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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pelling v Bruce-Williams  EWCA Civ 845 (01 July 2004)
Cite as:  3 All ER 875,  EWCA Civ 845,  3 WLR 1178,  Fam 155
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE BENNETT
FD03P00743 & FD99D02334
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
| Dr Michael John Pelling
|Mrs Veronica Nana Bruce-Williams
|Secretary Of State For Constituional Affairs
Mr S Cobb QC for the Secretary of State for Constitutional Affairs
Hearing dates : 29th March 2004
Crown Copyright ©
"Article 6 (1) provides for the public hearing and the public pronouncement of judgment of cases, but with the proviso of exclusion of the press and the public from all or part of the trial "in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require."
The right of freedom of expression contained in Article 10(1) is subject to formalities, conditions, restrictions or penalties which may be imposed by the member state under Article 10(2). It would seem to me that the present procedures in family proceedings are in accordance with the spirit of the Convention."
"3. Trial in open Court with public pronouncement of judgment. 4. Declaration of incompatibility of section 97(2) Children Act 1989 with Articles 6 and 10 EHCR."
By a supplementary application dated 17th March 2003 Dr Pelling moved for an order of Certiorari to quash Rule 4.16(7) of the Family Proceedings Rules 1991, and Rules 4.23(1) and 10.20(3) so far as they prevent disclosure or inspection respectively of Children Act judgments without leave of the judge. It was said that those rules are incompatible with Articles 6(1) and 10(1) of the European Convention.
"(1)2. No person shall publish any material which is intended, or likely, to identify –(a) any child as being involved in any proceedings before the High Court, a County Court or a Magistrates' Court in which any power under this Act may be exercised by the court with respect to that or any other child; or(b) an address or school as being that of a child involved in any such proceedings.(3)(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of sub-section (2) to such extent as may be specified in the order.(5)(6) Any person who contravenes this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.(7)(8)"
"Unless the court otherwise directs a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers."
"Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to –
b. a party
c. the legal representative of a party
d. the children's guardian
e. the Legal Aid Board, or
f. a welfare officer or children and family reporter
g. an expert whose instruction by a party has been authorised by the court,
without leave of the judge or district judge."
"Except as provided by Rules 2.36 (4) and 3.16 (10) and paragraphs (1) and (2) of this rule, no document filed or lodged in the court office other than a decree or order made in open court shall be open to inspection by any person without the leave of the district judge, and no copy of any such document, or of an extract from any such document, shall be taken by, or issued to any person without such leave."
"To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment."
"On the one hand, there is the need to protect the welfare of children. This can arise in a variety of ways. Children can be directly affected by the publication of material about them. If this comes to the notice of their school friends or others, then they may be the subject of jokes, teasing, bullying, and worse. Children, particularly of primary school age, are greatly susceptible to embarrassments of this sort. The other way in which it can be harmful to children is if it serves to undermine the confidence and the ability to cope of the person who is looking after the child."
"52. The court refers to its above findings in connection with Article 6(1) of the Convention that it was justifiable, in order to protect the privacy of the children and parties and to avoid prejudicing the interests of justice, to hold the residence proceedings in chambers and to limit the extent to which the County Courts' judgments were made available to the general public. In the light of these findings the court does not find it necessary to examine the complaint under Article 10 separately."
"…and it is further ordered that no one shall publish or reveal the name or address of the minor child who is the subject of these proceedings or publish or reveal any particular or particulars or other information which would be likely to lead to the identification of the said minor."
"A general direction …exists because it is appreciated that in the court below the hearing is in chambers (in normal circumstances the public will have no access to those proceedings unless they make special arrangements to hear them; in children proceedings the public do not normally have access; the matter is subject to rule 4.16(7) of the Family Proceedings Rules 1991), while in this court the proceedings are in public. It is considered highly desirable that appellate proceedings wherever possible should be in open court, and the judgment which is given should be available to the public and the profession through the normal court reporting procedures.
In the great majority of cases, this could have adverse consequences so far as children are concerned. In a case where a child's parents are in dispute as to how the child should be brought up or cared for, to identify the child might subject that child to stress and anxiety. It is important that the child, who cannot be said to be other than entirely innocent, should not be damaged by the fact that his or her parents are not in a position to agree amicably as to the future care for that child, or because there are some other disputes as to the child's upbringing. It is therefore accepted by this court that in general the identity of the child should be protected. That is why the order was made in this case."
