Re PB (A Minor) (Hearing in Private)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Year | 1996 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS, PETER GIBSON AND THORPE, L JJ
Procedure – application by parent for residence order – parent asking for hearing in county court to be heard in public – procedure in High Court and county courts – principle that children cases heard in private save in exceptional cases.
The father of a young child applied for a residence order. When the case came on for hearing in a county court the father asked that the hearing take place in open court.
By r 4.16(7) of the Family Proceedings Rules 1991 it is provided:
"Unless the court otherwise directs, a hearing of ... proceedings [under the Children Act 1989] shall be in chambers."
The Judge held that the case was a typical run-of-the-mill case and that, applying r 4.16(7), he had no alternative but to direct that the hearing should be held in camera.
The father appealed submitting (i) that the Judge had fettered his discretion by indicating that he had no option but to hear the case in private; (ii) that the exercise of his discretion was flawed since, if he had exercised it correctly, the only conclusion he could have come to was to hear the case in open court; and (iii) that the decision of the Judge conflicted with Articles 6 and 10 of the European Convention on Human Rights and Fundamental Freedoms.
Held – dismissing the appeal: Although it was a general principle that the courts must administer justice in public, there was a long-established exception to that principle in wardship cases. Proceedings under the Children Act 1989 were analogous to wardship proceedings. The long-established practice of the High Court and county courts was to hear applications for residence or contact in private. Where issues of public interest arose (usually in cases heard in the High Court) the judgment could be given in open court with appropriate directions to avoid identification. The terms of r 4.16(7) of the 1991 Rules were clear: a case was normally heard in private unless there was a special direction given for the hearing to be in public. The Judge's language in saying that he had no power to hear the case in open court was unfortunate but should not be read in a narrow way as he was saying that it was a typical case and that there were no unusual features calling for a hearing in public. The current practice in the English courts was not inconsistent with Articles 6 and 10 of the European Convention of Human Rights and Fundamental Freedoms. Article 6 provided for the public hearing and public pronouncement of judgment of cases but excepted cases "where the interests of juveniles or the protection of the private
lives of the parties so require ..." and the right of freedom of expression contained in Article 10 was subject to formalities, conditions, and restrictions which might be imposed by member States.
Statutory provisions referred to:Children Act 1989, s 97.
Family Proceedings Rules 1991, r 4.16.
Family Proceedings Courts (Children Act 1989) Rules 1991, r 16(7).
Magistrates' Courts Act 1980, s 69.
Cases referred to in judgment:L (A Minor) (Police Investigation: Privilege), Re[1996] 1 FCR 145; [1996] 2 WLR 395; [1996] 2 All ER 78.
Oxfordshire County Council v M[1994] 1 FCR 753; [1994] Fam 151; [1994] 2 WLR 393; [1994] 2 All ER 269.
Scott v Scott [1913] AC 417.
The father in person.
Janet Plange for the mother.
Henry Turcan as amicus curiae.
LADY JUSTICE BUTLER-SLOSS.Dr P, the appellant, is the father of a small boy aged 5, born on 20 November 1990, in respect of whom he has made an application for a residence order. He raised before the Judge a preliminary issue which is the subject of the appeal to this court. He acts for himself and has made it clear that this is a matter which he intends to place before the European Court of Human Rights.
None of the facts relating to the family is relevant save that there are cross-applications for a residence order which raise issues described by the Judge as typical and run of the mill. The appellant has not suggested that there are any unusual features. It was due to be heard, with a two-day estimate, on 14 March 1996. On that day, the appellant father, who appeared in person before His Honour Judge Goldstein, asked for the whole case, evidence and judgment, to be in open court. A Mr G, a member of the public, had previously been joined as an intervenor in the proceedings and he supported the father's application. The mother and the Official Solicitor did not object although the Official Solicitor was concerned at the possibility of the identity of the child being revealed during the hearing. In a long and careful judgment the Judge decided that all the proceedings should be heard in private and gave the father leave to appeal to this court on this preliminary issue.
In his judgment the Judge set out in some detail the father's arguments and concluded:
"I can only read, and I do so read and interpret r.4.16(7), which is the rule to which reference has been made, as being a direction – a rule of court – that hearings of family cases shall be heard and shall continue to be heard in chambers. Like the Earl of Halsbury, I would want chapter and verse as to
what should be put before the Judge before he otherwise directs a hearing of a case in open court. I am not prepared in the course of this judgment to give myself any guidelines as to the sort of case that might be ...
I do not feel that I have any power, even if I wished to do, which I do not, to hear this particular case in open court. I think I would be breaking the law, in the sense that I would be interpreting in a perverse manner the rules of court laid down under the...
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