Information Note on the Court’s case-law 29
April 2001
B. and P. v. the United Kingdom - 36337/97 and 35974/97
Judgment 24.4.2001 [Section III]
Article 6
Civil proceedings
Article 6-1
Public hearing
Exclusion of public hearing in child residence proceedings: no violation
Public judgment
Exclusion of public pronouncement of judgment in child residence proceedings: no violation
Facts: In separate proceedings, each of the applicants sought a residence order in respect of his child following separation from his partner or wife. The applicants applied to have the residence applications heard in open court. These requests were refused, on the ground that the relevant rule provides that "unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers". The applicants' appeals were dismissed by the Court of Appeal, which confirmed that the respective judges had exercised their discretion properly in refusing to hear the applications in open court. The applicants' applications for residence orders were subsequently dismissed, the judgments being delivered in chambers.
Law: Article 6 § 1 (public hearing) – Child residence proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding 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 is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment. While Article 6 states a general rule that civil proceedings, inter alia, should take place in public, it is not inconsistent with that provision to designate an entire class of case as an exception to the general rule where considered necessary in the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Article 6 § 1. Furthermore, the English courts have a discretion to hold such proceedings in public if merited by the special features of the case, and the judge must consider whether or not to exercise his or her discretion in this respect if requested by one of the parties.
Conclusion: no violation (5 votes to 2).
Article 6 § 1 (public judgment) – The domestic authorities were justified in conducting the proceedings in chambers in order to protect the privacy of the children and the parties and to avoid prejudicing the interests of justice, and to pronounce the judgment in public would, to a large extent, frustrate these aims. Anyone who can establish an interest may consult or obtain a copy of the full text of the orders and/or judgments of first instance courts in child residence cases, and the judgments of the Court of Appeal and of first instance courts in cases of special interest are routinely published, thereby enabling the public to study the manner in which the courts generally approach such cases and the principles applied in deciding them. Having regard to the nature of the proceedings and the form of publicity applied by the national law, a literal interpretation of Article 6 § 1 concerning the pronouncement of judgments would not only be unnecessary for the purposes of public scrutiny but might even frustrate the primary aim of securing a fair hearing.
Conclusion: no violation (5 votes to 2).
Article 10 – In view of the finding that it was justifiable to hold the residence proceedings in chambers and to limit the extent to which the judgments were made available to the general public, it is not necessary to examine separately the complaint under Article 10, namely that the applicants were prevented from disclosing any details of the proceedings or judgments.
Conclusion: not necessary to examine (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy