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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Clayton v Clayton [2006] EWCA Civ 878 (27 June 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/878.html Cite as: [2007] 1 All ER 1197, [2006] EWCA Civ 878, (2007) UKHRR 264, (2007) 1 FLR 11, [2006] Fam 83, [2006] 3 WLR 599, (2006) HRLR 34, [2007] EMLR 65 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
CARDIFF DISTRICT REGISTRY
Mr Justice Hedley
ZM04P00019
Strand, London, WC2A 2LL |
||
B e f o r e :
LADY JUSTICE ARDEN DBE
and
LORD JUSTICE WALL
____________________
Clayton | ||
V | ||
Clayton |
____________________
Mr Brian Jubb (instructed by CAFCASS Legal) as Advocate to the Court
Hearing date: 28 February 2006
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Sir Mark Potter, P :
Introduction:
various
matters concerning C. The injunction was stated to be effective until C's eighteenth birthday in 2016.
Background:
van
and concealing their whereabouts. The case attracted considerable publicity including regional and national television coverage when, on the advice of the police, the mother and the local police made a public appeal for information concerning the whereabouts of the father and C. After an absence of some 5½ weeks, the appellant was arrested and imprisoned in Portugal where he remained for some 2 months. On his return to England he was remanded in custody and sentenced to 9 months imprisonment on a plea of guilty to child abduction. He was released after serving 6 months of that sentence in December 2003. A half hour BBC documentary covering the events called "Simon says" was broadcast in January 2004.
video
diary retracing his steps with C during their time together in Portugal ending in his imprisonment, for which purpose he was requesting supply of a camera with a
view
to his supplying any " good footage" to the media.
"[2] from discussing or otherwise communicating (otherwise than for ordinary domestic and social purposes) any matter relating to the education, maintenance, financial circumstances or family circumstances (including any proceedings before any court) of . [C] ("the child") other than with:
(a) any legal adviser whom he may consult or instruct;
(b) the other parties;
(c) the medical and educational advisers of the child;
(d) any person to whom information is communicated for the purpose of enabling the person to exercise any function in relation to the child which is authorised by Statute or by a court of competent jurisdiction; and
(e) any other person the court may permit;"
"[3] Nothing in this Order shall of itself prevent [the father].. from:
(a) discussing, communicating or publishing any matter relating to any part of the proceedings before any court other than a court sitting in private; and
(b) discussing or communicating or publishing ("disclosing") anything which at the date of the disclosure by that person has been disclosed (whether inside or outside the jurisdiction of the court) in any newspaper or other publication or through the internet or any other broadcast or electronic medium to such an extent the information is in the public domain (other than in a case where the only disclosure was made by that person)."
Liberty to apply on 48 hours' notice was granted to the parties or any person affected by the order.
The Judgment of Hedley J
"7 [the father] essentially advanced two reasons for discharge: first, that he lived in a small community where this story was well-known and indeed it had received some national publicity and he wished to be able to say how it had ended; and secondly, that [the father] was also engaged on behalf of other fathers who wished to be able to show others the order and to commend the approach that had given rise to it.
8. The Guardian shared [the mother's] concern that the child should not be identified but advanced theview
that in this case that could only be achieved by continuation of the injunction. In this case the rights of free speech under Article 10 and the rights to private life under Article 8 are all engaged and cannot each be wholly accommodated. I am particularly sympathetic to concerns that this order and the approach upon which it is based should be available widely and to concerns that this child's identity should be safeguarded so that the child can have peace. That peace should not be the price of A's freedom of speech. I was referred briefly to authority including S (Identification: Restrictions on Publication) [2005] IFLR 591 HL. In my
view
the relevant factors are adequately set out above so as to enable the court to strike a fair balance.
9. I am satisfied that the need to ensure that C has peace and freedom from publicity should outweigh A's right to freedom of speech. That approach broadly reflects the policy of section 97 of the Children Act 1989. However, I believe that I can give adequate expression to my sympathies to A's position by giving this judgment in open court provided the anonymisation is strictly adhered to. A is at liberty to use it as he wishes in that open court proceedings are exempted from the injunction itself provided that is not used in such a way as which would reasonably lead to the child's identification."
"until either [C] should attain the age of 18 years, or sooner order of the court".
"AND UPON the mother and father mutually undertaking not to remove (or seek to remove) C from the jurisdiction of England & Wales (whether by themselves or howsoever otherwise) without first having obtained:
(i) the permission of the court; or
(ii) the written consent of the other such consent not to be unreasonably withheld;
And Upon the mother and the father mutually endorsing "Shared Parenting Plan for C" as set out in the First Schedule to this [order] and acknowledging the importance from C's point ofview
those matters set out in the Second Schedule to this order
the court orders that
1. all previous orders made in respect of C under Section 8 of the Children Act 1989 both within these proceedings and proceedings in the Brecon Family Proceedings (distinctive title numbers FPC 032/2002/B and 1941058) are discharged;
2. the mother and father have permission to withdraw their respective applications for residence, contact and prohibited steps orders in respect of C, having reached the agreements set out in the preamble to this order and as recorded in the First and Second Schedules annexed hereto;
3. the order by way of injunction made herein on the 9 November 2004 do continue until either C shall obtain the age of 18 years or sooner order of the court"
The preamble to the order was headed "By Consent". However, it is not in dispute that those words do not apply to paragraph 3 of the order, confirmation of the injunction having been objected to by the father.
Position of the Appellant Father:
view
by way of correction.
The Position of the Respondent Mother
various
copy letters sent by her to the father's solicitors (iii) an entry on the father's website (2005 update) and his blog site concerning his life with C, written in 2005 and accompanied by photographs. It is a matter for argument, with which we have not been concerned, whether certain of the contents of (iii) amounts to an infringement of the injunction.
virtuous
father and a campaigner in respect of family justice rather than giving real consideration or any precedence to his daughter's welfare. In this respect, there is a degree of support to be obtained from the documents annexed to her statement. She also asserts that, when CAFCASS was involved in the earlier proceedings, the father was constantly concerned with media coverage and making money from writing books. In that respect we have not seen the reports of CAFCASS or the NYAS Guardian. However under the heading "CAMPAIGN" on his website, the father certainly states:
"After I have sorted out legal matters my prime objective is to write a book to expose many wrongs done to us some of them quite incredibly, and at the same time offer constructive criticism, so that the Family Justice system may be better reformed. I also want to tell many happy and fabulous tales of my wonderful daughter's life."
view
that C's friends at school have effectively forgotten about the original abduction and upset in C's life and she is treated as a "normal" child, whereas, if her father now publicises the case by participation in television programmes or authorship of a book, this will cause further and unwelcome disturbance in C's life.
Legal restraints upon access, publicity, and disclosure in Children Act proceedings.
v
Scott [1913] AC 417.
Access
v
Allan [2002] Fam 261, [2002] 1FLR 565 in which she summarised the effect of the current procedures in family proceedings as an exception to the general rule as follows at paragraph 43:
"43 with the exception of Wardship and certain declarations in medical cases heard in the High Court, the jurisdiction of the High Court Family Division and of the County Courts and Family Court jurisdiction, whether public or private, remains based on Statute and regulated by the statutory framework. The hearing of cases is divided into those which are heard in open court and those heard in chambers. The way in which those cases are heard are regulated by Rules and not by custom. In all cases, except adoption which has its separate Adoption Rules 1984, the Family Proceedings Rules 1991 direct the court and the parties to the procedure to be adopted and the way in which the case is to be heard."
"(7) Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part [Part IV] applies shall be in chambers."
V-H:
"Despite the arguments advanced by Dr P, it is abundantly clear that the courts are bound by R 4.16(7) to hear child cases generally in private. That was obviously the intention of the Rules Committee and it follows the long-established practice in the hearing of child cases. Subrule (7) allows for all or part of the case to be heard in public. In the light of the long-established practice it is unlikely that the judges will, other than rarely, hear the evidence relating to the welfare of the child in public. The judgment is in a somewhat different position. It may be that the practice of giving judgment in private is partly due to the parties not asking for it to be heard in public and partly because in the County Court, where thevast
majority of children cases are heard, it is less likely that there will be issues of public interest. Where issues of public interest do arise it would seem entirely appropriate to give judgment in open court providing, where desirable in the interests of the child, appropriate directions are given to avoid identification. If the case raises issues of principle or law, the judgments are increasingly provided to the law reporters and are published in the large number of law reports which report family cases. For the majority of cases are of no interest to anyone beyond the parties and their families."
"Appeals in the Court of Appeal are almost invariably heard in public but oral evidence is almost never given and the appeal is conducted on the documents written and oral argument. The documents placed before the Court of Appeal include a transcript or agreed note of the judgment of the court appealed and frequently some or all of the transcript of the proceedings. It is the practice for the Court of Appeal to give a direction for non-identification of the child in child appeals, exercising the High Court's inherent jurisdiction to protect the child."
But see the further observations of Thorpe LJ in Pelling
v
Bruce-Williams (Secretary of State for Constitutional Affairs Intervening) [2004] EWCA Civ 845; [2004] 2FLR 823 as quoted below at paragraph 41.
v
United Kingdom: P
v
United Kingdom (2002) 34 EHRR 529; [2001] 2FLR 261 in which the ECtHR held that the provisions of Rule 4.16(7) were Convention compliant. It stated at paragraph [39]:
"The applicants submit that the presumption in favour of a private hearing in cases under the Children Act 1989 should be reversed. However, while the court agrees that Art 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 (see Campbell and Fellv
United Kingdom (1984) 7 EHRR 165, Paras 86-87), although the need for such a measure should always be subject to the court's control (see, for example, Riepan
v
Austria (Case 35115/97) (unreported) 14 November 2000). The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Art 6(1).
[40] Furthermore, the English Tribunals have a discretion to hold Children Act 1989 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."
Publicity and Disclosure
"(1) The publication of information relating to proceedings before any court sitting in private shall not in itself be contempt of court except in the following cases, that is to say:
(a) where the proceedings
(i) relate to exercise of the inherent jurisdiction of the High Court in respect of 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 summary of the whole or part of an order made by a court sitting in private shall not in itself be contempt of court except where the court (having power to do so) expressly prohibits publication.
(3)
(4) Nothing in this section shall be construed as implying with 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."
"Communications of information relating to proceedings
10.20A
(1) This rule applies to proceedings held in private to which these Rules apply where the proceedings
(a) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(b) brought under the Act of 1989; or
(c) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.
(2) For the purposes of the law relating to contempt of court, information relating to the proceedings (whether or not contained in a document filed with the court) may be communicated
(a) where the court gives permission;
(b) subject to any direction of the court, in accordance with paragraphs (3) or (4) of this rule; or
(c) where the communication is to
(i) a party,
(ii) the legal representative of the party,
(iii) a professional legal adviser,
(iv) an officer of the service or a Welsh Family Proceedings Officer,
(v)
the Welfare Officer,
(vi)
the Legal Services Commission,
(vii)
an expert whose instruction by a party has been authorised by the court, or
(viii)
a professional acting in furtherance of the protection of children.
(3) A person specified in the first column of the following table may communicate to a person listed in the second column such information as is specified in the third column for the purpose or purposes specified in the fourth column."
v)-(vii);
see also para [64]-[65].
Section 97 of the Children Act 1989
"97. Privacy for children involved in certain proceedings:
(1) Rules made under Section 144 of the Magistrates' 1980 may make provision for a Magistrates' Court to sit in private in proceedings in which any powers under this Act the Adoption and Children Act 2002 may be exercised by the court with respect to any child.
(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 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.
(3) In any proceedings for an offence under this section it shall be a defence for the accused person to prove that he did not know, and had no reason to suspect, the published material was intended, or likely, to identify the child.
