B e f o r e :
MR JUSTICE
MUNBY
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Between:
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In the matter of BRANDON WEBSTER (a
child, dob 29.5.2006) NORFOLK COUNTY COUNCIL
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Applicant
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- and -
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(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
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Respondents
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Ms Rachel Langdale (instructed by the Solicitor, Norfolk County
Council) for the applicant
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
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Mr Justice Munby :
- Parents who claim that they were the victims of a
miscarriage of justice in previous care proceedings relating to their three
older children, and who are now embroiled in care proceedings relating to
their fourth child, seek, with the assistance of the media, to tell their
story in public. They wish the media to be allowed to attend forthcoming
hearings of the care proceedings. The question is whether they are entitled to
do so.
- The case raises important questions of principle
about the right of access to and reporting of care proceedings in the Family
Division and other family courts, which is why I am delivering this judgment
in public. I have decided that the parents and the media are in substance,
though with some amendments, entitled to the relief they seek.
The facts
- I can take the background facts quite quickly. I
have not seen, nor have the media seen, the papers either in the previous or
in the current care proceedings, so I know little about the detail of either
case. It does not matter. Subject only to one matter, which I deal with at the
end of the judgment, I know enough to be able to decide the issues that are
currently before me for determination.
- The parents live in Norfolk. Their three older
children, who I will refer to as A, B and C, were the subject of care
proceedings under Part IV of the Children Act 1989 brought by the relevant
local authority, Norfolk County Council ("NCC"). The case was heard in the
County Court. Judgments were given by His Honour Judge Barham on 21 May 2004
and on 24 November 2004. Threshold was found established. Full care orders
were made. Freeing orders were made. All three children were subsequently
adopted. The outcome permanent loss of all their three children must have
been devastating for both parents. Even those of us who spend our professional
lives in the family courts can have, even with the assistance of the most
vivid imagination and a superabundance of human empathy and fellowfeeling,
but a dim awareness of what the parents must have gone through and must,
indeed, still be going through.
- As I understand it, the fundamental basis of the
care proceedings was an allegation that one or more of the children had been
physically abused by the parents. This is an allegation that they have always
denied. They assert that the children were wrongly taken from them on the
basis of flawed and incomplete medical and other evidence. A fracture suffered
by one of the children, they say, had an innocent explanation, for what is
commonly referred to as 'brittle bone disease' osteogenesis imperfecta
runs, they say, in the mother's family. (That may be, but as NCC points out,
recent DNA testing of the mother has apparently demonstrated that she is not a
symptomless carrier of the disease. Furthermore, says NCC, this was never a
'single issue' case.)
- Put shortly, the parents say that they and their
three children were all the victims of a miscarriage of justice. Their cause
has been taken up by both the print and the broadcast media the BBC, the
'Times' and the 'Mail on Sunday' amongst others. Responsible journalists have
suggested that a "terrible miscarriage of justice may have occurred."
- The mother became pregnant in the latter part of
2005. Not surprisingly in the circumstances, NCC started child protection
procedures before her new child was born. Brandon for that is his name was
born on 29 May 2006 in Ireland, where the parents had fled shortly before his
birth, fearful that care proceedings would be begun and that he too would be
taken away from them. More or less voluntarily in reality they probably had
little choice the parents returned to Norfolk with Brandon. Care proceedings
followed. An interim care order was made on 10 June 2006 and the parents, with
Brandon, were placed in a residential unit for the purposes of a detailed
assessment.
- By that stage there had been a very considerable
amount of publicity about the case. Media coverage had started in about
November 2005, before Brandon was born. Perhaps not surprisingly the parents'
flight to and return from Ireland attracted very considerable media attention.
The parents and Brandon were photographed and shown on television. Their first
names were freely reported in the media, though the media chose to use the
mother's maiden name rather than their true surname. The most recent broadcast
was on 9 June 2006.
- On 10 June 2006 His Honour Judge Curl, sitting as a
Judge of the High Court, made an order imposing very drastic reporting
restrictions. Addressed contra mundum (to the world at large), it prohibited,
subject only to one minor exception, the publication of "any
information
relating to" Brandon and the soliciting from the parents of "any information
relating to [Brandon] or his parents". There was no 'public domain' proviso.
- Prior to that, on 16 May 2006, Pauffley J had made
an order designed to protect the identities of A, B, C and their adoptive
parents.
- On 17 August 2006 the BBC gave notice that it
intended to apply to vary Judge Curl's order. On 18 October 2006 Associated
Newspapers Limited, the publishers of the 'Mail on Sunday', made a similar
application. Both applications came on for hearing before me on 26 October
2006. By then there was some degree of urgency, for the care proceedings were
listed for a oneday hearing on 3 November 2006, the purpose of that hearing
being to consider the interim placement arrangements for Brandon following the
anticipated conclusion in the next few days of the residential assessment.
- Associated Newspapers Limited, represented by Mr
Mark Warby QC, the BBC, represented by Mr Adam Wolanski, and the parents,
represented by Mr Anthony Hudson, made common cause. It is convenient to take
their submissions together. NCC, which had its own reasons for favouring at
least some degree of relaxation of Judge Curl's order, was represented by Ms
Rachel Langdale. Brandon's children's guardian, who opposed any relaxation of
Judge Curl's order, was represented by Mr Jonathan Bennett. Norfolk Primary
Care Trust, which was agnostic in relation to the main dispute between the
parties but wished to ensure appropriate protection for its staff, was
represented by Mr Prashant Popat. I am grateful to all counsel for their very
considerable assistance in a difficult case. I only fear that I cannot do
proper justice to the full subtlety and nuance of the very skilful arguments
they have put before me.
