The Case for Openness in Family Courts

The decision in Clayton v Clayton [2006] EWCA Civ 878 was handed down on 27 June 2006. It was an appeal against orders of Hedley J made in the course of Children Act proceedings in November 2004 and August 2005 concerning the upbringing of C, (now aged 7), the only daughter of the appellant father and the respondent mother. The proceedings had been concluded on agreed terms but the father appealed against an injunction restraining the father from publishing various matters concerning C, which was to be effective until her eighteenth birthday in 2016. Sir Mark Potter P, Arden and Wall LJJ agreed in the Court of Appeal that while the prohibition on publication contained in s 97(2) of the Children Act 1989 prevented identification of children involved in Children Act proceedings while the proceedings were continuing, that prohibition ended once the proceedings were concluded. Any entitlement to anonymity after that was dependent on the court conducting a balancing exercise between the competing Arts 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Every tribunal, when making a final order, should consider whether there was an outstanding welfare issue which needed to be addressed by a continuing order for anonymity. Sir Mark Potter was keen to point out the following.

Our judgments in this case are likely to have an impact, and must not be misunderstood. The fact that the provisions of s 97(2) of the [Children Act 1989] 1989 Act, cease to operate after the conclusion of the proceedings does not mean that parents are free at that point to draw their children into an ongoing public debate about their welfare or other wider issues. The court, after the conclusion of the proceedings, retains its welfare jurisdiction and will be able to intervene where a child's welfare is put at risk by inappropriate parental identification for publicity purposes. Quite where the line is to be drawn between [the Children Act 1989] CA 1989, s 1, and [the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950] ECHR, Arts 8 and 10, in this context remains to be seen, although I venture to think that in practice most parents will recognise it. But let those parents who do not be in no doubt that the court's powers under the ss 1 and 8 of the [Children Act 1989] 1989 Act remain, as do its powers to grant injunctions.