Here is an extract of the interchanges that took place between her Ladyship and DrPelling after the Court of Appeal’s reserved Judgment had been handed down:-
"BUTLER-SLOSS LJ: We indicated to Dr Pelling on the last occasion [16 May 1996] when we imposed the normal direction, that although our judgments can of course be provided, because they are given in open court, there is to be no identification of the child and consequently no identification of adults which would lead to the identification of the child. Dr Pelling, I believe you wanted to say something about that and you have provided us with a long list of cases. I have to tell you that as far as this court is concerned this is settled law and it can be seen most conveniently and most recently in a decision of this court: the Master of the Rolls, Auld LJ and Ward LJ in a case called Re Z (A Minor)(Freedom of Publication) [1996] IFLR 191 CA. The only passage in it for the purposes of these proceedings is in the judgment of the then Master of the Rolls, Lord Bingham, in which he says at p.213:
“In my judgment a question of upbringing is determined whenever the central issue before the court is one which relates to how the child is being reared. If the matter before the court requires the determination of any question which is to be characterised as one with respect to the upbringing of the child, then the child’s welfare is the court’s paramount consideration and welfare prevails over the freedom of publication”.
This court is bound of course by that decision and in particular by the words of the Master of the Rolls. This is a case in which we have been dealing with the procedural part of a welfare case dealing with the future Residence and Contact of your son. Consequently this is a welfare case and welfare considerations take precedence over the freedom of the press and any other freedom of publication and we have considered this matter since we knew you were going to raise it. It does not arise for argument. It is a matter for the discretion of this court whether to impose such a direction. It is the practice of this court to impose such a direction so that our judgments are public but the identification of the child is not made because in our view, and it is the view of other courts of the Court of Appeal, this accords with the best interests of the child. So really we do not need to look, I am afraid, nor is it appropriate that we look, at the line of authorities that you were hoping to present to us.
DR PELLING: Are you refusing to hear me?
BUTLER-SLOSS LJ: Yes, in fact, we are. We are refusing to hear argument on the direction because we believe that we are bound by the decision in Re Z.As far as we are concerned this is a welfare case and there is the practice in the Court of Appeal in these children cases not to identify.
DR PELLING: You may say that you are bound by Re Z. I would rather rely on Mrs R v. Centra1 Independent Television [1994] 2FLR 151 CA, but if you are not going to hear argument...
BUTLER-SLOSS LJ: It is not appropriate on this direction to hear argument. …The sole restriction is the identification of the child or the family and you are to obey it, please, Dr Pelling, because, as you know very well, there are penalties if you do not obey it and the court would have to consider on another occasion whether or not to enforce those penalties.
DR PELLING: I understand it would be a civil contempt. I have to say that I do not intend to obey it.
BUTLER-SLOSS LJ: It is not wise, Dr Pelling, if I may say so, to tell us in court that you are not proposing to obey a court order.
DR PELLING: It may not be wise, but I do happen to rather care about freedom of speech and the liberties that I thought I enjoyed as an Englishman in this country. It seems that that is no longer the case."
A few days later Dr Pelling was aroused at home in the early morning by a Policeman and 2 High Court Tipstaff's Deputies banging on his door and the Injunction Order was duly served endorsed with a Penal Notice. As Dr Pelling said in his Strasbourg submissions: “I felt I was living in some kind of Police State and not in England, the supposedly traditional home of freedom and liberty".
Re Z identified 3 categories in relation to publicity about children, in an analysis due to Ward LJ, not (including the quoted passage at p.213) the Master of the Rolls as her Ladyship mistakenly thought. These are, in summary: -
(1) Welfare subordinate to press freedom. Here, the material to be published is not material directly about the child or material directed at the manner of the child’s upbringing. The material is only indirectly or incidentally referable to the child.
(2) Welfare dominates the decision. When the court, in making the decision on publicity, is determining a question with respect to the upbringing of the child so that his welfare is the court’s paramount consideration.
(3) The balancing exercise. Where the material is directly about the child or is directed at the manner of his upbringing but welfare is not paramount because a question of upbringing is not being determined by the court. Welfare must then be balanced against the freedom of publication.
Since talking about upbringing is not itself upbringing, category (2) cases are comparatively rare, although Re Z itself was one such because it concerned the proposed exercise of parental responsibility by Sara Keays in putting her child Flora in a TV programme about her daughter’s medical treatment. Plainly Lady Justice Butler-Sloss was wrong to regard the County Court and Court of Appeal proceedings on the procedural issue of open justice as falling into category (2). It was a category (1) case like Mrs R v. Central Independent Television, or, at worst, a category (3) case but even in the latter the child’s welfare is not paramount and the court must carry out a balancing exercise. On 20 June 1996 Butler-Sloss LJ conveniently forgot case precedents in which she herself had participated, for example Re M & N (Wards) (Publication of Information) [1990] IFLR 149 CA where the press publicity was about the removal of wards from foster-parents by the local authority and the matter for child M was already before the court. She said at 159D and 159F:-
“Lord Denning MR said in Re X [1975] Fam.47 CA at p.58 that freedom of speech:
‘means freedom, not only for the statements of opinion of which we approve, but also for those of which we most heartily disapprove’”.
“The sole question is whether the interests of the child should be allowed to prevail over the freedom of the press. In this situation the welfare of the child is not the paramount consideration, There is a balancing exercise where:
'...the court must hold a proper balance between the protection of the ward and the right of free publication enjoyed by outside parties and should hesitate long before interfering with that right of free publication.’ (Per Sir John Pennycuick in Re X (above) at p.61.)”.
In June 1996 Lady Justice Butler-Sloss preferred to pervert the law in order to inhibit and weaken a campaign attacking the very practices of secrecy and judicial censorship so dear to her heart: even to the extent of contradicting her own case law. It is expected that the Injunction will be found by the European Court to violate the Article 10(1) right to freedom of expression because it cannot be justified as "necessary in a democratic society” on any of the grounds in Article 10(2). The Human Rights Act 1998 (in force 2 October 2000) can also be used to provide a defence to any alleged breach of the Injunction.
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