He accepted that what he had done was in breach of the order. He indicated to me that Mr. H's case was that, when he said, "I am coming for T", he meant it not as a threat to remove T from care but rather that he intended to make all legal efforts to have him back in his care, and to continue to challenge the situation.

[14] He made the point that the videos have been taken down from YouTube and that the tweeting was not personalised. He was not seeking to launch a personal attack. He did not make any reference to T's name or date of birth, and it merely stemmed from his efforts to challenge what he saw was an injustice and a need to respond. Mr H was unhappy with the injunction, but he was unrepresented so he was not in a position to challenge the injunction that was made. Mr Nicklin reminded me that there were also criminal proceedings and there should not be double jeopardy.

[15] He told me about Mr H's domestic circumstances, the undoubted problems that he has had in the past as an alcoholic and that he has struggled with drugs, although serious drugs are now 14 years behind him. He indicated that he avoids domestic relationships and that he is undertaking counselling. He is on anti-depressants, he has lost two stone in weight and his life has been turned upside-down. At that moment in the submissions Mr. H became emotional.

Sentence

[16] Stand up please Mr H. I have now to sentence you for the breaches that you admit and which I take the view are very serious. I have considered carefully the authorities that have been put before me by your counsel and in particular the dicta in the case of Hale v Tanner and in A v A. I accept that imprisonment is not an automatic consequence of the breach of an order and there is no principle that it should be imposed on the first occasion, but equally I am dealing with you for not only your disobedience to the order but also to ensure that court orders are complied with. These are very serious breaches. They have had a serious effect on members of Suffolk County Council who are professional people who are doing their job and are entitled not to be abused or threatened by you.

[17] I consider and I accept that this has all had a serious effect upon you but an injunction was made by Eleanor King J and it has to be obeyed. These are serious breaches and undoubtedly the most serious of them was the threat to Mr. Jacobs in court which I take the view was a very serious matter indeed. I consider that the contempts are so serious that a fine cannot be justified. I also take the view that a suspended sentence of committal cannot be justified either. I am therefore going to deal with the matter today and pass a sentence of imprisonment. This will be the shortest which in my opinion matches the seriousness of your contempt whilst taking into account the mitigating factors raised by your counsel before me.

[18] The sentence is one of two months' imprisonment for the various contempts that I have found as alleged in the committal application (all of which will run concurrently) and a further one month consecutive for the contempt in the face of the court. So that means you will serve in total a sentence of three months in prison. You will serve only one half of that sentence in custody. You are at any stage entitled to apply to me to purge your contempt but this will involve you making, in my view, a complete about face in relation to what has occurred to date and an acceptance that in future you will abide by this order completely. I will consider any application by you to purge your contempt at the time you make it.

[19] These are very serious matters indeed. If, after you are released from custody, there are any further breaches that are proved to the criminal standard I take the view that the sentence will not be one of three months, it will be one of well in excess of a year.

Postscript

[20] On 12th August 2014, Mr H applied to me to purge his contempt. He apologised for his contempt and promised me that there would be no recurrence. He told me that his time in prison had been a nightmare that he did not want to repeat. He said it was not worth it and confirmed that he would abide by the order in the future.

[21] I accepted his application and released him from custody. It is a salutary reminder that the consequences of breach of a court order are very serious. Orders should be obeyed at all times.
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