European court rules on privacy of children`s hearings

Child residence proceedings do not have to be heard in public,
nor does a judgement of the case have to be pronounced in public.
That was the decision of the European Court of Human Rights in two
cases against the UK, B -v- United Kingdom and P -v- United
Kingdom.

Article 6 of the European Convention on Human Rights has as a
starting point “everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. Judgement shall be pronounced publicly”, but
there is a rider to that which says “but the press and public may
be excluded from all or part of the trial ….where the
interests of juveniles or the protection of the private life of the
parties so require or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice”.

The applicants had asked for a public hearing and public
delivery of the judgements in residence proceedings brought under
the Children Act 1989. B’s case was heard ‘in chambers’ (ie in
private) throughout. P’s case was held in chambers, but his
application was heard in open court. although it was stipulated
that no reference should be made to the children’s identity in any
publication concerning the case.

Both B and P complained that they had not had their Article 6
rights fulfilled. They also complained that they were prohibited
from giving information about the proceedings, in violation of
Article 10 which guarantees the right to freedom of expression. The
European court examined the concept of the right to privacy within
proceedings, and concluded by a majority of 5 to 2 that the
exclusion of the press and public can be justified to protect the
privacy of the child and the parties, and to avoid prejudicing the
interests of justice, in proceedings concerning the residence of
children following divorce or separation.

The concurring judges noted that the English courts had a
discretion to hold these hearings in public, if there was a special
reason to do so. They were very much in favour of the English court
retaining control of the decision regarding the status of the
hearing and judgement and leaving those matters to the trial judge,
and they did not have a problem with the position that all children
cases begin with the presumption of a hearing in chambers.
Interested third parties can apply to the court for leave to
consult the full text or obtain a copy of a judgement, and the
court will then consider that request on its merits.

With regard to the freedom of expression, the court having held
that it was justifiable to protect the privacy of the children or
parties involved in the proceedings, and limit the extent to which
a judgement was available to the general public, did not consider
it necessary to examine the Article 10 issue separately.

The court noted “with considerable displeasure” that in breach
of an order of the English court dated 2 November 2000, counsel
representing B and P representing himself, had referred to the full
names of the parties involved only 12 days later at the hearing
which took place in public in the Human Rights Building,
Strasbourg.

Comment:

This case confirms the current position and was an entirely
predictable decision. The convention itself mentions the privacy of
children and the private lives of the parties as exceptions within
Article 6, and contested residence cases by their very nature
involve consideration not only of the private lives of the parties,
but the welfare of the child.

Bernadette Livesey,

Human Rights Solicitor

Walker Morris