P v BW
| Jurisdiction | England & Wales |
| Judgment Date | 2003 |
| Date | 2003 |
| Year | 2003 |
| Court | Family Division |
Child – Court proceedings in relation to child – Proceedings in private – Publication of information – Right to fair trial – Whether court proceedings in private in relation to child contrary to right to fair trial – Children Act 1989, s 97 – Human Rights Act 1998, Sch 1, Pt I, art 6, Family Proceedings Rules 1991, r 4.16(7).
Section 97(2) of the Children Act 1989, which provides that no person shall publish any material which is intended to, or likely to, identify any child as being involved in legal proceedings in which any power under the 1989 Act may be exercised by the court with respect to that or any other child unless the court is satisfied that the welfare of the child requires it, is compatible with art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) which provides for the right to a fair trial, including the right to a public hearing. Rule 4.16(7) of the Family Proceedings Rules 1991, which provides that unless the court directs otherwise, a hearing of proceedings under the 1989 Act, or a directions appointment in proceedings under the 1989 Act, shall be in chambers, is in conformity with art 6 of the Convention; Re P-B (a minor) (hearing in private) [1996] 3 FCR 705, and B v UK[2001] 2 FCR 221 considered; Clibbery v Allan[2002] 1 FCR 385 applied.
Cases referred to in judgmentAxen v Germany (1984) 6 EHRR 195, [1983] ECHR 8273/78, ECt HR.
B v UK[2001] 2 FCR 221, ECt HR.
Campbell v UK (1984) 7 EHRR 165, [1984] ECHR 7819/77, ECt HR.
Clibbery v Allan[2002] EWCA Civ 45, [2002] 1 FCR 385, [2002] 1 All ER 865, [2002] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565.
G (minors) (celebrities: publicity), Re[1999] 3 FCR 181, CA.
Handyside v UK (1976) 1 EHRR 737, [1976] ECHR 5493/72, ECt HR.
Klass v Germany (1978) 2 EHRR 214, [1978] ECHR 5029/71, ECt HR.
P-B (a minor) (hearing in private), Re[1996] 3 FCR 705, [1997] 1 All ER 58, [1996] 2 FLR 765, CA.
Pretto v Italy (1984) 6 EHRR 182, [1983] ECHR 7984/77, ECt HR.
R (Court of Appeal: order against identification), Re[1999] 3 FCR 213, CA.
R v Central Independent Television plc[1995] 1 FCR 521, [1994] 3 All ER 641, [1994] Fam 192, [1994] 3 WLR 20, [1994] 2 FLR 151, CA.
R v Chief Registrar of Friendly Societies, ex p New Cross Building Society [1984] 2 All ER 27, [1984] QB 227, [1984] 2 WLR 370, CA.
Riepan v Austria [2001] Crim LR 230, [2000] ECHR 35115/97, ECt HR.
Scott v Scott [1913] AC 417, [1911–13] All ER Rep 1, HL.
Silver v UK (1983) 5 EHRR 347, [1983] ECHR 5947/72, ECt HR.
Sutter v Switzerland (1984) 6 EHRR 272, [1984] ECHR 8209/78, ECt HR.
Szücs v Austria (1998) 26 EHRR 310, ECt HR.
Werner v Austria (1998) 26 EHRR 310, [1997] 21835/93, ECt HR.
ApplicationThe applicant, P, applied in January 2003 for a joint residence order in respect of his infant child and for trial of the application in open court with public pronouncement of judgement and a declaration of incompatibility of s 97(2) of the Children Act 1989 with, inter alia, art 6 of the European Convention for the Protection of Human Rights 1950 (as set out in Sch 1 to the Human Rights Act 1998) and on 17 March 2003 for permission to apply for judicial review of, inter alia, r 4.16(7) of the Family Proceedings Rules 1991, as being incompatible with, inter alia, art 6(1) of the convention. The respondent, BW, the child’s mother, opposed the applications. By order of Hughes J on 29 May 2003 the Crown was invited to be heard in the proceedings. Bennett J handed down judgment in the application for residence in private. The facts are set out in the judgment.
The applicant appeared in person.
The respondent appeared in person.
Stephen Cobb QC appeared for the Crown.
Cur adv vult
2 July 2003. The following judgment was delivered.
BENNETT J.[1] In January 2003 the applicant, the child’s father, applied for a joint residence order in respect of his 12-year-old son. The respondent, the child’s mother, opposes it. In his application the applicant applied also for:
‘3. Trial in open court with public pronouncement of judgment
4. Declaration of incompatibility of s 97(2) of the Children Act, 1989, with arts 6 and 10 ECHR.’
By a supplementary application dated 17 March 2003 the applicant moved for an order of certiorari to quash r 4.16(7) of the Family Proceedings Rules 1991, SI 1991/1247, and rr 4.23(1) and 10.20(3) so far as they prevent disclosure or inspection respectively of Children Act judgments, without leave of the judge or the district judge. It was said that those rules are incompatible with arts 6(1) and 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998).
[2] On 5 June 2003 I heard argument on those applications from the applicant in person, the respondent in person and from Mr Stephen Cobb QC, who
appeared on behalf of the Crown pursuant to an invitation by the court on 29 May 2003.
[3] This judgment on those and other legal issues is being handed down in open court but has been anonymised. I direct that nothing should be done or said which might lead to the identity of the child being revealed.
[4] It is appropriate to give a very short recitation of the background of this case. In 1986 the applicant and the respondent began to cohabit. In 1990 their child, who is the subject of these proceedings, was born. In January 1992 the applicant and the respondent married. The marriage quickly foundered. In 1995 the parties separated and the child thereafter lived with the respondent. The parties were divorced in December 1995. Proceedings were initiated in respect of the residence of the child. An application was made that the whole of the evidence, submissions and judgment should be in open court. The judge refused that application. The applicant appealed. His appeal was decided on 20 June 1996. The Court of Appeal dismissed it, see Re P-B (a minor) (child cases: hearing in open court) [1997] 1 All ER 58. In August 1996 the judge, having heard the evidence, decided that it was in the best interests of the child that a residence order should be granted to the respondent. The applicant did not seek to appeal that decision.
[5] The father was dissatisfied with the decision of the Court of Appeal and initiated an application to the European Court of Human Rights (the European Court) alleging a violation of his rights under arts 6 and 10 of the convention. His application was consolidated with another case and the two cases were orally argued on the 14 November 2000. On the 24 April 2001 the European Court gave its decision and found by a majority (five votes to two) that there had been no violation of art 6 and found unanimously that it was not necessary to consider separately the complaint under art 10 (see B v UK[2001] 2 FCR 221).
[6] Since the separation in 1995 the child has always lived with the respondent. The applicant had contact to the child from the separation until he voluntary chose not to have contact with the child between August 1996 and the beginning of 1999. Contact was then resumed. In early 2003 the father decided to initiate an application for joint residence and to challenge the validity of s 97 of the Children Act 1989.
[7] This judgment gives my reasons for (a) dismissing the applicant’s applications with reference to a declaration of incompatibility with the convention, (b) why the argument in relation to the applications on the 5 June was heard in chambers, and (c) why this judgment has been anonymised and why the judgment in relation to the substantive issue of residence of the child will be given in chambers ie privately.
[8] Section 4 of the Human Rights Act 1998 provides as follows:
‘(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.’
[9] Section 97 of the 1989 Act provides as follows:
‘(1) Rules made under section 144 of the Magistrates’ Courts Act 1980 may make provision for a magistrates’ court to sit in private in proceedings in which any powers under this Act may be exercised by the court with respect to any child.
(2) No person shall publish any material which is intended, or likely, to identify—(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates’ court in which any power under this Act … may be exercised by the court with respect to that or any other child; or (b) an address or school as being that of a child involved in any such proceedings.
(3) In any proceedings for an offence under this section it shall be a defence for the accused to prove that he did not know, and had no reason to suspect, that 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) cause 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 on the standard scale.’
Subsections (7) and (8) are not germane.
[10] The applicant has submitted that that section infringes both arts 6 and 10 of the convention. Article 6(1) provides:
‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly...
To continue reading
Request your trial
-
Re X (A Child) (Residence and Contact: Rights of Media Attendance)
...Civ 1776, [2007] 2 All ER 139, [2008] Ch 57, [2007] 3 WLR 222. Moser v Austria[2006] 3 FCR 107, ECt HR. P v BW[2003] EWHC 1541 (Fam), [2003] 3 FCR 523, [2003] 4 All ER 1074, [2004] Fam 22, [2004] 2 WLR 509, [2004] 1 FLR Practice Direction: Attendance of Media Representatives at Hearings in ......
-
Re O (A Child) (Contact: Withdrawal of application)
...334, CA. M (intractable contact dispute: interim care order), Re[2003] EWHC 1024 (Fam), [2003] 2 FLR 636. P v BW[2003] EWHC 1541 (Fam), [2003] 3 FCR 523, [2003] 4 All ER 1074, [2004] 1 FLR W (contact proceedings: joinder of child), Re[2001] EWCA Civ 1830, [2003] 2 FCR 175, [2003] 1 FLR 681.......
-
Re O (A Child) (Termination of Contact)
...requirements of section 97(2) to such extent as may be specified in the order. As Bennett J has demonstrated in the recent case of Pv BW [2003] 3 FCR 523, both FPR 1991 rule 4.16(7) and section 97 are compatible with the fair trial provisions of Article 61) of the European Convention for th......