Law Report: Children act cases to be heard in private

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Re P-B (a minor); Court of Appeal (Lady Justice Butler-Sloss, Lord Justice Peter Gibson, Lord Justice Thorpe) 20 June 1996

Family proceedings involving children should generally be heard in private and, although the judge had a discretion, under rule 4.16(7) of the Family Proceedings Rules 1991, to hear all or part of the case in public, he was not bound by considerations of open justice or freedom of expression to do so.

The Court of Appeal dismissed an appeal by the father of a five-year- old boy, who may not be identified, against the decision of Judge Goldstein, sitting in Bow County Court on 14 March 1996, that the father's application for a residence order under the Children Act 1989 should not be heard in open court.

The father in person; Janet Plange (Lucas & Ball) for the mother; Harry Turcan (Official Solicitor) as amicus curiae.

Lady Justice Butler-Sloss said the father had asked for the whole case, evidence and judgment, to be in open court. The application was supported by an intervenor in the proceedings, and was not objected to by either the mother or the Official Solicitor. The judge nevertheless felt constrained by rule 4.16(7) of the 1991 Rules to decide that the proceedings should all be heard in private. Rule 4.16(7) provided:

Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers.

To her Ladyship's mind those words were clear and simple. However, the appellant suggested that the "default position", if no application was made to hear the case in public, was to hear it in chambers, but that the judge ought to exercise his discretion in each case to come to the inevitable conclusion that all cases should be heard in public.

He set out a number of arguments in support of hearing child cases in public, including the right of the public to know what was going on, criticism of secret justice, the dangers of hearing cases in private without the scrutiny of the public and press, and the inability of litigants in person to get experience in conducting child cases or to find out what the judge was like. He suggested they were rotten laws and a rotten use of discretion.

In support of these arguments, he relied on a line of cases which set out the importance of open justice in the courts, in particular Scott v Scott [1913] AC 417, and on the views of several members of the judiciary in lectures or articles.

He recognised the long- established practice of excluding the public in wardship cases and sought to distinguish it from all other children cases. He was not, in her Ladyship's view, able to sustain that distinction. The court's paramount duty in wardship, namely care of the ward, was now to be found in section 1 of the Children Act: "the welfare of the child shall be the court's paramount consideration".

The appellant also relied on articles 6 and 10 of the European Convention on Human Rights. Article 6(1) provided for the public hearing of cases, but with the proviso of exclusion of the press and public from all or part of the trial "where the interests of juveniles . . . so require". The right to freedom of expression contained in article 10 was also subject to conditions. It would seem that present procedures in family cases were in accordance with the Convention.

The long-established practice in the English High Court and county courts when hearing applications for custody or access (now called residence or contact) or wardship had been and remained to hear the whole of the evidence in private. In the High Court, judgment would often be given in public where the court believed there was a public interest in the case or to give guidance to practitioners.

Despite the appellant's arguments, it was abundantly clear that the courts were bound by rule 4.16(7) to hear child cases generally in private. The sub-rule allowed for all or part of the case to be heard in public, but in the light of the long-established practice it was unlikely that judges would, other than rarely, hear the evidence relating to the welfare of a child in public.

The exercise of discretion remained in the hands of the trial judge and it was a matter for the judge in each case to exercise that discretion if called upon to do so.