S (a child), Re

This Court considered whether the Family Division's inherent jurisdiction can be used to restrain publication identifying a defendant and her alleged victim in a criminal trial in order to protect the welfare and privacy of a child who is the subject of care proceedings where Section 39 of the Children and Young Persons Act 1933 does not apply. The court accepted that the Family Division possesses an inherent jurisdiction to make publicity-restricting orders in appropriate cases but emphasised that the jurisdiction must be exercised with extreme caution and that any restriction must be justified by a proportionality assessment under Articles 8 and 10 of the European Convention on Human Rights read with section 12(4) of the Human Rights Act 1998.

The majority concluded that, on the evidence before Hedley J, the proposed restriction on publication (preventing identification of the defendant and the deceased child in press reports of the criminal trial) was not justified because it would not materially protect the child from the foreseeable harms and would unduly impinge the important public interest in open reporting of criminal trials. Lady Hale dissented, being of the view that the judge had not carried out the required Article 8/Article 10 balancing and that the order should have been stricter or reconsidered by a judge with fuller knowledge of the family proceedings.

Background and facts:

• The child concerned (CS), aged seven at the time of the proceedings, had an older brother (DS) who died of acute salt poisoning in August 2001. In care proceedings a judge found in July 2002 that the mother (PS) had administered the salt and the mother was subsequently charged with murder. CS was subject to care proceedings and was placed in foster care and then returned to live with his father under a care order.
• Media reports following the death had previously identified the family and the deceased boy. Section 39 of the Children and Young Persons Act 1933 was held not to apply to CS in the criminal court because he was not a child "concerned in the proceedings" as a witness or as the person by or against whom proceedings were taken.

Procedural posture:

• After the criminal court discharged a Section 39-based anonymity order, the Family Division (Hedley J) made an order in October 2002 under the court's inherent jurisdiction to prohibit publication likely to identify CS and to prevent publication of particulars of the criminal proceedings insofar as they would identify the family. That order was varied to permit publication of particulars of public court proceedings other than courts sitting in private; the child, through his guardian, appealed the variation to the Court of Appeal and obtained permission to appeal.

Nature of the application and issues:

• The appeal raised (i) whether the Family Division's inherent jurisdiction can properly be used to prohibit identification of a defendant and her alleged victim in a criminal trial to protect the privacy and welfare of a child not covered by Section 39; and (ii) if the jurisdiction exists, how to conduct the balancing exercise between the child's Article 8 rights and the media's Article 10 rights in light of section 12(4) of the Human Rights Act 1998 and the principle of open justice under Article 6.

Court's reasoning and decision:

The Court of Appeal (majority) accepted that the inherent jurisdiction exists and may be a vehicle for conducting the required Article 8/Article 10 balancing. However it concluded that Hedley J had been entitled to decide that, on the evidence, the restrictions sought were not justified: identifying publicity would, in practice, be unlikely to prevent those who knew the family from identifying CS, the proposed limitation would not materially reduce the risk of harm to the child, and the public interest in open reporting of a serious criminal trial was substantial. The majority therefore dismissed the appeal and left Hedley J's variation in place permitting publication of the defendant's identity for the purposes of reporting the public trial.

Lady Justice Hale dissented. She agreed the jurisdiction exists but considered Hedley J had not structured the Article 8/Article 10 proportionality assessment properly and would have allowed the appeal and remitted the matter so that a proper balancing exercise could be carried out by a judge with access to the family material.

This was an appeal from a Family Division order. The Court of Appeal, by a majority, dismissed the appeal and upheld Hedley J's decision to permit reporting of the defendant's identity in the criminal trial. The majority accepted that the Family Division has an inherent jurisdiction to make publicity-restricting orders where justified, but concluded that on the evidence any restriction here would not be proportionate in balancing the child's Article 8 rights against the media's Article 10 rights and the public interest in open reporting of criminal proceedings. Lady Justice Hale dissented, concluding the proper Article 8/Article 10 balancing had not been performed and would have allowed the appeal.

Appeal from the High Court of Justice, Family Division (Hedley J: reserved judgment 19 February 2003) to the Court of Appeal (Civil Division), neutral citation [2003] EWCA Civ 963. Permission to appeal was granted by the President; the President stayed the variation pending this appeal.