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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Medway Council v Root (3) [2017] EWHC 3794 (Fam) (30 August 2017) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2017/3794.html Cite as: [2017] EWHC 3794 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sitting at Maidstone

		30th August 2017

SENTENCE

HHJ POLDEN:

1. Sara Jayne Root, I have found that you have breached the injunction order that I made against you on 13 December 2011 and varied by me on 11 June 2002 [sic] and further varied by His Honour Judge Murdoch QC on 24 April 2014. You breached the injunction order on two occasions. I have also found that you are in breach of the undertaking that you gave to the court on 12 December 2016 and the reporting restriction order that was made by the court on the same date.
2. Full details of the background and your breaches of the order and undertaking are set out in the transcripts of the judgments that I gave on 17 and 18 July 2017 and this judgment must be read in conjunction with those two judgments.
3. Following the making of care proceedings in respect of two of your children, you have conducted a campaign of publishing information and documents on Facebook. I had made an injunction order against you on 13 December 2011. That was an order prohibiting you until further order, whether by yourself or encouraging others, from making any publication of court papers and the public law proceedings relating to your children and not to allow copies of the papers or details specific to the proceedings as set out within them, to come into the possession of any unauthorised person. There also provided at paragraph two that if documents in relation to the proceedings came into your possession, you would deliver them up to the Local Authority within three working days.
4. You made an application to me on 11 June 2012 to vary the order, and I discharged paragraph two of my earlier order. You then made a further application to discharge the order which came before His Honour Judge Murdoch QC on 24 April 2014. The orders that I have made were made in my capacity sitting as a deputy high court judge as was the order made His Honour Judge Murdoch QC on 24 April 2014. He dismissed your application to discharge the injunction order, but he did vary the order to permit publication by you of information which is permitted by Rule 12.73(1)(a) and (c) and Rule 12.75 of the Family Procedure Rules 2010 and the practice direction 12G supplementing those rules. Your application to the Court of Appeal for permission to appeal the order of His Honour Judge Murdoch was refused on 28 July 2016.
5. You admitted that you made a number of postings on Facebook in breach of the injunction order, namely in September 2014, 30 April 2015, 2 April 2015, 2 September 2015, 25 September 2015, 26 September 2015, 23 October 2015, 7 February 2016, 24 February 2016 and 8 April 2016.
6. This committal application before me has unfortunately been subject to significant delay and the reasons for that are set out in my earlier judgment. Whilst you accepted that you had made the postings complained of by the Local Authority on Facebook, you put forward a number of reasons as to why you said that you were not in contempt of court. You said that you were entitled to publish the material because the care proceedings had concluded. You said that you were also entitled to publish the material because you were pursuing a complaint against the Local Authority, as permitted under the Family Procedure Rules and the third point argued on your behalf was that you did not have the necessary guilty intent and were not therefore in contempt because you genuinely considered that you were entitled to publish the material.
7. The matter has been before me previously on 12 December 2016. On that occasion, you were represented by counsel. At all subsequent hearings you have appeared as a litigant in person. Today you appear as a litigant in person with Mr Elliott of counsel appearing for Medway Council. I did, back in July adjourn the matter specifically to give you the opportunity to get some public funding and legal representation today but you tell me that you did speak to your previous solicitors and they told you that you would not be granted public funding but you said that you are not sure that is the real reason why they were not willing to act for you, that you said that you have not consulted any other solicitors and you have confirmed to me that you are content to proceed without legal representation today.
8. When the matter came before me on 17 July this year I found that none of the defences that you raised were made out and that I was satisfied that the Local Authority had proved each of the 10 breaches of the injunction order alleged against you.
