Reference:  EWCA Civ 845;  Fam 155;  3 WLR 1178;  3 All ER 875;  2 FLR 823
Court: Court of Appeal
Judge: Thorpe, Sedley and Arden LJJ
Date of judgment: 1 Jul 2004
Reporting restrictions - Family proceedings - Routine exclusion of the press and public - s.97(2), Children Act 1989 - Statutory prohibition on identifying a child who is the subject of proceedings under the Children Act 1989 - Whether these constraints are Convention compliant
In a case arising from an application for a residence order in relation to his son, Dr Pelling (P) had taken the UK to the European Court of Human Rights seeking a declaration that the courts’ refusal to hear the case in open court amounted to a breach of his rights under Articles 6 and 10. The European Court rejected his complaint by a majority. P made a new application for a joint residence order, and included in his application an application for trial in an open court and a declaration that s.97(2) of the Children Act 1989 was incompatible with Arts 6 and 10 of the ECHR. By supplementary application he also sought an order of Certiorari quashing various Rules of the Family Proceeding Rules 1991 which provided for hearings to be in chambers and prevented disclosure or inspection of judgments without leave, contending that they were also incompatible with Articles 6 and 10. Bennett J rejected all of his applications. P appealed.
(1) Whether s.97(2) of the Children Act 1989 was incompatible with Articles 6 and 10 of the ECHR;
(2) Whether the Rules of the Family Proceeding Rules 1991 that provided for hearings to be in chambers and prevented disclosure or inspection of judgments without leave were compatible with the ECHR.
(1) An open justice approach to hearings involving children (such as existed in Scotland) and the tradition of secrecy in this jurisdiction were equally Convention compliant.
(2) Although evidence was lacking to justify the rationale of secrecy versus open justice in run of the mill child cases, the Court could not go against the majority ruling in B v UK  2 FLR 261, and P’s appeal failed on all counts.
(3) It was however time for the Court of Appeal to reconsider its practice of automatically applying reporting restrictions to appeals from the Family Division which had been sanctioned in Re R  2 FLR 145.
The Court indicated that they had some sympathy with the dissenting minority in B v UK. Although the FPR conferred a discretion on the Judge to lift the veil of privacy, they observed that a fair exercise of this discretion might be prejudiced by tradition or an unconscious preference for the atmosphere of a chambers hearing. But P was successful in making appellate proceedings more open. Since this case, the Court of Appeal has only anonymised judgments in exceptional cases.