Gibbs v Gibbs (Rev 1) [2020] EWHC 2134 is a rather extraordinary judgment. You’ll notice the names are incorporated in the description of the case – that is for two reasons. Firstly, the judgment relates to a committal hearing, which are always held in public with the person who is found to be in contempt of court (Mrs Gibbs in this case) named. And secondly, this is one of those rare ‘setting the record straight’ judgments which has as a significant part of its purpose the making public of the court process and proven factual background, in order to give some protection to a party who has been publicly accused by their ex of doing awful things that they did not do (in this case the Reverend Gibbs, Mrs Gibbs’ ex husband).
The notation ’Rev 1’ By the way, doesn’t really mark the scores between this former couple as we’ve jokingly suggested in our title – its simply a form of version control. As it happens, the judgment went in favour of the Reverend Gibbs, though he may not feel particularly triumphant about things. He’d probably rather just have a quiet life.
We saw this sort of judgment some years ago in the case of Vicky Haigh, a mother who made allegations against her ex partner that he had sexually abused their child, and she continued doing so even after the court had heard the evidence and decided that they weren’t true. You can read about that case here and here, and our earlier posts link to the judgments. In short, after her determined campaign, the then President of The Family Division, Sir Nicholas Wall, published a judgment containing a statement of the facts so that it could be publicly seen that the father had been exonerated.
Here, Mrs Gibbs has been waging a campaign against her ex husband Reverend Gibbs for some time. Many years ago family court judges had made findings that previous allegations concerning his behaviour towards his son were untrue, but the campaign of emails repeatedly sent by Mrs Gibbs made more serious accusations of sexual abuse of the parties’ son that had never been tried by the family court. It appears that this was because, although they had been raised, Mrs Gibbs had elected not to pursue them, and so the family court put them to one side and proceeded on the basis that they weren’t proved. More recently, Mrs Gibbs has served a sentence of imprisonment for contempt of court on Reverend Gibbs’ application, because she had breached orders that had prohibited her from disseminating information about the allegations (See here). That order had been made on Reverend Gibbs’ application, and was an earlier attempt to put a stop to the continual allegations Mrs Gibbs was making against him, years after the children had reached adulthood. It was ineffective, as Mrs Gibbs continued sending hundreds of people details of the allegations by email upon her release from prison.
Alongside this, a prosecution of Mrs Gibbs for breach of a non molestation order made to protect Rev Gibbs from further harassment had fallen by the wayside when a criminal judge, HHJ Holt had formed the view that Mrs Gibbs had a ‘reasonable excuse’ for her breach given that her now adult son had finally made a complaint to the police alleging sexual assault by his father, which led first to an adjournment of the charge against Mrs Gibbs and subsequently it seems to the prosecution offering no evidence against her (i.e. effectively dropping the charge). The CPS later decided to take no further action on the son’s complaint, but at some point following Mrs Gibb’s acquittal HHJ Holt appears to have expressed the view in an email to Mrs Gibbs (after the matter had formally concluded) that she had been subject to a miscarriage of justice (it’s unclear if he knew about the no further action decision or if that had even been made at that point).
So, no doubt having formed the view that the criminal process was not going to be much assistance to him, Rev Gibbs had brought a further committal application in the family court to try to find a way to make the campaign stop. Unusually, Mrs Justice Lieven, the judge who dealt with this application, decided she would need to make some assessment of the truth of the allegations in order to decide whether Mrs Gibbs had a reasonable excuse when she breached the order. There was no doubt she had breached the order so the issue was why. In Lieven J’s judgment she surveys the evidence and concludes that the allegations are without foundation and that therefore the contempt is proved.
This of course is in contradiction to the earlier email from the criminal judge. The family court HHJ Holt’s comments about his comments are somewhat muted, but I think its fair to say that for a judge to express the view that a miscarriage of justice has occurred on the watch of a judge in another court without seeing the papers from the other court or any communication between the two forums is somewhat unusual (As was the offer to meet and discuss the matter with Mrs Gibbs) – Lieven J was brief but clear in stating that she had reviewed a broader raft of evidence than HHJ Holt had seen including many of the historic family court papers, and was therefore in a significantly better position to judge where the truth lay than HHJ Holt had been before.
However, in spite of making findings of really serious wilful breaches of the order, Lieven J declined to make a further committal order – her view was that it would be effectively pointless and Mrs Gibbs would continue the emails as soon as released anyway. Instead she took the course of publishing both her judgment and an executive summary of it that Reverend Gibbs could show to any person the next time Mrs Gibbs recommenced her allegations. She also ordered that Mrs Gibbs pay all the Reverend’s costs of the application, requiring sale of her home in order to release the necessary funds.
What is also interesting about this case is that the judge had to grapple with the right of anonymity which is given to all those who complain of sexual abuse (in this case, the Gibbs’ son). The Sexual Offences Amendment Act 1992 is what gives this protection, and it is a criminal offence to breach it. Although a Crown Court judge (criminal court) would have power to relax the rule, the family court is not given the same power. Here though Lieven J concluded that although identifying the parents i.e. Reverend and Mrs Gibbs, as she had to do In order to follow the open justice rules regarding committal, would potentially identify the son ‘J’, she had to interpret the law so that it made sense, and it made no sense to prohibit this indirect identification of J where Mrs Gibbs had already disseminated information about it far and wide. The judgment doesn’t directly identify J, or his sister – essentially the judge said she was not going to make it worse than it was – but does give more detail than would normally be available in light of the SOAA. This case is unique on its facts, and does not mean that when one person has already identified a victim or complainant everyone else has a green light – a judge has to interpret legislation so its compatible with human rights and in this specific case the judge considered that the way to do that was to balance the rights of J by not intruding further on his privacy than had already happened, against the rights of J to have accurate information in the public domain – essentially a balancing of competing Article 8 rights by a judge. Private individuals don’t get to interpret the law in this way! It is easy to see why the judge felt this was a course she had to take, but the reasoning of this part of the decision is very brief, and it’s unclear whether it will be followed in other cases – few cases are likely to have facts that justify a course of action that is, on the face of it, in direct contradiction to the words of the Act.
Whilst it is clear to see why Lieven J took the decision she did, there is a risk that some will be emboldened in breaching privacy restrictions by making persistent allegations against those who they believe to be guilty of abusive behaviour that the family court has not recognised, whilst others – including the victims of such allegations and responsible media or commentators will continue to feel constrained from setting the record straight. Whilst here the court was willing to permit publication of information that is a rarity, and the fact that in many cases the alleged victims of the abusive behaviour (the parties children) will still be minors with a particular need for protection is likely to make it more difficult to secure permission to publish corrective material. Only where the publication of information is having a direct impact on the child or their care giver (As was the case in the Haigh case) is the family court likely to intervene in this way.
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