Private or Public Hearing?

B v United Kingdom; P v United Kingdom (EctHR TLR 15 May)

Two fathers had instituted county court proceedings to obtain residence orders in respect of their sons pursuant to s8(1) of the Children Act 1989 and both had asked for a public hearing of their applications and public delivery of the judgments. Both applicants complained that their cases were not heard in public and that their judgments were not publicly announced. They further complained that they were barred by court orders from divulging information about the proceedings, in violation of article 10 of the Convention on Human Rights, guaranteeing freedom of expression. Article 6.1 provides that, in the determination of civil rights and obligations everyone was entitled to a fair and public hearing. The public character of proceedings afforded the protection of public scrutiny; it was also one of the means whereby confidence in the courts could be maintained. However, the requirement to hold a public hearing was subject to exceptions. That was apparent from the text of article 6.1, which contained the proviso that “… the press and public may be excluded from all or part of the trial … where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. Proceedings concerning the residence of children were prime examples of cases where the exclusion of the press and public might be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it was essential that the parents and other witnesses felt able to express themselves candidly on highly personal issues without fear of public curiosity or comment. The English courts had a discretion to hold Children Act proceedings in public, if merited by the special features of the case, and the judge had to consider whether or not to exercise his or her discretion in that respect if requested by one of the parties. In both cases the judge had considered the applications and stated that he did not think it was in the child’s interest that the matter should be heard in public, these decisions did not give rise to a violation of article 6.1. Two judges dissented.