Pelling v Bruce-Williams

This is the judgment of the court.

Dr Pelling, the appellant, has acquired a considerable command of the law and the practice of the courts in which applications under the Children Act 1989 are listed. He has also acquired considerable experience of the work of this court. This has been acquired in the course of his appearances either as a litigant in person or as a McKenzie friend appearing with other litigants in person.

Issues in relation to the appellant’s son, Michael Alexander Pelling Bruce, resulted in cross-applications in the Bow County Court for a residence order fixed to commence on the 14^th March 1996. The appellant, who has consistently campaigned on family justice issues, sought an order from His Honour Judge Goldstein that the whole case, including judgment, should be heard in open court with full access to the public at large. Judge Goldstein refused that application but granted Dr Pelling leave to appeal. His appeal failed in this court on the 20^th June 1996. The case is reported as Re P-B (a minor)(child cases: hearings in open court) (1997) 1 All ER 58. During the course of his submissions Dr Pelling asserted that the denial of a public hearing breached his rights under Articles 6 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Butler-Sloss LJ, giving the leading judgment, noted that the Convention had not yet been incorporated within the law of England. However she continued at 61C: -

Dr Pelling was dissatisfied with the judgments of this court and accordingly, together with Mr B, took the point to the European Court of Human Rights. On the 24^th April 2001 the European court rejected both cases holding, by a majority of five to two, that there had been no violation of the Article 6 rights of either applicant and that it was not necessary to consider separately their complaints under Article 10: for that decision see B v. UK; P v. UK, conveniently reported at (2001) 2FLR 261.

Although thereafter Dr Pelling continued to be active both as a campaigner and as a McKenzie friend, proceedings in relation to his own child remained dormant between the 1996 adjudication and Dr Pelling’s application in the High Court of the 15^th January 2003 for a joint residence order.

The resumption of proceedings to which Dr Pelling was a party presented him with an opportunity to revive in a direct way his campaign for open court hearings. Accordingly Dr Pelling included in his joint residence application on form C2 an application for: -

During the course of the preparation of her case the respondent sought an order under section 91(14) of the Children Act 1989 restraining Dr Pelling from issuing further applications without permission of the court. Shortly before the hearing Hughes J, in the course of giving directions, invited the Secretary of State to attend the hearing and adjourned to the trial judge all procedural issues flowing from Dr Pelling’s applications for a declaration of incompatibility and Certiorari.

The trial took place on the 5^th and 6^th June 2003 when both parents appeared in person and Mr Stephen Cobb QC represented the Crown. On the 2^nd July Bennett J handed down his reserved judgment in chambers dismissing Dr Pelling’s application for a joint residence order. He granted the cross-application for an order under section 91(14).

On the same day Bennett J handed down his reserved judgment on the issues arising under the European Convention and the Human Rights Act 1998. That judgment was handed down in open court but subject to the restriction that in any report the anonymity of the child and the adult members of the family must be strictly preserved. The case is reported as P v. BW (Children Cases: Hearings in Public) [2004] 1 FLR 171.

Dr Pelling sought permission to appeal all outcomes. His permission application in relation to the refusal of the joint residence order was dismissed by this court on the 30^th July. On the same day this court granted Dr Pelling permission to appeal the section 91(14) order. That appeal succeeded on the 11^th November 2003. The application for permission to appeal the European Convention and Human Rights Act points was eventually listed, with appeal to follow if permission granted, to be heard before a specially constituted court on 29^th March 2004. The respondent has taken no part and accordingly the court has been entirely dependent on the Crown to advance contrary argument. We express our gratitude to Mr Stephen Cobb QC for his skeleton argument and for the manner in which he has addressed a variety of submissions advanced in Dr Pelling’s oral argument not foreshadowed by his written skeletons dated 10^th July 2003, 5^th November 2003 and 25^th March 2004. We invited him to deal with these fresh issues in a subsequent written skeleton to which Dr Pelling has filed a subsequent written skeleton in response. The submission of further written argument was completed on 6^th May.

Given the nature of the submissions in Dr Pelling’s written skeletons we allowed Dr Pelling to develop his case as though at the hearing of an appeal rather than a bare application for permission.

Dr Pelling, taking advantage of the opportunity presented by his appearance in this court as a litigant in person, at the outset objected to the notice on the door of the court warning the public against identification of children within the proceedings, submitting that that was an unwarranted and illegal restriction on his and the public’s entitlement to open justice. Equally he objected to any blanket imposition of reporting restrictions. This was a point that the court had not anticipated and, in the exercise of our discretion, we imposed the usual restrictions pending delivery of judgment on all issues.

