MXB v East Sussex Hospitals NHS Trust

An order under Children and Young Persons Act 1933, s 39 may be insufficient where reports can be published through media other than newspapers or broadcasts. Where anonymity is necessary to protect a child’s interests, the court should use the applicable Civil Procedure Rules provision and tailor the order to the least restrictive effective protection. The court must scrutinise the application closely, respect open justice and Article 10 rights, and balance them against the child’s and family’s Article 8 rights. An anonymity order is justified where identification creates a real risk of defeating the purpose of the proceedings and there is insufficient public interest in identification.

The claimant was a child whose personal-injury claim had been settled. On approval of the settlement, the claimant sought an order preventing publication of the claimant’s identity and other identifying information. The proposed order was initially framed under s 39 of the Children and Young Persons Act 1933, but the claimant then sought an anonymity order and restrictions on access to court documents under the Civil Procedure Rules.

The central issues were whether s 39 supplied protection against reports published through the internet or other media, and whether an anonymity order was necessary and proportionate in the circumstances.

1. Jurisdiction under s 39. Section 39 of the Children and Young Persons Act 1933 expressly concerns newspaper reports. Its application was extended to sound and television broadcasts by s 57(4) of the Children and Young Persons Act 1963, but it had not been extended to every form of internet or social-media report. It was unnecessary to decide the true scope of s 39, although there was force in the submission that it might not confer jurisdiction to prohibit reports made otherwise than in a newspaper or broadcast.
2. Applicable approach. The principles stated in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, para 21, applied to applications made in connection with approval of a child’s settlement. Open justice and Article 10 rights required close scrutiny. Any restriction had to be necessary, and the court had to consider whether a less restrictive and more acceptable alternative would suffice.
3. Application. Evidence demonstrated that anonymity was necessary to prevent the claimant becoming the victim of persons who might misuse the compensation funds. There was insufficient general public interest in identifying the claimant to justify the resulting interference with the claimant’s and family’s Article 8 rights or the risk of defeating the purpose of the proceedings.
4. Form of order. If s 39 was not the jurisdictional basis, wording derived from that section should not be used. The preferable basis was CPR r 39.2(4), together with the relevant provisions governing access to court documents. The court therefore made the revised anonymity and document-access order, omitting reference to the 1933 Act.