S (a child), Re

The High Court’s protective jurisdiction permits it to restrain reporting which would harm a child, including reporting of related criminal proceedings. The jurisdiction must be exercised with extreme caution where the child is neither a party nor a witness.

A child’s welfare is not paramount unless the court is determining a question about the child’s upbringing. Where articles 8 and 10 are engaged, neither has inherent precedence. The court must assess each right independently and apply proportionality. Open justice and full reporting of criminal trials carry substantial weight. An injunction requires relevant and sufficient grounds and must be no wider than necessary.

A seven-year-old child was the subject of care proceedings following his brother’s death. The Family Division found that their mother had administered fatal salt poisoning, after which she was charged with murder. The criminal court lacked power under section 39 of the Children and Young Persons Act 1933 to protect the surviving child because he was neither a person against or in respect of whom the proceedings were taken nor a witness.

Hedley J exercised the High Court’s inherent jurisdiction but varied the resulting injunction so that it did not prevent publication of the mother’s identity, the deceased child’s identity or reports of the public criminal trial. The surviving child appealed. The issues were whether the inherent jurisdiction could restrict identification in those circumstances and how his article 8 rights should be balanced against open justice and the media’s article 10 rights.

1. Appeal dismissed by a majority. Lord Phillips MR and Latham LJ held that Hedley J was entitled to permit publication of the defendant’s name and the identity of the deceased child. Hale LJ dissented on the disposition but the majority adopted her analysis of the governing law.
2. The High Court possessed a protective inherent jurisdiction capable of restricting reports of the related criminal trial. Its existence was not confined to cases in which publication was directed at the child or demonstrably threatened the conduct of care proceedings. Following the Human Rights Act 1998, that jurisdiction provides a means of considering the child’s article 8 rights alongside the media’s article 10 rights. Its exercise nevertheless requires extreme caution, particularly where Parliament’s section 39 protection does not extend to the child.
3. The court was not determining a question concerning the child’s upbringing within section 1(1) of the Children Act 1989. The child’s welfare was therefore relevant but not paramount. The protective jurisdiction aims to secure a child’s rights and safety; it does not make the child’s rights superior to those of others.
4. Articles 8 and 10 must be considered independently. Neither right is a trump card, and section 12(4) of the Human Rights Act 1998 does not give article 10 inherent precedence. Any interference must have relevant and sufficient grounds, answer a pressing social need and be no greater than necessary. The assessment must consider the likely harm to the child, the effect on his family relationships and carers, the effectiveness and scope of the proposed restriction, and the particular public interest in full reporting of a criminal trial.
5. Hedley J’s verbal formulation appeared to give insufficient independent consideration to article 8. Nevertheless, his findings adequately answered the proportionality questions. The charge and family connection were already well known locally, so the requested anonymity offered only limited protection. Against that limited benefit stood the strong public interest in identifying the defendant and reporting a grave criminal trial. His conclusion therefore fell within the permissible evaluative judgment.

1. Court of Appeal (Civil Division): By a majority, dismissed the child’s appeal and upheld the Family Division’s refusal to prohibit identification of the defendant and deceased child in reports of the criminal trial. Hale LJ dissented on the outcome.
2. High Court, Family Division: Hedley J held that the inherent jurisdiction was available but retained an exception permitting publication of proceedings conducted in public, including the criminal trial.
3. Crown Court: An earlier direction under section 39 of the Children and Young Persons Act 1933 was discharged because the surviving child was not a child concerned in the criminal proceedings within that provision.