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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 >> Norfolk County Council v Webster & Ors  EWHC 2733 (Fam) (01 November 2006)
Cite as:  1 FLR 1146,  EWHC 2733 (Fam),  1 FCR 440,  EMLR 7,  EMLR 199, (2007) HRLR 3,  Fam Law 399,  HRLR 3
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Strand, London, WC2A 2LL
B e f o r e :
|In the matter of BRANDON WEBSTER (a
child, dob 29.5.2006) NORFOLK COUNTY COUNCIL
|- and -
|(1) NICOLA WEBSTER
(2) MARK WEBSTER
(3) BRANDON WEBSTER (a child by his children's guardian)
(4) BRITISH BROADCASTING CORPORATION
(5) ASSOCIATED NEWSPAPERS LIMITED
(6) ARCHANT GROUP
Mr Anthony Hudson (instructed by Harman & Harman) for the first and second respondents
Mr Jonathan Bennett (instructed by Tom Higgin) for the third respondent
Mr Adam Wolanski (instructed by BBC Litigation Department) for the fourth respondent
Mr Mark Warby QC (instructed by Reynolds Porter Chamberlain LLP) for the fifth respondent
The sixth respondent was neither present nor represented
Mr Prashant Popat (instructed by Kennedys) for Norfolk Primary Care Trust
Hearing date: 26 October 2006
Crown Copyright ©
See also: EWHC 2898 (Fam) (17 November 2006)
Mr Justice Munby :
i) that the media be permitted to attend the hearing on 3 November 2006;
ii) that the reporting restrictions imposed by section 97(2) of the Children Act 1989 be, for the most part, dispensed with so far as Brandon is concerned (but not in relation to A, B and C); and
iii) that the reporting restrictions imposed by Judge Curl's order be brought to an end that Judge Curl's order be set aside and that certain more limited restrictions be substituted, designed to ensure that Brandon's location is not published and that those currently caring for him (apart from his parents) are protected from solicitation of information.
The applicants' submissions
"It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice." "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." "The security of securities is publicity." But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise."
I myself should be very slow indeed (I shall speak of the exceptions hereafter) to throw any doubt upon this topic. The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary and they appear to me still to demand of it a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves. I must say frankly that I think these encroachments have taken place by way of judicial procedure in such a way as, insensibly at first, but now culminating in this decision most sensibly, to impair the rights, safety, and freedom of the citizen and the open administration of the law"
"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect."
"As a general rule the English system of administering justice does require that it be done in public: Scott v Scott  AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this."
Lord Diplock went on at page 450 to recognise that:
"However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule."
"The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary."
He continued with a reference to section 12 of the Administration of Justice Act 1960.
"Mr. Tugendhat submitted that the first of the reasons given in Ex parte Kaim Todner  QB 966, 977 should be stated more broadly. Open justice promotes the rule of law. Citizens of all ranks in a democracy must be subject to transparent legal restraint, especially those holding judicial or executive offices. Publicity, whether in the courts, the press, or both, is a powerful deterrent to abuse of power and improper behaviour."
"In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
"Regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties."
In Diennet v France (1995) 21 EHRR 554 at para  the court, reiterating what it had earlier said in Axen v Germany (1983) 5 EHRR 195 at para  and in Pretto v Italy (1983) 6 EHRR 182 at para , said:
"The court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society."
" The need to maintain public confidence in the family justice system is particularly important at present when, as I have said, recent high-profile cases within the criminal justice system have given rise to a very anxious debate which is no longer confined to the possibility of further miscarriages of justice in the criminal justice system but extends also to the possibility of similar miscarriages of justice in the family justice system.
 We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence."
Freedom of speech
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market:" Abrams v United States (1919) 250 US 616, 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country."
"1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no "democratic society". This freedom is subject to the exceptions set out in Article 10(2), which must, however, be construed strictly. The need for any restrictions must be established convincingly."
