Clayton v Clayton

Children Act 1989, section 97(2), prevents identification of a child during Children Act proceedings. It is a penal provision and ceases to operate when those proceedings conclude. Section 12 of the Administration of Justice Act 1960 continues to restrict publication of information relating to private proceedings.

A continuing anonymity order requires a fact-specific balance between the child’s Article 8 rights and the parent’s Article 10 rights. Where proposed publicity concerns the child’s upbringing, welfare is paramount. The court may restrain a parent from involving a child in publicity harmful to the child’s welfare, but should not impose a wider restriction than that welfare need requires.

The father appealed against orders of Hedley J continuing, until the child reached 18, an injunction that prevented him from discussing or communicating matters concerning her education, maintenance, financial circumstances, family circumstances and court proceedings.

The substantive private-law proceedings under the Children Act 1989 had ended by agreement. The father wished to publicise the shared-parenting agreement and to campaign about family justice. He also wished to take the child to Portugal and involve her in a film concerning his earlier abduction of her. The appeal concerned the duration of section 97(2), the continuing force of the injunction, and the proper balance between privacy, welfare and freedom of expression.

1. Appeal allowed. The blanket injunction was discharged. It was too broad once the substantive proceedings had concluded, because it prevented legitimate discussion of the shared-parenting outcome and the father’s wider campaigning activities without identifying a substantial welfare risk.

2. Section 97(2) of the Children Act 1989 applies while proceedings are pending. Its language, penal character and the Article 10 requirement of legal certainty meant that it ceased to prohibit identification when the proceedings ended. That conclusion did not dilute section 12(1) of the Administration of Justice Act 1960, which continued to restrict publication of information relating to private proceedings.

3. A court may nevertheless grant post-proceedings protection where welfare requires it. Applying the approach in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, neither Article 8 nor Article 10 has automatic priority. The court must focus on the particular rights claimed, the justification for restricting each right, and proportionality. Where the proposed conduct raises a question about the child’s upbringing, welfare is paramount under section 1(1) of the Children Act 1989.

4. The father could speak about the agreed shared-parenting arrangement and related issues without the injunction. However, taking the child to Portugal and involving her in a self-exculpatory film about her abduction concerned her upbringing, engaged her Article 8 rights and was contrary to her welfare. The court substituted a prohibited steps order under sections 8 and 10(1)(b), restraining the father until further order from revisiting Portugal with the child or involving her in publication concerning the abduction.

5. At the conclusion of Children Act proceedings, courts should consider whether any outstanding welfare issue requires continuing anonymity or other protection. Parents remain subject to the court’s welfare jurisdiction after proceedings end.

• Court of Appeal (Civil Division): Allowed the father’s appeal in [2006] EWCA Civ 878. It discharged the continuing injunction and substituted a targeted prohibited steps order.
• Family Division, Cardiff District Registry (Hedley J): On 9 November 2004 granted, and on 11 August 2005 continued, an injunction restraining the father from publishing or communicating specified matters concerning the child until she reached 18 or further order.