Why the Children Schools & Families Bill implies a statutory reversal of Clayton Versus Clayton

[Alison J Stevens]

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.