In re S (FC) (a child) (Appellant)

Neither article 8 nor article 10 of the European Convention on Human Rights has inherent precedence. The court must focus intensely on the specific rights in issue, examine the justification for interfering with each right and apply proportionality to each.

Open and contemporaneous reporting of criminal trials is a strong rule which may be displaced only by unusual or exceptional circumstances. The indirect effect of publicity upon a child who is neither a participant nor a witness will not ordinarily justify anonymity for the defendant. Since the Human Rights Act 1998, Convention rights provide the direct foundation for deciding such applications. Earlier inherent-jurisdiction authorities may remain relevant to the balance, but no longer determine the existence or scope of the jurisdiction.

The appellant was a child whose mother was awaiting trial for the murder of his older brother. Through his guardian, he sought an injunction preventing newspapers from publishing the names or photographs of his mother and deceased brother. The application was intended to protect him from emotional and psychiatric harm arising from the publicity.

Hedley J dismissed the application in Re S [2003] EWHC 254 (Fam). The Court of Appeal dismissed the child's appeal by a majority, [2003] EWCA Civ 963; [2004] Fam 43. Lord Phillips of Worth Matravers MR and Latham LJ upheld the result, while Hale LJ dissented because she considered that the required balancing exercise had not been performed.

The central issue before the House was whether the child's article 8 interests outweighed the article 10 right of the press to report the criminal trial fully and contemporaneously, and whether the application should be approached through the High Court's inherent jurisdiction or directly through Convention rights.

1. Appeal dismissed unanimously. Lord Steyn delivered the leading speech. Lord Bingham, Lord Nicholls, Lord Hoffmann and Lord Carswell agreed with his reasons. The injunction did not prevent publication of the defendant's identity or photographs of the defendant or her deceased son.

2. Per Lord Steyn, the four propositions emerging from Campbell v MGN Ltd [2004] 2 WLR 1232 supplied the governing methodology. Neither article 8 nor article 10 has inherent precedence. The court must focus intensely upon the comparative importance of the specific rights, consider the justification for interfering with each and apply proportionality to each. This is the ultimate balancing test.

3. The ordinary rule permits the press to report everything taking place in a criminal court. It is a strong rule, capable of displacement only by unusual or exceptional circumstances. Parliament has created specific exceptions, but section 39(1) of the Children and Young Persons Act 1933 did not protect a child who was neither the subject of the criminal proceedings nor a witness. That legislative choice was a material factor. Courts should not create further exceptions by analogy, save in the most compelling circumstances.

4. Since the Human Rights Act 1998 came into force, the foundation for restraining publicity in cases of this kind derives directly from Convention rights. The House unanimously held that earlier authorities concerning the existence and scope of the High Court's inherent jurisdiction need not be considered in this or similar cases. They may retain some relevance to the ultimate balance, subject to the Convention methodology explained in Campbell v MGN Ltd.

5. Article 8 was engaged, but the effect of the trial upon the child was indirect. He was not a witness, would not be mentioned and would not be photographed. By contrast, full contemporaneous reporting placed the trial under public scrutiny, promoted confidence in criminal justice and supported informed public debate. The proposed restriction would encourage wider applications by child and adult non-parties, produce accumulating exceptions and exert a serious chilling effect, particularly upon local newspapers.

   Those considerations meant that the child's article 8 interests did not outweigh the article 10 right. Hedley J had performed the required Convention analysis. He had gone too far in suggesting that the result would have been the same had the child's welfare been paramount under section 1(1) of the Children Act 1989, but that was not the legal basis of the application before him.

• House of Lords: In In re S (FC) (a child) (Appellant) [2004] UKHL 47, the House unanimously dismissed the appeal and left the press free to identify or publish photographs of the defendant and her deceased son.
• Court of Appeal: The court dismissed the child's appeal by a majority, [2003] EWCA Civ 963; [2004] Fam 43. Lord Phillips of Worth Matravers MR and Latham LJ upheld Hedley J's conclusion. Hale LJ dissented.
• High Court, Family Division: Hedley J dismissed the application for an injunction in Re S [2003] EWHC 254 (Fam), permitting reports of the criminal trial to identify and publish photographs of the defendant and deceased child.