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
