THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35974/97 by P. 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, President , Sir Nicolas Bratza, Mr L. Loucaides, Mr P. KÅ«ris, 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 31 January 1997 by P. against the United Kingdom and registered on 7 May 1997 under file no. 35974/97;

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 January 1998 and the observations in reply submitted by the applicant on 12 March 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national, born in 1949 and living in London.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant and Ms. B.-W. were married and had a son. When the marriage broke down, there were separation proceedings between the applicant and B.-W.

On 31 October 1995 the applicant made an application under section 8 §1 of the Children Act 1989 to the Bow County Court for a residence order - the equivalent of a custody order - in respect of his son (residence application). The applicant represented himself in the proceedings, while B.-W. was represented by counsel.

On 15 January 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. He also asked that the application of 15 January 1996 be heard in open court with public pronouncement of judgment.

The application of 15 January 1996 was heard on 29 February 1996. The defendant did not object to it being heard in open court. The representative of the Official Solicitor, whose assistance the court had requested, did not object either, but expressed his concern that it was possible that the identity of the child might be accidentally or unwittingly revealed. The applicant specified that he would argue that, as a matter of principle, all family cases should be heard in open court and assured the court that he would have no need to refer to the facts of his own particular case or mention the child. As a result, the application of 15 January 1996 was heard in open court.

The judge of the County Court gave judgment publicly on 14 March 1996. The judge drew the attention of the members of the public to the court's “desire” that no reference to the child's identity should be made in any publication concerning the case. He also stressed that the matter before him was “run of the mill” and that the gist of the applicant's argument was that all cases concerning children should be heard in public. However, the judge, discussing the applicant's various submissions, considered that it would be a draconian measure to subject children to embarrassment in order to chastise certain judges or expose lax and inadequate preparation by barristers. Although a number of distinguished judges had argued in favour of publicity, the practice had always been different.

The judge further considered that Article 6 of the Convention allowed for exceptions insofar as both the publicity of the hearing and the public pronouncement of judgment were concerned. The judge was not convinced that the applicant's views represented those of the British public as a whole. Finally, the Family Proceedings Rules provided that, unless the court otherwise directed, hearings of family cases should be in chambers. The judge was of the view that this was a clear direction that family cases should continue to be heard in chambers and he was not prepared to formulate any guidelines as to the nature of cases in which a judge should direct that the hearing should be in open court.

In the light of all the above, the judge dismissed the application of 16 January 1996, ordered that the residence hearing, including the judgment, should be held in chambers and gave the applicant leave to appeal.

The applicant appealed on 29 March 1996 on the ground, first, that the County Court judge had fettered his discretion by indicating that he had no option but to hear the case in private and, secondly, that the exercise by the judge of his discretion was flawed since, if he had exercised it correctly, the only conclusion to which he could have come would be to hear the entire case in open court.

The Court of Appeal pronounced on the applicant's appeal on 20 June 1996. Butler- Sloss LJ noted that none of the facts relating to the applicant's family was relevant for the decision except that the case concerned a residence order which raised issues described by the County Court judge as typical and run of the mill. She further 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.

Turning to the decision of the County Court judge who had heard the applicant's case, Butler- Sloss LJ found that, despite the strong language used in his decision, the judge had correctly recognised that the existing practice of hearing child custody case in private had been restated in the Family Proceedings Rules, which provided for exceptions only where the case had unusual features. Since the applicant's case was run of the mill, following the general practice would seem appropriate.

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.

In the light of all the above, the Court of Appeal dismissed the appeal.

On the same date, i.e. on 20 June 1996, the Court of Appeal also ordered that no one should publish or reveal the name or address of the applicant's child, or publish or reveal any particulars or other information which would be likely to lead to the identification of the child. According to the court's order, persons who would disobey this order would be guilty of contempt of court and might be sent to prison. Before making this order the court refused to hear argument from the applicant, considering that it was bound by clear precedent. The court also refused leave to appeal to the House of Lords.

The Bow County Court heard the applicant's residence application in chambers in June 1996. According to the applicant, before the end of the hearing the judge again considered whether he should give judgment publicly. Given the Court of Appeal’s decision of 20 June 1996, the judge concluded that he was bound not to, there being no special feature or interest to justify open judgment.

On 8 August 1996 the Bow County Court ordered that the mother should have custody of the child and granted the applicant access rights. The judgment was pronounced in chambers. The parties were provided with a copy in writing.

The applicant did not appeal against the residence order.

On 19 December 1996 the House of Lords refused the applicant leave to appeal against the decision of the Court of Appeal of 20 June 1996 concerning his application of 16 January 1996.

B. Relevant domestic law

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) [1996] 2 FLR 725 and A County Council v. W and Others (Disclosure) [1997] FLR 574).

3. 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) [1996] 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.”

4. 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”.

COMPLAINTS

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. He also complains under Article 13 of the Convention that he does not have a remedy before a national authority in this connection. Finally, he complains under Article 17 of the Convention that the relevant national legislation destroys his right to a public hearing.

2. The applicant complains under Articles 6 § 1 and 13 of the Convention that he was not heard prior to the pre-emptive contempt of court order made by the Court of Appeal on 20 June 1996 and that he does not have a remedy before a national authority in this connection.

