Since yesterday the news has been full of reports about a Ukrainian ‘Billionaire, Sergiy Tigipko, investigated over abduction of [his] UK grandchildren’ (See the BBC. Also, for example, Businessman reveals fight to bring daughters back to UK after ex-wife took them to Ukraine and never came back, Telegraph and Sanchia Berg’s interview with the father here).

The case reaches the public domain with the mother and maternal grandfather both named, as a result of a sequence of hearings and appeals spanning 2018 and the early part of 2019. The children have been in Ukraine with their mother since late 2017 when they were taken mid-litigation, whilst a decision about their arrangements was still pending. The mother has refused to return them since in defiance of the High Court Judge dealing with the case, Mr Justice Mostyn.

Although it is not particularly unusual for an abducting parent to be named in publicity material alongside photographs, in order to assist in the location and recovery of missing abducted children, these children have never been missing, only abducted – so the naming of the mother and her own father, who is thought to have assisted, has a different aspect. Here, the purpose of naming the mother and grandfather is to apply pressure to (hopefully) coerce them into returning the children, something which the judge is clear is entirely within the court’s power to do.

There are three judgments relating to this case now published on BAILII :

  • GT v RJ [2018] EWFC 26 (Rev 1) (27 April 2018), the original ‘final’ decision, where Mostyn J refused the mother’s application for permission to relocate to the Ukraine with the children. By the time of the final hearing, the children were already there and the judge also made a decision to authorise her (temporarily) to remain there with the children in order to sort out her affairs, though this decision was successfully appealed by the father, (the appeal judgment is not published). The children have not returned since, for contact to their father or otherwise.
  • RJ v Tigipko [2019] EWHC 105 (Fam) (25 January 2019), the decision of Mr Justice Mostyn in January, just published, which dealt with the father’s request – supported by the children’s guardian – for permission to identify the mother and grandfather in an attempt to persuade them to comply with the court’s orders (the court had been trying to secure the children’s return since the first judgment in April last year without success and the children were by now reporting that daddy was a bad man.) I attended this hearing under the legal bloggers pilot – see our post about that hearing : Journalists and legal bloggers sitting in a row.
  • RJ v Tigipko [2019] EWHC 448 (Fam) (01 March 2019), the decision of Mr Justice Mostyn in March, also just published, which dealt with applications for various bits of the January judgment to be redacted before publication.

The case is interesting for a number of reasons, which I will deal with in turn :

  • the abduction aspect
  • the transparency and reporting restrictions aspect
  • the legal blogging aspect

The abduction aspect

We’ve sometimes seen people question the correctness / appropriateness of the term ‘abduction’ in cases where one parent has taken a child abroad and away from another parent, and we saw one such tweet this week in response to the headlines (we’ve tried to find it but all our searches come up with is stuff about alien abductions!). It is legally correct to talk about a parent ‘abducting’ their own child, where they do so unlawfully. Under the Hague Convention (an international agreement that sets out a procedure for the return of abducted children to their home country) the term used is ‘wrongful removal or retention’, but quite separately from that it can also be a criminal offence to remove a child from one country to another without having the necessary permission – and the offence can be committed by a parent who has fled the country where the other objects or has not agreed the removal, or where a court order sets out where they should live (this is not the place to go into the detail of child abduction law – the point is parents can abduct their own child).

In this case, although there is an open police investigation into whether any criminal child abduction offences have been committed by the mother / maternal grandfather, no charging decision has been made and it is unclear whether any charges will ever be brought (not least because at present none of the potential suspects are in the country and extradition is likely to be lengthy).

In his January judgment, Mr Justice Mostyn explained in strong terms how harmful abduction by a parent of children away from another loving parent can be:

…there is a strong public interest in far more press reporting of the scourge of international child abduction. Child abduction is a heinous practice…Yet public awareness is curiously very limited. It is strongly in the public interest that much greater awareness is generated about this dreadful phenomenon. I echo the words of the Lord Chief Justice, Lord Judge, in R v Kayani [2011] EWCA Crim 2871, [2012] 1 WLR 1927 at [54]:

“The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent.”

Mostyn J had been highly critical of the mother’s ‘furtive flit to Kiev’ in his original judgment, describing her as highly manipulative and arrogant, and as a mother who ‘plainly has an extremely negative view of the father’. She had since resisted all attempts to secure the children’s return to the UK so they could resume a relationship with their father.

The judge explained his decision to now allow limited publicity in this case (the father and the children must not be named or shown in pictures) on the following basis :

Fundamentally, my decision is this: there is a reasonable prospect, if publicity is allowed, that its effect will be to make the mother and [her father] see sense and to agree, in advance of what seems to me to be an inevitable outcome of 1996 proceedings in the Ukraine [under the Hague Convention], to the return of the girls to the land of their habitual residence to live in London under the care of both of their parents. I have already rejected above the argument of the mother that her new husband is raising an authentic impediment to this step being taken. It is my judgment that publicity is positively in the interests of these children on the specific facts of this case.

[Words in square brackets are our additions for clarity]

In essence, it was both in the children’s interests and within the mother’s power for the children to come home to England. The judge thought it was possible that this approach might work where everything else had failed – and that even though the impact was uncertain, at any rate it was worth a try. He is explicit in his judgment that he has made this decision by focusing on the best interests of the children, as required under s1 Children Act 1989 (we’ll come back to this under the next heading).

The Transparency / reporting restrictions aspect

Mostyn J makes a number of remarks in the course of his January and March judgments that are interesting for transparency geeks. When ! attended the hearing in January, a lot of time was spent by the lawyers analysing the vexed but usually somewhat theoretical question of whether or not the court should apply the paramountcy principle when making decisions about reporting restrictions / relaxing the automatic restraints. This was a question ducked by The President of the Family Division, Sir Andrew McFarlane some years ago in a case called Re W and, when I attended, it seemed inevitable that whatever decision the court made, one party or other would appeal on this or some other issue.

I was right that there would be an appeal – in fact applications were lodged with the Court of Appeal by the mother and maternal grandfather – but permission to appeal was refused in February on both applications by King LJ. Because this was a refusal (and probably dealt with on paper rather than at a hearing) there is no judgment telling us whether this issue would have featured in either appeal.

Mr Justice Mostyn is pretty robust in his answer to the paramountcy question. He would never use such language but, in essence, says this is a ‘no brainer’ and of course the paramountcy principle applies by statute, as the question he is deciding is one with respect to the children’s upbringing. With this he brushes aside the learned questions from scholars about where this leaves other things like the human rights of the parties or the Article 10 rights of the press and others.

So confident was the judge in his approach that he refused to give a decision ‘in the alternative’; he’d been asked if he would state what his decision would be if his analysis on this bit of the law was wrong i.e. ‘Let’s say welfare isn’t paramount, how would you weigh up all the competing interests and rights and what decision would you come to then?’

Judges often carry out this two route exercise to avoid an appeal where both routes lead to the same conclusion, or (less commonly) where the law is very obviously unclear and the two approaches would lead to a different answer, in order to assist an appeal court to resolve an important point of principle. Here, the judge just said Nope. Not doing it.

What’s more, whilst Mostyn J acknowledges the public interest in child abduction being better understood, he also describes this public interest as ‘irrelevant’ to the decision. This is quite something, because it suggests that not only is welfare paramount, but that it has utterly eclipsed everything else – even a case where this factor is (somewhat unusually) pulling in the same direction as the children’s welfare (most often it is argued that public interest pulls against welfare but here the two issues coincide and the guardian and journalists’ lawyers were echoing one another’s arguments).

This response must have been very frustrating for the many learned lawyers I saw at court on 15 January, who had evidently seen this as something of a test case on an issue which lawyers and journalists have wanted to be resolved for some time, and vast amounts of hours had gone into the preparation of skeleton arguments and oral submissions. But Mostyn J was decidedly uninterested – and it appears that if these issues were raised in the appeals King LJ was uninterested in them too.

For those wondering, no this doesn’t settle the question of whether welfare is paramount. It leaves it just as murky. Not only is the decision of a High Court Judge ‘persuasive’ rather than binding on other judges, it is also apparently in tension with the ‘accepted view’ referred to in Re W that welfare isn’t paramount in these cases. Whilst leaving the question unresolved, Re W acknowledged that some higher authority seemed to point in the direction of welfare being paramount :

The key authorities to which I am referring are a criminal case in the House of Lords, Re S (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, a private law family case in the Court of Appeal, Clayton v Clayton [2006] EWCA Civ 878[2007] 1 FLR 11 and a public law child case in the High Court, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam)[2007] 1 FLR 1146.

For further discussion on this issue, see Sarah Phillimore’s post on Child Protection Resource here.

Other points of interest arise from the March judgment, which came about when applications were made for Mostyn to remove a number of chunks from his judgment because (ostensibly) of the possibility that those sections might prejudice any criminal trial. Again, Mostyn J was dismissive of these arguments and the upshot is that not only are the passages in question left in the January judgment, they are now repeated in the March judgment too – with added bold for emphasis!

The judgment contains an interesting discussion of when it is appropriate to edit or delay publication to prevent the prejudice of criminal proceedings, with reference to s4(2) Contempt of Court Act 1981. Mostyn J applies this section by analogy, whilst acknowledging it doesn’t actually apply at all because the case wasn’t heard in public, but then goes on to say that in any event this case was not one that would fall under any parallel quasi-s4 scheme because there weren’t any criminal proceedings and the prospect of there ever being any was speculative. Also relevant was the fact that the removal of the various passages would have ‘hollowed out’ the judgment of its meaning – no doubt in the judge’s mind there was the likelihood that it would also render the publicity less effective.

The legal blogging aspect

I happened on this case by chance, when a few hours’ free time coincided with a tweet from Sanchia Berg suggesting something interesting was happening in Mostyn J’s court. Although it was a really interesting experience to attend and report on this case, what has happened since has been really frustrating – particularly given that the judge has explicitly acknowledged the public interest in the subject matter of this case to be better understood – although we will use it to inform our thinking about how to best use the pilot and what recommendations to make in the evaluation that will follow.

