England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BOW COUNTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/07/2006

Lord Justice Wall :

1. This unusual application reaches me as a consequence of a direction by Brooke LJ sitting alone on 9 May 2006. Brooke LJ directed that an application by Dr Michael Pelling to discharge, alternatively to set aside, an injunction made by this court on 20 June 1996, should be listed before a Lord Justice of Appeal who specialises in Family Law matters. The court had previously refused to issue the application, as I understand it, on the ground that Thorpe LJ had taken the view, when the matter was referred to him on paper, that the injunction was spent. Dr Pelling unsuccessfully sought to challenge that refusal in proceedings for judicial review, but succeeded before Brooke LJ on a different basis, namely that, pursuant to CPR 52.16(5) a party "may request any decision of a court officer to be reviewed by the Court of Appeal".
2. In his application notice, Dr. Pelling argued that this court itself had rendered the injunction nugatory by its public judgment of 1 July 2004 in the case of Pelling v Bruce-Williams [2004] 3 FCR 108, which had named the minor and the parties. He also complained that the injunction was made in breach of natural justice, as this court in 1996 had refused to hear him.
3. The circumstances in which the order complained of came to be made were as follows. On 20 June 1996, this court (Butler-Sloss, Peter Gibson and Thorpe LJJ) dismissed an appeal by Dr. Pelling and Mr. Bernard Greenwood from an order of His Honour Judge Goldstein dated 14 March 1996. The latter had refused applications by Dr. Pelling and Mr. Greenwood (who had intervened in Dr Pelling's proceeding on the question of a public hearing) that Dr Pelling's application for residence under the Children Act 1989 be heard in open court. This court's decision was subsequently reported as Re PB (Hearings in Open Court) [1996] 2 FLR 765.
4. In addition to dismissing the appeal, however, this court also made an order in the following terms: -
5. No one shall publish or reveal to anyone (other than the parties to this appeal or the Official Solicitor) the name or address of the minor child who is the subject of these proceedings or publish or reveal any particulars or other information which would be likely to lead to the identification of the said minor.
6. As I have already stated, Dr. Pelling's application to me on 14 July 2006, was for this injunction to be "discharged or set aside". I made it clear at the outset of the hearing that I was prepared to discharge the injunction. Dr. Pelling, however, despite having sought relief in the alternative, wanted the injunction set aside. He argued that it should never have been made. Discharging it, he argued, would imply that it had been properly made, and had remained properly in force.
7. As I had, perhaps unwisely, been expecting Dr. Pelling to take "yes" for an answer, I was unprepared for this submission, and given the pressure on the list on 14 July 2006, I decided to take a little time to consider the matter. This I have now done.
8. Dr. Pelling's dissatisfaction with the order against identification made on 20 June 1996 is multi-faceted. He objects to it, of course, per se. However, his two more focused objections are (1) its terms; and (2) the fact that he was not heard by the court before the order was made. Butler-Sloss LJ (as she then was), basing herself on the case of Re Z (A Minor) (Freedom of Publication) [1996] 1 FLR 191 (Re Z), gave a short ex tempore judgment in which she made it clear that it was the practice of this court to impose a direction against the identification of children involved in proceedings between their parents under the Children Act 1989. This was because such orders were in the best interests of children, and because the welfare of the children concerned prevailed over any parental rights based on freedom of expression.
9. On 20 June 1996, Dr Pelling had come to court armed with a number of authorities, which this court declined to consider. Indeed, when Dr. Pelling asked: "Are you refusing to hear me?" Butler-Sloss LJ replied, with the directness and clarity for which she was well known: "Yes, in fact we are". However, as stated in paragraph 8 above, she went on to explain why. When Dr. Pelling pointed out that the summons had still to be heard, and when he attempted to refer to the case of Mrs. R v Central Independent Television [1994] Fam 192, Butler-Sloss LJ interrupted him to say that it was not appropriate "on this direction at this stage to hear argument".
10. This court refused Dr Pelling permission to appeal to the House of Lords, but as we know, he took the open court / chambers point to the European Court of Human Rights in Strasbourg, where the practice in England and Wales of hearing children's cases in private was upheld by that court: - see B v United Kingdom, P v United Kingdom [2001] 2 FLR 261.
11. Dr. Pelling's continued efforts have, however, borne some fruit. As a consequence of the decision of this court in Pelling v. Bruce-Williams (supra), the practice of the court has changed. Anonymity directions are no longer automatic in children's cases: indeed, anonymity has to be (a) sought; and (b) justified. It was no doubt as a consequence of the judgment of this court in that case (Thorpe, Sedley and Arden LJJ) that Thorpe LJ was of the opinion, when the matter was referred to him on paper, that the order complained of by Dr. Pelling and made on 20 June 1996 had been discharged.
