Pelling v Bruce-Williams (Secretary of State for Constitutional Affairs intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall |
| Judgment Date | 25 July 2006 |
| Neutral Citation | [2004] EWCA Civ 845,[2006] EWCA Civ 1046 |
| Docket Number | Case No: B1/2003/1742 PTA,Case Nos: CCFMI 1996/0442F; C1/2005/2032(C) |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2006 |
[2004] EWCA Civ 845
Lord Justice Thorpe
Lord Justice Sedley and
Lady Justice Arden
Case No: B1/2003/1742 PTA
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE BENNETT
FD03P00743 & FD99D02334
Royal Courts of Justice
Strand,
London, WC2A 2LL
Dr Pelling in person
Mr S Cobb QC for the Secretary of State for Constitutional Affairs
This is the judgment of the court.
Dr Pelling, the appellant, has acquired a considerable command of the law and the practice of the courts in which applications under the Children Act 1989 are listed. He has also acquired considerable experience of the work of this court. This has been acquired in the course of his appearances either as a litigant in person or as a McKenzie friend appearing with other litigants in person.
Issues in relation to the appellant's son, Michael Alexander Pelling Bruce, resulted in cross-applications in the Bow County Court for a residence order fixed to commence on the 14 th March 1996. The appellant, who has consistently campaigned on family justice issues, sought an order from His Honour Judge Goldstein that the whole case, including judgment, should be heard in open court with full access to the public at large. Judge Goldstein refused that application but granted Dr Pelling leave to appeal. His appeal failed in this court on the 20 th June 1996. The case is reported as Re P-B(a minor)(child cases: hearings in open court) (1997) 1 All ER 58. During the course of his submissions Dr Pelling asserted that the denial of a public hearing breached his rights under Articles 6 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Butler-Sloss LJ, giving the leading judgment, noted that the Convention had not yet been incorporated within the law of England. However she continued at 61C:-
"Article 6 (1) provides for the public hearing and the public pronouncement of judgment of cases, but with the proviso of exclusion of the press and the public from all or part of the trial "in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require."
The right of freedom of expression contained in Article 10(1) is subject to formalities, conditions, restrictions or penalties which may be imposed by the member state under Article 10(2). It would seem to me that the present procedures in family proceedings are in accordance with the spirit of the Convention."
Dr Pelling was dissatisfied with the judgments of this court and accordingly, together with Mr B, took the point to the European Court of Human Rights. On the 24 th April 2001 the European court rejected both cases holding, by a majority of five to two, that there had been no violation of the Article 6 rights of either applicant and that it was not necessary to consider separately their complaints under Article 10: for that decision see B v. UK; P v. UK, conveniently reported at (2001) 2FLR 261.
Although thereafter Dr Pelling continued to be active both as a campaigner and as a McKenzie friend, proceedings in relation to his own child remained dormant between the 1996 adjudication and Dr Pelling's application in the High Court of the 15 th January 2003 for a joint residence order.
The resumption of proceedings to which Dr Pelling was a party presented him with an opportunity to revive in a direct way his campaign for open court hearings. Accordingly Dr Pelling included in his joint residence application on form C2 an application for: —
'3. Trial in open Court with public pronouncement of judgment.
4. Declaration of incompatibility of section 97(2) Children Act 1989 with Articles 6 and 10 EHCR."
By a supplementary application dated 17 th March 2003 Dr Pelling moved for an order of Certiorari to quash Rule 4.16(7) of the Family Proceedings Rules 1991, and Rules 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. It was said that those rules are incompatible with Articles 6(1) and 10(1) of the European Convention.
During the course of the preparation of her case the respondent sought an order under section 91(14) of the Children Act 1989 restraining Dr Pelling from issuing further applications without permission of the court. Shortly before the hearing Hughes J, in the course of giving directions, invited the Secretary of State to attend the hearing and adjourned to the trial judge all procedural issues flowing from Dr Pelling's applications for a declaration of incompatibility and Certiorari.
The trial took place on the 5 th and 6 th June 2003 when both parents appeared in person and Mr Stephen Cobb QC represented the Crown. On the 2 nd July Bennett J handed down his reserved judgment in chambers dismissing Dr Pelling's application for a joint residence order. He granted the cross-application for an order under section 91(14).
On the same day Bennett J handed down his reserved judgment on the issues arising under the European Convention and the Human Rights Act 1998. That judgment was handed down in open court but subject to the restriction that in any report the anonymity of the child and the adult members of the family must be strictly preserved. The case is reported as P v. BW Children Cases: Hearings in Public) [2004] 1 FLR 171.
Dr Pelling sought permission to appeal all outcomes. His permission application in relation to the refusal of the joint residence order was dismissed by this court on the 30 th July. On the same day this court granted Dr Pelling permission to appeal the section 91(14) order. That appeal succeeded on the 11 th November 2003. The application for permission to appeal the European Convention and Human Rights Act points was eventually listed, with appeal to follow if permission granted, to be heard before a specially constituted court on 29 th March 2004. The respondent has taken no part and accordingly the court has been entirely dependent on the Crown to advance contrary argument. We express our gratitude to Mr Stephen Cobb QC for his skeleton argument and for the manner in which he has addressed a variety of submissions advanced in Dr Pelling's oral argument not foreshadowed by his written skeletons dated 10 th July 2003, 5 th November 2003 and 25 th March 2004. We invited him to deal with these fresh issues in a subsequent written skeleton to which Dr Pelling has filed a subsequent written skeleton in response. The submission of further written argument was completed on 6 th May.
Given the nature of the submissions in Dr Pelling's written skeletons we allowed Dr Pelling to develop his case as though at the hearing of an appeal rather than a bare application for permission.
Dr Pelling, taking advantage of the opportunity presented by his appearance in this court as a litigant in person, at the outset objected to the notice on the door of the court warning the public against identification of children within the proceedings, submitting that that was an unwarranted and illegal restriction on his and the public's entitlement to open justice. Equally he objected to any blanket imposition of reporting restrictions. This was a point that the court had not anticipated and, in the exercise of our discretion, we imposed the usual restrictions pending delivery of judgment on all issues.
The judgment of Bennett J is clear and comprehensive. Having regard to the decision of the European Court in B v. UK; P v. UK he held that Rule 4.16(7) was not inconsistent with Dr Pelling's convention rights. He held that the decisions of this court, not only in Re P-B but also in Clibbery v. Allan (2002) 1 FLR 565, were to the same effect. He refused Dr Pelling's applications for a declaration of incompatibility and for Certiorari.
Bennett J then proceeded to exercise the discretion which Rule 4.16(7) vested in him. For six stated reasons he concluded that the hearing of the application for a joint residence order should be in chambers.
When Bennett J subsequently indicated an intention to pronounce his judgment on the joint residence application in private Dr Pelling objected. He argued that since it was an unexceptional case the judgment should be pronounced in public and should not be anonymised. Bennett J rejected these submissions, stating his reasons for concluding that the judgment should be delivered in private. Finally Bennett J explained his reasons for rejecting Dr Pelling's application, at the opening of the hearing on the 5 th June, for the evidence and submissions in relation to public hearing to be themselves heard in public.
Before turning to the submissions it is necessary to record the terms of the statutory material put in issue by Dr Pelling's applications. Insofar as material to the present appeal S.97 of the Children Act 1989 provides: -
"(1)
(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)
(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, by order dispense with the requirements...
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