"If there is a standing instruction and there are circumstances (which will be the minority of cases) which make publicity desirable, then the relevant matters can be drawn to the court's attention. There is always a danger in cases of this nature that a court, through oversight, fails to given the direction that the order should be included. There might be cases where if the order was accidentally omitted, great harm could be caused to an individual child."
Lord Woolf concluded his judgment by saying: -
"Notwithstanding the arguments which have been advanced by Mr B, I can see no objection to the present practice. The skeleton argument of the applicant refers to authorities which, in my judgment, are not inconsistent with that which I have indicated in this judgment. It is probably fortunate that Mr B felt it right to take this point of principle because it will have the desirable result of enabling the court's judgment to record and giving its approval of the practice and in consequence draw it to the attention of those who might not otherwise be aware of it. The court is always particularly anxious that its proceedings should be as open as possible. The practice enables that to happen."
ii. Prior to any hearing (for permission or otherwise) before the Court of Appeal, it is legitimate for the court to treat the restriction on the publication of information relating to the identity of the child (which will have applied in the court of trial by virtue of S.12 of the Administration of Justice Act 1960 and S.97 of the Children Act 1989) as continuing until the commencement of any hearing.iii. Thereafter any standing restriction to be generally and automatically applied should be the subject of a Practice Direction in the drafting of which particular attention should be paid to CPR Rule 39.2(4); 39PD.1, para.1.4A; 39PD.1, para.1.9-1.13; and 52.PD.2, para2.2.iv. Nevertheless, even if the issue be made the subject of a Practice Direction the court should hereafter consider publicity issues at the commencement, and generally at the conclusion, of all appeal hearings relating to children and make a judgment on the balance between the competing rights arising under Articles 6, 8 and 10.
2. In our judgment the only successful attack directed by Dr Pelling on the judgment of this court in Re R is his third. We accept the submissions of the Crown that the time has come for the court to consider in each case whether a proper balance of competing rights requires the anonymisation of any report of the proceedings and judgment following a hearing that was conducted in public and therefore open to all who cared to attend.
3. Standing back from Dr Pelling's detailed contentions, it is important to emphasise that the questions which he debates are essentially policy questions. Whilst we have concluded that the procedure ordained by the Family Proceedings Rules 1991 and Children Act 1989 are essentially convention compliant, it does not follow that the rival procedures for which Dr Pelling contends would not equally be convention compliant. During the course of his judgment in Re P-B Thorpe LJ drew attention to the opportunity, if not the obligation, of the government to complete the process of public consultation on this debate: see 64F to H. More detailed reference to this uncompleted consultation exercise was made during the course of his judgment in Clibbery v. Allan (2002) 1 FLR 565 see paragraphs 95-97. This thirst for disclosure of the outcome of the 1993 consultation is only quickened by the Crown's reliance on one response as the genesis of the 1999 amendment of S.97. Given the imminent creation of the Family Justice Council it would seem to us to be appropriate for questions concerning privacy both of hearings and of judgments in the family justice system to be referred to the Council.
4. In her recent administrative directions issued following the judgment of the Court of Appeal Criminal Division R v. Cannings  EWCA Crim 1 the President stated: -
"It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of "secrecy" in the family justice system, a broader approach to making judgments public may be desirable."
5. It might have been thought that Dr Pelling would welcome this statement as some acknowledgement of the strength of support for his campaign. However in his submissions he was only critical of the President, submitting that it was not for the judges but for Parliament to determine the extent to which judges are to pronounce judgment in public. Dr Pelling submits that such decisions, whether of a general or of a specific character, must not be taken by judges. In relation to specific cases he submits, and in his third skeleton he embroiders the submission with what he says is a specific illustration, judges may use their access to publicity to the disadvantage of the litigant who has no equal right and no opportunity to respond.
