A Child v Cambridge University Hospitals NHS Foundation Trust

Section 39 of the Children and Young Person’s Act 1933 confers a fact-sensitive discretion to restrict publication identifying a child. The fact that a person is a child does not create an irrebuttable presumption in favour of an order, nor must refusal be confined to rare and exceptional cases. The court must consider open justice, freedom of expression and private and family life, and must grant only the restraint necessary to protect the child’s welfare. A section 39 reporting restriction may be a sufficient and less restrictive alternative to anonymity combined with restrictions on access to court documents. In settlement approval proceedings, protection may be necessary where identification could expose compensation funds to future exploitation, particularly where the claimant is likely to remain vulnerable.

The court approved the settlement of a substantial personal-injury claim brought on behalf of a seven-year-old protected party. The claimant had severe physical disabilities caused by negligent management of the birth but substantially preserved cognitive functioning and might acquire legal capacity as an adult.

The claimant sought an order under section 39 of the Children and Young Person’s Act 1933 preventing newspaper publication of identifying details and photographs. The central issue was whether that statutory reporting restriction was necessary and sufficient, having regard to open justice, freedom of expression, and the claimant’s and family’s private and family life.

1. The court made an order under section 39 of the Children and Young Person’s Act 1933 prohibiting publication in a newspaper of the claimant’s name, address, school, identifying particulars and picture.

2. Section 39 applies to civil proceedings. The earlier observation in R v Leicester Crown Court ex p S (a minor) that restrictions would normally be made unless the case was rare and exceptional required caution. R v Lee confirmed that the statutory wording did not justify such a stricture.

3. The court had to apply the modern open-justice and human-rights framework. Under JIH v News Group Newspapers Ltd, restraint on publication is a derogation from open justice and an interference with Article 10 rights. The court must scrutinise the application closely, ask whether restraint is necessary, and consider whether a less restrictive alternative is available.

4. A section 39 order interferes less with open justice and freedom of expression than anonymity coupled with restrictions on access to court documents under CPR Part 5.4. It may therefore be the appropriate and sufficient protection where some restriction is necessary.

5. On the facts, identification created a real risk that the claimant’s compensation would later become known to inappropriate friends, fortune hunters or thieves. That risk could undermine the protective purpose of settlement approval proceedings under CPR Part 21.10. There was insufficient public interest in identifying the claimant to justify the resulting interference with the claimant’s and family’s private and family life.

6. Each application depends on its own facts. The section 39 order was necessary and sufficient in this case.