(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order.
(5) For the purposes of this section
"publish" includes
(a) include in a programme service (within the meaning of the Broadcasting Act 1990); or
(b) caused to be published; and "material" includes any picture or representation.
(6) Any person who contravenes this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 of the standard scale."
v
BBC [2001] Fam 59 at 78f and HM Attorney General
v
Pelling [2005] EWHC 414 (Admin); [2006] 1 FLR 93 at para [28]. It was also briefly mentioned in the form in which the section was originally enacted in the Children Act 1989 (i.e. as relating only to proceedings in the Magistrates' Court) in Re: PB at 768 G-H. Referring to the question of privacy for proceedings in the magistrates' courts, Butler-Sloss LJ said:
"In the Magistrates' Courts the procedure hasvaried
in the past according to whether the case is before 1991 or public or private cases. Family proceedings now heard in the Magistrates' Courts are bound by s.97 of the Children Act 1989 amending s.69 of the Magistrates' Courts Act 1980 and by r. 16 (7) of the Family Proceedings Courts (Children Act 1989) Rules 1991. In general the public is not admitted to family proceedings in the Magistrates' Court, but the press are often admitted."
v
Bruce-Williams (Secretary of State for Constitutional Affairs intervening) [2004] EWCA Civ 845; [2004] 2 FLR 823 at para 16, where, giving the judgment of the court, Thorpe LJ stated at paragraph [53] that section 97(2) of Children Act 1989 did not extend to appellate proceedings in the Court of Appeal.
Section 39 of the Children and Young Persons Act 1933
"(1) In relation to any proceedings in any court the court may direct that
(a) No newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom proceedings are taken, or being a witness therein;
(b) No picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court."
v
Bruce-Williams (see above) the appellant took objection to a notice to the public regarding reporting restrictions posted outside the court. The Court of Appeal held that the court had jurisdiction to impose such restrictions under the inherent jurisdiction of the court in relation to children, and under section 39 of the 1933 Act, at the court's discretion. Having so stated at paragraph [54], Thorpe LJ went on:
"But it is not so evident that either the inherent or statutory jurisdiction justifies the imposition of an automatic restriction without the exercise of a specific discretion in the individual case. Indeed in his subsequent written submissions, Mr Cobb suggests that the future the court should, both at the outset and the conclusion of each appeal concerning children, exercise its specific discretion either to impose or refuse prohibition on the identification of the parties to the appeal. It would, therefore, seem to us to be desirable for the Master of the Rolls and the President to review the standard practice of this court to reflect developments since the decision pronounced in Re: R (Minor) (Court of Appeal: Order against Identification)[1999] 2 FLR 145 in 1998. This reconsideration should perhaps extend to applications to permission to appeal listed for oral hearing. In relation to such hearings, Mr Cobb submits that the need for caution is all the greater given that:
(a) permission to appeal is ordinarily sought in the first instance court where statutory protection applies;
(b) applications for permission to the Court of Appeal are ordinarily considered by a single Lord Justice on paper which would have the protection of confidentiality under R 52.3(3)-(4)
(c) oral hearings for permission are often listed without notice which the respondent is not present to argue against publicity."
"Policy questions do have to be addressed against this background: in reality, although the Family Proceedings Rules 1991 confer on the judge in any case the discretion to lift theveil
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."
view
to making decisions on the matters of policy involved.
The Grounds of Appeal.
Discussion
Section 97 of the Children Act 1989
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights."
view
that, on a straightforward reading, the words themselves are to be read as limited to the duration of the proceedings; but, even if this were not so, the terms of s.3 of the 1998 Act require that the legislation be so construed
values
under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary. The justification for interfering with or restricting each right must be taken into account and, finally, the proportionality test must be applied to each.
"There is express approval of the methodology in Campbell 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 on 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."
victim
or witness in those proceedings. In such an extreme case, both authorities make clear that the grant of any such injunction would and should be rare indeed. However, neither decision was concerned with an order directed to a parent in Children Act proceedings in order to prevent public discussion by the parent of arrangements made, proposed, or ordered in relation to his child, when such discussion would be harmful to the welfare of that child. In such a case, as it seems to me, the observation of Lord Steyn that earlier case law on the inherent jurisdiction of the High Court may be relevant in regard to the balancing exercise to be carried out under the ECHR provisions, applies, because the injunction is sought and granted as part of the court's consideration of a question regarding the upbringing of the child concerned: see s.1 (1) of the 1989 Act. In such a case, the child's welfare, which of course includes respect for his or her privacy free from damaging publicity, is the court's paramount consideration see Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 per Ward LJ at 23C-E, 23H-24A, 28B-D, 29D-E and per Sir Thomas Bingham MR at 33B-D. Nonetheless, it does not exclude the necessity for the court to consider (a) the right of the child under Article 8 to privacy, both in relation to the proceedings and the confidentiality of his or her personal data, (b) the right of the parent under Article 10 to tell his or her story to the world and, (c) in the case of an application by media interests, their wish to publish or broadcast the story and/ or to comment on the issues involved.
victims
and witnesses. I do not so hold, as the matter does not arise directly in this appeal and has not been argued before us. Quite apart from any differences in wording, there is in relation to criminal trials no similar restraint upon reporting the detail of the trial to that embodied in s.12 (1) AJA. Thus the effect of permitting a newspaper to report the identity of a child or young person in a case embodying lurid detail as to which there is no restraint on reporting, may have a far more devastating effect on the Article 8 rights of the child concerned. And, even if the imperative of restrictive construction applies to s.39 of the 1933 Act, judges in criminal proceedings will enjoy a power deriving from the child's Convention rights to make orders similar to those made hitherto, provided that the court has considered the question with care in the course of undertaking the requisite balancing exercise between the effect upon the Article 8 rights of the child concerned and the Article 10 rights of the media: see Re S at paras 23 and 26-7.
The Original Injunction (November 2004)
very
different. In November 2004, the matter came before the judge as a matter of emergency in the course of part-heard residence and contact proceedings in which the behaviour and attitudes of the father in relation to his responsibilities in respect of C were highly material to the issues before the court (see paragraph 6 above). The matter was placed before the judge on the basis that the e-mail of 10 October 2004 showed that there had been a direct publication of information concerning the care and upbringing of C; that there was likely to be publication of details of the case in the future; and that there was likely to be publication of matters concerning C's upbringing and care then under consideration in the proceedings. In this respect the mother relied on the fact that the e-mail was headed "ongoing"; that it contained the following phrase "I could tell you something in person also about the way in which CAFCASS are handling matters that is bad for A as well that I cannot write"; and that it pronounced an intention to "write that story up one day". Finally, the e-mail revealed on the part of the father a determination to return with C to Portugal to retrace and re-examine the steps and incidents which occurred during his abduction of her and, in this connection, himself to go the following week to Portugal to make a
video
diary record of his period in Portugal with C for the purpose of supplying "any good footage" to a television company".
v
Harris; Attorney General
v
Harris [2001] 2 FLR 895 at 950 Those terms were
very
general (see paragraph 6 above), However, the father was not present and had supplied no statement to give an account of what he did or did not propose to do. In those circumstances, in the light of the authorisation given to the father to discuss matters with the persons set out at paragraph 2 (a) (e) of the order, and on the basis of the liberty to apply which was granted to enable him to return to court if he required modification of its terms, I do not consider that the form of the order was unduly wide as a matter of interlocutory relief.
The continuation of the injunction (August 2005)
voluntarily
or in response to enquiries, how the case had ended and that a shared parenting plan of the type which he advocated had in fact been effective in his case. However, the judge did not address the father's assertion that it would unduly inhibit him in his work as a campaigning member for Fathers Need Fathers and as a McKenzie Friend to other fathers in that it was both artificial and unnecessary for him, when advising other fathers to put forward similar shared parenting plans, to be obliged to conceal that the reported case on such plans which commended there utility was that negotiated in his own case.
"That is an issue for Parliament, because Parliament has passed section 97(2) of the [Children] Act. I am not aware of any power that I have to subvert that provision."
"The concern is that we are in effect just taking the names out, but if the document is presented by the father then that would in effect would lead to the identity of C and potentially involve her in further media coverage."
She referred to the father's proposal that there be a press release, to which the mother did not in principle object provided that it was a brief release by both parents on the basis that the judgment concluded a one-off episode. However, she objected to this, stating that it would heighten the historical wrongness of what had happened in the past and put it back into the forefront of people's minds, again identifying C in that regard. She accepted that an order of the court would be a public document but submitted that the way the father would be likely to use it would, as she put it, "track back to defeat the anonymity the court is seeking to preserve". She observed that the purpose of the day's proceedings had been to attempt to give C stability and an end to any history or any continuing dispute between the parents. The judge observed that the "history" to which counsel referred was exempted from non-publicity. Counsel stated that she understood it to be the position that C knew nothing about the circumstances of what had happened when the father was arrested and that such knowledge would prove quite traumatic if she were informed.
" there is nothing to prevent you from reiterating matters that have been in the public domain. Whether it is wise or not is a matter for judgment of those who hold parental responsibility. The injunction manifestly exempts anything that has been in the public domain, unless the person the subject of the injunction has wrongfully disclosed it. Broadly speaking, anything that has got itself in the past into the public domain is not covered by the injunction anyway..."
"I want to give some thought to the way of expressing myself that will pay close regard to everyone's legitimate interests in this whilst keeping C's need for as peaceful life as she can decently have to the fore of my thinking."
In the event he continued the injunction in the terms originally granted.
view,
bearing in mind the position of the father as an active campaigner for improvement in the processes and outcomes of the family justice system and his role as an advisor to others in that connection, as well as his
views
and interests concerning shared parenting arrangements, the terms of the injunction were far too wide in their effect, preventing the father as they did from referring to his own case as one satisfactorily resolved by the particular shared parenting agreement approved by the judge. As an annex to the skeleton argument in this case, the terms of which are fully set out at paragraphs 106 to 108 of the judgment of Lord Justice Wall, the father itemises at paragraphs 1-8 a list of those matters which he wishes to be free to discuss or communicate, to which I have already referred in summarised form at paragraph 66 above. Like Lord Justice Wall, with one exception, I consider that those wishes are legitimate and, as I would judge, none relates to the upbringing of C or substantially engages her welfare interests in that respect.
view.
It is one thing for the father to discuss with C as he may (but which I hope he will avoid) past events relating to her abduction. It is quite another to revive the events in her mind and seek her participation in their repetition for the purposes of publishing his sense of deep-rooted grievance about his arrest and imprisonment in Portugal and the resulting legal proceedings. Such an exercise would not fall within the proviso contained in paragraph [3] of the injunction, but would amount to exploitation of C and the father's parental powers and influence over her in his interests, and not hers. As such, it would amount to a failure to respect her Article 8 rights wholly disproportionate to any Article 10 rights of his own.
Conclusion
venture
to think that in practice most parents will recognise it. But let those parents who do not be in no doubt that the court's powers under the ss 1 and 8 of the 1989 Act remain, as do its powers to grant injunctions.
view
of the father. She appears to have accepted shared residence with reluctance, recognising that the welfare of her child in that respect was a separate matter from the question whether (as the mother plainly believed and believes) the father's concerns to publicise his daughter's identity are focused on his own interests and the interests of fathers generally rather than upon those of C. C's own interests are plainly best promoted by leaving the past behind and avoiding, rather than receiving, publicity in connection with family proceedings. It appears to be the father's intention to publicise the fact that he was involved in proceedings in relation to his own daughter C which ended in the shared parenting agreement publicised by Hedley J in his judgment and that the child is happy and stable as a result. By reason of s.12 AJA he will not be at liberty to re-canvass the issues explored in the Children Act proceedings and, on that basis, I am not prepared to infer that the nature of any such publication will be damaging to C. Nor do I consider it necessary to refer the matter back to the judge for consideration of that issue. However, if the father continues to fail to recognise his former parental shortcomings and persists in his attempts to involve C in his attempts at self-exculpation, I fear that further proceedings will ensue. I hope that he will take heed of that warning.
Lady Justice Arden:
Lord Justice Wall
This case, it seems to me, raises in acute form the purpose and function of long-term injunctions in Children Act proceedings, and the circumstances in which a litigant finds him or herself when restrained by such an injunction, namely precisely what they can and what they cannot say, and to whom and also, of course, what function the injunction itself actually is to fulfil.
View,
which was subsequently published at [1995] 25 Fam Law 136 and in which I advanced what I perceived to be the three most compelling reasons for promoting open justice in the family jurisdiction. These were: -
(1) to enable informed and proper public scrutiny of the administration of (family) justice;
(2) to facilitate informed public knowledge, understanding and discussion of the important social, medical and ethical issues which are litigated in the family justice system;
(3) to facilitate the dissemination of information useful to other professions and organisations in the multi-disciplinary working of family law.
26. .. this case provides a strong argument for those who. like myself, take theview
that the decisions 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. No fair minded outsider reading the judgments of HHJ Hayward-Smith QC and Pauffley J could possibly conclude that either decision represented a miscarriage of justice
27. This case is not about social engineering or about the State intervening in an improper and heavy-handed fashion in normal family life to remove children from honest and law-abiding parents whom it deems insufficiently intelligent to care for them. Like all care cases, it is about children suffering, or being likely to suffer, significant harm due to the care or lack of it given to them by their parents ..
Having reviewed the decisions in the courts below, I commented: -
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". Moreover, judges communicate in carefully reasoned judgments, not sound-bites. Thus, even when a judgment is published, it is likely to be read in its entirety only by lawyers
33. What is manifestly unacceptable is the unauthorised and selective leakage of one party's case, or selective and tendentious reporting in breach of the rules relating to the confidentiality of the proceedings. This, in my experience, inevitably leads to unbalanced mis-reporting of the difficult and sensitive issues with which the courts have to grapple. In my judgment, therefore, the best way to tackle the problem is by greater openness in the decision-making process along the lines that I have described.
vindicate
(or at the
very
lowest to provide an apologia for) his criminal conduct in abducting her to Portugal in 2001.
CA 1989, section 97: the arguments for the appellant
(1) whether the prohibition on publication imposed by the section was limited to the currency of the CA 1989 proceedings, or continued after the proceedings had concluded (and if so, for how long);
(2) whether CA 1989, section 97(4) can be construed, in compliance with section 3 of the Human Rights Act 1998 (hereafter HRA 1988) so as to permit the court to dispense with the prohibition on publication where the ECHR right to free expression under Article 10 requires it.
vilified
in her local community. Her two elder children were also ostracised. She wished, with the help of a journalist, to write a story to set the record straight. Plainly, for the exculpation to be effective, the mother and the children had to be named.
v
BBC [2001] 1 FLR 197 (Kelly) to which I will return later in this judgment.
(1) CA 1989, section 97 is a penal enactment, and so must be construed strictly. It is a principle of legal policy that a person should not be penalised except under a clear law. Thus, if the legislator's intention is doubtful, the doubt must be resolved against the imposition of a penalty. Reference was made to the 4th edition of Bennion on Statutory Interpretation at pp.705-6.
(2) In the present case, that principle is reinforced by rights arising under ECHR. Obviously, CA 1989, section 97 is a restriction on the right of free expression under ECHR Article 10. It follows that any restriction must be formulated with precision. This requirement of legal certainty is inherent in the provision, in Article 10 (2), that the exercise of the freedom may be subject to such restrictions or penalties as are 'prescribed by law'.
(3) CA 1989, section 97 (2) prohibits publication of material likely to identify 'any child as being involved in any proceedings' (emphasis added). It is difficult to see how this can include material identifying a child as having been involved in proceedings. Moreover, the proceedings are defined as 'proceedings in which any power under this Act may be exercised by the court', which appears clearly to contemplate a future exercise of the power. The language does not appear to be capable of covering the historical exercise of powers under the Act in concluded proceedings, in which therefore there is no further question that powers 'may be exercised'.
(4) A construction in which the prohibition ends with the proceedings puts a definite date on the ending of the prohibition. If the subsection is construed as prohibiting identification of children involved in concluded proceedings, the position is uncertain and lacking in definition: when does the prohibition end? Such a construction contravenes the principles referred to in (1) and (2) above. The only alternative construction is that the prohibition ends with the child's minority, but that, as in the present case, may be a
very
long time off. If the draftsman had intended that, he would surely have provided for prohibition on publication during the child's minority. Moreover, it is extremely doubtful whether such a long prohibition could be justified under ECHR Article 10, which requires that restrictions and penalties on the exercise of freedom of expression should respond to a pressing social need, and be no more than proportionate to the legitimate aim which the prohibition is designed to achieve.
(5) This point is reinforced by consideration of CA 1989, section 97 (4), which permits the court to lift the prohibition 'if satisfied that the welfare of the child requires it'. This subsection must be construed as permitting the court to lift the prohibition where ECHR Article 10 requires it. Nevertheless, it is difficult to see that the draftsman would have omitted to include express reference to wider considerations than the interests of the child, if the prohibition on publication goes beyond the currency of the proceedings.
(6) CA 1989, section 97 (2) makes no reference to whether the Children Act proceedings are held in private, or in open court. It applies equally to both. It is inherent in B & P
v
United Kingdom [2001] 2 FLR 261 that on occasions, Children Act proceedings will be heard in open court. This is a remarkable omission from s.97 (2), if the prohibition on identification continues after the proceedings have been heard and decided. On the other hand, if the prohibition affects only pending proceedings, the omission is to be expected, because the question whether to hold the proceedings in private or in open court will be as yet undecided.
v
Godin-Mendoza [2004] 2 AC 557. He submitted that section 3(1) may require a court to depart from the unambiguous meaning the legislation would otherwise bear, and to read in words which change the meaning of the enacted legislation so as to make it ECHR compliant, provided that the court did not adopt a meaning inconsistent with a fundamental feature of the legislation.
CA 1989, section 97: the argument for the friend to the court
v.
Pelling [2006[ 1 FLR 93.
Conclusion on CA 1989, section 97
viewpoint
argued. However, apart from the natural meaning of the words used in the section, I am, I think, particularly influenced by three factors. The first is the fact that the section creates a criminal offence (CA 1989, section 97(6)) and therefore needs to be construed strictly. The second is that the use of the phrase "as being involved in any proceedings" in CA 1989, section 97(2)(a) connotes the identification of a period when those proceedings are pending and not concluded. The third is that the thrust of the authorities - to which I will refer later in this judgment - is that there is no special privilege accorded to children who are the subject matter of proceeding save as is strictly necessary for their protection in the context of the proceedings themselves: see R
v
Central Independent Television PLC [1994] Fam 192 at 207 per Waite LJ.
viewed
retrospectively and in the light of a subsequent publication of information, the information so published related to a child who had been involved in proceedings.
The consequences of the agreed construction of CA 1989, section 97
What the appellant wants to discuss or communicate
1. He wants to publicise the agreement about shared parenting and its benefits, and to encourage others to go down the same route, something which, in my judgment given on 8 December 2005 I described as 'an entirely laudable goal'. He has been asked to assist journalists making useful programmes about mediating solutions.
2. He wants to communicate to the community in which he lives, in which the story is well-known, how matters have ended. He is prevented from explaining to people what has been the outcome.
3. He is regularly contacted by the media as a moderate and well-informed spokesperson on the family justice debate; he is unable to explain how matters concluded, and worries, given the background, that there is whispering that something new and discreditable has happened, meriting a blanket injunction.
4. He campaigns for better, and more open, family justice and for several organisations hoping to bring about change to the family law. He cannot refer to his own experiences in the family justice system. For example, he would wish to take
vigorous
issue with the President's opinion published in the Times of 31st January 2006 that a 50-50 contact regime for a child is 'simply not practicable', and can only cogently do so by reference to his own experience.
5. In particular he campaigns for equal sharing of tax credits and child benefit (and other benefits) where there is shared parenting. The media are rightly interested in this; it is an issue which, according to HM Revenue and Customs, generates a greater workload than any other. Basic tax credit and working tax credit and child care allowances can be a
very
significant proportion of the total income of people on lower incomes. He is a potentially excellent spokesperson for this, because he has a particularly clear cut case for a share in these credits, having a fully shared care solution sanctioned by the High Court.
6. In short, the injunction prevents him being as politically active as he would wish, because he believes that the most effective lobbying, comments, or campaigning involve discussion of the human aspects of individual cases, specifically his own, both positive (the outcome) and negative (the delay, and what he sees as a systemic tendency for parties to fight for court orders, instead of drawing up their own solutions).
7. He uses the internet a lot, putting holiday snaps and so forth on the net, and E-mailing people about C.
8. Points raised in the E-mail to the BBC reporter which triggered the injunction application:
(i) Severe delays in dealing with even a simple case.
(ii) CAFCASS's lack of resources and expertise, yet having a primary role as the only supplier of support and advice, and of reports to the court. The Appellant made several complaints about CAFCASS to the judge, and will want to speak of concrete complaints. There is a passage in the e mail, relied on in the skeleton argument in support of the grant of the injunction, for the November 2004 hearing:
"I could tell you something in person also about the way CAFCASS are handling matters that is bad for A as well that I cannot write."
The appellant can no longer recall what he had in mind in this passage.
(iii) A matter that may possibly be newsworthy, and might be the subject of a television film: taking C back to Portugal, where she witnessed the appellant's arrest, and gradually over the years explain things to her. The appellant wishes to write that story one day, not to be negative about the mother, but about the system. The appellant has deep-rooted grievances about how his arrest, imprisonment in Portugal, and legal proceedings were handled. He also wishes to write a book about his travels with C: there were 6 other trips including to North Africa. (emphasis mine)
What the appellant does not want to discuss or communicate
9. He does not wish to say anything damaging or sensitive about C. He deals with the media only occasionally and responsibly. He has been careful not to publicise aspects of the proceedings in private, or to denigrate or criticise C's mother, which he does not think is in C's interests. He simply wishes to debate the shortcomings of the family justice system. Between December 2003 and the grant of the injunction, he gave at least 15 interviews to broadcast media about issuesvery
high in public awareness, as a result of the activities of Fathers 4 Justice; he said nothing contentious or in breach of any confidence. See also the draft press release which he suggested for distribution at the conclusion of the case, which appears entirely unobjectionable.
10. In a recent E-mail to C's mother, he suggested, unprompted, the following addition to the 1st schedule to the 11th August 2005 order:
"We both agree to place trust in each other, rather than a court order, to behave with appropriate parental responsibility, and in accordance with the Welfare Checklist, in respect of any mention there may be of [C] in any public domain. We both agree that we shall endeavour, if ever speaking publicly, to act in a way to minimise interest in her, respect her privacy, and not speak negatively of either party in terms of past actions or behaviour, as that may be hurtful for [C]. We shall endeavour, wherever possible, by discussion and negotiation, to present a united front in any public matters as that is in [C's] best interests."
Portugal. Portugal affected (C). We had a fab 5 1/2 weeks she was 100% HAPPY SAFE AND AS USUAL WELL MOTIVATED AND NURTURED She loves travel and meeting new people. The end was dramatic and unnecessarily unpleasant for her. Anyway, what do I want to do about it: first, (C) has to go back her memory is "interrupted" but she has an extremely good memory. She won't ever forget. The best way forward is to take her back and then gradually over the years explain things to her. To do otherwise is denial that will likely have adverse psychological consequences for her. Ditto myself. I went back to Portugal in December but didn't have enough time to go see the jail and Cid chaps there which I did want to do. And I slightly bottled out. I need to do it and am going to.
Best thing for all is if I went back and (Mrs C) came down with (C). See people again who we encountered. Let (C) see that no-one was inherently unpleasant or hurt. Get it out in the open for her (and the Portuguese arevery
good people
very
family focused and were
very
pleasant to me under the circumstances and would welcome us back to allow the episode to come to a proper conclusion).
Anyway I'm going to go to Portugal myself over the next few weeks.
I am DEFINITELY writing that story up one day (not negative about (Mrs C) but about the system) and also doing a book on my travels with C there were six other trips including to N Africa it was always my plan to do so as travelling with an infant is magical. The latter is likely to be a big hit I have excellent material and of course a good spin at the end.
I have always planned to do avideo
diary record of things going back to Portugal, meeting the jailers in Portugal, etc especially one really scary looking jail I popped into which has apparently been turned into a museum it is so scary looking from the outside.
Can't really afford a good camera. Carlton would lend me one if they had any but they don't they are so underfunded these days they don't even get lunch on the company. They have said they want any good footage. Any chance of borrowing a handy-cam type thing from anyone at your end.
It's half term soon. I really think a little trip for everyone to Portugal would go a long way to allowing us to put all this crap behind us. If the parents agree to stop disputing things then the court ends the parents RULE the proceedings if in unison. (Mrs. C) fails to understand this. Only losers have to go through all this court stuff.
If there were any poss of a loaner handicam I'm really in a hurry cos might go next week.
van";
and that "since he had not obtained the consent of her mother, his action in taking C out of the country was treated as child abduction" (my emphasis). I shall return to this point later.
Health warning
The injunction made by Hedley J
Is AJA 1960 section 12 in play?
The authorities
v
United Kingdom; P
v
United Kingdom [2001] 2 FLR 261, such cases, in my judgment, are of only tangential relevance to the issues raised by this case.
v
Allan and Another [2002] Fam 261 are relevant in so far as they relate to the publication of information conveyed in the course of proceedings heard in chambers. Cibbery
v.
Allan, however, was not a child case, and CA 1989, section 97 was not engaged. Nonetheless, I extract from it an observation of Dame Elizabeth Butler-Sloss P at [2002] Fam 261, 288 that: -
It will . require the parties and the court to consider in each case whether the proper working of the administration of justice requires there to be continuing confidentiality after the end of the proceedings. That is, in myview,
no bad thing.
I respectfully agree, and will return to what I see as the significance of this observation at the end of this judgment.
voice"
when addressing the meaning of the word "publication" in AJA 1960, section 12: - see [2004] 2 FLR 142, at 167-8.
v
Pelling [2006] 1 FLR 93 is also plainly relevant, although in my judgment equally plainly distinguishable from the facts of the instant case. In that case, the contempt with which Dr. Pelling was charged was the deliberate publication of a judgment which had been (equally deliberately) delivered in private. Dr Pelling's argument that the common law, combined with ECHR entitled him to publish the judgment has been concluded against him both by this court and by the European Court of Human Rights see Re PB (Hearings in Open Court) [1996] 2 FLR 765 and B
v
United Kingdom; P
v
United Kingdom [2001] 2 FLR 261. It was not accordingly open to Dr Pelling to reopen the question. The Divisional Court, unsurprisingly in my
view,
concluded that in proceedings under CA 1989, the protection of the interests of the child concerned was a function of the administration of justice, and that the publication of a judgment, which the court had determined should be kept private, was an interference with the course of justice. In my judgment that is plainly correct, but it is equally not determinative of the issues in the present case.
v
W, L, W, T and R (by the Children's Guardian) [2006] 1 FLR 1. Whilst Re S is plainly a decision of considerable significance in its emphasis on the balance to be struck between Article 8 and Article 10 rights, it does not address either of the issues which, in my judgment are at the heart of this case, namely (1) the construction of CA 1989, section 97(2); and (2) the circumstances in which the court is properly seized of an issue in proceedings under CA 1989; in which the child's welfare requires the court to take action to prevent the child's exposure by one of her parents to a particular form of publicity which, in the
view
of the court, is inimical to her welfare. In my judgment, the principles applied in the case of Re Z (A minor) (Freedom of Publication [1997] Fam 1 (Re Z) which I examine below continue to apply in such a case.
(1) that the foundation of the jurisdiction to restrain publicity to protect a child's private and family life was now derived from Convention rights rather than the inherent jurisdiction of the High Court;
(2) that where the right to private and family life under article 8 of the Convention was in conflict with another's right to freedom of expression under article 10 of the Convention, neither article as such had precedence over the other, the correct approach being to focus on the comparative importance of the specific rights claimed in the individual case, with the justifications for interfering or restricting each right being taken into account and the proportionality test applied to each;
(3) that although the ordinary rule was that the press could report everything that took place in a criminal court, it was the duty of the court to examine with care each application for a departure from the rule by reason of article 8, but in so doing the court was not, given the number of statutory exceptions to open court reporting, to create further exceptions by a process of analogy save in the most compelling circumstances;
(4) that, on an application of those principles, the interference with the child's article 8 rights, albeit distressing, was indirect and not of the same order when compared with cases of juveniles directly involved in criminal trials; that, by contrast, the article 10 rights at issue concerned the freedom of the press, subject to statutory restrictions, to report proceedings at criminal trials, which was avaluable
check on the criminal process and promoted public confidence in the administration of justice; and
(5) that the consequence of granting the relief sought, which could thereafter equally be invoked by adult non-parties faced with damaging publicity as a result of a criminal trial, would be the inhibiting of the press to report criminal trials, at the expense of informed debate about criminal justice; and, that, accordingly, there would be no injunction in respect of publication of the identity of the defendant or of photographs of the defendant or her deceased son.
Re Z (A minor) (Freedom of Publication) [1997] Fam 1
valuable
work of the institution and thereby to enhance Z's welfare and self-esteem. Accordingly she applied to court for the injunctions to be discharged or
varied
in order to permit the production and broadcast of the programme. Cazalet J refused the application as not being in the best interests of the child. Z's mother appealed, contending that the court should never override the reasonable decision of a responsible parent and that freedom of publication should prevail.
(1) that, where the court was not exercising a supervisory role over an aspect of a child's care and upbringing, it should not, in the absence of statutory warrant to restrain publicity and of any threat to the integrity of its proceedings, restrain publications which were not directed at the child, his carers or his upbringing and which only peripherally related to him; but that where the court was required to determine any question with respect to the upbringing of the child, the welfare of the child was, byvirtue
of section 1(1) of the Children Act 1989, its paramount consideration; that such a question arose where the central issue for determination related to the manner in which the child was being reared; and that, accordingly, since the issue for determination, namely whether Z should be identified and participate in a film about her, was such a question, the court's paramount consideration was her welfare to which the public interest in freedom of publication was subordinated.
(2) That, although the decision of a devoted and responsible parent was not to be disregarded or lightly set aside, the court's duty was to exercise an independent and objective judgment of where the child's welfare lay, and where it differed from that of the parent, to give effect to its own judgment; that since the judge, treating Z's welfare as paramount, had concluded that the proposed publicity would be harmful to her, he had rightly refused to discharge orvary
the injunctions; and that, accordingly, his decision could not be impugned.
v
British Broadcasting Corporation [2001] Fam 59. K was a boy of 16 who lived with his grandmother. He left home to join a religious group and his whereabouts were unknown. K was made a ward of court by his grandmother and a "seek and find" order was made in relation to him. The court enlisted the help of the media and gave the Official Solicitor permission to give the matter publicity in order to help trace K.
(1) that since K's participation in the BBC interview did not raise any question with regard to his upbringing his welfare was not the paramount consideration;
(2) that there was a clear public interest in broadcasting the interview, the suppression of which would involve a derogation from the right to freedom of expression, including the right to impart and receive information, guaranteed by article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(3) that no "clear and identifiable harm" had been established to justify its suppression; and
(4) that since, in the unusual circumstances, further publicity was in the best interests of the child no case had been made out that it was necessary to restrain the broadcast of the interview.
view
was plainly correct, Munby J followed the categorisation of cases involving restraints on publication identified by Ward LJ in Re Z. At [2001] Fam 59 at 74, Munby J said: -
As is well known, the authorities in this field draw a distinction between the court's jurisdiction to grant so-called "in personam" injunctions and its jurisdiction to grant so-called "in rem" injunctions or "injunctions contra mundum". The court has power, exercising normal equitable principles, to grant an injunction restraining a child's parents or other carers from misusing information which is properly confidential to the child: see In re C (No 2) [1990] Fam 39 and In re Z [1997] Fam 1. But quite apart from this equitable jurisdiction, the court, as Thorpe LJ put it In re G (Celebrities: Publicity) [1999] 1 FLR 409, 414-415, "has jurisdiction in personam to restrain any act by a parent that if unrestrained would or might adversely affect the welfare of the child the subject of the proceedings". This jurisdiction can be exercised and a parent can be restrained either by an in personam injunction or, where appropriate, as explained by Ward LJ In re Z [1997] Fam 1, by a prohibited steps order under section 8 of the Children Act 1989. Well known examples of the exercise of this jurisdiction are to be found In re Z [1997] Fam 1; In re G [1999] 1 FLR 409 and Av
M (Family Proceedings: Publicity) [2000] 1 FLR 562. I say no more about this branch of the court's jurisdiction since it is common ground that I am concerned exclusively with an injunction contra mundum.
As is also well known, the result of the analysis In re Z [1997] Fam 1 is that in relation to the media the exercise of the court's inherent parens patriae or wardship jurisdiction is divided into three parts: the first part, in which the jurisdiction is not exercisable at all and the child is left to whatever remedies against the media the law would give an adult in comparable circumstances; a second part in which the jurisdiction is exercisable, but in circumstances where, because the court is exercising only its "protective" jurisdiction, the child's interests are not paramount and where a so-called balancing exercise has to be performed; and the third part, in which, because the court is exercising its "custodial" jurisdiction, the child's interests are paramount. Well known examples of cases falling into the first category, where no injunction can be granted, are In re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47; Rv
Central Television plc [1994] Fam 192 and M
v
British Broadcasting Corporation [1997] 1 FLR 51. Familiar examples of cases falling into the second category, where there is a so-called balancing exercise, are In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211 and In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100. So far as I am aware, and none of the counsel appearing before me was able to identify any other example, In re Z [1997] Fam 1 is the only reported case falling within the third category.
Conclusions
very
happy holiday together, this, to my mind, is not different in substance from the activities of many families which operate a "blog" and exchange information and news about the progress of themselves and their children on a web-site. Against such activities there seems to me to be little point in having a blanket injunction which then exempts social and domestic purposes.
Outcome
Footnote
view
that it may take time for the implications of our judgments in this case to filter through, and there may be some initial debate in individual cases in relation to the application of our judgments to the facts of those cases. In these circumstances, it would plainly be sensible for every court, at what it perceives to be the conclusion of proceedings under CA 1989 to take a few moments to consider whether there are any outstanding welfare issues which require a continuation of the protection afforded during the pendency of the proceedings by CA 1989, section 97. My impression is that there are unlikely to be many cases in which the continuation of that protection will be required: such considerations are, however, in my
view best addressed at the time when the parties and their advisers are still before the court at the final hearing.