6. We acknowledge that there may be some justification in this submission. Bentham would certainly recognise that judges may prefer to do their work without exposure to what may be critical publicity. Bentham would say that without such exposure an unguarded risk of undesirable practices is created. So it seems to us that, just as the desirability of private trials in child cases is a policy issue, so too is the desirability of private judgments in child cases and also the question of whether such public judgments should be anonymised. The judgment of this court in Re R indicates that the automatic application of restrictions in all appeals involving children was developed or confirmed by the court with the approval of the Master of the Rolls nearly ten years ago. The court's power to impose restrictions has two foundations in law: inherent jurisdiction and S.39 of the Children and Young Persons Act 1933. We do not consider that S.97(2) of the Children Act 1989 extends to appellate proceedings in this court. As to the court's inherent powers see the recent decision of Re S (Identification: Restrictions on Publication) (2003) 2FLR 1253. S.39(1) of the Children and Young Persons Act 1933 provides that: -
"In relation to any proceedings in any court…the court may direct that:
(a) No newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;
(b) No picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except in so far (if at all) as may be permitted by the direction of the court."
7. Clearly both the inherent jurisdiction and the statutory provision empower this court to impose restrictions in an individual case in the exercise of the court's discretion. But it is not so evident that either the inherent or the statutory jurisdiction justifies the imposition of an automatic restriction without the exercise of a specific discretion in the individual case. Indeed in his subsequent written submission Mr Cobb suggests that for the future the court should both at the outset and at the conclusion of each appeal concerning children exercise a specific discretion either to impose or to refuse prohibition on the identification of the parties to the appeal. It would therefore seem to us to be desirable for the Master of the Rolls and the President to review the standard practice of this court to reflect developments since the decision pronounced in Re R in 1998. This reconsideration should perhaps extend to applications for permission to appeal listed for oral hearing. In relation to such hearings Mr Cobb submits that the need for caution is all the greater given that: -
(a) Permission to appeal is ordinarily sought in the first instance court where statutory protections apply;
(b) Applications for permission to the Court of Appeal are ordinarily considered by a single Lord Justice on paper which would have the protection of confidentiality under Rule 52.3 (3) – (4);
(c) Oral hearings for permission are often listed without notice at which the respondent is not present to argue against publicity.
8. Policy questions do have to be addressed against this background: in reality although the Family Proceedings Rules confer on the judge in any case the discretion to lift the veil of privacy, there is such a strong inherited convention of privacy that the judicial mind is almost never directed to the discretion and in rare cases where an application is made a fair exercise may be prejudiced by the tradition or an unconscious preference for the atmosphere created by a hearing in chambers. Judges need to be aware of this and to be prepared to consider another course where appropriate.
9. The subsequent submissions of Mr Cobb and of Dr Pelling consider in erudite detail the comparable law and practice in Scotland governing the conduct of and publicity given to both public law and private law applications both historically and currently under the Children (Scotland) Act 1995. For the purposes of the present appeal it is unnecessary to record or analyse those submissions in any detail. Historically Mr Cobb accepts that the general rule of law is that cases are heard in public in Scotland unless there is a good reason for them to be heard in private. In paragraph 23 of his subsequent submissions Mr Cobb states: -
"The application of the general rule to the Court of Session dates back to an Act of 1693 which provided that the court should sit "with open doors"; the principle, which applies in all courts, is also rooted in the common law, as is the discretion to depart from it in exceptional cases in the interest of the administration of justice."
10. Dr Pelling, in his subsequent written submissions fairly summarises the present practice in Scotland when he states:
"It is clear that run of the mill residence and contact cases are routinely public in access to the court, judgment and reporting, at all levels of the court and that there is no damage to the administration of justice."
11. Dr Pelling in his earlier skeleton arguments offered a comparative analysis of the practices in a number of other Council of Europe countries. We do not consider it necessary to consider this material further. Given that the European Court allows a wide margin of appreciation to individual jurisdictions it is enough to conclude that evidence of disparity does not advance Dr Pelling's case. The tradition for open sittings and the tradition for private sittings are each equally capable of compliance with the Convention. In the end the more convincing defence of the practice in our jurisdiction may be the most simple, namely that it is reflective of a long standing tradition, of general but not universal application, that has been franked by the European Court as Convention compliant.
12. In conclusion therefore we grant Dr Pelling's application for permission but dismiss the appeal.