- At the end of the hearing I reserved judgment. I
now (2 November 2006) hand down judgment in public, having previously handed
it down in private on 1 November 2006.
The applications
- The applicants emphasise that they do not seek to
disturb in any way the order made by Pauffley J nor to do anything that might
identify either A, B and C or their placements. In essence what they seek is:
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 also emphasise that this substitute
regime is designed to last only until after judgment on the applications fixed
for hearing on 3 November 2006, at which stage, they say, the regime should be
reviewed in the light of the court's determination of the issues raised by
those applications.
The applicants' submissions
- The applicants assert that this case raises
important points of high principle about open justice in the family courts and
the role of the media in exploring and exposing possible miscarriages of
justice. Understandably they put their case on the basis of what they say is
fundamental principle, principle which, they say, entitles them to the relief
they seek. I agree with the applicants that high principle is indeed involved.
And it is accordingly with that that I start.
Open justice
- It is a fundamental and long-established principle
of our legal system and this principle is now underscored by Article 6 of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms that justice is administered in public. Legal proceedings should be
conducted in public and should be fully and freely reported.
- The classic statements of the principle are of
course to be found in Scott v Scott [1913] AC 417. I can start with a
famous passage in the speech of Lord Shaw of Dunfermline at page 477, a speech
which, as Scarman LJ (as he then was) observed in In re F (A Minor)
(Publication of Information) [1977] Fam 48 at page 93, "must surely rank
as a classic declaration of common law principle." According to Lord Shaw:
"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"
- Lord Atkinson in the same case observed at page
463:
"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."
- Moving to more recent times, in
Attorney-General v Leveller Magazine Ltd [1979] AC 440 Lord Diplock
said at page 449:
"As a general rule the English system of administering justice
does require that it be done in public: Scott v Scott [1913] 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."
- Two more citations will suffice for present
purposes. The first is from the judgment of Lord Woolf MR in R v Legal Aid
Board ex p Kaim Todner [1999] QB 966 at page 977. Having referred to the
observation of Sir Christopher Staughton in Ex p P (1998) Court of
Appeal (Civil Division) Transcript No 431 of 1998 that "When both sides agreed
that information should be kept from the public that was when the court had to
be most vigilant" a warning which I would suggest has a particular resonance
today in the context of family proceedings Lord Woolf MR continued:
"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.
- Finally in this context I turn to what Brooke LJ
said when giving the judgment of the Court of Appeal in Ex p Guardian
Newspapers Ltd [1999] 1 WLR 2130 at para [39], where the Court of Appeal adopted "as our own" the
following proposition put forward (see at para [25]) by Mr Michael Tugendhat
QC (as he then was):
"Mr. Tugendhat submitted that the first of the reasons given in
Ex parte Kaim Todner [1999] 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."
- So much for the common law. Article 6(1) of the
Convention provides, so far as material for present purposes, as follows:
"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."
- Article 6 is intended, amongst other things, to
promote confidence in the judicial process. This is a point that has
repeatedly been stressed by the Strasbourg court. In Prager and Oberschlick
v Austria (1996) 21 EHRR 1 at para [34] the court said:
"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 [33] the court,
reiterating what it had earlier said in Axen v Germany (1983) 5 EHRR
195 at para [25] and in Pretto v Italy (1983) 6 EHRR 182 at para [21],
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."
- In this connection I remain of the view I
expressed in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at paras [98], [103]:
"[98] 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.
[103] 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
- The books are full of statements about the high
value attributed to freedom of speech by our law and the vital role it plays
in our democracy. A recent, authoritative and one of the most eloquent is to
be found in the speech of Lord Steyn in R v Secretary of State for the Home
Department ex p Simms and Another [2000] 2 AC 115 at
page 126:
"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."
- Freedom of speech is also, of course, guaranteed
by Article 10 of the Convention:
"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."
- In Bergens Tidende v Norway (2001) 31 EHRR 16 at para [48], the Strasbourg court summarised its long-standing
jurisprudence:
"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 press and other media play a vital role in
ensuring the proper functioning of our democracy, as also in furthering the
rule of law and the administration of justice. The role of the court reporter
is that of public watchdog over the administration of justice.
- I can start with what Watkins LJ said in R v
Felixstowe Justices ex p Leigh [1987] QB 582 at page 591. It is a
powerful, indeed moving, passage which although long deserves citation in
full:
"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."
- In a well-known passage in Attorney-General v
Guardian Newspapers (No 2) [1990] 1 AC 109 at page 183, Sir John Donaldson
MR described the media as:
"the eyes and ears of the general public. They act on behalf of
the general public."
- The crucial role of the media is also emphasised
in recent authority at the highest level. In Reynolds v Times Newspapers
Ltd [2001] 2 AC 127 at page 200, Lord Nicholls of Birkenhead said:
"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) [2004] UKHL 47, [2005] 1 AC 593,
at para [28]. In McCartan Turkington Breen (A Firm) v. Times Newspapers
Ltd [2001] 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 Strasbourg jurisprudence is to the same
effect. In Bergens Tidende v Norway (2001) 31 EHRR 16 at para [49], the
Strasbourg court summarised its jurisprudence (citations omitted):
"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
- Human justice is inevitably fallible. However hard
we struggle to avoid them, and however rigorous the procedural and other
safeguards we strive to erect against them, there will always be miscarriages
of justice. In the investigation of possible miscarriages of justice and in
righting judicially inflicted wrongs, campaigning and investigative
journalists and the media in general have an absolutely vital role to play. As
Lord Steyn said in R v Secretary of State for the Home Department ex p
Simms and Another [2000] 2 AC 115 at
page 126:
"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."
