Full case report

Clayton v Clayton

Reference [2006] EWCA Civ 878; [2006] Fam 83; [2006] 3 WLR 599; [2007] 1 All ER 1197; [2007] EMLR 65; (2007) 1 FLR 11; (2006) HRLR 34; (2007) UKHRR 264; The Times, 4 July 2006; The Independent, 29 June 2006
Court Court of Appeal

Judge The President, Arden & Wall LJJ

Date of Judgment 27 Jun 2006


Summary

Reporting Restrictions – Family Division – Section 97 Children Act 1989 – Section 1 Children Act 1989 – Prohibited Steps Order


Facts

The parties settled their custody dispute over their child, E, in July 2005, by entering into a shared care arrangement. The father was a campaigner for fathers’ rights and wished to discuss the case, including his abduction of the child in 2002, in the media. However at the conclusion of the proceedings the judge made an order which had the effect of preventing him from discussing the case openly at all on the grounds that this would identify the child as the subject of the proceedings. The judge ruled that s.97 of the Children Act 1989 prevented identification of the child as the subject of the proceedings until the child’s 18th birthday. The father appealed the judge’s order.


Issue

Whether the prohibition on publication likely to identify a child contained in s.97(2) of the Children Act 1989 lasted until the child’s 18th birthday or only until the conclusion of the Children Act proceedings; whether the father should be restrained from identifying his child as having been the subject of Children Act proceedings on the grounds that such publication would constitute an unwarranted interference with the child’s Article 8 rights; whether a prohibited steps order should be made restraining the father from taking his child to Portugal or from involving his child in the making of a film concerning the abduction.


Held

s.97(2) of the Children Act 1989 only prevents publication of information identifying a child as being the subject of proceedings while the proceedings are still afoot. These proceedings had concluded in July 2005. The judge did not seek to carry out a balancing exercise by focusing on the specifics of the rights and interests that were engaged, and failed to give adequate weight to the father’s right to campaign for reform in the family justice system by reference to his own case. The appeal therefore succeeded and the injunction was discharged. However, the father’s intention to involve the child in the making of a film about, amongst other things, his abduction of her engaged not merely the child’s article 8 rights but was also a matter relating to the child’s upbringing. s.1 of the Children Act was therefore engaged and the child’s interests were paramount. A prohibited steps order was made in substitution for the original order.


Comment

An important decision, particularly within the context of the debate about whether there should be further openness in the Family Division. The court ruled that from now on judges should consider at the conclusion of Children Act proceedings (concerning such matters as custody and adoption) whether there were grounds for preventing reporting of the case and identification of the children involved. It is no longer automatically to be assumed that reporting of such cases could not take place.


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Instructing Solicitors

Lyons Davidson for the Appellant; CAFCASS Legal for the Advocate to the Court