The judgment of Bennett J is clear and comprehensive. Having regard to the decision of the European Court in B v. UK; P v. UK he held that Rule 4.16(7) was not inconsistent with Dr Pelling’s convention rights. He held that the decisions of this court, not only in Re P-B but also in Clibbery v. Allan (2002) 1 FLR 565, were to the same effect. He refused Dr Pelling’s applications for a declaration of incompatibility and for Certiorari.

Bennett J then proceeded to exercise the discretion which Rule 4.16(7) vested in him. For six stated reasons he concluded that the hearing of the application for a joint residence order should be in chambers.

When Bennett J subsequently indicated an intention to pronounce his judgment on the joint residence application in private Dr Pelling objected. He argued that since it was an unexceptional case the judgment should be pronounced in public and should not be anonymised. Bennett J rejected these submissions, stating his reasons for concluding that the judgment should be delivered in private. Finally Bennett J explained his reasons for rejecting Dr Pelling’s application, at the opening of the hearing on the 5^th June, for the evidence and submissions in relation to public hearing to be themselves heard in public.

Before turning to the submissions it is necessary to record the terms of the statutory material put in issue by Dr Pelling’s applications. Insofar as material to the present appeal S.97 of the Children Act 1989 provides: -

Turning now to the Family Proceedings Rules 1991, the heading to Rule 4.16 is: "Attendance at Directions Appointment and Hearing." Paragraph 7 of the Rule reads:

Rule 4.23 is headed: "Confidentiality of Documents". Paragraph 1 of the Rule provides:

Rule 10.20 is headed: "Inspection etc of documents retained in court" and paragraph 3 of the Rule reads as follows: -

In his able submissions to this court Dr Pelling has emphasised that all the issues which he seeks to argue are at large. He submits, correctly, that this court is not strictly bound by the decision of the European Court of Human Rights and that we must exercise an independent judgment as to whether the statutory provisions of which he complains are in breach of his rights under Articles 6 and 10 of the ECHR. As to the decision of this court in Re P-B he states, correctly, that it is not conclusive since it predates the commencement of the Human Rights Act 1998. As to the decision of this court in Clibbery v. Allan Dr Pelling states, correctly, that it is a decision upon proceedings brought under part IV of the Family Law Act 1996 and not the Children Act 1989. Finally Dr Pelling observes that the decisions of this court in Re Pelling-Bruce and of the ECHR in B v. UK; P v. UK are upon different statutory provisions, in that his incompatibility application is directed to S. 97(2) of the Children Act 1989, a provision that was inserted by S. 72(a) of the Access to Justice Act 1999 with effect from 27^th September 1999.

Arguing the issue of public versus private hearings under the Children Act 1989 Dr Pelling makes many forceful points. He prays in aid Judge Goldstein’s 1996 characterisation of his own case as "run of the mill". Were the proceedings conducted publicly it would be of little or no general interest and would attract little or no reporting. Given the fundamental importance of the open conduct of justice (ringingly declared by the House of Lords in Scott v. Scott (1913) AC 417) the presumption must be for public hearing unless the exceptional circumstances of the individual case demand a private hearing. Dr Pelling submits, "…relying on Re Geldof (Celebrities: Publicity) [1999] 1 FLR 409 CA at 417F-418A," that children must inevitably participate in whatever sort of life their parents have chosen for themselves as adults. His choice is the life of a campaigner. His son knows of and understands that choice and its attendant publicity.

Dr Pelling scorns the suggestion that the needs of a democratic society require litigation concerning children to be conducted in private. The United Kingdom offers the example of a state that operates the public model in one region and the private model in another: the restrictions uniformly applied in England and Wales are unknown in Scotland.

He submits that there are no convincing rationalisations of the need for private hearings in any of the authorities. The rationalisation in paragraph 38 of the decision of the European Court of Human is Rights is in these terms: -

To that Dr Pelling responds that it is pure speculation without any evidential foundation. Where is the research-based evidence to justify that conclusion? In his own case the respondent accepted that she would not have withdrawn her participation had the court ordered a public hearing.

Dr Pelling refers to the justification of private hearings articulated by Hale LJ in refusing an application for permission to appeal in the case of Re A [2003] EWCA Civ. 210 on 4^th February 2003. In the course of the judgment she said in paragraph 5: -

Of that Dr Pelling again submitted that this was no more than general speculation. Any ruling on child welfare had to be case specific. In his case he had called the evidence of a father, Mr Matthew O’Connor, who had established that his two children had thrived despite the fact that the contest between their parents had been fully exposed in the media.