The role of the media
"The role of the journalist and his importance for the public interest in the administration of justice has been commented upon on many occasions. No one nowadays surely can doubt that his presence in court for the purpose of reporting proceedings conducted therein is indispensable. Without him, how is the public to be informed of how justice is being administered in our courts? The journalist has been engaged upon this task in much the same way as he performs it today for well over 150 years. In her work, Justice and Journalism (1974), p. 24, Marjorie Jones, making a study of the influence of newspaper reporting upon the administration of justice by magistrates, stated, having referred to a case decided in 1831:
"The same ruling that excluded the attorney admitted the newspaper reporter. The journalist entered, and has remained, in magistrates' courts as a member of the public taking notes. The constant presence of newspaper men in magistrates' courts provided not only a record of the proceedings but also a means of communication with the public. Through newspaper reports magistrates had access to a wider audience beyond the justice room or the police office. Communication is particularly important for deterrent sentencing, which requires that potential offenders shall be aware of the punishment they are likely to incur."
Later in her study, she recorded, at p. 26, that in Dickens' time journalists were the only impartial observers who sat regularly in magistrates' courts, day after day, week after week, month after month. In the provinces, particularly, the same reporter might often cover the local courts for year after year. These men regarded themselves as representing the absent public. And they were the first to concern themselves with the defence of the defenceless in the summary courts.
Lord Denning in The Road to Justice (1955) stated with regard to the free press, at p. 64:
"A newspaper reporter is in every court. He sits through the dullest cases in the Court of Appeal and the most trivial cases before the magistrates. He says nothing but writes a lot. He notes all that goes on and makes a fair and accurate report of it. He supplies it for use either in the national press or in the local press according to the public interest it commands. He is, I verily believe, the watchdog of justice. If he is to do his work properly and effectively we must hold fast to the principle that every case must be heard and determined in open court. It must not take place behind locked doors. Every member of the public must be entitled to report in the public press all that he has seen and heard. The reason for this rule is the very salutary influence which publicity has for those who work in the light of it. The judge will be careful to see that the trial is fairly and properly conducted if he realises that any unfairness or impropriety on his part will be noted by those in court and may be reported in the press. He will be more anxious to give a correct decision if he knows that his reasons must justify themselves at the bar of public opinion."
Those observations suffice to emphasise to the mind of anyone the vital significance of the work of the journalist in reporting court proceedings and, within the bounds of impartiality and fairness, commenting upon the decisions of judges and justices and their behaviour in and conduct of the proceedings. If someone in the seat of justice misconducts himself or is worthy of praise, is the public disentitled at the whim of that person to know his identity?
It must ever be borne in mind that save upon rare occasions when a court is entitled to sit in camera, it must sit in public. The principle of open justice has been well established for a very long time."
"the eyes and ears of the general public. They act on behalf of the general public."
"It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment."
That was cited by Lord Steyn and applied in the context of court reporting in In re S (A Child) (Identification: Restrictions on Publication)  UKHL 47,  1 AC 593, at para . In McCartan Turkington Breen (A Firm) v. Times Newspapers Ltd  2 AC 277 at page 290 Lord Bingham of Cornhill said:
"In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction."
"The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. In cases such as the present one, the national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of "public watchdog" by imparting information of serious public concern."
Miscarriages of justice and the role of the media
"The applicants argue that in their cases the criminal justice system has failed, and that they have been wrongly convicted. They seek with the assistance of journalists, who have the resources to do the necessary investigations, to make public the wrongs which they allegedly suffered.
The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects the prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present cases is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil."
"The Court reiterates that the press plays a pre-eminent role in a State governed by the rule of law. Although it must not overstep certain bounds set, inter alia, for the protection of the reputation of others, it is nevertheless incumbent on it to impart in a way consistent with its duties and responsibilities information and ideas on political questions and on other matters of public interest. This undoubtedly includes questions concerning the functioning of the system of justice, an institution that is essential for any democratic society. The press is one of the means by which politicians and public opinion can verify that judges are discharging their heavy responsibilities in a matter that is in conformity with the aim which is the basis of the task entrusted to them."
" We must be vigilant to guard against the risks. And we must have the humility to recognise and to acknowledge that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system Open and public debate in the media is essential."
"As to the proposition that the Divorce Court has inherited the power to hear in camera of the Ecclesiastical Courts, I am of opinion that, since the Divorce Act of 1857, it has been untrue of every class of case, and not merely of suits for divorce strictly so called. I am in accord with the reasoning of Bramwell B, in the case I have already referred to [H (Falsely Called C) v C (1859) 29 LJ (P&M) 29], which led him to the conclusion that the Court which the statute constituted is a new Court governed by the same principles, so far as publicity is concerned, as govern other Courts"
Earl Loreburn at page 447 said:
"the Divorce Court is bound by the general rule of publicity applicable to the High Court and subject to the same exception."
Lord Shaw of Dunfermline at page 475 said:
"these sections of the Act of 1857 were declaratory in another sense. They brought the matrimonial and divorce procedure exactly up to the level of the common law of England. I cannot bring myself to believe that they prescribed a standard of open justice for these cases either higher or lower than that for all other causes whatsoever The old private examination of witnesses is abolished; the new system is an open system."
"The starting point must be the importance of the principle of open justice. This has been a thread to be discerned throughout the common law systems: "Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial": see Benthamiana, or Select Extracts from the Works of Jeremy Bentham (1843), p 115. Consequently the exclusion of the public from proceedings has objectively to be justified. It is not good enough for it to be said that we have always done it this way so it has to be right. That principle of open justice applies to all courts and in principle the family courts are not excluded from it, although for good reasons which I shall set out later, many family cases require confidentiality."
Family courts confidentiality in children proceedings
"Upon this head it is true that to the application of the general rule of publicity there are three well recognized exceptions which arise out of the nature of the proceedings themselves
The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention trade secrets is of the essence of the cause. The first two of these cases, my Lords, depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriζ. The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs."
As Viscount Haldane LC said in the same case at page 437, in such cases the court is not so much deciding contested questions as exercising what is best described as a paternalistic, parental, quasi-domestic and essentially administrative jurisdiction.
"Wrapped up in this concept of confidentiality there are, as it seems to me, a number of different factors and interests which need to be borne in mind:
(i) First, there is the interest of the particular child concerned in maintaining the confidentiality and privacy of the proceedings in which he has been involved, what Balcombe LJ referred to as the "curtain of privacy".
(ii) But there is also, secondly, the interest of litigants generally that those who, to use Lord Shaw of Dunfermline's famous words in Scott v Scott  AC 417, 482, "appeal for the protection of the court in the case of [wards]" should not thereby suffer "the consequence of placing in the light of publicity their truly domestic affairs". It is very much in the interests of children generally that those who may wish to have recourse to the court in wardship or other proceedings relating to children are not deterred from doing so by the fear that their private affairs will be exposed to the public gaze private affairs which often involve matters of the most intimate, personal, painful and potentially embarrassing nature. As Lord Shaw of Dunfermline said: "The affairs are truly private affairs; the transactions are transactions truly intra familiam".
(iii) Thirdly, there is a public interest in encouraging frankness in children's cases, what Nicholls LJ referred to in Brown v Matthews  Ch 662, 681C, as the frank and ready co-operation from people as diverse as doctors, school teachers, neighbours, the child in question, the parents themselves, and other close relations, including other children in the same family, on which the proper functioning of the system depends it is very much in the interests of children generally that potential witnesses in such proceedings are not deterred from giving evidence by the fear that their private affairs or privately expressed views will be exposed to the public gaze.
(iv) Fourthly, there is a particular public interest in encouraging frankness in children's cases on the part of perpetrators of child abuse of whatever kind
(v) Finally, there is a public interest in preserving faith with those who have given evidence to the family court in the belief that it would remain confidential. However, as both Ralph Gibson LJ in Brown v Matthews  Ch 662, 672B and Balcombe LJ in In re Manda  Fam 183, 195H make clear, whilst persons who give evidence in child proceedings can normally assume that their evidence will remain confidential, they are not entitled to assume that it will remain confidential in all circumstances "
"1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Family courts the statutory framework
Family courts reporting restrictions
"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say (a) where the proceedings (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.
(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from the section (and in particular where the publication is not so punishable by reason of being authorised by rules of court)."
"(2) No person shall publish to the public at large or any section of the public 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 or the Adoption and Children Act 2002 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 being involved in any such proceedings.