3. The applicant complains under Articles 10 and 13 of the Convention that, under domestic law and particularly the Administration of Justice Act 1960, he is not allowed to divulge information concerning the proceedings and that he does not have a remedy before a national authority in this connection.

PROCEDURE

The application was introduced on 31 January 1997 and registered on 7 May 1997.

On 10 September 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 8 January 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 12 March 1998.

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.

THE LAW

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. He also complains under Article 13 of the Convention that he does not have a remedy before a national authority in this connection. Finally, he complains under Article 17 of the Convention that the relevant national legislation destroys his right to a public hearing.

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.”

Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 17 of the Convention provides as follows:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

The Government submit that the applicant has not exhausted domestic remedies in respect of his complaint that there was no public pronouncement of judgment. As evidenced by certain comments made by Peter Gibson LJ, the Court of Appeal’s decision of 20 June 1996 did not dispose of the issue of whether judgment should be pronounced publicly or not in the applicant’s case. Thus, it was open to the applicant to apply 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.

The applicant submits that he has exhausted remedies. On 12 January 1996 he requested a public hearing and a publicly pronounced judgment. On 14 March 1996 the judge rejected both requests. This decision was confirmed by the Court of Appeal on 20 June 1996. The comments of Peter Gibson LJ referred to the future incorporation of the Convention into English law. In any event, following the decision of the Court of Appeal, the judge considered that judgment should not be pronounced publicly.

The applicant further argues that the right to a public hearing and the right to a publicly pronounced judgment are independent from the right to a fair hearing. The violation of the first two rights caused him prejudice.

Moreover, he 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. There is no indication that his child would have suffered if there had been a public hearing. The press would not have been interested in a run of the mill case and there existed alternative safeguards. The absence of publicity in custody proceedings has favoured abuses.

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. Public knowledge of court decisions cannot be secured by confining that knowledge to a limited class of persons.

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 requests for a public hearing and for a publicly pronounced judgment were both rejected expressly by the County Court judge on 14 March 1996. Whatever the import of the comments made by Peter Gibson LJ might be, there can be no doubt that the Court of Appeal upheld the decision of the County Court judge by dismissing the applicant’s appeal. In these circumstances, 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. As a result, the Court considers that it is not necessary to determine whether the applicant is factually correct in submitting that, following the decision of the Court of Appeal, the County Court judge reaffirmed his earlier ruling considering that the judgment should not be pronounced publicly. 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 Articles 6 § 1 and 13 of the Convention that he was not heard prior to the pre-emptive contempt of court order made by the Court of Appeal on 20 June 1996 and that he does not have a remedy before a national authority in this connection.

The Court recalls that the pre-emptive contempt of court order was made in the context of a preliminary hearing concerning the right of the applicant to have his case heard in public. However, the Court considers that such hearings do not involve a determination of civil rights and obligations within the meaning of Article 6 § 1 of the Convention. Nor is the right to give an account of a hearing a “civil right” within the meaning of the same provision (No. 13366/87, Dec. 3.12.90, D.R. 67, p. 244). As a result, Article 6 § 1 of the Convention does not apply to the proceedings in question. Moreover, the Court recalls that Article 13 of the Convention requires a remedy for alleged violations of rights guaranteed under the Convention. This is not the applicant’s case.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 thereof.

3. The applicant next complains under Articles 10 and 13 of the Convention that under domestic law, and particularly the Administration of Justice Act, he is not allowed to divulge information concerning the proceedings and that he does not have a remedy before a national authority in this connection.

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 order interfering with the applicant’s freedom of expression provided simply that no-one should publish or reveal the name or address of the child or publish or reveal any particulars or other information that would be likely to lead to the identification of the child. Thus, it pursued a legitimate aim in protecting the child’s welfare and in maintaining the authority of the judiciary. It was in accordance with the law. Moreover, it was necessary in a democratic society. In cases concerning children’s upbringing courts must be able to protect children and witnesses from publicity. The Court of Appeal’s decision to make the order without hearing argument from the applicant was reasonable because it was bound by clear precedent. The applicant could have applied for leave to disclose information to a third party if he had a legitimate reason for so doing. In any event, national courts enjoy a margin of appreciation in this connection.

The applicant argues that his complaint not only concerns the restrictions on identifying the child as the subject of the proceedings culminating in the Court of Appeal’s decision of 20 June 1996. It also concerns his inability to publish any information about the main proceedings except the order of the court that residence be given to the mother. The applicant submits that there is no evidence that, in the vast majority of cases, children need any protection from open justice. It can be beneficial to subject the system to scrutiny and debate. The applicant and his child’s mother did not feel inhibited in discussing their private life in open court in the context of the separation proceedings. In any event, in the applicant’s case there was no balancing of different interests carried out by a court, which could involve a margin of appreciation, but a blanket prohibition. As for the proceedings culminating in the decision of 20 June 1996, they did not concern the private lives of the parties but a technical matter, namely whether there should be a public hearing and a publicly pronounced judgment. 

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 INADMISSIBLE the applicant ’s complaints that he was not heard prior to the pre-emptive contempt of court order made by the Court of Appeal and that he does not have a remedy before a national authority in this connection;

DECLARES ADMISSIBLE , without prejudging the merits, the remainder of the application.

S Dollé J.-P. Costa

Registrar President