Re Webster (A Child)
| Jurisdiction | England & Wales |
| Judgment Date | 2006 |
| Neutral Citation | [2006] EWHC 2733 (Fam) |
| Date | 2006 |
| Court | Family Division |
Care proceedings – Proceedings in private – Publication of information – Order prohibiting identification of parents and child in children proceedings and requiring such proceedings to be heard in private – Application to vary order to allow media to attend forthcoming hearing of care proceedings – Whether order should be varied – Children Act 1989, s 97 – Family Proceedings Rules 1991, SI 1991/1247, r 4.16(7).
The parents had three children, in respect of whom full care orders had been made on the application of the relevant local authority in 2004, on the basis of an allegation that one or more of the children had been physically abused by the parents. Those children were subsequently adopted. The case received publicity from both the print and broadcast media, as the parents alleged that they had been the victims of a miscarriage of justice. In 2005 the mother became pregnant again, following which the local authority started child protection procedures. The child was born in May 2006, in Ireland, where the parents had fled in fear that care proceedings would be commenced. The parents returned to England and care proceedings followed. Media coverage of the case had started in November 2005, with the flight to and return from Ireland attracting considerable attention. The parents and child were photographed and shown on television. Their first names were reported but the media chose to use the mother’s maiden name rather than the family’s true surname. In June 2006, an interim care order was made and the parents and the child were placed in a residential unit for detailed assessment. The High Court made an order, imposing drastic reporting restrictions, prohibiting the publication of any information relating to the child, and the soliciting from his parents of any information relating to the child or the parents. The parents, the BBC and the publishers of the Mail on Sunday (the applicants) applied to vary the order in the week before care proceedings had been listed for hearing, in order to determine the interim placement arrangements for the child following the conclusion of the residential assessment. Family Proceedings Rules 1991, SI 1991/1247, r 4.16(7) provided: ‘Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in
chambers.’ An issue arose as to the construction of s 97(4) of the Children Act 1989, since the power to dispense with s 97(2) was, on the face of it, confined by s 97(4) to those situations where ’the welfare of the child requires it’.
Held – (1) On its true construction, s 97 of the Act had to be read in a Convention-compliant way, as s 97 constituted a specific restriction on the media’s rights under art 10 of the European Convention on Human Rights. In a similar way, s 97(4) had to be construed in a Convention-compliant way, not limiting the occasions on which s 97(2) was dispensed with to those where the welfare of the child required it, but extending to every occasion where proper compliance with the Convention so required. In other words, the statutory phrase ’if … the welfare of the child requires it’ had to be read as a non-exhaustive expression of the terms on which the discretion could be exercised, so that the power was exercisable not merely if the welfare of the child required it but whenever it was required to give effect, as required by the Convention, to the rights of others. Section 97(4) had to be read as permitting the court to dispense with the prohibition on publication where the right to free expression under art 10 or other Convention rights required it.
(2) The effect of r 4.16(7) of the Family Proceedings Rules 1991 was to secure privacy for care proceedings unless the court ordered that the matter be heard in open court. When deciding whether to accede to an application to disapply the rule, the judge had to apply the Convention, ensuring that his decision was Convention-compliant. The rule fell to be justified in accordance with the art 6(1) test of what was ’required’ or what was ’strictly necessary’. Such a blanket rule could only be justified if it remained ’subject to the court’s control’ and only if the court exercised a proper discretion in the circumstances of the particular case. In applying r 4.16(7) the judge had to adopt the same ’parallel analysis’ leading to the same ’ultimate balancing test’ as that which was applicable in deciding whether to relax or enhance reporting restrictions pursuant to s 97. The rule was properly to be regarded simply as a ’default provision’ but not as a provision indicating some heavy presumption in favour of privacy. The rule had to be read, construed and applied compatibly with the Convention, ’balancing’ all the various interests and not giving any special pre-eminence to the claim to privacy. A judge had to be alert to the dangers inherent in the strong inherited convention of privacy and careful not to be prejudiced by the tradition or an unconscious preference for the atmosphere created by a hearing in chambers.
(3) The order was clearly too wide. Four factors in particular weighed heavily in favour of the view that any greater degree of restraint than that which was proposed by the applicants would constitute a significant and heavily disproportionate interference with their rights: the claim that the case involved a miscarriage of justice, the parents’ own wish for publicity, the very extensive publicity there had already been, and the need, in the circumstances, for the full facts and the ’truth’ to emerge in a way which
would command public confidence. Two conclusions had been determinative of the ultimate balancing test, namely that the risks to the child were in significant measure speculative, and that restraints sought by the child’s guardian went much further than required to protect the child’s rights, whilst involving a disproportionate interference with the applicants’ rights.
Accordingly, the order would be set aside. An order would be made, inter alia, allowing the media to attend the hearing and the reporting of the names of the parents and child.
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Whitney v California (1927) 274 US 357...
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