Clayton v Clayton [2006] EWCA Civ 878 (27 June 2006)

Clayton v Clayton [2006] EWCA Civ 878 (27 June 2006)

Section 97(2) of the Children Act 1989 prohibits publication identifying a child as involved in proceedings only while those proceedings are ongoing; after proceedings conclude, the statutory prohibition ceases. However, the court retains jurisdiction to grant injunctions to protect the child's welfare and privacy, but must conduct a careful balancing exercise between the child's Article 8 rights and the parent's Article 10 rights. In this case, the continuation of the injunction was not justified on the evidence, as the judge failed to conduct the necessary balancing exercise or to tailor the injunction proportionately to the specific risks to the child.

Citation
[2006] EWCA Civ 878
Parties
Appellant Father: Clayton; Respondent Mother: Clayton; Advocate to the Court: CAFCASS Legal (Advocate to the Court)
Jurisdiction
England and Wales
Judgment Date
27 June 2006
Procedural Posture
Appeal From Family Division (children Act Proceedings) / Judgment on Appeal Against Continuation of Injunction
Outcome
Appeal allowed in part; injunction set aside to the extent it extended beyond the conclusion of proceedings; matter remitted for reconsideration of any further injunction on proper grounds.
Legal Topics
Children Act Proceedings, Injunctions, Freedom of Expression, Privacy and Reporting Restrictions, Article 8 ECHR, Article 10 ECHR
Family Law Human Rights Law Children Act Proceedings Injunctions Freedom of Expression Privacy and Reporting Restrictions Article 8 ECHR Article 10 ECHR

Case Brief

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Parties

Clayton

Appellant Father

Clayton

Respondent Mother

CAFCASS Legal (Advocate to the Court)

Advocate to the Court

Procedural Posture

Appeal From Family Division (children Act Proceedings) / Judgment on Appeal Against Continuation of Injunction

Legal Issues

  1. 1 Whether the statutory prohibition on publication under section 97(2) of the Children Act 1989 continues after proceedings conclude
  2. 2 Whether the continuation of an injunction restraining the father from publishing information about the child is justified under Article 8 and Article 10 ECHR
  3. 3 Whether the injunction was proportionate and necessary in light of the child's welfare and the father's rights

Ratio Decidendi

Section 97(2) of the Children Act 1989 prohibits publication identifying a child as involved in proceedings only while those proceedings are ongoing; after proceedings conclude, the statutory prohibition ceases. However, the court retains jurisdiction to grant injunctions to protect the child's welfare and privacy, but must conduct a careful balancing exercise between the child's Article 8 rights and the parent's Article 10 rights. In this case, the continuation of the injunction was not justified on the evidence, as the judge failed to conduct the necessary balancing exercise or to tailor the injunction proportionately to the specific risks to the child.

Court Disposition

Appeal allowed in part; injunction set aside to the extent it extended beyond the conclusion of proceedings; matter remitted for reconsideration of any further injunction on proper grounds.

Orders

  • The injunction restraining the father from publication is set aside insofar as it extends beyond the conclusion of proceedings.
  • Any further application for an injunction must be determined by the court applying the correct balancing exercise between Article 8 and Article 10 rights.