In relation to the ECHR Dr Pelling submitted that his rights arising under Articles 6(1) and Article 10(1) were not to be trumped by asserted Article 8 rights attributed to the respondent or to his child and imported into Articles 6 and 10 respectively. That he described as the great fallacy. Properly construed, Dr Pelling submitted, Article 10 was the trump card and in its construction more weight should be paid to Articles 17 and 18. The exception in Article 10(2) "for the protection of the rights of others" was not to be construed, in violation of Articles 17 and 18, as extending to the Convention "rights and freedoms" of others. If the Convention rights themselves had been intended to be included then the phrase "rights and freedoms" would have been used in Article 10(2) as in the other exception Articles 8(2), 9(2) and 11(2). "Rights" in Article 10(2) meant domestic law rights and English law had no such right of privacy. Similarly, none of the exceptions in Article 6(1) to public trial incorporated Article 8(1) rights as such.

More specifically Dr Pelling submitted that Bennett J erred in his refusal to allow a public trial of his application for a declaration of incompatibility and of his application for Certiorari. He pointed out that in 1996 Judge Goldstein had heard his application for public trial in public. Bennett J’s refusal had disappointed a number of members of the public who had made a journey to the court. Their exclusion could only work to erode public confidence in the process.

Dr Pelling’s specific submissions in relation to S.97(2)/(4) were that the government had enacted this amendment having been alerted by the progress of the applications of Dr Pelling and Mr B in Europe to the weak statutory foundation for private hearings under the Children Act in the County Court and in the High Court. Dr Pelling submits that the provisions of S.97(2) are designed to restrict rights of free speech recognised at common law. The decision in X v. Dempster (1999) 1FLR 894 establishes that there is no common law restraint on identification of parties to Children Act proceedings nor was there any statutory restraint prior to the enactment of S.97(2). The reservation contained in S. 97(4) is too narrowly framed to amount to a justification for the restraint. He asks, rhetorically, what sort of freedom is it that requires a court order before it can be exercised? He draws attention to an article by Mr Timothy Scott QC appearing at [2003] Family Law 594, in which Mr Scott comments critically upon S. 97(2) and (4).

Dr Pelling is equally trenchant in his criticism of the terms in which Bennett J explained the various exercises of his discretion both in relation to private hearing and the refusal of public judgment. Many of the submissions advanced by Dr Pelling in general are repeated by him in his specific criticisms of the exercise of the judicial discretion.

Mr Cobb presents the rival arguments clearly and succinctly. Whatever may be the legal distinction sought to be drawn by Dr Pelling the present application and appeal offers nothing that was not considered and rejected by this court and by the European Court of Human Rights in relation to the hearing before Judge Goldstein. As to the genesis of S.97(2) Mr Cobb suggests that it may result from the 1993 public consultation. He informs us that the Official Solicitor sought the amendment of S.97 in order to remove the need to apply for an injunction in the higher courts to prevent disclosure of identifying information. As to the Rules 4.16, 4.23 and 10.20, Mr Cobb emphasises that in each case there is discretion conferred upon the judge to permit publicity.

In relation to domestic authority, Mr Cobb draws attention to the recent decision of Munby J in the case of Re B (Child) (Disclosure) [2004] EWHC 411 (Fam).

In relation to the ECHR, Mr Cobb accepts that Dr Pelling has established an interference with his rights under Article 10(1), but under Article 10(2) that is justified since the interference is necessary and proportionate to ensure the protection of the rights of the child arising under Articles 6 and 8.

Whilst the conduct of trials is regulated by statutory provision, Mr Cobb accepts that whether the pronouncement of judgment is to be in public or private is left to be regulated by the judges themselves.

We have considerable sympathy for Dr Pelling’s basic premise that the rationalisation of the current practice is expressed in very general terms that certainly appear to lack evidential foundation. However there can be no escaping the reality that Dr Pelling’s current challenge to the English practice of private hearings for Children Act litigation is not different in kind or character to his previous challenge. The statutory provisions may have changed but the underlying ground of challenge has not been suggested to be any different. Whilst he has deployed attractive arguments, all those arguments were deployed in Strasbourg. Whilst we may not be strictly bound, we would challenge the fundamental purpose of the ECHR were we to prefer the conclusions of the minority to those of the majority without any fresh development or argument to justify departure.

Equally the point which this court settled in determining the appeal of Re P-B is in reality the very point that we are called upon to decide. Dr Pelling’s reliance on rights conferred by Article 6 and 10 were carefully considered. Although not strictly bound by that decision we can see no legitimate ground to depart from it.

