Dr Pelling speaks on Children Schools & Families Bill and statutory reversal of Clayton-v-Clayton

Dr Michael Pelling has given the following analysis of the effect of the Children Schools and Families Bill on existing “openness” precedents Clayton v.Clayton and Clibbery v.Allan and shows that far from increasing transparency in Family proceedings, the Bill in many respects does the exact opposite.

Why the Children Schools & Families Bill implies a statutory reversal of Clayton v. Clayton [2007] 1FLR 11 CA

1.  The current law is that it is a Common Law contempt (declared in s.12(1)(a) AJA 1960) to publish information relating to child proceedings heard in private (i.e. general public not admitted, even if accredited press are) such as under the Children Act 1989 or in wardship. Information means substantive information about the content of the proceedings, such as submissions, evidence, and judgment, but case law held that it did not, for contempt purposes, include the mere names of parties, witnesses, or children the subject of the proceedings – see X v.Dempster [1999] 1FLR 894. These could be published without contempt. However, s.97(2)-(6) Children Act 1989 created a summary criminal offence of publishing information to the public or a section of the public identifying or likely to identify a child as the subject of proceedings under the Children Act, and this actually applied whether the proceedings were in private or in open court. Clayton v.Clayton CA held that the s.97 prohibition only applied while the proceedings were continuing – once the Court had reached its final decision and the case was concluded, it would be no offence to identify the child. In particular in newspaper reports and to the public generally.

2.  The Bill repeals s.12(1)(a) AJA 1960 and s.97(2)-(6) Children Act 1989, and ss.32-41 create general restrictions on publication of information relating to Family proceedings, whether child related or not (e.g. proceedings under Part IV Family Law Act 1996 are covered, but not matrimonial causes). They apply only to proceedings heard in private (general public not admitted) and to both ongoing and concluded proceedings [s.32(1)]. A new statutory contempt is created by s.32(2) covering the “publication of information relating to the proceedings” unless (and only if) any of 3 exceptions applies, in which case there is no contempt. These are:-

(a) an authorised publication of the text, or a summary, of the whole or part of an order made or judgment given by the court in the proceedings;

(b) an authorised news publication;

(c) authorised by rules of court.

It is important to realise that “information relating to the proceedings” now DOES include identification information – see the interpretation section 41. Information identifying or likely to identify parties, witnesses [except professional witnesses], or those (typically children) the “subject of the proceedings”, is now included in the statutory contempt, unless of course falling within (a), (b) or (c). Further, it makes no difference whether the proceedings are ongoing or concluded.

3.  It follows that we have a reversal of Clayton v.Clayton in the case of Children Act proceedings heard in private (as they almost inevitably are) UNLESS publication of the name of the child, or information likely to identify him, to the public or a section of the public, after the proceedings are concluded falls within one of the exceptions (a), (b) or (c) set out in s.32(2).

4.  One can easily deal with (c) – there are no rules of court authorising publication to the public at large.

5.  The definition of (b) is found in s.34.  A publication of information is an authorised news publication if a series of conditions are met. Condition 1 [s.34(2)] is that the information was obtained by an accredited news representative by observing or listening to the proceedings when attending court in the exercise of a right conferred on such representatives to attend. But Condition 3 [s.34(4)] is that the information is not identification information relating to an individual involved in or referred to in the proceedings (subject to power of court to allow publication, but we are concerned with the general case and not with the special situation where the court makes specific orders or injunctions enlarging or restricting the scope of what is permitted publication). It follows that exception (b) is of no avail.

6.  The definition of (a) is found in s.33. Judgments need permission of the court to be published, but unless the court expressly prohibits it, there is (excluding Adoption proceedings) no restriction on publishing the text or summary of the whole or part of an order made in the proceedings. It follows that exception (a) will SOMETIMES permit the identification of a child in the proceedings – provided the text of a court order names or identifies the child. This seems to point up some very bad drafting in the Bill, because it cannot be reasonable that the right to publish the names of the child and parents should depend arbitrarily on whether or not they happened to be expressly named in an order of the court. In my experience it is equally common for the names to occur in the order as not – it is easy to draft a court order either way. For example:-

(i)  The Applicant Father’s application for a Residence order is dismissed.

OR

(ii)  The Applicant Charles John Adams’s application for a Residence order in relation to Nicholas Joseph Adams (born 22 March 2001) is hereby dismissed.

7.  However, you can be sure that once the Family law judiciary cotton on to the new significance of whether or not names expressly occur in the texts of the orders they make, they will rapidly opt for modes of expression which cut out the names. It seems fair to say that the Bill does imply a statutory reversal of Clayton v. Clayton CA by virtue of its clauses 32(1), 32(2), 33, 34(4), 41 all read together.

8. But the matter goes further: because it is clear from the above analysis that, subject to the contingency of an order naming names, it will now be a contempt of court to name parties, witnesses (excluding experts), and individuals the subject of or involved in the proceedings, in most kinds of Family proceedings, and not only child proceedings, and a fortiori to disclose substantive content of the proceedings. Thus proceedings under Part IV Family Law Act 1996 (for exclusion orders or non-molestation injunctions etc: almost invariably heard in private) will be included. This means in particular that we also have a statutory reversal of Clibbery v. Allan [2002] 1FLR 565 CA, and not only to the extent of names but also now to cover evidence such as the Court of Appeal held Ms Clibbery was entitled to publish. The right of a party to publish information about his own case, in Family proceedings generally, not just child cases, is now severely restricted by the Bill, far more than under the existing law.

9. In a TV broadcast on 27 April 2009 Mr Straw stated he would not reverse Clayton v. Clayton (link to recording here) from which it now appears he lied or else he has been bamboozled by the civil servants and the ghastly convolutions of his own legislation.

10.  Frankly, this legislation is just rubbish – far from opening up the courts and creating “transparency” it’s really made things worse. As Frances Gibb, Times legal editor, correctly said, “A long, long step backwards”.

Michael J.Pelling, Dr.

29 November 2009