Pelling v Bruce-Williams

Rules requiring Children Act proceedings to be heard in chambers are compatible with the Convention. Although a private hearing interferes with freedom of expression, the interference may be necessary and proportionate to protect the privacy rights of children and other parties.

Different considerations apply to anonymity in appellate proceedings conducted publicly. The Court of Appeal should balance the competing rights in each case. An identification restriction should result from an individual exercise of discretion, rather than automatic practice. Section 97(2) of the Children Act 1989 does not extend to appellate proceedings, although the court may impose appropriate restrictions under section 39 of the Children and Young Persons Act 1933 and its inherent jurisdiction.

The appellant renewed Children Act proceedings concerning his son and sought a joint residence order. He also sought a public hearing and judgment, a declaration that section 97(2) of the Children Act 1989 was incompatible with articles 6 and 10 of the Convention, and an order quashing provisions of the Family Proceedings Rules 1991 restricting public hearings and access to documents.

Bennett J dismissed the residence application and rejected the public-hearing, incompatibility and certiorari applications in P v BW (Children Cases: Hearings in Public) [2004] 1 FLR 171. Permission to appeal the Convention and Human Rights Act issues was considered with the substantive appeal to follow if granted.

The Court of Appeal also considered the legality of its standard practice of automatically restricting identification in appeals concerning children.

1. Permission to appeal was granted, but the appeal was dismissed. The private-hearing regime governing Children Act proceedings was compatible with the Convention. The appellant's present challenge was materially the same as his earlier challenge, which had been rejected domestically and by the European Court of Human Rights. There was no fresh development or argument justifying a different conclusion.

2. The conduct of proceedings in chambers engaged article 10(1), but the interference was justified under article 10(2). It was necessary and proportionate to protect the article 8 rights of the child and the other parent. The rules also preserved judicial discretion to permit publicity in an appropriate case. Bennett J had adequately explained each exercise of discretion, and his determinations fell within the permissible discretionary ambit.

3. The applications for a declaration of incompatibility and certiorari were not freestanding public-law claims capable of severance from the Children Act proceedings. They were additional means of seeking a public trial and public judgment. Bennett J was therefore entitled to hear them in private with the underlying proceedings.

4. The automatic Court of Appeal practice approved in Re R (Minor) (Court of Appeal: Order against Identification) [1999] 2 FLR 145 required reconsideration following the commencement of the Human Rights Act. In every appeal involving children, the court should consider whether the proper balance between articles 6, 8 and 10 requires anonymisation. The question should be considered at the outset and, generally, again at the conclusion of the appeal.

5. Section 97(2) of the Children Act 1989 did not extend to appellate proceedings in the Court of Appeal. The court nevertheless had power under its inherent jurisdiction and section 39(1) of the Children and Young Persons Act 1933 to impose identification restrictions in an individual case. Neither source clearly justified an automatic restriction without a case-specific exercise of discretion.

6. Open and private models of family justice were each capable of Convention compliance. The choice between them, and the extent to which family judgments should be public or anonymised, raised policy questions suitable for wider institutional review.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal against the rejection of the Convention, incompatibility and certiorari arguments was dismissed: [2004] EWCA Civ 845. The court directed that the automatic appellate anonymity practice should be reconsidered.
2. High Court, Family Division: Bennett J dismissed the applications for a declaration of incompatibility and certiorari, directed that the residence proceedings be heard in chambers, and delivered the substantive judgment privately. The public-hearing judgment was reported as P v BW (Children Cases: Hearings in Public) [2004] 1 FLR 171.