Pelling v Bruce-Williams (Secretary of State for Constitutional Affairs intervening)

JurisdictionEngland & Wales
JudgeThe Honourable Mr Justice Bennett,Mr Justice Bennett
Judgment Date02 July 2003
Neutral Citation[2003] EWHC 1541 (Fam)
Docket NumberCase No: FD03P00743
CourtFamily Division
Date02 July 2003

[2003] EWHC 1541 (Fam)



Royal Courts of Justice

Strand, London, WC2A 2LL


The Honourable Mr Justice Bennett

Case No: FD03P00743


The Applicant appeared in person

The Respondent appeared in person

Mr Stephen Cobb QC appeared on behalf of the Crown


Hearing dates : 5,6 and 18 June 2003


Approved Judgment




I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Honourable Mr Justice Bennett

This judgment is being handed down on 2 July 2003. It consists of 24 pages and has been signed and dated by the judge.


The judgment is being given in public on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.

Mr Justice Bennett

1. In January 2003 the applicant, the child's father, applied for a joint residence order in respect of his twelve 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 Section 97(2) Children Act, 1989, with Articles 6 and 10 EHCR.”


By a supplementary application dated 17 March 2003 the applicant 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 or the District Judge. It was said that those Rules are incompatible with Article 6(1) and 10(1) of the European Convention.


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 Q.C., 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(Hearings in Open Court) [1996] 2 FLR 765. 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 alleging a violation of his rights under Articles 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 Article 6 and found unanimously that it was not necessary to consider separately the complaint under Article 10, see B v United Kingdom; P v United Kingdom (Cases 36337/97 and 35974/97) [2001] 2 FLR 261.

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 Section 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 and the European 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 i.e. 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 Children Act 1989 provides as follows: -

“(1) Rules made under Section 144 of the Magistrates' Courts Act 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


(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.”

Sub-sections (7) and (8) are not germane.


10. The applicant has submitted that that section infringes both Articles 6 and 10 of the European Convention on Human Rights. 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 but the press and public may be excluded from all or part of the trial in the interests 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, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.


11. Article 10 provides: -


“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.”


12. The applicant submitted that he wanted the proceedings to be in public. He is a “victim” in that he is prevented by Section 97 from publishing information identifying or likely to identify (a) his own child and (b) other children in other proceedings and which he does wish to publish as a writer, editor and communicator. He further submitted that he is a “victim” because he is prevented from receiving information of this kind from those who would wish to impart it to him in relation to their own proceedings involving their children. He says he faces a threat of prosecution under Section 97 of the Children Act 1989 as a result of publishing a pamphlet “Contact”, five issues of which he exhibited in the bundle of authorities placed before me. He submitted, in my judgment correctly, that Section 97 applied to the proceedings which he launched in January 2003. 13. He submitted that Section 97 infringed both Articles 6 and 10. There was no justification for invoking any of the exceptions either in Article 6 or Article 10. He drew to my attention a number of cases in particular Mrs R v Central Television PLC [1994] 2 FLR 151, Re Geldof (Celebrities; Publicity) [1999] 1...

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