AS TO THE ADMISSIBILITY OF
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 14 September 1999 as a Chamber composed of
Mr J-P. Costa,
Sir Nicolas Bratza,
Mr L. Loucaides,
Mr P. Kuris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja, Judges,
with Mrs S. Dollé, Section Registrar,
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 June 1996 by B. against the United Kingdom and registered on 5 June 1997 under file no. 36337/97;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 8 April 1999 and the observations in reply submitted by the applicant on 30 June 1999;
Having deliberated, decides as follows:
The applicant is a British national, born in 1963 and living in Brighton.
He is represented before the Court by Ms. Alison Burt, a lawyer practising in London.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 February 1993 a son was born to the applicant and Ms X with whom he was not married. X and the child ceased living with the applicant in March 1993.
In September 1993 the applicant made an application to the Brighton County Court under section 8 § 1 of the Children Act 1989 for a residence order. In January 1994 the court made a residence order in favour of X with a specific contact order in favour of the applicant.
In 1994 X married Mr B.
In August 1995 the applicant made a second application for a residence order which he subsequently withdrew. There were also a number of court hearings relating to contact between the applicant and his son.
The applicant claims that in April or May 1996 his parents received an anonymous letter to which was attached a lengthy affidavit sworn by X in proceedings for a non-molestation injunction and an ouster order she had instituted against B. The affidavit set out, in detail, X’s complaints against B. These included drunken behaviour and violence.
On 3 June 1996 the applicant made a third application to the Brighton County Court seeking a variation of the residence order of January 1994. The judge to whom the case was assigned had previously made 11 orders in respect of the applicant’s son.
On 10 June 1996 the applicant, referring inter alia to Articles 6 and 10 of the Convention, made a further application asking for the residence application to be heard in open court with public pronouncement of judgment. This would have enabled his family to learn first hand whether his son was in danger.
The application of 10 June 1996 was dismissed at the directions hearing before a judge of the Brighton County Court on 14 June 1996. The directions hearing was in chambers. The judge ordered that the residence hearing should be also held in chambers and that there should be no disclosure of documents relating to the case outside court. The applicant claims that the judge warned him that publication of any information obtained in the context of the proceedings would amount to contempt of court.
The applicant sought leave to appeal against this decision, but the County Court turned his application down on 17 June 1996. The applicant renewed his application before the Court of Appeal.
The Court of Appeal heard the application on 22 July 1996. It noted that under the Family Proceedings Rules 1991 governing proceedings under the Children Act 1989 hearings were held in chambers although the court had a discretion to sit in open court. The Court of Appeal recalled however its own judgment on precisely this point in the case Re P B (A Minor), pronounced on 20 June 1996, where it had been established that the courts were bound by the Family Proceedings Rules to hear child cases generally in private. In the light of the above decision, and also based on the finding that in the applicant's case there was “nothing to distinguish the proceedings as out of the usual or raising any issues which would justify a public hearing”, the Court of Appeal dismissed the application by concluding that the judge at the Brighton County Court had “exercised his discretion properly and judicially”. The Court of Appeal refused leave to appeal to the House of Lords.
The Brighton County Court heard the applicant's residence application in chambers on 23 July 1996. The judge dismissed the application to vary the residence order. He also ordered under section 91 § 14 of the Children Act 1989 that no further application for a residence or contact order could be made by the applicant without leave of the court. The judgment was pronounced in chambers. The parties were provided with a copy in writing.
The applicant applied to the Court of Appeal for leave to appeal. The Court of Appeal refused leave to appeal against the order concerning residence but granted the applicant leave to appeal against the order under section 91 § 14.
On 17 November 1997 the Court of Appeal dismissed the applicant’s appeal against the order under section 91 § 14. It also made an order prohibiting the identification of the child. The judgment was pronounced publicly.
On 1 December 1998 the Court of Appeal dismissed an application by the applicant to have the last order set aside. This judgment was pronounced publicly as well.
B. Relevant domestic law and practice
1. Rule 4.16 § 7 of the Family Proceedings Rules 1991 provides as follows:
"Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers".
The relevant part of the Rules applies to applications for an order under section 8 § 1 of the Children Act 1989.
2. The Family Proceedings Rules also provide the following:
Rule 4.23 § 1
"Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to a party, the legal representative of a party, the guardian ad litem, the Legal Aid Board, a welfare officer, without leave of the judge or district judge".
Rule 10.23 § 3
"No document filed or lodged in the court office other than a decree or order made in open court shall be open to inspection by any person without the leave of the district judge, and no copy of any such document ... shall be taken by, or issued to, any person without such leave".
Persons with a legitimate interest in a child case may apply under these rules to the court for leave to inspect and obtain copies of documents or evidence in any particular child care case and a party may apply for leave to disclose any document to a third party (cf. Re EC (Disclosure of Material)  2 FLR 725 and A County Council v. W and Others (Disclosure)  FLR 574).