(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, and in the case of the Lord Chancellor, if the Lord Chief Justice agrees, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order."
"The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd  2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
"There is express approval of the methodology in Campbell v MGN Ltd  2 AC 457 in which it was made clear that each article propounds a fundamental right which there is a pressing social need to protect. Equally, each article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither article has precedence over or 'trumps' the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in the terms of proportionality is carried out."
"The interests of the child (which typically point against disclosure) are a "major factor" and "very important" But it is clear that the child's interests are not paramount."
"given the existence of section 12 of the Administration of Justice Act 1960 which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save in so far as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life."
"My impression is that there are unlikely to be many cases in which the continuation of that protection will be required."
Family courts access restrictions
"Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part [Part IV] applies shall be in chambers."
Rule 4.16(7) applies to care proceedings, as to other proceedings under the Children Act 1989. The effect of the rule is thus to secure privacy for care proceedings unless the court orders that the matter be heard in open court rather than chambers. As the President observed in Clayton v Clayton  EWCA Civ 878,  3 WLR 599, at para , such orders are rare.
"such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. 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."
" The applicants submit that the presumption in favour of a private hearing in cases under the Children Act should be reversed. However, while the court agrees that article 6(1) states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a state to designate an entire class of case as an exception to the general rule where considered necessary for the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the court's control. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by article 6(1).
 Furthermore, the English tribunals have a discretion to hold Children Act proceedings in public if merited by the special features of the case, and the judge must consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. Turning to the facts before it, the Court notes that the judges at first instance and on appeal gave careful consideration and detailed explanations of their reasons for holding that the proceedings should continue in chambers."
"As to the complaint concerning the holding of the proceedings in camera, I fully share the reasoning of the majority, the decisive point in my view being that in both cases the county court judge exercised his independent discretion to exclude the public from the substantive hearing in the interests of the children concerned."
"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."
" 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
 in reality, although the Family Proceedings Rules 1991 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."
" The Court considers that there are a number of elements which distinguish the present case from B v United Kingdom. In that case, the Court attached weight to the fact that the courts had discretion under the Children Act to hold proceedings in public if merited by the special features of the case and a judge was obliged to consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. The Court noted that in both cases the domestic courts had given reasons for their refusal to hear the case in public and that their decision was moreover subject to appeal. The Court notes that the Austrian Non-Contentious Proceedings Act now in force gives the judge discretion to hold family-law and guardianship proceedings in public and contains criteria for the exercise of such discretion. However, no such safeguards were provided for in the 1854 Non-Contentious Proceedings Act. It is therefore not decisive that the applicant did not request a public hearing, since domestic law did not provide for such a possibility and the courts' practice was to hold hearings in camera.
 Moreover, the case of B v United Kingdom concerned the parents' dispute over a child's residence, thus, a dispute between family members, ie individual parties. The present case concerns the transfer of custody of the first applicant's son to a public institution, namely the Youth Welfare Office, thus, opposing an individual to the State. The Court considers that in this sphere, the reasons for excluding a case from public scrutiny must be subject to careful examination. This was not the position in the present case, since the law was silent on the issue and the courts simply followed a long-established practice to hold hearings in camera without considering the special features of the case."
"As I pointed out in Re L (Care: Assessment: Fair Trial)  EWHC 1379 (Fam),  2 FLR 730, at para :
' it must never be forgotten that, with the state's abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent particularly, perhaps, to a mother that he or she is to lose their child for ever.'
When a family judge makes a freeing or an adoption order in relation to a 20-year-old mother's baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 years, and the baby for what may be upwards of 80 years. We must be vigilant to guard against the risks."
"Such cases, by definition, involve interference, intrusion, by the State, by local authorities, into family life. It might be thought that in this context at least the arguments in favour of publicity in favour of openness, public scrutiny and public accountability are particularly compelling."
