Pelling v Bruce-Williams

An injunction restricting publication or identification in children proceedings may be discharged when the proceedings have ended and the order no longer serves a function. Discharge recognises that the order was validly made and remained operative; setting aside would imply that it should never have been made. An order regular on its face must be obeyed until set aside or discharged, even if jurisdiction is challenged. An historic order is assessed in its legal and procedural context. A direction that was conventional at the time, and would have been made after argument, is not retrospectively invalid merely because the affected party was not heard.

Dr Pelling applied to discharge, alternatively set aside, an injunction made by the Court of Appeal on 20 June 1996 after it dismissed an appeal from an order of His Honour Judge Goldstein refusing an open-court hearing in children proceedings. The injunction prohibited publication or disclosure of information capable of identifying the child. The earlier appeal was reported as Re PB (Hearings in Open Court) [1996] 2 FLR 765.

Dr Pelling relied on the later development of the law, challenged the injunction’s breadth, and argued that it had been made without hearing him. The central issues were whether the order should be discharged because it no longer served a purpose, and whether it should instead be set aside as invalid from the outset.

1. Disposition. The application succeeded to the extent that the injunction was discharged, but it was not set aside. The prohibition in section 97(2) of the Children Act 1989 lasts only while the proceedings themselves continue. The litigation concerning the child had ended, so continuation of the injunction no longer fulfilled a function.

2. Validity and natural justice. An order of this kind would not be made in the current practice without full argument. In 1996, however, directions against identifying children in proceedings between parents were the norm. Even if Dr Pelling had been heard and had cited his authorities, the court would have made an order against publicity. The failure to hear him therefore did not make the order invalid or justify setting it aside. The court considered the reliance on Re Z (A Minor) (Freedom of Publication) [1996] 1 FLR 191, but held that the result would have been the same whether or not the earlier reasoning had elided different categories of case.

3. Wording. Re R (Court of Appeal: order against identification) [1999] 3 FCR 213 upheld an order in substantially similar terms and confirmed the propriety of the practice. The challenge to the wording was academic because no adverse consequence had flowed from it; any such consequence could have led to scrutiny and amendment.

4. Effect of the order. Grafton Isaacs v Emery Robertson [1985] AC 97, with Hadkinson v Hadkinson [1952] P. 285, confirmed that an order regular on its face must be obeyed until set aside or discharged, even if made without jurisdiction. The injunction was lawful and accorded with the practice in force in 1996.

5. The court noted that anonymity directions were no longer automatic and had to be sought and justified. That later change did not retrospectively invalidate the earlier order. The respondent had been served but did not appear, so the discharge order was made in her absence.

1. Court of Appeal (Civil Division): In the present proceedings, the injunction made on 20 June 1996 was discharged because it no longer served a function. The application to set it aside was refused.
2. Court of Appeal (Civil Division): On 20 June 1996, the court dismissed an appeal from His Honour Judge Goldstein’s order of 14 March 1996 and made the injunction against publicity.
3. Bow County Court: His Honour Judge Goldstein refused applications that Dr Pelling’s residence application under the Children Act 1989 be heard in open court.