English and Welsh Courts - Miscellaneous

Case No: UY12C00038

BAILII Citation Number: [2013] EW Misc 4 (CC)

NEWCASTLE COMBINED COURT CENTRE

 

 

Combined Court Centre

The Law Courts

The Quayside

NE1 3LA

 

13^TH May 2013

 

 

B E F O R E:

HER HONOUR JUDGE HUDSON

_____________________

 

North Tyneside Council

Applicant

-v-

 

Anna Kornas

Respondent

_____________________

Compril Limited

Telephone: 01642 232324

Facsimile: 01642 244001

Denmark House

169-173 Stockton Street

Middlehaven

Middlesbrough

TS2 1BY

_____________________

Judgment (1)

 

1.                       This is an application to commit Anna Kornas by North Tyneside Council arising out of an injunction made in care proceedings concerning the two children of the family.

 

2.                       Rule 33.51 of the Family Procedure Rules 2010 sets out the general rule that committal proceedings are to be heard in public. Practice Guidance has helpfully been provided in relation to such cases by the Lord Chief Justice, Lord Judge, and the President of the Family Division, Sir James Munby, as recently as 3^rd May 2013. That Guidance described the hearing of such applications in open court as ‘a fundamental principle’.

 

3.                       Paragraph 3 of the Guidance confirms that the court has a discretionary power to hear a committal application in private. The Guidance makes it clear that this discretion should only be exercised in exceptional cases, where it is necessary in the interests of justice. The Guidance goes on to set out the steps which must be taken where a court does hear a committal application in private.

 

4.                       The fact that a committal application is being heard in the Family Division in proceedings relating to children does not of itself justify the application being heard in private. The fact that the hearing may involve the disclosure of material which ought not to be published does not of itself justify hearing the application in private, if such a publication can be restrained by an appropriate order. 

 

5.                       This is the second committal application I have dealt with in these proceedings. The first was heard in public in December 2012.  There was no suggestion it should be otherwise.  The only member of the public who attended on that occasion, as I recall it, was Miss Kornas’ then partner.

 

6.                       In relation to this application, there is no application made by any of the represented parties today (North Tyneside Council, Anna Kornas and Vincent Rutherford) to hear the application in private. The position which is put forward on behalf of the local authority, which is not argued against by either of the other parties, is that the court should, however, make orders today which limit the material which can be published arising out of this hearing, but only to the extent that it would identify the two children who have been the subject of these proceedings.

 

7.                       When considering these arguments, the court must balance the Article 10 and Article 8 rights of those involved. Article 10 provides for freedom of expression. As with Article 8, the right for respect of private and family life, Article 10 is a qualified right. The rights are to be balanced.  Any interference with them must have a legitimate purpose, be necessary and proportionate.

 

8.                       Before a court considers proceeding with any committal application in private as a result of the sensitivity of material which will be revealed in the hearing of the application, the court must consider the steps that can properly be taken to restrain publication insofar as that may be appropriate.

 

9.                       I have reached a clear conclusion in this case that the application to commit is quite properly heard in public. It is in the interests of justice that the application is heard in public so that the full circumstances of the application are known, subject to limited restrictions which I do consider appropriate in relation to the reporting of the proceedings. The very subject matter of this application is such that information about this family is in the public domain. The injunctive orders I made in this case against Anna Kornas which have given rise to this application provided for disclosure of information into the public domain, which named the parents in the case but prohibited disclosure of the names of the children who were the subject of the proceedings. I reached this conclusion to protect the interests of the children.

 

10.                   That decision was taken in the course of the care proceedings which have very recently concluded. The section 97 Children Act 1989 restrictions therefore no longer apply, but the court nonetheless has the power in appropriate cases to make orders under the inherent jurisdiction preventing such publication after the conclusion of care proceedings. The court should only exercise its power to restrain publicity under the inherent jurisdiction if the provision of section 12 Administration of Justice Act 1960 and section 39 Children and Young Persons Act 1933 are insufficient.

 

11.                   In determining whether to restrict reporting or publication of proceedings the court must balance the Article 8 rights of the child and the Article 10 rights of freedom of expression.

 

12.                   In the present case the identity of the parents is legitimately in the public domain as a result of the orders I made on 9^th November 2012, giving the local authority permission to disclose the core information document and for a redacted copy of an earlier judgment to be placed on BAILII.  I am not asked to take any different course in relation to the identification of the parents, a course which I approve. There is, in my judgment, no reason to take a different view now in relation to the publication of their names.

 

13.                   With regard to the children, the arguments which persuaded me then to prohibit any publication of their names or information leading to their identification carry the same force now.  The Article 8 rights of the children, in my judgment, outweigh any Article 10 rights to identify them. I will therefore make an order in relation to the publication of material arising out of this hearing, which prohibits publication of names of the children or any details which may lead to their identification, including any photographs and moving images of them and any information relating to their addresses or the schools they attend.

 

14.                   I do not propose to say any more in relation to that order at this stage.  Any person or party affected by the order is of course at liberty to apply to vary or discharge it.

 

End of judgment.

 

We hereby certify that this Judgment has been approved by Her Honour Judge Hudson.