The balancing exercise
i) The parents seek to assert their rights under Articles 8 and 10 to impart information about the proceedings to the media and others, to tell their story to the world through the medium of the BBC, the 'Mail on Sunday' and other organs of the media. They also seek to assert their rights under Article 6 to a fair trial, rights which they say point in favour of publicity for the proceedings.
ii) Brandon, through his children's guardian, seeks to assert his rights under Article 8 to respect for his private and family life his right to keep his private life private rights which he seeks to vindicate by preserving the confidentiality of his personal data and the privacy of the proceedings. He also seeks to assert his rights under Article 6 to a fair trial, rights which he says point in favour of protecting his private life by maintaining the privacy of the proceedings.
iii) NCC may wish to assert its right under Article 10 (and it may be also under Article 8 I need not pursue the latter point) to impart information about the proceedings to the media, so as to put its side of the story into the public domain.
iv) There are also the rights under Article 10 of the media and others to receive from the parents and from NCC the information about the proceedings they wish to impart and to publish or broadcast their stories.
v) There are the rights under Article 8 of the witnesses and others involved in the proceedings: see, for example, Re B (Disclosure to Other Parties)  2 FLR 1017 applying Doorson v The Netherlands (1996) 22 EHRR 330 and Z v Finland (1998) 25 EHRR 371.
vi) There are wider public interests the interests of the community as a whole both in preserving freedom of expression and, as recognised in Z v Finland (1998) 25 EHRR 371, in protecting the confidentiality of personal data and other information received in confidence.
vii) There is also the public interest an interest of the community as a whole in promoting the administration of justice, in maintaining the authority of the judiciary and in maintaining the confidence of the public at large in the courts. This crucially important public interest may pull in different directions:
a) The parents point to the vital importance, if the administration of justice is to be promoted and public confidence in the courts maintained, of justice being administered in public or at least in a manner which enables its workings to be properly scrutinised so that the judges and other participants in the process remain visible and amenable to comment and criticism.
b) Brandon, on the other hand (and it may be, also, the social workers and others, including witnesses who are involved in the proceedings), can, albeit from their different perspectives, point to the vital importance, if the administration of justice is to be promoted and public confidence in the Family Division maintained, of preserving the privacy of proceedings such as those with which I am concerned. There is an important public interest in preserving faith with those who have given evidence to the family court in the belief that their evidence would remain confidential and in encouraging co-operation from independent experts and other professionals.
The balancing exercise the applicants' submissions
i) First the fact that these are care proceedings, following earlier care proceedings in which the parents lost their three children forever. The potential outcome both for the parents and for Brandon could not be graver.
ii) Secondly, the fact that the first set of care proceedings culminated in what, according to the parents, was a miscarriage of justice and a miscarriage of justice driven in part by the medical evidence and in part by failings (so it is said) on the part of NCC.
iii) Thirdly, the fact that this case accordingly fits into and properly forms part of a wider and very extensive ongoing public debate on a topic of great public importance.
iv) Fourthly, the fact that in this case there has already been very extensive publicity and debate in a variety of media.
v) Fifthly, the fact that both the media and the parents (and to some extent even NCC) support the opening up of the process to greater public scrutiny. Even if the reasons for this may vary as between the parties, the mere fact of this consensus is, so it is said, an important factor.
vi) Finally, Brandon's age he is still only 5 months old and the extreme unlikelihood (so it is said) that he will suffer any adverse consequences from what is proposed.
"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."
The balancing exercise submissions in opposition
The balancing exercise discussion
"The freedom to publish things which judges might think should not be published is all the more important where the subject of what is being said is the judges themselves. Any judicial power to punish such publications requires the most cogent justification. Even more cogent must be the justification for giving the judges a power of prior restraint."
" the liberty of the press is essential to the nature of a free state. The price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars and charlatans, but that cannot be avoided if the liberty is to be preserved."
It is, after all, the underdog who is often most in need of the help afforded by a fearless, questioning and sceptical press.
" One of the disadvantages of the 'curtain of privacy' to which Balcombe LJ referred what some campaigners would prefer to characterise as the cloak of secrecy surrounding the family courts has become apparent. Those who without justification attack the family justice system can all too easily do so by feeding the media tendentious accounts of proceedings whilst hypocritically sheltering behind the very privacy of the proceedings which, although they affect to condemn, they in fact turn to their own advantage. It is all too easy to attack the system when the system itself prevents anyone correcting the misrepresentations being fed to the media: see Harris v Harris; Attorney-General v Harris  2 FLR 895 at para .
