EMBARGOED Until 10.00 am 27 June 2006
27 June 2006
Clayton -v- Clayton: Summary of Judgment for Media
The Court of Appeal is today handing down its decision in the case of Clayton v Clayton. This may well have widespread repercussions for parents and children, in relation to the identification of children as having been the subject of court proceedings once those proceedings are over. 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.
The Court of Appeal has decided that the prohibition from identifying children which section 97 of the Children Act 1989 provides only applies whilst the proceedings relating to the child in question are in progress. Once the proceedings have concluded, the protection given by the Act comes to an end, the entitlement to anonymity thereafter being dependent upon an exercise in balancing the Convention rights of those involved.
The case of Clayton v Clayton concerned the parties’ young daughter, Estelle, now aged 7. In the course of the proceedings, the father identified a number of issues which he wished to discuss in public after the end of the final hearing. These included the fact that he and his former wife had reached an agreement for sharing the child’s care. He also wanted to be able to debate issues about the family justice system in public by reference to his own case, and to campaign for better and more open family justice, including the sharing of tax credits and child benefit where there were shared parenting arrangements. He also wished to put photographs of the child on his internet web-site recording ordinary family happenings. The Court of Appeal has held that these are all acceptable activities which should not be restrained by an order preventing identification of the child.
But the father also wished to make a film about his abduction of the child to Portugal in 2003. This had involved his imprisonment in Portugal and his subsequent prosecution and imprisonment in the United Kingdom. He wished to use the film to justify his conduct. In this respect the Court of Appeal upheld the judge’s decision and made an order forbidding him from involving the child in such a film. The Court of Appeal held that this was a matter which related to the child’s welfare, and was an interference with her right to respect for her private life (ECHR Article 8). This was more important than the father’s right to free expression (ECHR Article 10) and enabled the court to make an order preventing the father from involving the child in any such film.
The Court of Appeal judgments strongly warn parents against involving their children in questions which continue to occupy the minds of parents after the proceedings have come to an end. Children are entitled to their privacy, and in appropriate cases, the courts retain the power, outside the provisions of s. 97, by injunction to compel respect for a child’s privacy, even after the proceedings involving the child have concluded.
The Department of Constitutional Affairs is shortly to undertake a public consultation on the extent to which there should be greater transparency in family proceedings. The Court of Appeal makes it clear that the case of Clayton v Clayton is not concerned to deal with that broad question, although it regards its decision as a small step towards greater transparency and rebutting the slur inherent in the charge that the family courts administer “secret” justice. It expresses the view that such a description of the system is unfair to the conscientious judges and magistrates who are obliged every day to make orders under the Children Act 1989 which are in the best interests of children.
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