9. On 18 July I dealt with your alleged breach of the undertaking that you gave to the court on 12 December 2016 and the reporting restriction order that I made on the same date. When the matter came before the court on 12 December 2016 it was not possible to conclude it then and it had to be adjourned part-heard and regrettably it could not be relisted until 2 March 2017. You offered, through your counsel, to give an undertaking to remove the Facebook post concerning your children by 13 December 2016 and not to publish any further material and you agreed to be bound by those promises until 2 March 2017. You completed a form of undertaking which contained the statement which read that you understood the undertaking that you had given and if you broke any of the premises then you could find your assets seized or you could be sent to prison for contempt. On the same date I made a reporting restriction and the Local Authority applied, on 28 February 2017, for you to show why you should not be committed to prison for breach of the undertaking and for breach of the reporting restrictions. I found that as alleged you had breached the undertaking by not removing any material from Facebook and that you had continued to post material late into the proceedings on 13 December 2016, 22 December 2016 and 20 February 2017 and I found that you had also posted material that reported on the proceedings, namely on 13 December 2016 and on 20 February 2017.
10. I have taken fully into account the mitigation that has been put forward by you today. You make it clear that your view had never changed for the past seven and a half years and that your view is that your children were wrongly taken from you and you tell me that you are not prepared to remove any of the postings that you have made and that you do not regret anything that you have done. You say that you stand by the fact that you were pursuing a legitimate complaint that you were entitled to do. You say that you love your children and that you have been denied freedom of expression. That is only mitigation in as much as it displays your sincerity but does not provide the excuse for the way in which you have behaved.
11. I take into account what you tell me about the fact that you have health problems, although though no medical information from a doctor has been provided to me, but I accept that you have been treated by an oncologist for thyroid cancer and that you were discharged by him last December on condition that you are regularly monitored by the hospital and you were due to see a specialist again on 20 September 2017. I accept that as a result of that condition you get very tired and it also affects your concentration.
12. You make it clear to me that you disagree with the diagnosis that was made on you in the care proceedings that you have a personality disorder and you say that that diagnosis was wrong because unbeknown to you, you were unwell at the time.
13. Insofar as your personal circumstances are concerned, you live with your eldest son in Essex in a council house the tenancy of which is in your sole name. He is over 18 years and is helping you and paying towards your financial commitments. You have two elder daughters who are over 18 years . Therefore, you do not have any dependent children living at home.
14. I accept that your financial circumstances are bleak. You tell me, and I accept, that you have not been working since the children were taken into care due to stress and the anxiety. You are in receipt of employment support allowance of £228 per fortnight and have no other income. You are in debt to the Department of Work and Pension for approximately £12,000 in relation to overpayments of benefits that they made to you but that is being deducted on a weekly basis out of your benefit.
15. You are concerned that if I send you to prison today you may lose your tenancy and that that will render your eldest son homeless. You have one grandson. You have only recently in the last three and a half to four months been able to establish a relationship with him and you believe that you have a strong bond with him and understandably your elder children will all be devastated if you are sent to prison.
16. It is to your credit that you have always attended the court hearings for this committal application promptly, apart from on one occasion when I have accepted that you were unwell and that you have been polite to the Local Authority and to me as the judge and that you have listened and have not interrupted counsel or me inappropriately.
17. I remind myself that sentencing has two objectives: one, to mark disapproval of the disobedience of the court order and the undertaking, and, secondly, to secure future compliance with the order. I have regard to the guidance given by Hale LJ in the matter of Hale v Tanner [2000] 1 WLR 2377 and I remind myself the sentencing options available to me are one, no order, two, a fine, three, to defer or adjourn sentence, four, immediate imprisonment and five, a suspended sentence of imprisonment. The length of any prison sentence that I impose must bear a reasonable relationship to the maximum sentence of two years' imprisonment and I remind myself that committal to prison is appropriate only where no reasonable alternative exists.
18. I have mentioned the case law of Hale v Tanner and there are two other appropriate authorities in relation to sentencing which the Local Authority have drawn to my attention and which I have had regard to namely the decision of the President of the Family Division, Munby J Re An Application by Gloucestershire County Council for the Committal to Prison of Matthew John Newman [2014] EWHC 3136 and also a decision of the previous President, Sir Nicolas Wall in the matter of Doncaster MBC v Watson and Haigh [2012] 1FLR 599.
19. I have mentioned the mitigation that I have taken into account on your behalf but in my judgment, there are a number of aggravating features in this case. It is clear from the documentation and the evidence that I have considered, that one of your children has been caused anger and distress by your behaviour, and one of the postings that you made contained deeply personal information about that child. It is also an aggravating feature that you have deliberately targeted social workers and their partners and foster carers and publication of the Guardian's report, which again contained personal and distressing matters, an extremely serious matter that the court cannot and will not ignore.
20. The Local Authority accept that sentencing is a matter for the court. They wish to make it clear to the court however, that they have no wish to see you sent to prison. They acknowledge that you have been traumatised by the loss of your children and that you have always been sincere but misguided in your views that you have been wronged by the Local Authority but they point out that you have been given every opportunity to take material down but you have not done so despite your promise to the court that you would. It is also part of the background to this case that at or around each of the hearings you have made further postings and you have made five new posts since the matter was last before me, namely on 20 July 2017, 3 August 2017, 21 August 2017, and 24 August 2017. I make it clear that I am not sentencing you for those matters but they are part of the overall background to the case.
21. In my judgment, you have deliberately disregarded the injunction order and your undertaking to the court and the reporting restriction order and you have adopted the attitude that you know best, you are in the right, Medway Council is wrong and so is the court. You have demonstrated a complete lack of respect for the authority of this court. The injunction order was breached repeatedly and the Local Authority were limited to relying on 10 breaches so as to make the hearing manageable, but as the Local Authority pointed out at previous hearings in fact there have been more breaches than that.
22. It is clear from the remarks that you have made to me today in mitigation that you have shown no real remorse. The apology that you gave to the court at the hearing last December and your undertaking to remove the postings and not to repeat them has turned out to be extremely hollow and the court regards the breach of the undertaking on the 13 December 2016, namely the day after the hearing on 12 December 2016, as being almost immediate and flagrant.
23. In all the circumstances of the case I have concluded that only a custodial sentence is appropriate. In passing sentence I have had careful regard to the principle of totality and the sentence that I pass on you is the shortest sentence that is commensurate with the seriousness of the breaches and taking into account the mitigation and all the circumstances of the case. The sentence that I impose on you firstly for the breaches of the injunction order dated 13 December 2013 as varied. There are 10 breaches. On breach one, I sentence you to three months' imprisonment. On each of the other breaches numbered two to ten, I sentence you also to three months' imprisonment but that will run concurrently. For breaching the undertaking that you gave to the court on 12 December 2016, by failing to remove the material from Facebook and making a further entry on 13 December 2016, I sentence you to three months' imprisonment consecutive. For the breach on 22 December 2016 and 20 February 2017, for each of those breaches I impose three months' imprisonment but that will run concurrent. For posting material on Facebook that reported on the proceedings on 13 December 2016 and 20 February 2017, I make no separate penalty. The total sentence imposed on you is therefore one of six months' imprisonment.
24. I have given very careful thought to the question of whether I can properly, in the exercise of my discretion, suspend the sentence of imprisonment that I have imposed upon you. You could have absolutely no complaint if I sent you directly to prison today. I do, however, take into account the mitigation that has been put forward by you today and the fact that these proceedings have been far more protracted than is usual. I am just about persuaded that I can properly suspend the sentence of imprisonment and I am going to suspend it for a period of 12 months on condition that you comply with the terms of the injunction order dated 13 December 2011 as varied on 11 June 2012 and 24 April 2014.
25. I make it clear to you that this is the final opportunity that you will be given to comply with the order unless and until it is discharged and as you are aware your application to discharge will be considered by the High Court on a date in September 2017. If you do not comply with the terms of the suspended order that I make today then the matter will be brought back to court and if any further breach is proved then the sentence of six months' imprisonment will be implemented. If that happens you will have only yourself to blame and you will have to take responsibility for it. That concludes my sentencing remarks. I am going to direct that a transcript of my sentencing remarks be obtained at public expense and that order will be made accordingly.
End of Sentence