To those accustomed to the idea that the family courts sit “behind closed doors” it may seem surprising for a judge to tell journalists they could name a woman who was being jailed for contempt of court, even though her three-year-old daughter was caught up in a family law dispute and cannot be named. The reason is that contempt of court cases must, by default, be heard in open court and publicly identify the person charged with having committed the contempt (the “contemnor” in legalese). There are exceptions, but these did not apply in this case.
However, something else that ought to be done in every such case — without exception — does not appear to have been done. Contempt of court judgments must be published on two officially recognised websites and in this case that hasn’t happened.
This post examines the rules behind contempt of court hearings and — in so far as it’s possible to do so in the absence of a published judgment — explains what seems to have happened in this case.
How the media reported it
The case was reported in Metro on 17 August 2017 under the headline Mother of missing girl jailed for ‘deliberately frustrating efforts to find her daughter’ and in the Barking and Dagenham Post on 18 August 2017 under the headline Jail term for Barking mum whose daughter disappeared during family court dispute.
The mother was named as Jessica Richards. Given that the local authority was also named as Barking and Dagenham Council, the risks of piecing together the identity of the child involved in the family case that led to the contempt hearing (‘jig-saw identification’) were relatively high.
Judge Judith Rowe, who heard the contempt application, said she was aware of this but decided Richards should be named anyway. In doing so, she apparently considered the legal provisions that govern contempt of court cases and how they interact (and may conflict) with rules of court requiring children in family law cases to remain anonymous, even when the cases are reported (which they often can’t be).
The reason why Richards was hauled before Judge Rowe for contempt of court was that she had breached an earlier order by another judge, Mrs Justice Parker, in care proceedings, requiring her to provide information about the whereabouts of her three-year-old daughter, who had vanished about three months ago. It seems that Parker J was considering making a care order so that the local authority would be able to remove the child, and did make some sort of order (the newspaper reports are not clear about what type) for the child to live with a relative. But Richards told the court that the father had taken the child to his home in New York City. Parker J ordered her to provide information about the child’s whereabouts and not to leave the country. That order carried a warning that any breach of it could amount to contempt of court and result in her being imprisoned.
However, Richards failed to provide the information. Indeed, she seems to have disappeared herself, because she did not attend the hearing before Judge Rowe on 17 August — which had already been adjourned once in order to give her an opportunity to do so — following an application of the local authority to have her committed (i.e. punished) for contempt of court. The father did attend.
Judge Rowe, who described the case as “very serious”, found that Richards had “intentionally, consistently and deliberately” frustrated the efforts of the local authority to locate her child. She sentenced Richards, in her absence, to six months in jail but said that once she was found and detained, she should be returned to the court and given another opportunity to provide the requested information.
Why was she named?
The two newspaper reports cited both named the contemnor as Jessica Richards. The report in the Barking and Dagenham Post adds that
“Judge Rowe also gave permission for Richards’ name and other details to be published in the interest of “open justice”.
Most reports on family court proceedings have legal restrictions on identifying those involved, to protect the child’s identity.”
This identifies the conflict over anonymity but isn’t quite accurate as to the legal position. The restriction on identifying a child who is subject to an application for a care order are found in section 97 of the Children Act 1989, which also allows the judge to lift this if the child’s welfare requires it. It’s not clear from the reports whether Judge Rowe decided that section 97 could be lifted as the child’s welfare was the underlying reason for the committal. On the other hand, if the care proceedings had ended, section 97 would no longer apply.
According to a subscription-only news service report of the case which we have seen, what the judge actually said was that a number of hearings had been listed in open court and Richards’ name was already in the public domain because it had featured on listings published on the internet and posted at the Royal Courts of Justice. Moreover, although there was some concern expressed by the lawyers acting for the mother and the child, respectively, about the child becoming identifiable, no application had been made by anyone for any order restricting what could be reported about the contempt hearing, which had been completed in open court before these concerns were raised. Such a restriction on reporting would be a “derogation from the principle of open justice” and editors had been given no opportunity to raise objections to such an order.
So it seems she was saying the cat was already out of the bag and it was too late to try to put it back. But the mere fact that a case had been listed in the Cause List published on the internet and posted up on noticeboards in the Royal Courts of Justice in London does not seem to warrant an assumption that the information is widely available in the public domain. The listings are removed at the end of each day, about tea-time, when the next day’s listings are posted. After that, it is very hard to find them. They are not archived on a routine basis, although odd pages can be found if you try hard, and the ghost of an old entry may appear as a snippet in a Google search. Doing such a search, we found the following snippet (from a page which no longer exists):
“Before HER HONOUR JUDGE JUDITH ROWE QC … Borough of Barking and Dagenham for the Committal to prison of Jessica RICHARDS”
More critical to the judge’s decision was the fact that no application had been made before the contempt hearing took place to restrict the reporting of it afterwards. Under the rules governing contempt of court hearings,
• All such cases should be listed and heard in open court;
• Where the court is considering or is asked to consider any derogation from the general rule by holding the hearing in private, then it must first notify the print and broadcast media and give them a chance to object;
• If, having done all that, the court still decides to hold the hearing in private, then it must first give a judgment in public explaining why.
These rules were laid down by the Lord Chief Justice, Lord Thomas of Cwmgiedd, in a Practice Direction dated 26 March 2015. (See Practice Direction (Committal for Contempt: Open Court)  1 WLR 2195;  2 All ER 541 – at paras 5, 8 and 10 in particular.)
These rules, which replace earlier ones to similar effect, mean that the contempt hearing is separate from any ongoing matters subject to the Family Proceedings Rules, under which family cases involving a child are held in private and the parties’ anonymity preserved.
The contempt of court rules also provide, at para 13, that at the conclusion of any committal hearing, irrespective of whether it has been heard in public or private, if the court finds the alleged contemnor to be guilty of contempt, it must give a public judgment giving the name of the person, describing the nature of the contempt of which they are guilty, and the punishment imposed. It must also provide those details to the national broadcast and print media via the notification service run by the Press Association (sometimes known as the CopyDirect service) and to the Judicial Office for publication on the Judiciary website. The practice direction is very specific about this, at para 13(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. “
In addition, para 14 provides that the court “shall, in respect of all committal decisions, also either produce a written judgment setting out its reasons or ensure that any oral judgment is transcribed”. And by para 15, “Copies of the written judgment or transcript of judgment shall then be provided to the parties and the national media via the CopyDirect service” and published on the BAILII and Judiciary websites.
The practice direction is not a statute but it is made, like the statutory instruments made by ministers, under a power conferred by statute, namely the Constitutional Reform Act 2005, Schedule 2, Part 1. So it is something by which any court hearing contempt of court committal proceedings must abide.
In those circumstances, it would seem that even if the hearing had, in accordance with para 8 of the Practice Direction, been heard in private to protect the identity of the child, Richards would still have been named in accordance with para 13, and the nature of her contempt described. So the point about the court listing seems more relevant to compliance with the Practice Direction (para 5 of which requires it) than anything to do with the name being in the public domain. And the cat being let out of the bag turns out to be a bit of a red herring.
Enlisting the power of publicity
However, there might be other reasons for naming and shaming this particular mother. The case has echoes of the “missing mum” case from two years ago, in which the mother, Rebecca Minnock, absconded with her three-year-old son in an attempt to prevent him living with his father as the court was about to order. We followed the whole story of this case here.
In that case Judge Stephen Wildblood QC made the child a ward of court and issued an order requiring anyone who knew of his whereabouts to inform the court tipstaff, via the police. The help of the media was also enlisted by the judge issuing public judgments and inviting journalists to attend and report the case. (For some of them it was a bit of a learning experience, as Lucy Reed noted in our blog post.)
Again, although these where family proceedings involving the care and contact arrangements for a child, which (under the Family Proceedings Rules) would normally be heard in private and only reported, if at all, in an anomymised form, the judge decided to publicise not only the mother’s name but also that of the child, Ethan, who was the subject of a nationwide hunt. There was a clear public interest in doing so, and that outweighed any interest in preserving the child’s anonymity.
The policy paid off. Ms Minnock eventually handed herself in, the child was returned, safe and sound, and the decision of the court allowed to be implemented. But inevitably there had been a contempt of court in disobeying the court’s orders in the first place, and proceedings for committal not only of Ms Minnock herself but also relatives who had assisted her disappearance, duly followed.
In all, Judge Wildblood published eight separate judgments in this notorious case on the Judiciary website. They are a model of transparency and open justice, and with the helpful reporting in the press they demonstrated how positive a good relationship between the judiciary and the media can be (and goodness knows we’ve seen the negative side often enough).
It would be interesting to know if, at the back of Judge Rowe’s mind in the present case, there was also an idea of enlisting the power of publicity in helping find the missing child. It might have been a legitimate justification for refusing to restrict reporting of the case, even if that hadn’t been ruled out by the Lord Chief Justice’s Practice Direction. But we won’t know her full reasoning unless and until that judgment, as it should be, is published.
UPDATE as at 13 January 2018.
In November 2017 Mr Justice Hayden gave a judgment in public in which he named the child, Elliana Shand, as well as the mother, Jessica Richards, and the maternal grandmother, Sharon Shand, who appeared to have been involved in assisting her daughter to take the child out of the country. Rather than proceed with an application for committal of the grandmother, also for contempt, the judge decided to issue an appeal for public help in recovering the missing child:
Not only am I intending to release the names of all of the parties, including the child, into the public domain, I am also going to release Elliana’s photograph. I do this because I have come to the view that Elliana’s immediate need for safety outweighs even her entitlement to privacy. (Para 13).
He explained that the mother had mental health problems and was not cooperating with treatment. He said at paras 18-19:
In optimum circumstances the Mother’s capacity to meet her daughter’s needs was barely satisfactory but it is abundantly clear that under stress, no longer taking her anti-psychotic mediation, perhaps in the grip of auditory hallucinations she poses a very real risk to her daughter’s safety.
It is for this reason that I indicated … that I intended to put the identity of this family and this Judgment in the public domain in order, hopefully, to expedite the process of securing Elliana’s recovery.
The judgment was published on BAILII shortly after (transcribed from on the advocates’ notes): Re Shand (A Child); London Borough of Barking & Dagenham v Richards  EWHC 2863 (Fam) and was also reported in the media, eg in The Guardian, under the headline High court judge asks public to help find girl, 3, missing with mother.
On Friday 12 January 2018 the Guardian reported that Elliana had now been found:
At a hearing in the family division of the high court in London on Friday, Mr Justice Hayden said the girl was found by police in Spain on Thursday. He also indicated that plans were in place to return Elliana to England in the next few days.
See The Guardian, Missing four-year-old British girl found with mother in Spain
We are not aware if there’s been a further judgment or it it’s published but will keep a lookout for it and update this post accordingly. However, the similarities with the Minnock case described above, and other cases in which privacy has given way to publicity in the interests of the child concerned, are striking.
Feaured image: “What’s in a name?” by Jack Dorsey, via Flickr – thanks.