3. In the Court of Appeal’s judgment of 20 June 1996 on Re P B (A Minor), Butler-Sloss LJ noted that the long-established practice in the English High Court and county courts hearing applications for custody and access had always been to hear the whole of the evidence in private. In the High Court, which heard the more difficult cases and those which created public interest, judgment would often be given in public either in part or in whole where the court believed that there was a public interest in the case or that it should give guidance to the practitioners. Appeals in the Court of Appeal were almost invariably heard in public but oral evidence was almost never given and the proceedings were conducted on the basis of documents and written and oral argument. It was the Court of Appeal's practice to give a direction for non-identification of the child. In the magistrates courts the public was not generally admitted to family proceedings, but the press often were.
Butler-Sloss LJ also considered that it was abundantly clear that the courts were bound by the Family Proceedings Rules to hear child cases generally in private. Although the Rules allowed for all or part of the case to be heard in public, in the light of long-established practice it was unlikely that the judges would hear evidence relating to the welfare of a child in public. The issues concerning the public pronouncement of judgment were different and it might be that the practice of giving judgment in private was partly due to the parties not asking for it to be heard in public and partly because in the county court, where the vast majority of children cases were heard, it was less likely that there would be issues of public interest. Where issues of public interest did arise it would seem entirely appropriate to give judgment in open court providing, where desirable in the interest of the child, appropriate directions be given to avoid identification. If the case raised issues of principle or of law, the judgments were increasingly provided to the law reporters and were published in the large number of law reports which reported family cases. However, the majority of cases were of no interest to any one beyond the parties and their families.
According to Butler-Sloss LJ, the practice of the English courts was not inconsistent with Article 6 § 1 of the Convention which provided for exceptions in the interest of the child in both the right to a public hearing and to a publicly pronounced judgment.
Peter Gibson LJ and Thorpe LJ agreed in general with Butler-Sloss LJ.
However, Peter Gibson LJ considered the following in respect of the requirements of Article 6 § 1 of the Convention:
“As for (the applicant’s) reliance on Article 6 § 1 of the European Convention on Human Rights, that Convention has not yet been incorporated into English law. Further that Article itself recognises that the right to a pubic hearing is qualified where the interests of juveniles or the protection of the private life of the parties so require. In agreement with Butler-Sloss LJ, I do not regard the present practice as inconsistent with Article 6. It is a future question whether judgment should be given in open court. Under English law it need not be so given. But the court has power to give judgment publicly and in exercising its discretion it can take into account the provision of Article 6 § 1 that judgment should be pronounced publicly, though, if so pronounced, it should be done in such a way as to avoid detriment to the child.”
Thorpe LJ did not comment on the Convention.
4. Section 12 § 1 of the Administration of Justice Act 1960 provides as follows:
"The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say:
(a) where the proceedings
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor".
According to section 12 § 2 of the Act, the above do not apply to the publication of the text or summary of the whole or part of the relevant court order.
Section 39 § 1 of the Children and Young Persons Act 1933 gives the courts power to make an order prohibiting publication, in a newspaper report or in a programme service, of specified details or information calculated to lead to the identification of any child concerned in the proceedings. This section only applies to proceedings in which the child is the person by or against whom or in respect of whom the proceedings are taken or if he or she is a witness in the proceedings.
The courts also have an inherent jurisdiction to restrict or restrain the publication of information relating to children involved in court proceedings concerning or connected with their upbringing. The Court of Appeal in Re Z (A Minor) (Freedom of Publication)  1 FLR 191 (per Ward LJ. at p. 208B/D) considered the following in this connection:
"(3) It follows that the ... inherent jurisdiction will be exercised where the material to be published is directed at the child or is directed to an aspect of the child's upbringing ... in circumstances where that publicity is inimical to his welfare ...
(4) A separate aspect of the court's inherent jurisdiction is the power to protect the integrity of its own proceedings. For example, by preserving the anonymity of those who come forward to assist the court, so encouraging full and free disclosure of all material facts impinging on the child's well-being, the court serves the administration of justice, the ultimate end of which is to do what is best for the child.”
5. In August 1993 the Lord Chancellor’s Department published a consultation paper entitled “Review of Access to and Reporting of Family Proceedings”.
Paragraph 3.13 of the paper lists the following reasons for restricting access to and reporting of child cases:
“(a) to protect children from harmful publicity;
(b) to provide an informal atmosphere for hearing the evidence;
(c) to respect the privacy and dignity if those seeking a remedy from the court;
(d) to enable justice to be done where people might otherwise refrain from seeking a remedy for fear of publicity,
(e) to protect public morals”.
1. The applicant complains under Article 6 § 1 of the Convention that his case was not heard in public and that judgment was not publicly pronounced.
2. He also complains under Article 10 of the Convention that he is not allowed to divulge information concerning the proceedings.
The application was introduced on 21 June 1996 and registered on 5 June 1997.
On 2 July 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.
On 23 September 1998 the Government requested that examination of the case be adjourned pending the outcome of application no. 35794/97 Michael J. Pelling v. the United Kingdom.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
On 2 February 1999 the Court decided not to adjourn the examination of the case.
The Government’s written observations were submitted on 8 April 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 30 June 1999, also after an extension of the time-limit.
On 28 April 1999 the Court granted the applicant legal aid.
