Full case report

Norfolk County Council v Webster & Others

Reference [2006] EWHC 2733 (Fam); [2007] EMLR 199; (2007) HRLR 3
Court Family Division

Judge Munby J

Date of Judgment 2 Nov 2006


Summary

Reporting restrictions – care proceedings – s. 97(2) Children Act 1989 – Rule 16(7) Family Proceedings Rules 1991 – open justice – Arts 6, 8, 10 – s. 12 of the Administration of Justice Act 1960


Facts

Parents who claimed that they were the victims of a miscarriage of justice in previous care proceedings relating to their three older children, sought the assistance of the media to tell their story. The parents’ cause had been taken up by the print and broadcast media. A fourth child, Brandon, was born and care proceedings commenced in respect of him, but not before there had been considerable media publicity identifying Brandon and his parents. Reporting restrictions were then imposed with no public domain proviso. The media applied to vary the order so as to be able to identify Brandon and attend the latter care proceedings.


Issue

Whether (i) the media were entitled to attend the forthcoming hearing in the care proceedings (ii) the restrictions on identifying Brandon as subject of the proceedings imposed under s.97(2) of the Children Act 1989 could and should be lifted under s.97(4).


Held

Lifting the s.97(2) order and permitting media access to the forthcoming care hearing,
(i) The Court is able to dispense with the prohibition on publication under s.97(2) ‘if the welfare of the child requires it’ (s. 97(4)). This should not be construed restrictively. s.97(4) must be read down in such a way as to permit the court to lift the prohibition in s.97(2) where Convention rights, such as Art 10, require it. A restrictive approach would have been both anomalous and contrary to practice.
(ii) Rule 4.16(7) – making privacy the default position for family proceedings – must be applied compatibly with the Convention: In re S (A Child) (HL) [2005] 1 AC applied. The exercise of the court’s discretion will seek to balance all interests. The parental wishes, youth of the child and previous publicity weighed in favour of open justice.


Comment

A striking decision in favour of open justice in the family division, the judgment contains more warnings against the “strong inherited convention of privacy” in family proceedings. The public interest in maintaining the confidence of the public at large in the family justice system weighed heavily in this particular case, especially as allegations of miscarriage of justice had been made in a case where the parents faced the draconian sanction of forcible adoption of their fourth child. Unprecedently, media access to forthcoming care proceedings was granted.


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Instructing Solicitors

Reynolds Porter Chamberlain for Associated Newspapers; BBC litigation


Links

'Abuse' couple win fight to keep their baby - 5RB.com