12. Whether or not that is so, the recent decision of this court in Clayton v Clayton [2006] 2 FCR 405, makes it clear that the prohibition against publication contained in section 97(2) of the Children Act 1989 lasts only as long as the proceedings themselves. Dr. Pelling's litigation over his son, who will be 16 later this year, is long since over, and it is, therefore, plainly the case that he is entitled to have the injunction discharged. I am not, however, prepared to set it aside, for the reasons which follow.
13. It is clear, for the reasons I have already given, that an order such as that made by this court on 20 June 1996 would not be made today without full argument. However, in this court in 1996, orders restricting publication of the names of children were the norm. There was, accordingly, nothing unusual in this court making an order against publicity in a case involving a child, particularly where it was one parent's specific wish for the proceedings to be in open court.
14. Dr Pelling criticises Butler-Sloss LJ's reliance on Re Z. He says that this was certainly not a Re Z case in which welfare was paramount, and arguably was not even a Re Z case in which welfare fell to be balanced against freedom of speech. I am not so sure about that. But even if Butler-Sloss LJ was eliding the Re Z type of case with what was then the conventional direction against identification, the fact of the matter is that the court would have made an order against publicity in any event. Dr Pelling had made it clear that he wanted the case heard in open court, and, somewhat unwisely, he appears to have told the court that he did not intend to obey the non-identification order. Accordingly, even if he had been allowed to cite substantial authority to the court, the result, I am confident, would have been the same.
15. Dr Pelling also attacks the wording of the order. He says it is far too wide. The very limit of the court's jurisdiction, he says, would have been to make an order restricting the identification of the child as the child who was the subject of the proceedings. As the order was drafted, Dr Pelling argued, he would have been in contempt of court if, in his son's company, he met a friend in the street and introduced the child by name to that friend.
16. What this argument overlooks, I think, is that in the case of Re R (Court of Appeal: order against identification) [1999] 3 FCR 213, this court (Lord Woolf MR, Butler-Sloss and Evans LJJ) upheld an order made in terms very similar to those of which Dr Pelling complains. Lord Woolf explains why such orders were made, and confirms that the court's practice in making such orders was unobjectionable.
17. The order in the instant case was, of course, made 10 years ago. Fortunately, apart from generating a substantial degree of forensic activity on Dr. Pelling's part (with the clarification and development of the law as a constituent element) nothing appears to have flowed from the particular wording of the order, and debates about its precise wording strike me as academic.
18. In my judgment, therefore, it is appropriate now to discharge the order, rather than to set it aside. It no longer fulfils any function, and is, moreover, now caught by the meaning given to section 97(2) of the Children Act 1989 by Clayton v. Clayton.
19. Another reason for discharging rather than setting aside is that I think it likely that Dr. Pelling would seek hereafter to argue that by setting aside the order I was taking the view that it should never have been made in the first place. As I have already made clear, I do not take that view. To the contrary, I take the view that an order against publicity would undoubtedly have been made in 1996, even if Dr. Pelling had been fully heard. Whilst I understand Dr. Pelling's objection to the precise wording of the order; (a) it appears to have been common form at the time; and (b) I am satisfied that had any adverse consequences been threatened against Dr. Pelling in relation to it, its wording would have been scrutinised and, if necessary, altered.
20. I am also fortified in the view which I take by the fact that Dr. Pelling, who is well aware of the nuances of legal language, sought first and foremost to have the order discharged. He only asked for it to be set aside in the alternative. In my judgment, his first approach is correct.
21. Finally, Dr Pelling referred me to the decision of the Privy Council in Grafton Isaacs v Emery Robertson [1985] AC 97. In my judgment, this decision does not assist Dr. Pelling. It confirms the well established rule that an order which is, on its face, regular, must be obeyed until it is set aside or discharged, even if it was made without jurisdiction: - see also Hadkinson v Hadkinson [1952] P. 285. In my judgment, despite the circumstances in which it was made, the order by this court dated 20 June 1996 was both lawful and in accordance with the practice in place in 1996. Times have, however, moved on, and the continuation of the order is no longer appropriate.
22. For all these reasons, I propose to discharge the order against publicity made by this court on 20 June 1996.
23. By way of footnote, it is clear that the respondent to this application has been served. She did not, however, appear. I note also that she did not appear in March and July 2004 when Pelling v Bruce Williams (supra) was heard and decided. I do not, accordingly, have any difficulty in making the order identified in paragraph 20 above in her absence.