LANDMARK CASE ENDS BAN ON SECRECY

Clayton v Clayton [2006] EWCA Civ 878 - LANDMARK CASE

A successful appeal against injunctions preventing a parent from publishing matters concerning his daughter.

This landmark case clarifies the issues surrounding privacy in Court Proceedings under the Children Act, Administration of Justice Act 1960 and the Human Rights Act. The President of the Family Division, Sir Mark Potter, reiterates the underlying law and reviews the appropriate cases. The key passage is paragraphs 77-78 which sets out new guidance on the restriction that can be placed on reporting after the conclusion of proceedings.

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MEDIA COVERAGE BELOW

The Times
June 28, 2006
Children's right to anonymity ended for family courts
http://www.timesonline.co.uk/article/0,,2-2246764,00.html
By Frances Gibb, Legal Editor

A LANDMARK Court of Appeal ruling yesterday ended the automatic ban on identifying children involved in family court cases, even after proceedings have ended. The blanket of silence that prevents public discussion of decisions to take children from their families, or to reunite them, was lifted.

The Court of Appeal ruled that Simon Clayton, who spent more than three years in dispute with his former wife Aneta over contact with their daughter, Estelle, 10, should have the right to talk openly about his case.

Judges will balance in each case whether any entitlement to anonymity should outweigh the right to freedom of expression. Publicity will not be allowed in any case where it could in any way harm or cause distress to a child. The judgment is expected to extend beyond parental contact disputes and affect all cases involving children, including those of young people being taken into care or adoption decisions.

It comes after an assurance from Harriet Harman, the Minister for Constitutional Affairs, that she will consult this year on opening up the family courts to greater scrutiny, a move supported by growing numbers of both senior family judges and politicians. They believe that greater openness would help to boost public confidence in the family courts and dispel the impression of decisions taken behind closed doors by unaccountable judges.
Judges called it “a small step towards greater transparency” that would help to “rebut the slur inherent in the charge that the family courts administer ‘secret justice’”.

The victory for Mr Clayton came after he reached a novel “shared care” agreement with his former wife.

A campaigner for fathers’ rights and a volunteer adviser to other divorced and separated men, he had wanted to show the parenting plan to others as an example of good practice that can work in the interests of all parties, even in cases that had previously been marked by conflict.
But he had been prevented by the usual blanket injunction in such cases, which would have remained until his daughter’s 18th birthday. Fathers’ rights campaigners said that the ruling would shed a powerful light into the darkness of the family courts, making them accountable for their actions for the first time.

Jim Parton, of Families Need Fathers, said: “Until now people could not see what was going on and how the system was failing families. They could not see the bias against fathers, the general incompetence and the inappropriateness of the whole adversarial system for dealing with cases involving children, which have the potential to mess up children’s lives for good.”

Sir Mark Potter, President of the Family Division who headed the panel of three judges hearing the appeal, said that Mr Clayton had wanted to be able “to debate issues about the family justice system in public by reference to his own case”.

Mr Clayton, from Hay-on-Wye, Herefordshire, had also wanted to campaign for better and more open family justice, including the sharing of tax credits and child benefit when there are shared parenting arrangements.

He had also wanted to put photographs of the child on his website, recording ordinary family happenings. But Mr Clayton was barred by the High Court from using any family names or discussing matters relating to education, maintenance and finance or any of the matters heard in court. But the appeal judges said that Mr Justice Hedley had been wrong to continue the injunction after the end of the case.

In a summary, Sir Mark said the ruling “may well have widespread repercussions for parents and children in relation to the identification of children”. He added: “Essentially, the decision concerns the balance between children’s right to privacy and their parents’ right to freedom of expression under the European Convention on Human Rights.”

He said that the father should be allowed to debate issues about the family justice system with reference to his child’s case. “These are all acceptable activities which should not be restrained by an order preventing identification of the child,” he said.

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