1. The applicant complains under Article 6 § 1 of the Convention that his case was not heard in public and that judgment was not publicly pronounced.
Article 6 § 1 of the Convention provides as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the hearing in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
The Government submit that the applicant has not exhausted domestic remedies in respect of his complaint that there was no public pronouncement of judgment. His application of 10 June 1996 was one of principle. As a result, on 23 July 1996 he could have applied again for the judgment to be given publicly.
The Government also argue that there is no indication that the applicant did not have a fair hearing. As a result, he cannot have sustained any actual prejudice from the absence of a public hearing and a publicly pronounced judgment. Accordingly, his application seeks merely a decision on an abstract problem.
Moreover, the Government submit that there are amply sufficient reasons relating to the interests of the child and the protection of the private lives of the parties justifying the decision to have a private hearing in the case. Furthermore, publicity would be prejudicial to the interests of justice. The practice of the English courts to hear custody cases, as a matter of principle, in private and the decision in the applicant’s case were well within the margin of appreciation allowed to the domestic authorities. None of the participants in the proceedings asserted that the applications for residence raised any point of general public importance or that it was other than a run of the mill case. The decision that the court was asked to make by the mother and the applicant was with which of them should their child reside. This decision would inevitably involve consideration of private and personal details. Children are especially vulnerable to the glare of publicity, whether from the media, campaigners or otherwise. Parties have the expectation that proceedings concerning children will be heard in private. If the courts were to act contrary to this expectation it would undermine confidence in the judicial process.
Finally, the Government submit that the right to a publicly pronounced judgment, given its link with the right to a fair hearing, must be subject to implied limitations. The special features of the proceedings, which involved the custody of a child, must be also taken into consideration. In any event, anyone who can establish a legitimate interest may obtain a copy of the full text of a judgment. Finally, the Government point out that two judgments following the applicant’s application of 3 June 1996 have been publicly pronounced, namely the Court of Appeal’s judgments of 17 November 1997 and of 1 December 1998.
The applicant submits that he has exhausted domestic remedies. The Government have not shown that a further application for a publicly pronounced judgment would have had any prospects of success given, in particular, the stance previously taken by the County Court judge and the Court of Appeal.
The applicant also submits that Article 6 requires that, in principle, court hearings should be public. It is for the authorities to show that one of the exceptions in Article 6 § 1 of the Convention applies to a particular case. Convention provisions that allow for exceptions must be narrowly interpreted. Domestic law seeks to reverse the burden of proof. Hearings in child custody cases are in principle held in chambers and a litigant has to show a public interest or point of law that would require a public hearing. This position is untenable under the Convention. It is also inherently illogical since in Magistrates Courts the press and at least some members of the public are present during family hearings.
The applicant points out that the Government fail completely to engage with the particular circumstances of his case. As a matter of fact, vital pieces of the evidence that were sought to be kept confidential were already in the public domain. Moreover, the nature of some of this evidence was such that it became of paramount importance that the whole picture become clear. Otherwise the perception of the public would be that the court endorsed a residence arrangement that placed the child at risk.
Finally, the applicant points out that, by pleading for implied limitations to the right to a publicly pronounced judgment, the Government seek to reverse the Convention organs’ case-law. The fact that Article 14 of the International Covenant on Civil and Political Rights provides for an exception supports the applicant’s position. The amendment to include this exception was proposed by the Government of the United Kingdom in view of the fact that the procedure before the domestic courts was shifting towards private hearings at the time.
The Court recalls that, although Article 35 § 1 of the Convention requires prospective applicants to exhaust domestic remedies, this obligation does not extend to the lodging of applications that have no prospects of success (the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 19, § 19). The Court notes in this connection that the applicant’s application for a public hearing and for a publicly pronounced judgment was rejected by the County Court judge on 14 June 1996. The Court of Appeal upheld this decision by refusing the applicant leave to appeal. In these circumstances, the court considers that an application for a publicly pronounced judgment lodged by the applicant after the decision of the Court of Appeal would not have had any prospects of success. It follows that the applicant has exhausted domestic remedies in accordance with Article 35 § 1 of the Convention.
In the light of the parties’ remaining observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
2. The applicant also complains under Article 10 of the Convention that he is not allowed to divulge information concerning the proceedings.
Article 10 of the Convention provides as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government submit that the interference with the applicant’s freedom of expression resulted directly from section 12 § 1 of the Administration of Justice Act 1960. It was in accordance with the law and served legitimate aims, the protection of the rights of the child and the mother, and the maintenance of the authority of the judiciary. It was also necessary in a democratic society. Allowing the applicant to divulge information concerning the proceedings would have undermined the protection given by Article 6 of the Convention. In any event, the interference was within the domestic margin of appreciation.
The applicant accepts that the interference was in accordance with section 12 of the Administration of Justice Act and that it pursued a legitimate aim. However, it was not necessary in a democratic society given that the most prejudicial evidence had already entered the public domain. In any event, different less stringent restrictions are imposed in Children Act proceedings in the Magistrates Courts.
In the light of the parties’ observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
S Dollé J.-P. Costa