S (a child), Re

The House of Lords held that the strong common-law and Convention principle of open justice and the freedom of the press to report criminal trials ordinarily outweighs applications for injunctions restraining publication to protect the privacy of non‑party children indirectly affected by those trials. The court analysed articles 8 and 10 of the European Convention on Human Rights, applied the proportionality/ultimate balancing test explained in Campbell v MGN Ltd, and concluded that section 39 of the Children and Young Persons Act 1933 (and its replacement in the Youth Justice and Criminal Evidence Act 1999) demonstrates a legislative choice not to extend automatic reporting restrictions to children not concerned in the proceedings. The court rejected the extension of the inherent jurisdiction or Convention rights to create a general power to grant such non‑party injunctions in ordinary criminal trials because of the exceptional consequences for open justice, the press (including local newspapers), and public debate.

Background and facts:

• The child, CS, was the younger brother of DS who died in hospital from acute salt poisoning. Hedley J in the Family Division found at a fact‑finding hearing that the mother had administered the salt and later the mother was charged with murder. Care proceedings were brought concerning CS; he was placed with his father and had supervised contact with the mother.
• The guardian sought an injunction under the inherent jurisdiction of the High Court to restrain publication of material identifying the family in reports of the criminal trial, principally to protect CS from adverse publicity. Hedley J made an order but included paragraph 8(a) permitting publication of particulars of proceedings in open courts; the local paper challenged part of the order and the exception remained.

Procedural posture:

• The guardian appealed the inclusion of paragraph 8(a) to the Court of Appeal which, by majority, dismissed the appeal (refusal of relief). Leave to appeal to the House of Lords was granted.

Nature of relief sought:

• An injunction restraining publication of information calculated to identify the child and his family in reports of the defendant's criminal trial (i.e. protection beyond the scope of section 39 of the Children and Young Persons Act 1933).

Issues framed:

1. Whether article 8 of the European Convention on Human Rights (right to respect for private and family life) and/or the inherent jurisdiction of the High Court permitted the grant of an injunction to protect a non‑party child from identification arising from reporting of a criminal trial;
2. How to carry out the proportionality/ultimate balancing exercise between articles 8 and 10 in such a case; and
3. What weight to give statutory provisions (notably section 39 of the 1933 Act and replacement provisions in the 1999 Act), the principle of open justice and the practical consequences of granting the injunction.

Court's reasoning and decision:

• The House held that article 8 was engaged but that the interference claimed was indirect and not of the same order as the protection given to juveniles who are parties or witnesses to proceedings under section 39. The court endorsed the method of balancing under the Convention (an intense focus on the comparative importance of the specific rights and a proportionality test) as explained in Campbell.
• The court emphasised the importance of open justice and freedom of the press to report criminal trials, the legislative choice embodied in section 39 not to extend automatic protection to children not concerned in proceedings, and the adverse consequences that recognition of a general non‑party injunction would have for national and local media and public discussion.
• Balancing the rights and assessing proportionality, the House concluded that the proposed injunction was not justified and dismissed the appeal, leaving paragraph 8(a) intact so that identity and photographs could be published in reports of the criminal trial.

Appeal dismissed. The House held that although article 8 was engaged, the proportionality balancing exercise under the ECHR did not justify extending an injunction to protect a non‑party child from identification in reports of a criminal trial; the importance of open justice, statutory scheme (section 39 of the 1933 Act), and the adverse practical consequences for the press outweighed the interference claimed.

First instance: Hedley J, Family Division — reserved judgment and order incorporating paragraph 8(a) (reported at [2003] EWHC 254 (Fam)). Court of Appeal (majority: Lord Phillips MR and Latham LJ; dissent: Hale LJ) dismissed the appeal: [2003] EWCA Civ 963 / [2004] Fam 43. House of Lords granted leave and dismissed the appeal: [2004] UKHL 47.