In its decision in B v. UK and P v. UK the court concluded: -

It is perhaps unfortunate that the judgment does not elaborate upon the rejection of Dr Pelling’s Article 10 complaint. Implicitly the court’s findings in relation to Article 6 were dispositive of his complaint under Article 10. We would accept Mr Cobb’s contention that, whilst Dr Pelling’s rights under Article 10(1) are engaged, the conduct of the proceedings in chambers are properly to be regarded as "necessary in a democratic society, …for the protection of the …rights of others", namely the rights of the respondent and the child under Article 8 of the Convention.

In relation to Dr Pelling’s attack on the specific exercise of Bennett J’s discretion we need say no more than that each determination was sufficiently explained and manifestly within the discretionary ambit. We accept that greater justification is required for the refusal of the pronouncement of judgment in public, given the almost universal practice of anonymising public judgments in Children Act cases. Here Bennett J allowed publicity for his judgment on the open justice issues, albeit anonymising the judgment.

Further we concur with Bennett J’s characterisation of the application for a declaration of incompatibility and the application for Certiorari. These were not freestanding applications capable of severance. They were no more than additional mechanisms used by Dr Pelling in an endeavour to procure public trial and judgment of the Children Act proceedings.

Dr Pelling’s attack on the imposition of the standard restriction on the identification of the identity of the child and the parties to the present appeal must be considered in the light of an authority which was not cited in the course of oral submissions by either Dr Pelling or Mr Cobb, although it was analysed critically by Dr Pelling in Paragraphs 41-43 of his written skeleton in the court below. It is the case of Re R (Minor) (Court of Appeal: Order against Identification) [1999] 2 FLR 145. The constitution of the court was the Master of Rolls sitting with Butler-Sloss and Evans LJJ. The applicant before the court was Mr B, subsequently to be Dr Pelling’s co-applicant in Strasbourg. On the 1^st December 1998 he applied to set aside the standard form of order incorporated into the dismissal on 17^th November 1997 of his appeal against the making of a section 91(14) order.

The order which Mr B applied to set aside was in these terms:-

In giving the leading judgment, Lord Woolf, MR explained that this was a standard and automatic inclusion in any order of the Court of Appeal in any child case and that this practice had originated with the authority and agreement of Lord Bingham when he was Master of the Rolls.

Lord Woolf specifically explained the advantages of anonymity. He said:-

Later Lord Woolf explained the advantage of a standing practice. He said: -

The practice was introduced in March 1995. It was done in the exercise of the Court’s inherent jurisdiction and was intended to reach wider than the terminology of S.39 of the Children and Young Persons Act 1933 ("…Particulars calculated to lead to the identification…").

In his written skeleton of 4^th May Dr Pelling expands his attack on the authority of Re R. First he says that it falls within that narrow category of cases that can be rejected as binding precedent on the grounds of manifest error. Second Dr Pelling submits that the case is not to be followed because of inconsistency with earlier decisions of the court, particularly Mrs R v. Central Independent Television Plc (1994) 2 FLR 151 and Re Z (A Minor) (Freedom of publication) (1996) 1 FLR 19 and Re Geldof (Celebrities: Publicity) [1999] 1FLR 409 CA. Third he submits that the decision predated the advent of the Human Rights Act 1998 and must yield to Article 10 of the Convention. The practice would be impossible to justify within the terms of Article 10(2). Fourth he submits that the decision is manifestly contrary to the principles stated by the House of Lords in the case of Attorney-General v. Leveller Magazine Ltd (1979) AC 440.

Mr Cobb in his further written submissions of the 6^th May notes that the decision in Re R not only predates the Human Rights Act 1998 (which came into force on 2^nd October 2000) but also the CPR 1998 (which came into force on 26^th April 1999). Accordingly Mr Cobb puts the Crown’s case thus: -

In our judgment the only successful attack directed by Dr Pelling on the judgment of this court in Re R is his third. We accept the submissions of the Crown that the time has come for the court to consider in each case whether a proper balance of competing rights requires the anonymisation of any report of the proceedings and judgment following a hearing that was conducted in public and therefore open to all who cared to attend.

Standing back from Dr Pelling’s detailed contentions, it is important to emphasise that the questions which he debates are essentially policy questions. Whilst we have concluded that the procedure ordained by the Family Proceedings Rules 1991 and Children Act 1989 are essentially convention compliant, it does not follow that the rival procedures for which Dr Pelling contends would not equally be convention compliant. During the course of his judgment in Re P-B Thorpe LJ drew attention to the opportunity, if not the obligation, of the government to complete the process of public consultation on this debate: see 64F to H. More detailed reference to this uncompleted consultation exercise was made during the course of his judgment in Clibbery v. Allan (2002) 1 FLR 565 see paragraphs 95-97. This thirst for disclosure of the outcome of the 1993 consultation is only quickened by the Crown’s reliance on one response as the genesis of the 1999 amendment of S.97. Given the imminent creation of the Family Justice Council it would seem to us to be appropriate for questions concerning privacy both of hearings and of judgments in the family justice system to be referred to the Council.