To explain our frustration, here is a short timeline :

  • 15 January : I attended the hearing, during which Mostyn J acknowledged our presence. Judgment was reserved.
  • On 16 January : I asked Mostyn J’s associate by email for the date of hand down. I cc’d counsel for the child asking that if appropriate our email was circulated to those whose email address we didn’t have. I have received no reply or acknowledgment from anyone.
  • I chased our 16 January email on 22 January via counsel for the child, knowing that there had been some difficulties with courts receiving emails around 16 January – we now know that in fact this was the day of hand down. We received no acknowledgment or reply.
  • The judgment tells us that on 24 January, applications were made for the redaction of the January judgment
  • The judgment tells us that on 8 and 13 February the applications for permission to appeal were refused by King LJ.
  • On 28 February we emailed the Judicial Press Office who told us ‘We’re the press office for the judges rather than the court, so in first instance try the Family Division here direct for listings (having the case number helps a lot)’.
  • As a result, on 5 March we again emailed Mr Justice Mostyn’s associate. This time he replied, but said he had no details of the next hearing and referred us to the Court of Appeal. We now know that the March judgment had been handed down only days before, but no mention was made of this. Based on the fact that the March judgment tells us that permission to appeal the January judgment had been refused back in February, the reference to the Court of Appeal probably means that there was an attempt to appeal the March judgment, which was unsuccessful, hence the delayed publication in mid April.

We did check court lists as often as our resources allowed for this case being listed (pretty sporadically if we are honest). We did not spot it. We knew there was likely to be an appeal, but without the appeal number it is impossible to use the online case tracker to find the listing. And so, the first we knew of the case we had blogged being published was when we saw reports about it on twitter and matched up the details.

We acknowledge that in this case the press were on a somewhat different footing to us as legal bloggers – here they were recognised as interested parties and were represented. That meant therefore that they were directly engaged in the proceedings and therefore had more ready access to information about events in the course of proceedings than might otherwise have been the case. That said, we have felt as if we have been stonewalled and frustrated in our attempts simply to find out when the next step in the proceedings was going to be taken so that we could follow up on our initial post and give effect to the pilot rights that were granted for the benefit of public legal education. That sense of being blocked through silence is one we recognise from stories told to us by journalists of their experiences trying to report on family courts – and yet it is in contrast to personal responses whenever we’ve attended court under the pilot so far, where there has been no real objection to our attendance and some measure of interest and welcome. It’s difficult to extrapolate too much by way of intention from our limited anecdotal experience, but the effect has been to dampen our ability to make use of the pilot.

We would not necessarily have expected lawyers or the court to engage in lengthy communication with us, or to provide us with a copy of a judgment that had not been formally handed down – but we think it is not unreasonable to expect somebody to communicate to us that judgment was expected to be handed down on a certain date (even if the plan was for an electronic hand down that we could not attend), that it had been handed down but there were outstanding issues re publication, that the matter was listed for further oral argument (as we think it must have been), or that an appeal was now pending with appeal number X.

Providing us with those bare bones pieces of information would have enabled us to think about next steps without compromising any privacy or placing an onerous burden on anyone.

We think it would have been easy and appropriate for us to be notified of the publication of the judgment by the Judicial Press Office. The JPO do sometimes circulate judgments about to be published to journalists – occasionally if we have directly expressed an interest in a particular case they will also circulate to us, which means we get the same head start that the press get to write the case up. Unfortunately in this instance we didn’t get that.

We don’t want to criticise any individual – this is new stuff and the lines are not yet clearly drawn, and there may well have been reasons why (for example) counsel for the child could not respond to our email. But it is surprising that nobody we sought information from could really give us any useful information.

Having thought about how this might be made to work better without causing disruption or administrative headache, we suggest:

  • where a legal blogger attends a hearing the practice should be that the court, via the judges’ Associate (or where there is no Associate the Applicant’s solicitor?) will notify the blogger of the date of the subsequent hearing or hand down, and will distribute a copy of any judgment at the point when it is handed down / sent to BAILII.
  • there should be an identified point of contact for a legal blogger to make basic enquiries about dates and obtaining judgments or copies of reporting restriction orders (again this might be the judge where there is an Associate or the Applicant’s solicitor). That person could circulate any relevant communication to other parties as necessary / appropriate.
  • there should be an expectation that a basic response should be provided (as per existing HMCTS guidance regarding enquiries from journalists), but of course no need to divulge confidential details of the substance of the matter.
  • Perhaps the FP301 could be amended (or a separate form developed) so that a legal blogger might ask for a copy of a specific document or the judgment, or notification of future hearing dates and provide their contact details so that this can be directed.

We don’t see any particular reason why this should not also apply to journalists – we’re not asking for special treatment, just that a right of access, even it attenuated by restrictions on reporting, is made meaningful for all those interested in public interest reporting.

Of course, the main priority and focus of everyone involved in cases of this sort should be on the children and the parties, and on getting to the point of a sound final decision. We don’t want legal blogging to detract from that at all, but we don’t think it needs to. It just requires some small adjustments to enable us to make more use of the pilot scheme to advance the public interest without compromising the efficiency of the proceedings or the welfare of the children involved.