 I make the point for two reasons. In the first place it suggests that too relentless an enforcement of the privacy of family court proceedings may be counter-productive and that the courts should perhaps in future be more willing than they have been in the past to exercise the disclosure jurisdiction so as to permit matters such as these to be put into the public domain. Secondly, if disclosure is to be permitted, the person seeking disclosure here the mother may have to be prepared to take the rough with the smooth. The mother is not necessarily entitled to set the media agenda. If she wants to put some parts of the case into the public domain, then she may have to accept that other less appealing parts of the case are also put into the public domain."
"In considering the competing rights [under Articles 6, 8 and 10], I have come to the clear conclusion that having regard to the quantity of material that is in the public domain, some of it even in the most responsible commentaries wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court's silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself."
" Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts, and the lack of knowledge about what happens in them, easily lead to the accusation of 'secret justice'
 What is manifestly unacceptable is the unauthorised and selective leakage of one party's case or selective, inaccurate and tendentious reporting in breach of the rules relating to the confidentiality of the proceedings. This, in my experience, invariably leads to unbalanced misreporting of the difficult and sensitive issues with which the courts have to grapple. In my judgment, therefore, the best way to tackle that problem is by greater openness in the decision-making process."
He indicated what he had in mind at para :
"In my judgment, this case provides a strong argument for those who, like myself, take the view that the judgments of circuit and Family Division judges hearing care and adoption proceedings should, as a matter of routine, be given in an anonymised form and in open court."
He returned to the same theme in Clayton v Clayton  EWCA Civ 878,  3 WLR 599, at paras -.
" In my view the public generally, and not just the professional readers of law reports or similar publications, have a legitimate indeed a compelling interest in knowing how the family courts exercise their care jurisdiction. Moreover, if leave is confined in practice to those cases which are, for some reason, thought to be worthy of reporting in a law report, the sample of cases which will ever come to public attention is not merely very small but also very unrepresentative.
 My own view, and I make no bones about this, is that, subject of course to appropriate anonymisation, the presumption ought to be that leave should be given to publish any judgment in any care case, irrespective of whether the judgment has any particular interest for law reporters, lawyers or other professionals. It should not be necessary to show that there is some particular reason to justify why leave should be given in the particular case, let alone any need to justify leave on the basis that the judgment deals with some supposedly interesting point of law, practice or principle. For my own part, I should have thought that the proper approach ought to the other way round. It is not so much for those who seek leave to publish an anonymised judgment to justify their request; surely it is for those who resist such leave to demonstrate some good reason why the judgment should not be published even in a suitably anonymised form."
i) In the first place, the trial judge must have the ultimate right to control access by the media to any hearing. It may be that even though the media should, in principle, be able to attend the hearing, there will be some particular part of it during which it would be right to exclude them, perhaps, for example, while a particular witness is giving evidence.
ii) There may be questions as to whether some category of witnesses, or a particular witness, should be entitled to anonymity. That is not a matter I can resolve today.
It is for these reasons that I have included in the draft order prepared by the applicants the provisions in paragraphs 1(b) and 8(c).
A. Applications to the court ('the Care Applications') are due to be heard on 3 November 2006, being applications made in the proceedings ("the Care Proceedings") which are pending in relation to Child F.
B. On 26 October 2006 the Court heard applications by the Fourth and Fifth Respondents for orders permitting them to attend and report the hearing of the Care Applications, and for the variation of the reporting and other restrictions imposed by the Order of HH Judge Curl dated 10 June 2006.
C. The following parties were represented before the court: the Fifth Respondent, by Mark Warby QC; the Fourth Respondent, by Adam Wolanski of Counsel; the First and Second Respondents, by Anthony Hudson of Counsel; the Third Respondent, by Jonathan Bennett of Counsel; the Claimant, by Miss Rachel Langdale of Counsel; and Norfolk Primary Care Trust, by Prashant Popat of Counsel. The Fifth Defendant did not appear and was not represented.