In her recent administrative directions issued following the judgment of the Court of Appeal Criminal Division R v. Cannings [2004] EWCA Crim. 1 the President stated: -

It might have been thought that Dr Pelling would welcome this statement as some acknowledgement of the strength of support for his campaign. However in his submissions he was only critical of the President, submitting that it was not for the judges but for Parliament to determine the extent to which judges are to pronounce judgment in public. Dr Pelling submits that such decisions, whether of a general or of a specific character, must not be taken by judges. In relation to specific cases he submits, and in his third skeleton he embroiders the submission with what he says is a specific illustration, judges may use their access to publicity to the disadvantage of the litigant who has no equal right and no opportunity to respond.

We acknowledge that there may be some justification in this submission. Bentham would certainly recognise that judges may prefer to do their work without exposure to what may be critical publicity. Bentham would say that without such exposure an unguarded risk of undesirable practices is created. So it seems to us that, just as the desirability of private trials in child cases is a policy issue, so too is the desirability of private judgments in child cases and also the question of whether such public judgments should be anonymised. The judgment of this court in Re R indicates that the automatic application of restrictions in all appeals involving children was developed or confirmed by the court with the approval of the Master of the Rolls nearly ten years ago. The court’s power to impose restrictions has two foundations in law: inherent jurisdiction and S.39 of the Children and Young Persons Act 1933. We do not consider that S.97(2) of the Children Act 1989 extends to appellate proceedings in this court. As to the court’s inherent powers see the recent decision of Re S (Identification: Restrictions on Publication) (2003) 2FLR 1253. S.39(1) of the Children and Young Persons Act 1933 provides that: -

Clearly both the inherent jurisdiction and the statutory provision empower this court to impose restrictions in an individual case in the exercise of the court’s discretion. But it is not so evident that either the inherent or the statutory jurisdiction justifies the imposition of an automatic restriction without the exercise of a specific discretion in the individual case. Indeed in his subsequent written submission Mr Cobb suggests that for the future the court should both at the outset and at the conclusion of each appeal concerning children exercise a specific discretion either to impose or to refuse prohibition on the identification of the parties to the appeal. It would therefore seem to us to be desirable for the Master of the Rolls and the President to review the standard practice of this court to reflect developments since the decision pronounced in Re R in 1998. This reconsideration should perhaps extend to applications for permission to appeal listed for oral hearing. In relation to such hearings Mr Cobb submits that the need for caution is all the greater given that: -

Policy questions do have to be addressed against this background: in reality although the Family Proceedings Rules confer on the judge in any case the discretion to lift the veil of privacy, there is such a strong inherited convention of privacy that the judicial mind is almost never directed to the discretion and in rare cases where an application is made a fair exercise may be prejudiced by the tradition or an unconscious preference for the atmosphere created by a hearing in chambers. Judges need to be aware of this and to be prepared to consider another course where appropriate.

The subsequent submissions of Mr Cobb and of Dr Pelling consider in erudite detail the comparable law and practice in Scotland governing the conduct of and publicity given to both public law and private law applications both historically and currently under the Children (Scotland) Act 1995. For the purposes of the present appeal it is unnecessary to record or analyse those submissions in any detail. Historically Mr Cobb accepts that the general rule of law is that cases are heard in public in Scotland unless there is a good reason for them to be heard in private. In paragraph 23 of his subsequent submissions Mr Cobb states: -

Dr Pelling, in his subsequent written submissions fairly summarises the present practice in Scotland when he states:

Dr Pelling in his earlier skeleton arguments offered a comparative analysis of the practices in a number of other Council of Europe countries. We do not consider it necessary to consider this material further. Given that the European Court allows a wide margin of appreciation to individual jurisdictions it is enough to conclude that evidence of disparity does not advance Dr Pelling’s case. The tradition for open sittings and the tradition for private sittings are each equally capable of compliance with the Convention. In the end the more convincing defence of the practice in our jurisdiction may be the most simple, namely that it is reflective of a long standing tradition, of general but not universal application, that has been franked by the European Court as Convention compliant.

In conclusion therefore we grant Dr Pelling’s application for permission but dismiss the appeal.