IN A DRAMATIC VOLTE FACE the President of the 3rd Chamber of the European Court of Human Rights, Mr J-P. Costa, decided a few days before the oral hearing fixed for 14 November 2000 to permit Dr Pelling to address the Court. He was allowed 15 minutes to speak after Mr Bayram's legal representative's (Andrew McFarlane QC) 30 minutes, and counsel for the U. K. Government (Andrew Moylan QC) was then permitted 40 minutes. Although the President's letter to Dr Pelling indicated he would not be allowed to reply to the Government's submissions, in the event this was permitted on the day. The hearing went smoothly and Dr Pelling concentrated in his allotted time on challenging the
U. K. Government to answer questions they had so far avoided answering (including the relevant Question posed by the Court itself) in relation to the Court of Appeal Injunction of 20 June 1996 which had banned Dr Pelling from naming himself or his son Alexander Pelling-Bruce as the subject of the very proceedings questioning the secret practices of the English courts in child cases. A typical attempt at censorship by Lady Justice Butler-Sloss, now President of the Family Division. The Government has never explained (and did not explain on 14 November) why such an Injunction should be "necessary in a democratic society", under Article 10(2) of the Convention, to restrict freedom of speech as guaranteed by Article 10(1).

THE ECHR RULES OF COURT do give the President of the Chamber a discretion to permit self‑representation, under Rule 36(4)(b), where legal representation would otherwise be obligatory under Rule 36(3). The discretion is not expressly restricted to be available only for members of the legal profession. Dr Pelling's case is a break with a bad and unjustifiable tradition of the Court and has set an important precedent: in future, any litigant in person before the Court who is reasonably able to conduct his own case should not hesitate to insist on his human right to speak for himself.

B)      UK.GOVERNMENT MISLEADS THE COURT AT STRASBOURG - ECHR UPDATE

In its written submissions, and speech at the hearing on 14 November 2000, the United Kingdom Government has done its best to mislead the European Court of Human Rights in Pelling v. United Kingdom, 35974/97 and Bayram v. U K, 36337/97.  Here are some examples:‑

1. The Government persistently stated that the child's welfare is paramount in English law when the court is considering whether or not to hold a hearing in public or to make an order restricting identification. That is not the case, as shown conclusively in the leading domestic cases of Re Z (A Minor)(Freedom of Publication) [1996] IFLR 191 CA and Mrs R v. Central Independent Television [1994]  2FLR 151 CA,

2, The Government then made the same claim under Convention law and quoted a phrase from Hoffmann v Austria 23/6/93 A255‑C §35 to justify themselves. But on checking the paragraph in full one finds it only refers to the interests of children being paramount when parental rights are determined (custody in Hoffman’s case) ‑ not to procedural questions of publicity about hearings,

3. In its first written submissions the Government made the absurd claim that Residence proceedings over children do not even "determine civil rights and obligations" for purposes of Article 6(1) of the Convention ‑ a claim the Court rejected by its Admissibility Judgment,

4. In its final written submissions the Government further misrepresented English case law by claiming that child proceedings are non‑adversarial (binding authority has only held this for public law proceedings, not private law Residence cases), and that parties are required to give full and frank disclosure of all matters material to the child's welfare (applies only in public law proceedings to expert reports obtained in reliance upon leave of the court),

5. The Government has sought to reverse Convention case law by arguing that Article 6(1) ("Judgment shall be pronounced publicly") permits pronouncement of judgment in private in child custody cases!

6, In its oral submissions the Government falsely claimed that Orders of the court in child proceedings are publicly available; they are not ‑ see Family Proceedings Rules 1991 Rule 10,20(3),

7, The Government informed the Court that it had obtained leave from the domestic courts to receive and disclose the Children Act Judgments in Dr Pelling's and Mr Bayram's Residence cases, What the Government did not tell the Court was that copies of those Judgments had already been illegally obtained by the Government's lawyers, without leave of the court as required under FPR 1991 Rule 4,23(1), before they made their formal applications for leave in the respective County courts.

Dr M. Pelling, 20Nov00