D. The court read the following documents: the witness statements of Sian James (1st), Dave Stanford (1st) and Kirsty Howarth (1st), and the exhibits to those statements; the Position Statement of Child F's Children's Guardian dated 25th October 2006; and the undated affidavit of Sharon Joy Clark, sworn in June 2006.
E. Details of the children referred to in the Order are given in Schedule 1 to this Order.
F. The court directed that the attached Explanatory Note be made available to any person served with this Order.
Permission to attend and report
1. Representatives of the Fourth and Fifth Respondents and of other newspapers broadcasters or news agencies may attend and report the hearing of the Care Applications subject only to
(a) the restrictions set out or referred to in paragraphs 5 to 11 below;
(b) any directions the judge hearing the Care Applications may make requiring such representatives to absent themselves during any particular part or parts of the hearing.
Reporting and other restrictions dispensed with
2. In relation to Child F, section 97(2) of the Children Act 1989 is dispensed with, except for the restrictions set out in paragraphs 8(a) and (b) below.
3. The Reporting Restriction Order of HH Judge Curl dated 10 June 2006 ('the Second Reporting Restriction Order') shall cease to have effect.
4. Accordingly, and for the avoidance of doubt, the following information may be published:
(a) the names and photographs of the First and Second Respondents and the nature of their interest in these proceedings;
(b) the name and photographs of Child F;
(c) subject to paragraph 8(b) below, the address or whereabouts of the First and Second Respondents and Child F;
(d) the identity of the Applicant.
Reporting and other Restrictions continuing
Children A, B and C
5. The following reporting restrictions in relation to Children A, B and C continue:
(a) The Reporting Restriction Order made by the Hon Mrs Justice Pauffley on 17 May 2006 in relation to Children A, B and C ('the First Reporting Restriction Order'), which is unaffected by this Order and shall continue to apply to the persons and for the period provided for in that order.
(b) Section 97(2) of the Children Act 1989, which is not dispensed with in relation to Child A, B or C.
6. Subject to any different order made in the meantime the restrictions in paragraphs 8, 9 and 11 below shall have effect until after judgment on the Care Applications.
Who is bound
7. The restrictions in paragraphs 8, 9 and 11 below bind all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.
8. This paragraph prohibits the publication or broadcast in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of any of the following in connection with the Care Proceedings:
(a) the name and address of any individual having day-to-day care of or medical responsibility for Child F whose details are set out in Schedule 3 to this Order ('a carer');
(b) the name, address or whereabouts of any residential assessment unit, residential home or other establishment at which the First and/or Second Respondent and child F are resident at the time of publication ('an establishment');
(c) the name and address of any social worker involved in the Care Proceedings, the Childrens Guardian of Child F, and any person (other than the First and Second Respondents) who is a witness in the Care Proceedings.
9. No material the publication of which would offend against the restrictions set out or referred to at 5 and 8 above shall be included in
(a) any publication of the text or a summary of this order (except for service of the order under paragraphs 13 and 14 below);
(b) any report permitted under paragraph 1 above.
10. Save in respect of
(a) such part or parts of the hearing of the Care Applications as representatives of the Fourth and Fifth Respondents and of other newspapers broadcasters or news agencies are permitted to attend and report in accordance with paragraph 1 above; and
(b) such documents (referred to during such parts or parts of the hearing) as the court permits to be made public,
the restrictions in respect of the Care Proceedings arising by virtue of section 12 of the Administration of Justice Act 1960 are unaffected and continue to apply as if this order had not been made.
Restrictions on seeking information
11. This paragraph prohibits any person from seeking any information relating to Child F from
(a) a carer or
(b) a resident (other than the First or Second Respondents) or member of staff of an establishment.
What is not restricted by this Order
12. Nothing in his order shall prevent any person from
(a) Seeking or publishing information which is not the subject of the restrictions set out or referred to in paragraphs 5 to 11 above;
(b) Inquiring whether a person or place falls within the scope of paragraphs 8 or 11 above or the First Reporting Restriction Order;
(c) Seeking or publishing information relating to Children A, B, C or F while acting in a manner authorised by statute or by any court in England and Wales;
(d) Seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 2 to this Order;
(e) Publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales."