The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘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
‘The applicants submit that the presumption in favour of a private hearing in cases under the Children Act should be reversed. However, while the court agrees that article 6(1) states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a state to designate an entire class of case as an exception to the general rule where considered necessary for the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the court’s control. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by article 6(1).
Furthermore, the English tribunals have a discretion to hold Children Act proceedings in public if merited by the special features of the case, and the judge must consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. Turning to the facts before it, the Court notes that . . the judges at first instance and on appeal gave careful consideration and detailed explanations of their reasons for holding that the proceedings should continue in chambers.’
Judge Sir Nicholas Bratza said: ‘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.’
Residence and contact 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/ or the 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 various residences 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 . . 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 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).’
Judges:
Judge Sir Nicholas Bratza
Citations:
[2001] 2 FLR 261, 35974/97, [2001] ECHR 298, 36337/97, [2001] 2 FCR 221, (2002) 34 EHRR 19, [2001] Fam Law 506, 11 BHRC 667
Links:
Statutes:
Family Proceedings Rules 1991 4.16(7), European Convention on Human Rights 6(1)
Jurisdiction:
England and Wales
Cited by:
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Child X (Residence and Contact- Rights of Media Attendance) (Rev 2) FD 14-Jul-2009
The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude . .
Cited – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Cited – Lykiardopulo v Lykiardopulo CA 19-Nov-2010
The court was asked as to how a Family Division judge might decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. H and family members had . .
Cited – Doncaster Metropolitan Borough Council v Haigh FD 22-Aug-2011
The Council sought to have certain aspects of a care application put into the public domain which would normally have remained private. Application was also made (by the father and the child) for an order restricting the right of the mother to make . .
Cited – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
Lists of cited by and citing cases may be incomplete.
Family, Human Rights, Children, Media
Updated: 08 July 2022; Ref: scu.245940