- In Prager and Oberschlick v Austria (1996) 21 EHRR 1 at para [34] the Strasbourg court said:
"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."
- I make no apologies for repeating here what I said
in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at paras [101], [103]:
"
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."
Family courts
- So much for generalities and high principle. It is
time to focus on the family justice system.
- Here again, the starting point is Scott v Scott
[1913] AC 417. This was itself, it is important to note, a case concerning
the practice of the old Probate, Divorce and Admiralty Division, the ancestor
of today's Family Division. The House held unanimously that so far as
concerned its powers to sit in camera or in private, and this whether in
nullity cases or in any other type of case before it, the Probate, Divorce and
Admiralty Division stood in principle in no different position than the
Queen's Bench and Chancery Divisions.
- Scott v Scott established once and for all
that there is in principle no difference for these purposes between the Family
Division and the other two Divisions. It is impossible to argue that the
Family Division as such has any greater powers to sit in secret or to enforce
the confidentiality of its proceedings than any other part of the High Court.
If it is to be argued that the Family Division has some such power, either
generally or in some particular class or classes of case, that power is not to
be derived from the fact that the Family Division is the Family Division or
from any 'practice' of the Family Division however inveterate; it has to be
founded in specific statutory authority or, since the coming into force of the
Human Rights Act 1998, justified by reference to the Convention.
- Three short passages from the speeches of their
Lordships will suffice for present purposes. Viscount Haldane LC at page 463
said:
"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."
- In Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, at para [16], Dame Elizabeth Butler-Sloss P said,
speaking of the Family Division:
"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
- The principle of confidentiality in proceedings
relating to children goes back a long way. Indeed, in Scott v Scott
itself the House of Lords recognised that there were certain exceptions to
the general rule. It suffices for this purpose to refer to what Lord Shaw of
Dunfermline said at page 482:
"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.
- Now that may well be so of what we would now call
private law cases, but it surely cannot be said of public law cases where, to
make an obvious point, the State is seeking to intrude into family life and,
indeed, very frequently is seeking to remove children from their families
sometimes, as in the present case, for ever. I shall return in due course to
consider the implications of this.
- Nonetheless, down the years, as we shall see, the
limited exception recognised by the House of Lords has expanded very
considerably. Statutory provisions have extended the principle of
confidentiality to almost all proceedings in the Family Division involving
children.
- What are the principles which underlie this
confidentiality? I sought to summarise them in Re X (Disclosure of
Information) [2001] 2 FLR 440 at para [24]:
"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 [1913] 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 [1990] 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 [1990] Ch 662, 672B
and Balcombe LJ in In re Manda
[1993] 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
"
- This confidentiality is now, of course, protected
by Article 8 of the Convention. This provides:
"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
- I turn therefore to the relevant statutory
provisions. It will be convenient to consider first the relevant statutory
restrictions on reporting family proceedings or revealing what has gone on
during the course of family proceedings before turning to consider the
relevant statutory restrictions on access to family court hearings. I shall
confine my observations to those restrictions which apply in 'children' cases.
Different restrictions apply in 'money' cases.
Family courts reporting restrictions
- Section 12 of the Administration of Justice Act
1960, as amended, provides, so far as material for present purposes:
"(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)."
- There is no need on this occasion for any detailed
exegesis of section 12. It suffices for present purposes to note that the
effect of section 12 is to prohibit the publication of accounts of what has
gone on in front of the judge sitting in private, as also the publication of
documents (or extracts or quotations from documents) such as affidavits,
witness statements, reports, position statements, skeleton arguments or other
documents filed in the proceedings, transcripts or notes of the evidence or
submissions, and transcripts or notes of the judgment. On the other hand,
section 12 does not of itself prohibit publication of the fact that a child is
the subject of proceedings under the Children Act 1989; of the dates, times
and places of past or future hearings; of the nature of the dispute in the
proceedings; of anything which has been seen or heard by a person conducting
himself lawfully in the public corridor or other public precincts outside the
court in which the hearing in private is taking place; or of the text or
summary of any order made in such proceedings. Importantly, it is also to be
noted that section 12 does not prohibit the identification or
publication of photographs of the child, the other parties or the witnesses,
nor the identification of the party on whose behalf a witness is giving or has
given evidence.
- Section 12 also has to be read in conjunction with
rule 10.20A of the Family Proceedings Rules 1991, SI 1991/1247, but as nothing
turns for present purposes on its specific provisions I need say no more about
it.
- Section 97 of the Children Act 1989, as amended,
provides in material part as follows:
"(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 meaning and effect of section 97 has recently
been considered by the Court of Appeal in Clayton v Clayton [2006] EWCA Civ 878, [2006] 3 WLR 599, where it was held that the prohibition in section
97(2) comes to an end when the proceedings are concluded. The common belief
(which I confess I shared) that the statutory prohibition outlasted the
existence of the proceedings has now been exploded for what it always was
yet another of the many fallacies and misunderstandings which have tended to
bedevil this particular area of the law. On the other hand, and as Sir Mark
Potter P was at pains to point out (at para [53]), the fact that, following an
end to the proceedings, the prohibition on identification under section 97
will cease to have effect does not of course mean that the provisions of
section 12 of the Administration of Justice Act 1960 are diluted or otherwise
affected. The limitation upon reporting information relating to the
proceedings themselves under section 12 of the 1960 Act will remain.
- So much for the automatic restraints which apply
in cases of this kind. But it is clear that the court has power both to relax
and to increase these restrictions. A judge can authorise disclosure of what
would otherwise be prohibited. And a judge can impose additional restrictions.
This involves the exercise of discretion the carrying out of a balancing
exercise where a number of often conflicting rights and interests have to be
balanced. How is this exercise to be performed?
- The answer is provided by the speech of Lord Steyn
in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593,
at para [17]:
"The interplay between articles 8 and 10 has been illuminated by
the opinions in the House of Lords in Campbell v MGN Ltd [2004] 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."
- In A Local Authority v W [2006] 1 FLR 1, [2005] EWHC 1564 (Fam), at para [53], Sir Mark Potter P summarised the effects of the
judgment in In re S in this way:
"There is express approval of the methodology in Campbell v
MGN Ltd [2004] 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."
- It is clear from In re S and W that
in this context at least the interests of the child are not paramount.
Nor is there anything novel in this. As I said in Re X (Disclosure of
Information) [2001] 2 FLR 440 at para [23], summarising the relevant
pre-Convention case-law:
"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."
- In the present case counsel have raised an
important question as to how section 97(4) is to be construed. The point
arises because, as will be recalled, the power to dispense with section 97(2)
is, on the face of it, confined by section 97(4) to those situations where
"the welfare of the child requires it".
- In my judgment section 97(4) cannot be construed
in this restrictive way. In Clayton v Clayton [2006] EWCA Civ 878, [2006] 3 WLR 599, the Court of Appeal held that the effect of section
3 of the Human Rights Act 1998 was to require section 97 to be read in a
Convention-compliant way, because section 97 constitutes a specific
restriction on the media's rights under Article 10. In the same way, section
97(4) must likewise be construed in a Convention-compliant way, not limiting
the occasions on which section 97(2) is dispensed with to those where the
welfare of the child requires it but extending it to every occasion when
proper compliance with the Convention would so require. In other words, the
statutory phrase "if
the welfare of the child requires it" should be read as
a non-exhaustive expression of the terms on which the discretion can be
exercised, so that the power is exercisable not merely if the welfare of the
child requires it but wherever it is required to give effect, as required by
the Convention, to the rights of others. This is a process of construction
which in my judgment comfortably satisfies the criteria identified in
Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557,
and which is therefore required by section 3.
- This point was considered in Clayton v
Clayton [2006] EWCA Civ 878, [2006] 3 WLR 599, by Wall LJ, who set out (at paras [97]-[99]) the
submission of Mr James Price QC to the effect that section 97(4) must be
construed in such a way as to permit the court to lift the prohibition in
section 97(2) where Convention rights required it. As I read Wall LJ's
judgment (at paras [100]-[101]) he accepted Mr Price's submissions on this
point, as more generally on section 97. Even if that is not so, and even if
Wall LJ's observations on the point are purely obiter and I do not accept
either proposition I am in no doubt that Mr Price's submission in relation
to section 97(4) was correct. In my judgment, for the reasons given by Mr
Price in his submissions in Clayton v Clayton, and repeated by Mr
Warby, Mr Wolanski and Mr Hudson in their submissions before me, section 97(4)
has to be read as permitting the court to dispense with the prohibition on
publication in section 97(2) where the right of free expression under Article
10 or other Convention rights require it. To do otherwise would, as Mr Warby
put it, place the child's interests on a pedestal in a way which is
incompatible with the Convention. I agree.
- That this is the true view is, in my judgment,
supported by two additional considerations. In the first place, as Mr Wolanski
points out, section 97(2) is not confined to cases heard in private. Unless
section 97(4) can be 'read down' in this way, the power of the court to
identify a child will be exercisable only in the rarest circumstances, even if
the entirety of the proceedings has taken place in open court and in the glare
of publicity. And it would also mean that the power of the Family Division to
permit the identification of a child would be significantly more limited than
the power of the Court of Appeal (to which, as Pelling v Bruce-Williams
(Secretary of State for Constitutional Affairs Intervening) [2004] EWCA Civ 845, [2004] 2 FLR 823, shows, section 97(2) does not apply). Such
undesirable anomalies would say little for a branch of the law already
scarcely over-burdened with clarity and consistency.
- Secondly, as he points out, a narrow reading of
section 97(4) does not accord with the practice. Mr Wolanski and Mr Warby draw
attention to Ryder J's judgment in Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005]1 FLR 648. In the same vein I might draw attention to my own
judgment in Harris v Harris; Attorney-General v Harris [2001] 2 FLR
895. In neither case is it easy to see how publication of the judgments in the
form in which they were handed down could be justified on a narrow reading of
section 97(4).
- It follows, in my judgment, that section 97(4)
must be construed in such a way as to permit the court to lift the prohibition
in section 97(2) where Convention rights require it.
- Before passing from this topic it is worth noting
the views expressed both by the President and by Wall LJ as to the likely need
for specific orders protecting a child's identity beyond the conclusion of the
proceedings. Both were sceptical. The President at para [51] said this:
"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."
- Wall LJ at para [145] said:
"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
- Rule 4.16(7) of the Family Proceedings Rules 1991
provides:
"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 [2006] EWCA Civ 878, [2006] 3 WLR 599, at para [26], such orders are rare.
- In B v United Kingdom (2001) 34 EHRR 529,
[2001] 2 FLR 261, the European Court of Human Rights held that the provisions
of rule 4.16(7) were Convention compliant. So, subsequently, has the Court of
Appeal: Pelling v Bruce-Williams (Secretary of State for Constitutional
Affairs Intervening) [2004] EWCA Civ 845, [2004] 2 FLR 823.
- The core of the Strasbourg court's decision is to
be found in the following observation at para [38]:
"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."
- But it is very important to note what the Court
went on to say at paras [39]-[40] (citations omitted):
"[39] 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).
[40] 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."
- This last point, as it seems to me, was crucial to
the decision. As the United Kingdom judge, Judge Sir Nicholas Bratza, said in
his concurring opinion:
"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."
- In Pelling v Bruce-Williams (Secretary of State
for Constitutional Affairs Intervening) [2004] EWCA Civ 845, [2004] 2 FLR 823, at para [49], Thorpe LJ said:
"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."
- He continued with these important observations at
paras [54]-[55]:
"[54] 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
[55]
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."
- Now these observations may have been directed
specifically to practice in family cases in the Court of Appeal hence the
reference to hearings conducted in public but consistently with the
Strasbourg jurisprudence they seem to me to have a much wider resonance.
- Very recently the Strasbourg court has returned to
the issue in Moser v Austria [2006] 3 FCR 107. That was a case in which
the applicant's son had been taken into public care. The court held that there
had been a breach of Article 6, inter alia on the ground that the hearing had
not been in public. The court's reasoning is to be found in paras [96]-[97]
(citations omitted):
"[96] 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.
[97] 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."
- I draw attention to the important distinction here
drawn by the Strasbourg court between (to use our terminology) private law
cases and public law cases. There are two aspects of the latter which in the
present context, as it seems to me, are of fundamental importance. The first I
have already touched upon. In a public law case the State public authority
is seeking to intrude into family life and, indeed, very frequently is seeking
to remove children from their families. The second is the point I made in
Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [101]:
"As I pointed out in Re L (Care: Assessment: Fair Trial)
[2002] EWHC 1379 (Fam), [2002] 2 FLR 730, at para [150]:
'
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."
- Just as I make no apology for repeating that
observation, I make no apology for repeating what I said more recently in
Re X, London Borough of Barnet v Y and X [2006] 2 FLR xxx. Referring at
para [166] to public law care cases, I said:
"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."
- How then is the exercise required by B v United
Kingdom (2001) 34 EHRR 529, [2001] 2 FLR 261, and by Moser v
Austria [2006] 3 FCR 107 to be undertaken? By reference to what criteria
is a judge to decide whether or not to accede to an application to disapply
rule 4.16(7)? The answer can only be that the judge must apply the Convention,
ensuring that his decision is Convention-compliant. Rule 4.16(7), after all,
falls to be justified in accordance with the Article 6(1) tests of what is
"required" or (as the case may be) what is "strictly necessary". And, as the
decisions of the Strasbourg court in both B v United Kingdom (2001) 34
EHRR 529, [2001] 2 FLR 261, and Moser v Austria [2006] 3 FCR 107 make
clear, such a blanket rule can be justified only if it remains "subject to the
court's control" and only if the court exercises a proper discretion in the
circumstances of the particular case. Moreover in a public law case, as
Moser v Austria [2006] 3 FCR 107 makes clear, "the reasons for
excluding a case from public scrutiny must be subject to careful examination"
and the judge must "consider
the special features of the case."
- In short the judge must, as it seems to me, adopt
precisely the same 'parallel analysis' leading to the same 'ultimate balancing
test', as described in In re S and W, which is applicable in
deciding whether to relax on enhance reporting restrictions. I agree,
therefore, with Mr Wolanski, when he submitted that rule 4.16(7) is properly
to be regarded simply as a 'default provision' but not as a provision
indicating some heavy presumption in favour of privacy. In my judgment, rule
4.16(7) must be read, construed and applied compatibly with the Convention.
Once the point has been raised, the outcome must be determined in accordance
with the Convention, 'balancing' all the various interests which are engaged
and not giving any special pre-eminence to the claim to privacy.
Moreover, and as Thorpe LJ pointed out, a judge must be alert to the dangers
inherent in what he called the "strong inherited convention of privacy" and
careful not to be "prejudiced by the tradition or an unconscious preference
for the atmosphere created by a hearing in chambers."
- In relation to this last point, it is perhaps
worth pointing out that "representatives of newspapers or news agencies" have
a statutory right under section 69(2)(c) of the Magistrates' Courts Act 1980
to attend hearings of the Family Proceedings Court except in the case of
adoption proceedings or where the court has made an order either under section
69(4) (which permits the exclusion of the press if it is "necessary in the
interest of the administration of justice or of public decency" to exclude
them "during the taking of any indecent evidence") or under rule 16(7) of the
Family Proceedings Courts (Children Act 1989) Rules 1991, SI1991/1395 (which
permits their exclusion "if the court considers it expedient in the interests
of the child"). So if the present care proceedings were still before the
Family Proceedings Court the press would have a statutory right to be
present!
The balancing exercise
- In the present case the balancing exercise, the
'parallel analysis' leading to the 'ultimate balancing test', involves
consideration of Articles 6, 8 and 10 of the Convention.
- In the nature of things the interests which are
here in play are very similar to those which I had to consider in Re B (A
Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [93]. Here, as there, what has to be
struck, putting the point at its simplest, is the proper balance between
publicity and privacy. But in fact in a case such as this the interplay of
these various rights is quite complex. There are various rights and interests,
both private and public, which have to be weighed and balanced. In the present
case the analysis can perhaps be summarised as follows:
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) [2001] 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
- Mr Warby, Mr Wolanski and Mr Hudson make common
cause in submitting that the parallel analysis leads to an ultimate balancing
test where the balance comes down they would say clearly and heavily in
favour of their clients.
- In support of their arguments Mr Warby, Mr
Wolanski and Mr Hudson focus in particular on the following factors:
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.
- Developing their argument that the perpetuation of
the existing restrictions will interfere disproportionately with their
clients' rights, Mr Warby, Mr Wolanski and Mr Hudson elaborate their
submissions as follows.
- First, they say that, particularly in
circumstances such as these, it is more than usually important that the
parents should be able to exercise their rights to speak freely about the
case, including about the evidence in the case. They cannot, it is said, do so
properly without being able to refer in full to the evidence before the court.
Nor can they do so effectively if their identities are obscured, for example
by pixellation. To deny them their right of free speech in such circumstances
is not merely to deprive them of an important and valuable right rooted in
autonomy (see the analysis in Re Roddy (A Child) (Identification:
Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 at paras [35][36]) but also to hinder them in
their attempts to establish that they have been the victims of a miscarriage
of justice.
- Secondly, there is likewise in these circumstances
a pressing public interest in permitting the media to report the parents'
experiences, past, present and future, and the matters under consideration by
the court. The issues raised by the case and, it may be, the evidence adduced
during the forthcoming hearing, are, it is said, of very considerable and
legitimate public interest, concerning the role of the State in removing
children from their parents on the basis of medical evidence. The absence in
this case of any criminal prosecution, it is suggested, makes the family
proceedings all the more particularly worthy of proper analysis and coverage.
- Thirdly, permitting full reporting of the hearing
will allow a full picture to emerge of the facts before the court. It is less
likely in these circumstances that the evidence will be misrepresented by a
partial or onesided account provided by one or more of the parties, either
while the case is underway or after it has concluded. The risk of onesided or
inaccurate reporting while the current restrictions remain is, if anything, a
reason for greater openness, not greater restriction. As Brandeis J said in
Whitney v California (1927) 274 US 357 at page 77:
"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."
- Fourthly, in a case where the parents allege that
they are the victims if a miscarriage of justice, it is more than usually
important that the truth the full truth should out. If, as the parents
allege, they have lost three children and stand at risk of losing a fourth due
to deficiencies in the system, then there is a pressing need for the true
facts to be exposed. If, on the other hand, the parents are wrong, and the
system has performed conscientiously, competently and correctly, then it is
equally highly desirable that this should be known and publicised. Given all
the publicity there has already been, the issue is in the public domain
already. It is, therefore, important for public confidence in the system
public confidence in the court that both the resolution of the issue, and
the way in which it has been resolved, should be known. For that purpose, it
is said, nothing short of access to the court along the lines proposed will
suffice. On the contrary, to cut off the stream of information already
provided to the public at the very point where the court is poised to take
important decisions, would, it is said, be both artificial and potentially
harmful to the public interest.
- Finally, they point to the fact that this is the
kind of case where the local authority may itself wish to speak out, so as to
correct what it apparently considers to be misleading accounts of the case and
so redress the balance. NCC cannot do that if it is subject to the existing
restrictions.
- The factors Mr Warby, Mr Wolanski and Mr Hudson
particularly rely upon in support of their submission that to strike the
balance in this way will not constitute a disproportionate interference
with Brandon's Article 8 and other rights are: (i) his age and (ii) the fact
that there is already a significant amount of material about the case
legitimately in the public domain as a result of coverage in both the print
and broadcast media.
- As Lord Steyn pointed out in In re S at
para [25], it is "necessary to measure the nature of the impact
on the
child" of what is in prospect. It is difficult, so it is said, to identify how
a public hearing or public identification would be injurious to Brandon's
welfare. He is far too young to be aware of the proceedings. It will be years
before he learns of them or is able to understand their significance. If a
child is "too young at this stage to be directly affected by anything in the
media" the court must ask whether the child would be indirectly
affected by the publicity which is in prospect, for instance by its having a
grave impact on the child's carers: see the analysis in Re Roddy (A Child)
(Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 at para [71]. The prospect of Brandon suffering
now or in the immediate future from publicity is, they submit, nonexistent or
negligible. In relation to any impact upon him when he is older, counsel pray
in aid the sceptical observations of the President and Wall LJ in Clayton v
Clayton to which I referred in paragraphs [63][64] above. There is, they
say, no real likelihood that publicity given now to this stage of the
proceedings will affect him significantly or at all, either now or in years to
come.
- The fact that there is already a very significant
amount of material about the case legitimately in the public domain as a
result of coverage in both the print and broadcast media, can only go, so it
is said, to minimise the risk of Brandon suffering any further or additional
harm as a result of yet further publicity. As is pointed out, the material
already in the public domain and there is much of it, for, as I have said,
there has already been much discussion of the case in the media includes, in
addition to the background to the adoption of A, B and C, the birth of Brandon
and his parents' flight to Ireland, medical information which (so it is said)
throws doubt upon the finding of abuse of child B, with particular reference
to metaphyseal fractures, and the views of the parents about their
experiences, Brandon's first name, photographs of Brandon as a baby, his
parents' first names and photographs and film footage of the parents. The
question therefore arises, it is said, whether and if so why the dissemination
of further information would be harmful to Brandon.
- Counsel submit that speculation is not sufficient.
If, as here, pretrial injunctive relief is being sought which would restrict
freedom of expression, the applicant and here, they say, the real applicant
is NCC must satisfy the test laid down by section 12(3) of the Human Rights
Act 1998 and show convincingly, by evidence, that it is "likely" that such
relief would be granted at a trial: compare Re Roddy (A Child)
(Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 at paras [73][76]. And "likely" in this context
means more likely than not: Cream Holdings Ltd v Bannerjee [2004] UKHL 44, [2005] 1 AC 253.
The balancing exercise submissions in opposition
- NCC sees the onesided reporting to date as being
unhelpful to it in the administration of its wider tasks. Perceptions (however
false they may be) of heavy handiness in the performance of its functions are
obstructive in the path it pursues for the welfare of children in its area.
From its own perspective, therefore, and in support of its broader functions,
NCC would have no objection to the release, in appropriately anonymised form,
of the two judgments given by Judge Barham, as also of all future judgments.
That, however, will suffice, according to Ms Langdale to meet the key
requirement of transparency and enable anyone who is interested to have a real
understanding of the issues.
- Release of anonymised judgments and judicially
authorised press releases is, she says, appropriate in any event in order to
correct current imbalances in the reporting, to correct perceptions of heavy
handiness by NCC and to correct the perception that there has been a
miscarriage of justice. But there is, she says, no justification for the media
attending the hearing. It is, she asserts, an accepted fact that candour and
frankness is much more likely in proceedings such as these where there is
privacy surrounding the giving of evidence. She suggests that what she calls
the matter of actual reporting relevance is the court's determination and
conclusions. Identification of individual social workers, of NCC's legal
representatives and of expert witnesses is opposed as being "unnecessary,
unhelpful in the pursuit of NCC's wider aims and tasks, and irrelevant to the
issues".
- The children's guardian opposes any further
reporting or broadcasting of the proceedings which would identify either
Brandon or his parents and seeks the continuation of the existing
restrictions. She is sympathetic to the position in which NCC finds itself but
rightly considers herself bound to have regard solely to Brandon's interests.
- She points to the fact that the outcome of the
forthcoming hearing may well be a continuation of Brandon's assessment with
his parents, but at this stage in the community, without the roundtheclock
monitoring and support they had whilst undergoing the residential assessment
and potentially exposed to all the pressures of what may be an unforgiving and
even hostile environment during what she says may be a particularly delicate
and risky phase of the assessment. As Mr Bennett puts it, the guardian's view
is that the parents' focus needs to be exclusively upon Brandon, to ensure his
safety and wellbeing. "They should not be sidetracked by arguing old battles
and anything which raises or increases the possibility of this is likely to
have an adverse effect upon their availability for and care of Brandon and
therefore upon Brandon himself." Mr Bennett expresses concern at the prospect
of what he calls persistent approaches by members of the public in the streets
whilst the parents and Brandon are going about their daily business and "media
scrums". Further media attention, the guardian fears, will only escalate
interest among the local community. That said, the guardian would have no
objection, she tells me, to a suitably anonymised judicial press release.
The balancing exercise discussion
- Subject to one important point, I accept the
general thrust of the submissions by Mr Warby, Mr Wolanski and Mr Hudson.
- With all respect to Judge Curl, the extremely wide
order he made is clearly too wide. Even if all the guardian's concerns were
fully justified, that could not in my judgment justify the prohibition of
publishing anything at all about the case: compare Re B (A Child)
(Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [144]. It does not permit even that
degree of discussion normally allowed by section 12 of the Administration of
Justice Act 1960.
- Four factors in particular weigh heavily in my
judgment in favour of the view that any greater degree of restraint than that
which is being proposed by the applicants will indeed constitute a
disproportionate a significant and heavily disproportionate interference
with their rights: the claim that the case involves a miscarriage of justice,
the parents' own wish for publicity, the very extensive publicity there has
already been, and the need, in the circumstances, for the full facts and the
'truth' whatever it may be to emerge, and, moreover, to emerge in a way
which will command public confidence. Two of these factors require a little
elaboration.
- As I observed in Re B (A Child) (Disclosure)
[2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [99], parents like the mother
in that case and the parents in the present case often want to speak out
publicly. I repeat in this context the point I made in Re Roddy (A Child)
(Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 at para [83]. In my judgment, the workings of the
family justice system and, very importantly, the views about the system of the
mothers and fathers caught up in it, are, as Balcombe LJ put it in Re W
(Wardship: Discharge: Publicity) [1995] 2 FLR 466 at 474, "matters of
public interest which can and should be discussed publicly". Many of the
issues litigated in the family justice system require open and public debate
in the media. I repeat what I said in Harris v Harris; Attorney-General v
Harris [2001] 2 FLR 895 at paras [360][389] about the importance in a
free society of parents who feel aggrieved at their experiences of the family
justice system being able to express their views publicly about what they
conceive to be failings on the part of individual judges or failings in the
judicial system. And I repeat in this context what I said in the same case at
para [368]:
"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 fact that the parents may not be the martyrs
they claim to be something which I am in absolutely no position to assess
and on which I express no views at all , the fact that it may turn out that
there was no miscarriage of justice, is not of itself any reason for denying
the parents their voice.
- In the first place, and in the very nature of
things, the initial 'official' response to any allegation that there has been
a miscarriage of justice is likely to be one of scepticism or worse. But that,
it might be thought, is all the more reason why there should not be
restraint, why the media should not be hindered in their vital role. I repeat
what Lord Steyn said in Simms: "In principle it is not easy to conceive
of a more important function which free speech might fulfil."
- Moreover, freedom of speech is not something to
be awarded to those who are thought deserving and denied to those who are
thought undeserving. As Lord Oliver of Aylmerton robustly observed in
Attorney-General v Guardian Newspapers Ltd and Others; Attorney-General v
Observer Ltd and Others; Attorney-General v Times Newspapers Ltd and
Another [1987] 1 WLR 1248 at page 1320:
"
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.
- The other element of great importance, as it
seems to me, in the present case, is what I have referred to as the public
interest in maintaining the confidence of the public at large in the courts
and, specifically, in the family justice system. This is not merely a point of
general application. It has, at it seems to me, a particular resonance in this
particular case. Rightly or wrongly, correctly or otherwise and for present
purposes it matters not which the media have suggested that the parents and
their children A, B and C have been, and that the parents and Brandon are at
risk of being, the victims of a miscarriage of justice. In these circumstances
there is a pressing need for public confidence to be restored either by the
public and convincing demonstration that there has not been a
miscarriage of justice or, as the case may be, by public acknowledgement that
there has been. That is not, of course, the purpose of the current
proceedings, and it is very possible that the outcome of the judicial process,
whatever it may be, will not be a clarity and certainty that all will accept.
But as few obstacles as possible should be placed in the way of the media
doing their job. For in the proper exercise by the media of their
investigative and other functions there exists perhaps the best chance of the
truth, whatever it may be, emerging at the end of the day. And that, at least
in the circumstances of this case, points to the media having access not
merely to more information than Judge Curl's order would permit them but
access also to the forthcoming hearing.
- As a number of judges have pointed out, there is
another important aspect of the problem that has to be taken into account: the
unfortunate fact that the rule of confidentiality facilitates the
dissemination of false and tendentious accounts of proceedings in family
courts, which in turn tends to further undermine public confidence in the
system.
- In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at paras [133]-[134], I commented that:
"[133] 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 [2001] 2 FLR
895 at para [386].
[134] 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 Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005]1 FLR 648, at para [22], Ryder J said:
"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."
- In Re H (Freeing Orders: Publicity)
[2005] EWCA Civ 1325, [2006] 1 FLR 815, at paras [31], [33], Wall LJ said:
"[31] 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'
[33] 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 [26]:
"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 [2006] EWCA Civ 878, [2006] 3 WLR 599, at paras [85]-[89].
- In Re X, London Borough of Barnet v Y and X
[2006] 2 FLR xxx, at paras [166]-[167] I said:
"[166]
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.
[167] 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."
- In the present case there are, I think,
overwhelmingly strong reasons for authorising the disclosure perhaps subject
to some degree of necessary anonymisation of Judge Barham's two judgments.
And in many cases adoption of the practice recommended by Wall LJ will be
sufficient to meet the needs of transparency and to facilitate appropriate
public debate. But cases of alleged miscarriage of justice seem to me to stand
on a somewhat different footing. After all, what is being alleged in such
cases what is being asserted in this case is that there has been a failure
of the judicial process. Sometimes it may be said that that is the
fault, the responsibility, of the judge. Here, as it happens, responsibility
seems to be attached more to deficiencies in the evidence and what are said to
have been failings on the part of the local authority. But on either basis, if
what is being said is that there has been a failing in the judicial
process, it might be thought and certainly will be thought by some to
be less than satisfactory that the only accounts of what has happened, the
only explanations to be given to the public, are those which a judge thinks it
appropriate to include either in a judgment or in a judicially approved press
release. After all, the complaint may be that the judge has misunderstood the
evidence, overlooked some vital piece of evidence or gone against the weight
of the evidence and how can that case be made if the only material available
to the public is the very judgment whose alleged deficiencies are under
challenge? How can the media properly assess things if denied access to the
hearing?
- In the present case it is not enough that there
should be publication of the judgments, whether or not supplemented by
judicially authorised press releases. To confine the parents and the media to
that extent is, in my judgment, to interfere disproportionately with their
rights under Articles 6, 8 and 10.
- I have of course considered very carefully all
the points made both by NCC and by Brandon's guardian. I do not doubt the
strength of the guardian's views, and in particular the concerns she has as to
the possible effect on Brandon if the applicants achieve what they desire. But
after anxious consideration I have come to two conclusions which, in the final
analysis, are determinative of the ultimate balancing test.
- The first is that the risks to Brandon are in
significant measure speculative and in any event not as large as the guardian
would have it. Given all the publicity there has already been and it is not
said that it has been in any way damaging to Brandon one has to ask, taking
a realistic view, what additional risks he is likely to run if exposed to
further publicity. Moreover, one has to bear in mind that even if Judge Curl's
order were to remain in place, there can be no assurance that there will not
be continuing publicity, and continuing publicity which, however much
anonymised, those 'in the know', including, it may well be, many in the local
community, will readily appreciate is about Brandon and his parents. The
media, after all, are adept at working their way quite lawfully, I might add
around even the most drastic restraints.
- My second conclusion is that the restraints
being sought by the guardian go further much further than is required to
protect Brandon's rights, whilst at the same time involving, as I have said, a
quite disproportionate interference with the applicants' rights. In the
particular circumstances of this particular case, an intense focus on the
comparative importance of all the various rights which are in play leads in
the final analysis to an ultimate balancing which satisfies me that, subject
to one important qualification, the outcome contended for by the applicants
involves no disproportionate interference with Brandon's rights, whilst any
greater degree of restraint would indeed involve a disproportionate
interference with the applicants' rights.
- I appreciate that the effect of the order I am
proposing to make is that the family's true name Webster will for the
first time be publicly known. But it seems to me that this alone will have
little if any discernible impact upon Brandon. His first name and his
photograph are already in the public domain, and those 'in the know' and, I
suspect, many in his local community are well aware that Mr