Hale LJ dissents from the result on this appeal reached by the other two members of the Court. Her judgment is nonetheless placed first as it contains a detailed analysis of the law, which the other members of the Court adopt.
Lady Justice Hale:
- This is an appeal against an order made by Hedley J in the Family Division of the High Court on 19 February 2003. It raises a short but difficult point, which he put thus: can or should the court restrain the publication of the identity of a defendant and her victim in a murder trial to protect the privacy of her son who is the subject of care proceedings?
- Hedley J decided that he could do so but should not. The child concerned, through his guardian in the care proceedings, appeals to this court with the permission of the President, who has stayed the order and continued in effect an earlier order prohibiting such publication until the hearing of the appeal.
- The child concerned is CS, now aged 7. On 20 August 2001, his older brother DS, then aged 9, died of acute salt poisoning in Great Ormond Street Hospital where he was a patient. Various press reports appeared soon afterwards: in the Evening Standard for 22 August, headlined '"Poison theory" over mystery death'; in the local paper for 24 August, headlined 'Police Probe into Boy's Death'; in the Evening Standard for 28 August, headlined 'Boy's death from a mystery illness turns into murder inquiry'; in the Independent on 29 August, headlined 'Poisoning suspected after heart attack kills boy aged 9;' in the local paper for 31 August headlined '"Poisoned boy": Now it's murder'; and finally in the local paper for 5 October headlined 'Boy's death: Man and woman arrested'. All of these named the dead child and where he lived; the local paper also named his parents, his younger brother and his school in their earlier reports; the Evening Standard did not name his parents or refer to his having a younger brother; the Independent did name his parents but did not refer to a brother; in their final report, the local paper did not name the man and woman arrested or refer to the dead boy's family, but they did name his school.
- Shortly after DS died, care proceedings were brought in relation to CS who was fostered while they continued. At a fact-finding hearing in July 2002, Hedley J found that the death was caused by salt poisoning administered by the mother, PS. Until then, no charges had been brought against either of the people arrested. But as a result of Hedley J's findings, the mother was charged with murder on 9 August 2002. She is due to be tried at the Old Bailey, but the trial is not yet listed and may well not take place until next year.
- The parents have now separated. The father has remained in the family home and the mother has moved out to live with her parents. At the final hearing in the care proceedings on 13 November 2002, Hedley J made a care order and approved a care plan to place CS with his father. CS has therefore returned to live in his old home and attend his old school. He has supervised contact with his mother and maternal grandparents who live locally and have been much involved with his care. Sadly, his maternal grandfather died on Easter Sunday. Contact is still in issue in the care proceedings and will probably remain so until after the criminal trial. A further hearing is listed for 25 September 2003. The dead boy's funeral has not yet taken place.
- Meanwhile, on 29 August 2002, in the criminal proceedings, HHJ Moss QC had made an order under section 39 of the Children and Young Persons Act 1933, prohibiting publication of particulars calculated to lead to the identification of CS. He stated particularly that publication of the family's surname would be considered an act calculated to lead to that identification. He did so because the magistrates' court had made a similar order without referring to the surname and there had been media reports of the hearing (which we have not been shown).
- Section 39(1) plays an important part in the argument in this case. It reads as follows:
"In relation to any proceedings in any court the court may direct that -
(a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;
(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except insofar (if at all) as may be permitted by the direction of the court."
This section applies to sound and television broadcasts, and to cable programme services, as it applies to newspapers (Children and Young Persons Act 1963, s 57(4); Broadcasting Act 1990, Sched 20, para 3(2))
- On 11 October 2002, again in the criminal proceedings, HHJ Focke QC discharged the order on the application of the local paper. He took the view, with which Hedley J later agreed, that section 39 did not cover the case: CS was not a 'child concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein'. There was apparently some question of CS becoming a witness for his mother, but he was not yet a witness. However, Judge Focke stayed his order lifting the ban for seven days, to enable an application to be made to the Family Division.
- Hence an application was made to Hedley J under the inherent jurisdiction of the High Court. On 17 October 2002, he granted an order based upon the model commonly used in the Family Division. This prohibited publication (a) of the name or address of CS, his school (or other establishment in which he is living, being educated or treated), anyone other than his parents having his day to day care, his parents, and the applicant local authority; (b) of any picture of either the child or either of his parents; and (c) of any other information which might lead to his identification. Publication was only prohibited if in a manner calculated to lead to the identification (a) of the child as being the subject of care proceedings or the child of his parents, (b) of an establishment as an establishment where the child is living, being educated or treated, and (c) of any parent or carer as being the parent or carer of the child. Soliciting information (other than information already in the public domain) from the child, any establishment, any carer, the parents or any other relative was also prohibited. However, the order also expressly prevented any person 'publishing any particulars of or information relating to any part of the proceedings before any court which may or is calculated to lead to the identification of the said child'.
- That order was clearly designed to prohibit publication of the name and any photograph of the mother in any report of her criminal trial. In practice it would also have prevented publication of the name and any photograph of the child who had died. The parties and any person affected were given liberty to apply. The local paper did apply and on 13 November 2002, the order was modified to include in paragraph 8 the proviso that 'Nothing in this order shall of itself prevent any person (a) Publishing any particulars of or information relating to any part of the proceedings before any court other than a court sitting in private'. Also excepted in paragraph 8(b) was information previously published to such an extent that it was already in the public domain. However, paragraph 8 was stayed until 13 December 2002 so that the matter could be fully argued. By this time, three national newspaper groups had taken up the banner on behalf of the press. Technically the argument was about whether the exception in paragraph 8(a) should remain in the order. In practice, the newspapers accepted that they should not refer to CS at all, but they wished to be able to publish the full names and photographs of both of the parents and of the dead boy.
- Before the court on 13 December was an addendum psychiatric report from a well-known child psychiatrist who specialises in traumatic stress and who had already made reports on CS for the purpose of the care proceedings. When she had seen him in May,
"he was a well functioning six year old who was attached to his parents. He had coped with the death of his brother and separation from his parents well, mainly because of the good therapeutic programme put in place by the local authority".
She understood that CS had now been told how his brother had died and that his mother was to stand trial for her alleged part in it. He was confused and his therapist and father were trying to help him. In her opinion:
"2.1. CS attends school and once the news of the charges against his mother becomes public, he will have to cope with the curiosity of his peers, and possible bullying and teasing. If the reporting was confined to the time of the trial and CS's name and the name of the family was not mentioned and photos not published, it would be possible to plan for the minimum of adverse effects by removing CS from the country for a holiday during the trial itself and for sensitive work to be done with his peers by the school in his absence.
2.2. However if there is a long period of adverse named publicity, the effect on this vulnerable boy, who has already lost a brother by death and has been deprived of his mother's care (and it has to be said that there is no evidence that she was anything other than a good and caring parent to CS) would, in my opinion be significantly harmful. It would not be possible to protect him in the way I mentioned above. The effect of bereavement on a child of this age is to enhance the risk of developing a depressive disorder five-fold. CS, therefore, whilst at present well-functioning carries this enhanced risk which may not manifest itself immediately. The risk continues into adult life. The addition of the stress of coping with the curiosity and possible teasing and bullying of his peers would be to significantly increase the possibility of his developing a psychiatric disorder."
- On 19 February 2003 Hedley J delivered a reserved judgment. He ruled that the stay should be lifted and the exception in paragraph 8(a) should remain in the order. Unusually, however, he did not include the 'public domain' exception in paragraph 8(b), which would have permitted republication of the references to CS which had appeared in August 2001. The child, through his guardian, appeals against the inclusion of paragraph 8(a). The mother supports that appeal on additional grounds. The respondent newspaper groups do not appeal against the omission of paragraph 8(b) but support the judge's order on additional grounds.
- It is common ground that section 39 of the 1933 Act does not apply, so that the criminal court cannot make an order to protect CS. It is also common ground that the Family Division of the High Court does have an inherent jurisdiction, in some circumstances at least, to protect children from publicity. The parties differed, both here and below, on two main issues:
(1) whether as a matter of principle this jurisdiction should never be used to prohibit identification of the defendant in a criminal trial for the sake of a child to whom section 39 does not apply or whether it both can and should be used to fill the gap where the interests of the child justify this; and
(2) if such a jurisdiction is exercisable, the proper approach to be taken to, on the one hand, the interests of open justice and the right to freedom of expression both at common law and under Article 10 of the European Convention on Human Rights (ECHR), and, on the other hand, the welfare of the child and his right to respect for his private and family life under Article 8 of the ECHR.
The judge's decision
- The authorities on the inherent jurisdiction were extensively reviewed by Ward LJ in Re Z (A Minor) (Identification: restrictions on publication)  Fam 1  1 FLR 197 (as is now well-known, this case concerned whether the daughter of Cecil Parkinson and Sarah Keays should be permitted to take part in a television programme about the specialist help she was receiving for her special educational needs.) The result of this analysis, as summed up by Munby J in Kelly v BBC  1 All ER 323, at p 341a-b;  1 FLR 197, at p 216f-h,
" . . . is that in relation to the media the exercise of the court's inherent parens patriae or wardship jurisdiction is divided into three parts: the first part, in which the jurisdiction is not exercisable at all and the child is left to whatever remedies against the media the law would give an adult in comparable circumstances; a second part in which the jurisdiction is exercisable, but in circumstances where, because the court is only exercising its 'protective' jurisdiction, the child's interests are not paramount and where a so-called balancing exercise has to be performed; and the third part, in which, because the court is exercising its 'custodial' jurisdiction, the child's interests are paramount."
- Hedley J held that this case came within the second category:
"I am not entering into potential conflict with the criminal courts; I am dealing with the interests of a child subject to the 'care' jurisdiction of this court; I have evidence of reasonably anticipated serious detriment to this child. There is a real factual nexus between the exercise of my jurisdiction and the publication in question." (para 14 of his judgment)
- Having reached that conclusion, he recognised that in conducting the balancing exercise between welfare and freedom of publication, he had to have regard to the Convention rights of freedom of expression under Article 10 and respect for private and family life under Article 8.
"Nevertheless in the light of section 12(4) of the Human Rights Act 1998 which requires the court to have particular regard to the importance of the Convention right to freedom of expression, it is recognised that this is not a true balance in that in order to justify the restrictions it will have to be shown as justifiable in accordance with article 10(2). That is not to say (and this I accept) that Article 10 has some inherent pre-eminence over Article 8 but it is to say that the court's enquiry should be directed to the question as to whether this restriction, bearing in mind Article 8 rights, is justifiable under Article 10(2)." (paragraph 16)
- He concluded, with a 'regret engendered by the recognition that these will be dreadfully painful times for CS', that the proviso should remain:
"First I recognise the primacy in a democratic society of the open reporting of public proceedings on grave criminal charges and the inevitable price that that involves in incursions on the privacy of individuals. Secondly, I recognise that Parliament has in a number of statutes qualified that right to report and, in the context of this case, most notably in section 39 of the 1933 Act; where a set of circumstances arise not covered by those provisions the court should in my judgment be slow to extend the incursion into the right of free speech by the use of the inherent jurisdiction. Thirdly, I have to recognise that not even the restrictions contended for here offer real hope to CS of proper isolation from the fallout of publicity at this trial; it is inevitable that those who know him will identify him and thus frustrate the purpose of the restriction. Lastly, I am simply not convinced that, when everything is drawn together and weighed, it can be said that grounds under Article 10(2) of the ECHR have been made out in terms of the balance of the effective preservation of CS's Article 8 rights against the right to publish under Article 10." (paragraph 19)
The first issue: the scope and exercise of the inherent jurisdiction
- Miss Booth QC, on behalf of the child, argues that this case comes within the third of the categories identified by Munby J in Kelly v BBC (para 14 above). Mr Gavin Millar QC, for the respondent newspaper groups, argues that it comes within the first. Basing herself on the analysis in Re Z (above), Miss Booth defines the three categories in this way:
(1) The jurisdiction is not exercisable at all where the fact that the child is involved is wholly incidental to the proceedings and the child comes to court solely to prevent publication (for example, in Re X (A Minor) (Wardship: Jurisdiction)  Fam 47, see paras 25 to 26 below).
(2) Where there are issues concerning the child but the decision to publish will not affect the way in which the child is cared for, the child's welfare is relevant but not paramount and must be balanced against freedom of expression (for example, in Re M and N (Minors) (Wardship: Publication of Information)  Fam 211 and Re W (A Minor)(Wardship: Restrictions on Publication)  1 WLR 100, see paras 30 and 31 below).
(3) Where the court is exercising its jurisdiction in relation to a question concerning the upbringing of a child, section 1(1) of the Children Act 1989 applies:
"Where a court determines any question with respect to - (a) the upbringing of a child; . . . the child's welfare shall be the court's paramount consideration."
In such a case the child's welfare is paramount (as, for example, in Re Z (above), where deciding whether the child should take part in the television programme was an exercise of parental responsibility over which the court had both a statutory and an inherent jurisdiction).
- Miss Booth argues that the subject matter of the care proceedings and the criminal proceedings are so intimately connected that in deciding what publicity should be given to the criminal proceedings the court is indeed determining a 'question with respect to the upbringing of a child' within the meaning of section 1(1) of the 1989 Act. The criminal proceedings would not have been brought had it not been for the outcome of the care proceeedings. The evidence in the care proceedings was largely the product of the police investigation which will also be used in the criminal proceedings. It is not possible to separate the way in which CS is being brought up from the way in which his brother was brought up.
- This argument cannot be right. The distinction between the court's 'custodial' and 'protective' jurisdictions was recognised by the House of Lords in S v McC; W v W  AC 24, which concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. The House rejected the argument that this was a matter of upbringing in which the child's interests (which might well be prejudiced by a finding that he was illegitimate) were paramount. Lord MacDermott, at pp 47 to 48, explained:
"The duty of the High Court as respects the welfare and affairs of infants falls into two broad categories. There is, first of all, the duty to protect the infant, particularly when engaged or involved in litigation. This duty is of a general nature and derives from the Court of Chancery and to some extent also, I believe, from the common law courts which were merged along with the Court of Chancery in the High Court of Justice by the Judicature Act 1873. It recognises that the infant, as one not sui juris may stand in need of aid. He must not be allowed to suffer because of his incapacity. But the aim is to ensure that he gets his rights rather than to place him above the law and make his rights superior to those of others. . . .
The Official Solicitor, however, relied on something more than the protective jurisdiction. He relied upon what is commonly referred to as the 'custodial jurisdiction' - the second of the broad categories which I have mentioned already.
This is an aspect of the prerogative and paternal jurisdiction of the former Court of Chancery . . . It is derived mainly from the administrative functions of the Court of Chancery in which that court had to make a choice between conflicting claims as to the custody and upbringing of the infant or the management of his affairs, or to determine the course to be taken in such matters even when not in actual dispute."
A similar distinction was drawn by Lord Hodson at p 58:
"In custody cases the child's welfare is the governing consideration when all the relevant facts, claims and the wishes of the parents are taken into account.
I am not persuaded that the position is the same where a paternity issue has to be tried. True that, as in all cases where infants are concerned, the court will see that the infant is protected. . . . The court in ordering a blood test in the case of an infant has, of course, a discretion and may make or refuse an order for a test in the exercise of its discretion, but the interests of persons other than the child are involved in ordinary litigation. The infant needs protection but that is no justification for making his rights superior to those of others."
- Of course, Ms Booth is right in that there is a sense in which the criminal court will be determining a question of how the dead child was being brought up, but that is so in almost every case in which a child's carer is accused of a criminal offence against the child. The welfare of the child cannot be the paramount consideration in determining questions of fact. Nor can it be the paramount consideration in determining the outcome of any criminal trial. The purpose of section 1(1) of the 1989 Act (and its predecessors in section 1 of the Guardianship of Minors Act 1971 and section 1 of the Guardianship of Infants Act 1925) was to lay down a criterion for the exercise of the court's discretion in its statutory or inherent jurisdiction to determine how the child in question is to be brought up in future. Generally speaking, a question of upbringing will relate to the exercise of parental responsibility for the child: participation in a television programme is an obvious example (and, with respect to Munby J in Kelly v BBC, deciding whether a child should give an interview would normally fall within the scope of parental responsibility unless the child had reached an age where not only was he competent to determine the matter for himself but the parent had no power to override him).
- That is not so here. In deciding whether or not to make this order, the court is not exercising its jurisdiction over how CS is to be brought up. That is being done in the care proceedings. Nor is it deciding how any aspect of parental responsibility should be met. Parents cannot prohibit press reporting of criminal proceedings in order to protect their children from harm, however much they might like to be able to do so. This is not, therefore, a case in which the child's welfare is the paramount consideration.
- The more difficult question is whether this case falls within the scope of the 'protective' jurisdiction at all. Even if it does fall within that jurisdiction, there is the further question whether this is nevertheless a case in which, in the existing state of the authorities on restricting publication, it should never be exercised or whether the court must conduct a balancing exercise between the competing interests. There is then the further question of how, if the a balancing exercise had to be carried out, the rights of the child under Article 8 of the ECHR fall to be weighed against the rights of the media under Article 10. This exercise may involve a radically different approach from that adopted in some of the earlier cases.
The ebb and flow of judicial opinion
- It is not easy to reconcile everything which is said in those earlier cases. They reveal an ebb and flow in judicial opinion which cannot be ignored. They reveal real doubts about the extent to which the court may encroach upon the rights of third parties in order to protect a child. Of course, the inherent jurisdiction has long been used to protect children from undesirable associations, traditionally with fortune hunters and more recently with paedophiles, drug pushers and pimps. Orders have been made and enforced against such third parties. But protecting children from such associations is undoubtedly an aspect of parental responsibility, although the court has much greater powers of coercion than have the parents. There is authority binding on this court for a power to protect children from the otherwise lawful activities of third parties which goes beyond anything which parents could achieve.
- As we are being asked to exercise that power in a way in which it has not been exercised before, it is necessary to revisit the earlier cases, beginning with Re X (A Minor) (Wardship: Jurisdiction)  Fam 47;  1 All ER 697, CA. In Re X, a stepfather made the child a ward of court in order to try to stop publication of a book containing passages about the sex life of her deceased father. Latey J granted an injunction. He explained the existence and scope of the wardship jurisdiction thus, at p 52:
"The Crown has a duty to protect its subjects. This is and always has been especially so towards minors, that is to say now, the young under the age of 18. And it is so because children are especially vulnerable. They have not formed the defences inside themselves which older people have, and, therefore, need especial protection. They are also a country's most valuable asset for the future. So the Crown as parens patriae delegated its powers and duty of protection to the courts. Those powers and that duty so derived are not the creation of any statute and are not limited by any statute. They are there, in my understanding, to protect the young against injury of whatever kind from whatever source."
He went on, however, to acknowledge that it was one thing that the powers exist; it was another whether they should be exercised. The court should tread warily.
- In the Court of Appeal, Lord Denning MR also accepted, at p 57, that no limit had ever been set to the jurisdiction. 'The court has power to protect the ward from any interference with his or her welfare, direct or indirect.' But no case had ever come before the court which was anywhere like the one before him. There was no general remedy for infringement of privacy, because of the importance attached to freedom of the press. Hence he concluded, on p 58, that
'I do not think that the wardship jurisdiction should be extended so as to enable the court to stop publication of this book.'
On the other hand, on p 60, Roskill LJ said this:
". . . I would agree with [counsel] that no limits to that jurisdiction have yet been drawn and it is not necessary to consider here what, if any, limits there are to that jurisdiction. The sole question is whether it should be exercised in this case. I would also agree with him that the mere fact that the courts have never stretched out their arms so far as is proposed in this case is in itself no reason for not stretching out those arms further than before when necessary in a suitable case. There is never a precedent for anything until it has been done once."
In similar vein was Sir John Pennycuick, at p 61:
"It may well be, and I have no doubt it is so, that the courts, when exercising the parental power of the Crown, have, at any rate in legal theory, an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a ward. It is, however, obvious that far-reaching limitations in principle on the exercise of this jurisdiction must exist. The jurisdiction is habitually exercised within those limitations. It would be quite impossible to protect a ward against everything which might do her harm. In particular the jurisdiction must be exercised with due regard to the rights of outside parties . . . By 'outside parties' I mean those not in a family or personal relation to the ward. . . . Specifically, it seems to me, the court must hold a proper balance between the protection of the ward and the right of free publication enjoyed by outside parties and should hesitate long before interfering with that right . . . It would be impossible and not, I think, desirable to draw any rigid line beyond which the protection of the ward should not be extended. The distinction between direct and indirect interference with a ward is valuable, though the borderline may be blurred. I am not prepared to say that the court should never interfere with the publication of matter concerning a ward. On the contrary, I think in exceptional circumstances the court should do so."
Hence the majority view, at least, was that the jurisdiction was capable of extending that far but all were agreed that it should not have been exercised in that case.
- In X County Council v A and another  1 WLR 1422, Balcombe J had made orders about the future of the child born to Mary Bell, who had been convicted at the age of 11 of the manslaughter of two little boys. He was asked to protect the new identities under which the child and her mother were living. He accepted that without a court order publication would not be a contempt of court. Wardship proceedings, like other proceedings concerning the care and upbringing of children, are held in private in the higher courts and reporting them without leave may be a contempt: see Administration of Justice Act 1960, s 12(1)(a). But this does not mean that reporting any information about a ward is a contempt: see Re F (A Minor)(Publication of Information)  Fam 47. Basing himself on the peculiar nature of the wardship jurisdiction and the majority view in Re X, he granted an injunction, not to prohibit publication of the story, but to protect their new identities. Furthermore, on the analogy of a Mareva injunction, he granted it against the world. He considered that if the court could protect proprietary interests in this way it ought also to be able to protect the interests of its wards. He was also conscious of the unfairness to the particular newspaper concerned in the case if it alone was prohibited from publication. (A first instance example of an injunction to prohibit wards being named during the Cleveland child abuse inquiry can be seen in Re W (Wards)(Publication of Information)  1 FLR 246.) The President has recently invoked the law of breach of confidence to extend this protection into the adulthood of Mary Bell's child, in order to protect their rights under Article 8 of the European Convention on Human Rights: see X, A Woman formerly known as Mary Bell, and Y v O'Brien and others  EWHC QB 1101.
- It is also of interest that Morland J, having made an order under section 39 of the 1933 Act at the outset of the trial of Robert Thompson and Jon Venables for murder, modified that restriction once they had been convicted, to the extent of permitting publication of their names, details of their backgrounds, and photographs taken before their arrest. Two days later, however, in the exercise of the inherent jurisdiction of the Family Division of the High Court, he made an order prohibiting publication of the addresses where they were being detained or any other detail which could lead to information about their whereabouts, care or treatment being revealed. The public interest which had justified their identification also demanded that they have a good opportunity of rehabilitation: see V v United Kingdom (2000) 30 EHRR 121, paras 10 and 16. The President extended the protection of their identities following their release, in order to protect their right to life under Article 2 of the ECHR: see Venables and another v News Group Newspapers Ltd and others  1 FCR 333.
- The difference between the Mary Bell case and Re X was, of course, that in the former the information related directly to the ward and the mother with whom she lived and its publication would have a harmful effect upon her care and upbringing. There followed four cases in the Court of Appeal, in which publication of identifying information about a ward of court was prohibited. In Re C (Wardship: Medical Treatment) (No 2)  Fam 39, the court had already made an order about the way in which the health professionals were able to look after a severely disabled baby girl; an injunction was granted prohibiting identification of the child, her parents, her current carers and the hospital where she was being looked after. Although the child herself would know nothing of any publicity, she was entitled to medical confidentiality, and her welfare would be affected by the peace of mind of her carers. Lord Donaldson MR said this, at p 47:
"Unless the public interest or a private right enforceable by the courts requires an injunction, the courts cannot intervene. On the facts of this case such intervention can only be justified upon one or other or a combination of two bases. These are (1) that the injunction is necessary for the welfare of C or for safeguarding her rights and (2) that the injunction is necessary in the interests of the administration of justice."
- Lord Donaldson had earlier drawn a distinction between the public interest and the public's curiosity. The same distinction was drawn in Re M and N (Minors) (Wardship: Publication of Information)  Fam 211  1 All ER 205;  1 FLR 149, where an injunction had been granted restraining all publicity about the removal of foster children from foster parents following an allegation of sexual abuse against the foster father. The Court of Appeal replaced this with an injunction allowing publicity but requiring anonymity. Butler-Sloss LJ (as she then was) referred, at p 224, to the 'upsurge in investigative journalism with an interest in situations affecting children which has led the media to publish or attempt to publish more widely and more frequently than ever contemplated in the early 1970s' and required the court to move with the times. She emphasised, at p 225, that any restraint 'should be no wider than necessary in the particular circumstances to protect the welfare of the child'. Lord Donaldson MR remarked, at p 229, that if it were possible to lay down precise rules Parliament might well have done it,
". . . but in truth this is an objective which is incapable of achievement, not least because a balance of competing rights lies at the heart of the problem and this must depend upon a multiplicity of factors which vary from case to case."
He continued, at pp 229 to 230:
"In deciding whether to issue an injunction or to maintain it, a central consideration is the nature of the media's interest. Curiosity can never justify intrusion into the private lives of children. A genuine public interest may . . .. There is a clear public interest in knowing more of why two children living with long term foster parents should have been spirited away between breakfast and supper without explanation or warning . . . Once the possibility of a genuine public interest in publication appears and there is a countervailing risk to the welfare of the children the balancing exercise begins. The correct approach involves seeking to give the media the maximum freedom to publish and the children the maximum protection. This is not unrealistic. . . . The public interest which the media is seeking to further (in parallel with its own commercial interests) can often, and perhaps largely, be satisfied without identifying the children. The fact that identification and the consequent injection of heightened 'human interest' will not be possible may militate against the media's commercial interests but need not adversely affect the public interest in publication."
The order made in that case has served, with some refinements, as the model for the steady trickle of similar orders made since then.
- Next followed Re W (A Minor)(Wardship: Restrictions on Publication)  1 WLR 100;  1 FLR 99, where the newspaper was permitted to publish a story about a local authority's plan to place a 15 year old boy who had a history of sexual abuse by older men with a homosexual couple as foster parents, but doing its best to avoid any risk of identification. Giving guidelines on how to conduct the balancing exercise, at pp 101 to 102, Neill LJ observed that the object of any restraint on publication was to protect the child and those who cared for him from the risk of harassment; save in an exceptional case, a child could not be protected from any distress he might be caused by reading the publication himself.
- A similar but rather more obvious case is Re H (Minors) (Injunction: Public Interest)  1 FLR 519, where a father with whom the children were living was restrained from publicising his sex change in order to protect the children from harassment, but the injunction was in the by now standard contra mundum form.
- The tide turned, however, with two cases in which the facts were much closer to those in Re X. In R (Mrs) v Central Independent Television plc  Fam 192, the mother obtained an order enjoining the broadcast of a television programme about the detection, arrest and conviction of a paedophile father unless the pictures of the father were obscured. This court quashed the order, distinguishing the earlier cases on the basis that the programme was in no way concerned with the care and upbringing of the child; Neill LJ explained, at p 202:
'A balancing exercise only becomes necessary where the threatened publication touches on matters which are of direct concern to the court in its supervisory role over the care and upbringing of the ward.'
Hoffmann LJ clearly had great reservations about any judge-made encroachments upon freedom of speech (including the decision in the Mary Bell case); other than where there were restrictions sanctioned by common law or statute, freedom of speech was 'a trump card which always wins' (p 203); the principle of a free press was more important than 'the misery of a five year old child' (p 204). However, at pp 204 to 205, he agreed that
". . . the existence of a jurisdiction to restrain publication of information concerning a child and its upbringing is no longer open to dispute in this court. But this new jurisdiction is concerned only with the privacy of children and their upbringing. It does not extend, as Lord Donaldson of Lymington MR made clear in In re M and N, to 'injunctive protection of children from publicity which, though inimical to their welfare, is not directed at them or those who care for them'."
Waite LJ, although accepting at p 209 that the judge 'doubtless had technical jurisdiction to grant' anonymity, introduced at p 208 a further restriction on its exercise, which he drew from the contrast between Re X and Re M and N:
"These authorities establish, in my judgment, that anonymity or confidentiality for a child or its circumstances can only be enforced by injunction in cases where publicity would or might in the view of the court threaten the effective working of the court's own jurisdiction, whether it be in deciding a question about the upbringing of the child, or in exercising, as in In re C a continuing supervisory role over a child whose future has already been determined.. . Confidentiality is an aid to administration of the jurisdiction, and not a right or status which the jurisdiction of itself has any power to confer."
- This theme was taken up again in Re R (Wardship: Restrictions on Publication)  Fam 254. The parents had separated when the child was two and she was made a ward of court soon after that. The mother was granted care and control and the father access. The father then abducted the child to Israel but she was recovered a few months later. Eventually the father was extradited to stand trial in this country. He was anxious to give as much publicity as possible to his version of events and his views upon the treatment meted out to fathers by the family courts. In the Family Division, an order was made prohibiting publicity in very wide terms, which would have precluded virtually any reporting of the criminal proceedings. On the father's appeal, this court varied the order by adding a proviso to permit the reporting of the father's criminal trial. Sir Thomas Bingham MR (as he then was) concluded, at pp 266 to 267, that, in the absence of a statutory restriction, reports of proceedings in a public court of law should only be restrained 'where and to the extent that restraint is shown to be necessary for the purpose of protecting the proper administration of justice'. Although it was obviously desirable that publicity about the ward should be as limited as possible, restraining reports of the criminal trial was not necessary 'to enable the judge to do justice in the wardship proceedings'. There was no statutory provision automatically restricting reporting, but section 39 did apply to enable the criminal court to prohibit identification of the ward as the victim of the alleged crime. He had 'the greatest doubt', for the reasons to be given by Millett LJ, whether the wardship judge had power to restrain reporting of the criminal trial, but if he had he should have left it to the criminal judge to decide whether to do so. Millett LJ, at pp 270 to 271, went further. Apart from the contempt jurisdiction,
"the wardship judge has an additional jurisdiction to prohibit the publication of information concerning the ward which is directed at the ward or at those having responsibility for the ward's upbringing, thereby threatening the effective working of the court's jurisdiction; . . . this last mentioned jurisdiction is of recent origin. Its source and justification lie in the inherent power of the court to protect the integrity of its own process. There is no jurisdiction in the wardship court to protect its wards from adverse publicity which does not threaten the effective working of the court's jurisdiction merely on the ground that such publicity would be contrary to the interests of the ward or damaging to his welfare".
He drew a distinction between the inherent jurisdiction and the statutory powers under section 39 of the Children and Young Persons Act 1933, which 'unlike the wardship jurisdiction' could be used for the sole purpose of protecting children from harmful publicity. The limiting principle of the wardship jurisdiction
". . . may be expressed more generally by saying that the wardship court has no power to exempt its ward from the general law, or to obtain for its ward rights and privileges not generally available to children who are not wards of court; or by saying that the wardship court can seek to achieve for its ward all that wise parents or guardian acting in concert and exclusively in the interests of the child could achieve, but no more."
Henry LJ declined to express a view on the jurisdictional question but was clear that the decision should be left to the criminal court.
- It will be apparent that, whereas these two later cases appear to recognise only one justification for such injunctions, the earlier cases had discerned two possibilities. The authorities were comprehensively reviewed by Ward LJ in Re Z (A Minor)(Freedom of Publication) (above). He drew two conclusions which are important for this discussion:
i) He took the view, at pp 200 to 201, that even Lord Denning in Re X had not reached his conclusion 'for want of jurisdiction, but rather on the basis that in an exercise of discretion that it did possess, the line should be firmly drawn at the point where freedom of publication was at risk.' Lord Denning, and certainly the majority, had approached the case in the same way in which the court had approached earlier cases in which it had been held that the wardship jurisdiction, although not ousted, should not be exercised. Hence he concluded, at p 207:
"(1) The wardship/inherent jurisdiction of the court to cast its cloak of protection over minors whose interests are at risk of harm is unlimited in theory though in practice the judges who exercise the jurisdiction have created classes of case in which the court will not exercise its powers. An obvious class is where Parliament has entrusted the exercise of a competing discretion to another, for example:
(a) the local authority, as in A v Liverpool City Council  AC 363;
(b) the immigration authorities, as in Re Mohammed Arif  Ch 643 and Re A (A Minor) (Wardship: Immigration)  1 FLR 427; and
(c) another court of competent jurisdiction as in Re R (above)."
ii) He pointed out, at p 203, that there were two strands relied upon to justify the use of the wardship jurisdiction to prohibit publication, which might need to be kept separate,:
" . . . namely, that aspect of the wardship jurisdiction which seeks to protect the welfare of the child and that aspect which can also be said to be quite another facet of the court's inherent jurisdiction, namely its power to protect its own proceedings as may be necessary in the interests of the administration of justice."
Hence he concluded, at pp 207 to 208:
"(2) There is now an established category of case, of which Re X and R v Central Television are examples, where the freedom to publish information has been set beyond the limit of the exercise of the jurisdiction. I would define that category as the case where:
(a) the child is not already under the court's protective wing in that the court is not exercising some supervisory role over some aspect of the child's care and upbringing but where, on the contrary, the originating summons is issued for the express purpose of seeking the injunctive relief;
(b) crucially, the material to be published is not material directly related to the child or material directed at the manner of the child's upbringing. In this category the material is only indirectly or incidentally referable to the child. . . .
It is clear from what follows that (a) and (b) were cumulative, not alternative, criteria:
(3) It follows that the wardship jurisdiction will be exercised where the material to be published is directed at the child or is directed to an aspect of the child's upbringing by his parents or others who care for him in circumstances where that publicity will be inimical to his welfare . . ..
(4) A separate aspect of the court's inherent jurisdiction is the power to protect the integrity of its own proceedings. For example, by protecting the anonymity of those who come forward to assist the court, so encouraging full and free disclosure of all material facts impinging upon the child's well-being, the court serves the administration of justice, the ultimate end of which is to do what is best for the child."
Sir Thomas Bingham MR, at p 217, appears also to have accepted that there may be two independent reasons for restraining publication:
"In the absence of a statutory warrant for restraining publicity . . . and where there is no threat to the integrity of the court's proceedings, the court should not restrain reports or comment which are not directed at a child or a child's carers, whether professional or not, and which relate only peripherally to the child itself. That is what the cases decide, and I regard that state of the law as healthy."
- Re Z is the most recent authority in this court which attempts a reconciliation of what appear to be differing approaches in the earlier cases, although the actual decisions are entirely explicable. The facts of R (Mrs) v Central Independent Television plc clearly fell into the same category as Re X and not into either of the justifications for the exercise of the jurisdiction identified in Re C, Re M and N, and Re W. The ratio of Re R was that the decision both could and should have been left to the criminal court having jurisdiction under section 39. It is very difficult to regard the orders made in either Re M and N or Re W as justified by the need to protect 'the integrity of the court's proceedings' unless this concept is given a wide meaning. If the court has intervened, through wardship or other proceedings, in order to safeguard and promote the welfare of the child, and that objective will be jeopardised by the proposed publicity, then this might be said to threaten the effective working of the court's jurisdiction. The alternative approach, taken in Re Z with the approval of Sir Thomas Bingham, was to accept that safeguarding the welfare of a child whose future is already before the court is an alternative basis for making such an order. In either event, it is clear that the information must relate to the child or his carers and that its disclosure would be harmful to him.
- The information in this case lies somewhere in between that in Re X and R v Central Television and that in Re M and N or Re W. The proposed publication will not relate directly to how CS is currently being brought up. We do not know whether it will be necessary to refer to him at all in the criminal trial, but we understand that these respondents have agreed not to publish anything which would refer to him directly. On the other hand, this is not the sort of remote and unconnected information about a deceased or long-absent parent with which the cases of Re X and R v Central Independent Television plc were concerned. The publication will relate to events within his recent family life in which he has been directly involved. These have already had and will continue to have a serious impact upon the way in which he is brought up. They are the reason why he has lost the older brother he loved, why he had to go into foster care for more than a year, and why he is no longer living with the mother he loves. The impact upon him of all those events will be heightened as the trial proceeds and is reported in the press. The reactions of others around him to those reports are likely to have an important bearing on his relationship with and understanding of his mother. Thus the reports can be expected to have a real bearing on how he is brought up in future. The more harm that is done by the trial process, the more difficult will be the family court's task in trying to safeguard his future welfare. Decisions which have still to be made about contact with the mother are likely to be affected, as might also be future decisions about where he and his father are to live, and the continuation or discharge of the care order. Insofar as the information to be published relates to the reasons for changing a child's placement, and may be expected to have an impact upon future decisions about him, it is closely analogous to that in Re M and N. In my judgment, therefore, it is covered by each of the two bases identified by Lord Donaldson in Re C, para 29 above.
- In this case, however, as in Re R, there is the added dimension that the information relates to the identity of the defendant and her alleged victim in a murder trial. In addition to the importance attached to freedom of speech, there is undoubtedly a public interest in knowing the names of those who have committed criminal offences. But Parliament has recognised that this may sometimes be overridden by other interests, such as the statutory power to prohibit identification of child defendants and child victims. In Ex parte Crook  1 WLR 139, the criminal court trying parents for the manslaughter of one child and cruelty to three others had made an order under section 39 prohibiting the identification of the three surviving children. As in this case, the judge had also expressed the view that identifying the parents or the dead child would be calculated to lead to the identification of the surviving children. On appeal by two journalists, Glidewell LJ, giving the judgment of the court, said this at p 145A-B:
"We entirely agree . . . that as a general proposition there is a strong and proper public interest in knowing the identity of those who have committed crimes, particularly serious and detestable crimes. If, as the appellants suggest, there is a growing tendency for the court to use or misuse their powers to prevent the disclosure of the identity of defendants or other persons concerned in criminal proceedings, we are as concerned as they to restrict such a tendency and to ensure that such orders are only made when they are justified."
The court also pointed out that the media were free to take the risk and disregard the judge's advice that identifying the parents or the dead child would be in breach of the order, although in practice what he had said was 'obviously correct'. In making his order, the judge was required to weigh the interest in the full reporting of the crime, 'including the identification of the defendants', against the need to protect the victims from further harm. He was persuaded that the likely harm to the children outweighed the restrictions on freedom to publish. The Court of Appeal, dismissing the appeal, said that on the evidence before him he was clearly correct. Thus, while there is undoubtedly an importance public interest in the identification of defendants, in particular those found guilty of serious crimes, there are circumstances in which it can be outweighed by the need to protect their victims from further harm.
- Ironically, had CS also been a victim, as were the other children of the family in Ex parte Crook, section 39 would have made it clear that his welfare could prevail over other considerations. But section 39 does not apply to protect CS because he was not the victim of the alleged offence. Nor does it enable the court to forbid the identification of DS, because DS is dead. In policy terms, these limitations are difficult to understand. If DS had survived, section 39 would have applied to him but not to his brother. Yet his brother is also, in a very real sense, a victim of the alleged offence. He has lost his brother, his mother, and his family life, and he is at much greater risk of suffering serious psychiatric ill-health in future. If one purpose of section 39 is to protect child victims from further adverse consequences of the crimes alleged to have been committed against them, there is little logic in failing to afford such protection to a child in the unenviable position in which CS finds himself.
- In our view, Hedley J was right to conclude that the jurisdiction to grant an injunction existed and could be exercised in this case. The added dimension does not inevitably take the case into a category where no jurisdiction exists, for to do so would be inconsistent with several decisions of this court, although it certainly increases the need for extreme caution. If the existence of the jurisdiction is accepted, it may now be unnecessary to resolve the tension between the various statements made in the earlier decisions of this court. These cases all preceded the implementation of the Human Rights Act 1998. Now that the Human Rights Act is in force, the relevance of the jurisdiction may simply be to provide the vehicle which enables the court to conduct the necessary balancing exercise between the competing rights of the child under Article 8 and the media under Article 10.
The second issue: the Human Rights Act 1998
- Three Convention rights are relevant to this case:
(1) Article 6 provides that in the determination of any criminal charge against him, 'everyone is entitled to a fair and public hearing'. 'Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial' for a variety of reasons including 'where the interests of juveniles' so require.
(b) Article 8(1) provides that 'everyone has the right to respect for his private and family life. . '. Under Article 8(2), 'there shall be no interference by a public authority with the exercise of this right, except such as is in accordance with law and is necessary in a democratic society' for a variety of reasons, including 'the prevention of disorder or crime' and 'the protection of the rights and freedoms of others'.
(c) Article 10(1) provides that everyone has the right to freedom of expression. This includes 'the freedom to hold opinions and to receive and impart information and ideas without interference by public authority'. Under Article 10(2), the exercise of these freedoms 'may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society' for a variety of reasons including 'for the protection of the reputation or rights of others'.
- Section 12(4) of the 1998 Act provides that where a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression,
"The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material . . . to
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code."
- It is not suggested that there will be a breach of Article 6 in this case. The person entitled to a fair and public hearing is the mother. Unlike the father in Re R, above, she supports the application made on behalf of the child. Furthermore, the trial will be in public. Unlike the order first made in Re R, it is not suggested that there be any restriction on reporting it in full other than the identification of the defendant and her alleged victim and publication of their pictures.
- The importance of Article 6 lies in the values which it is there to protect and the impact of those values upon the exercise of the right to freedom of expression in Article 10. This was summed up by the European Court of Human Rights in Diennet v France (1995) 21 EHRR 554, at para 33:
"The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the court can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society . . ."
The common law has long been of the same view: see Scott v Scott  AC 417. The European Court's words are strongly reminiscent of those of Lord Diplock in Attorney General v Leveller Magazine  AC 440, at p 450A-B. The importance of press and media reports in safeguarding that public character and protection is reinforced by the privilege afforded to fair and accurate reports of the proceedings.
- The more immediate question under the Convention, however, is the interplay between Article 8 and Article 10. Miss Booth argues that the child's right to respect for his private and family life is engaged. Any interference has to be justified under Article 8(2). Equally, the media's right to freedom of expression, which includes the public's right to freedom of information, under Article 10 is engaged. Any restriction has to be justified under Article 10(2). In A and Byrne and Twenty Twenty Television v United Kingdom (1997) 25 EHRR CD159, the European Commission on Human Rights had noted 'the relative similarity of the tests to be applied in the context of the necessity of the interference under Articles 8 and 10'. But in that case, the follow-up to Re Z, the applicants were claiming the protection of both those articles, whereas in our case one party invokes one and the other party invokes the other.
- Miss Booth criticises the approach of the judge in the passage quoted at paragraph 16 above. He appears to have asked himself only whether a restriction upon press freedom could be justified on the ground of the child's Article 8 rights, rather than also asking himself whether an interference with the child's Article 8 rights could be justified on the ground of press freedom. The inevitable result was that, although the judge said that Article 10 had no pre-eminence over Article 8, in reality it did so. But as Sedley LJ has said in Douglas v Hello! Ltd  QB 967, para 52 below, neither is now a 'trump card'.
- Mr Millar, on the other hand, argues that Article 8 adds nothing. The newspaper groups which he represents are not public authorities. He accepts that the court, as a public authority, must not interfere unjustifiably with Article 8 rights. But he argues that the court can only strike a balance between the countervailing rights of individuals under Articles 8 and of the media under Article 10 in an action for breach of confidence: see Douglas v Hello! Ltd  QB 967, and A v B plc  3 WLR 542, para 4.
- That cannot be right. An action for breach of confidence cannot be the only context in which the courts have to strike a fair balance between the rights of individuals under Article 8 and Article 10. While the courts cannot invent a new cause of action between private persons, the same issues arise whenever it has jurisdiction to restrain publication. If anything, the current context is stronger than the purely private law context of an action for breach of confidence (such as arose in Campbell v MGN Ltd  EWCA Civ 1373;  2 WLR 80).
- There can be no doubt that the child's Article 8 rights are engaged in this application. Publication is likely to interfere with his family life, both with the father who looks after him and with his mother. It is also likely to interfere with his private life. In Bensaid v United Kingdom (2001) 33 EHRR 10, the European Court of Human Rights said this at para 47:
"Private life is a broad term not susceptible to exhaustive definition. . . . Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."
This child already is at five times greater risk of developing mental illness later in life and there is evidence that prolonged identifying publicity during the trial will increase that risk.
- The courts and the local authority have already interfered with this child's right to respect for his private and family life. It is not disputed that so far these interferences have been proportionate to the legitimate aim of protecting him from likely harm. But they have been severe. They have taken him away from his home and family for over a year; they have taken over parental responsibility for him through the means of the care order; by that means they are interfering and will continue to interfere, not only in his relationship with his mother, but also in his relationship with his father; they retain jurisdiction over contact.
- The court therefore has a duty to consider whether further interferences with his Article 8 rights can be justified. Those further interferences stem from the actions of other public authorities in bringing the criminal proceedings against his mother. These too serve the legitimate aims, not only of protecting CS himself from future harm, but also of protecting other children and upholding the law. The court must still consider whether their impact upon the Article 8 rights of CS can be minimised.
- If the court, in deciding whether to exercise its jurisdiction to restrain publication, whether under the inherent jurisdiction or under section 39 or any other statutory provision, has to consider both Article 8 and Article 10 as independent elements, then section 12(4) does not give one pre-eminence over the other. As Sedley LJ said in Douglas v Hello! Ltd  QB 967, at p 1005,
"Neither element is a trump card. They will be articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualified rights. It will be remembered that in the jurisprudence of the Convention proportionality is tested by, among other things, the standard of what is necessary in a democratic society."
- In A v B plc  3 WLR 542, Lord Woolf CJ observed at para 6:
"There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights which both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account."
- This is the approach which should have been followed in this case. The concept of proportionality means that the proposed interference or restriction must be supported by 'relevant and sufficient grounds'; it must respond to a 'pressing social need'; and it must be no greater than necessary to meet the legitimate aim pursued.
- In considering the proportionality of the proposed interference with freedom of expression, a court must not only consider the importance of press freedom in principle: as Lord Woolf CJ also said in A v B plc, at para 11(iv), 'The existence of a free press is in itself desirable and so any interference with it has to be justified'. It must also consider those features which enhance its importance in the particular case. In this case, these include (a) the particular importance to be attached to the reporting of criminal trials; these have to be subject to the scrutiny, not only of those in the courtroom but also of the wider public, not only to protect individuals against arbitrariness but also to preserve public confidence in the administration of justice; (b) in this context, therefore, the importance of the press's freedom of expression is enhanced by the corresponding freedom of the public to receive the information in question; and (c) this particular trial will raise more than usually important issues, about an unusual and controversial form of child abuse and about the conduct of the world famous children's hospital in which it was allegedly allowed to take place. The factors mentioned in section 12(4) of the 1998 Act are also relevant at this point.
- But that does not mean that no restriction, however limited, can be justified under Article 10(2). The court must consider what restriction, if any, is needed to meet the legitimate aim of protecting the rights of CS. If prohibiting publication of the family name and photographs is needed, the court must consider how great an impact that will in fact have upon the freedom protected by Article 10. It is relevant here that restrictions on the identification of defendants before conviction are by no means unprecedented. The situation may well change if and when the mother is convicted. There is a much greater public interest in knowing the names of persons convicted of serious crime than of those who are merely suspected or charged. These considerations are also relevant to the extent of the interference with CS's rights.
- In considering the proportionality of the proposed interference with the right of CS to respect for his private and family life, the judge must again consider the magnitude of the interference proposed. He must consider among other things (a) the extent to which this additional intrusion would add to the interference which has already taken place and is bound to take place in future; (b) the extent of any further harm that identifying publicity about the trial will do to this child's private and family life, in which his mental health is a 'crucial part'; (c) the impact, not only directly upon the child but also upon his father and others who are looking after him, and his school, and the extent to which their task will be made harder by this kind of publicity; (d) the impact on this child's relationship with his mother in the short and the longer term and the extent of the damage this will do to this aspect of his family life.
- The court must then consider what steps, if any, are necessary to prevent or minimise this interference. Again, there may be an important difference between the impact of prolonged identifying publicity, with photographs, during the trial and the rather shorter period during which the family might be identified if there is a conviction.
- These considerations may be helpful in thinking carefully about the extent of the interference or limitation proposed and the necessity for each. A comparatively small additional harm to a child who has already suffered so much may not be a sufficient reason to limit reporting of such an important trial. But the extent of the limitation proposed is not so great in relation to the reasons why reporting criminal trials is so important as to suggest that it could never be justified to impose it. No-one is seeking to limit what can be said about the trial, however much the terms of some court reporting by some newspapers may be disliked in some quarters. Mere distaste or disapproval, as Hoffman LJ indicated in R v Central Independent Television plc, can never be a ground for interference.
- It would be so much easier if there were a trump card or governing principle, whether it be press freedom or the rights of the child. But there is in my judgment no escape from the difficult balancing exercise which the Convention requires. Because the judge did not consider each Article independently, and thus did not conduct that exercise, I consider that this appeal should be allowed.
- If the appeal is allowed, the question arises as to which court should now conduct that exercise. There are three possibilities.
(1) It might be done in this court, but the difficulty is that there is a great deal of relevant information about the case which, for obvious reasons, we do not have.
(2) It might be done by the judge dealing with the criminal case, exercising the inherent jurisdiction of the High Court in the way that Morland J did in the Thompson and Venables case (see para 28 above). The Crown Court, as a creature of statute, does not have that jurisdiction, nor does any judge have it simply by virtue of sitting in the Crown Court. But a judge who is authorised, either by virtue of his office as a High Court judge, or under section 9 of the Supreme Court Act 1981, to sit in the Family Division of the High Court could do so in that capacity. The attraction of this course is that the judge trying the criminal case will have the best knowledge of and feel for the extent to which press reporting will in fact be restricted or inhibited by the limitation proposed. As a judge authorised to sit in the Family Division, he will also have some appreciation of the risks to the child and to the determination of his future, although he will not have the detailed appreciation of those risks which is available to the Family Division judge unless some of the material from the care proceedings is made available to him.
(3) It might be done by Hedley J in the Family Division. He knows more about the case than anyone. He is best placed to assess the real risks to the child. His detailed knowledge of the evidence to be put before the criminal court should also enable him to assess the impact of the limitation proposed. He is also much the best placed to assess the impact of reports of the criminal trial upon the issues which are still to be decided in the care proceedings. These are likely to persist beyond the duration of the criminal trial.
- In my view there is a good case for remitting the case to Hedley J, who has considerable experience of both criminal and family cases. However, at the end of his judgment, he stated that he would have reached the same conclusion even if the child's welfare had been the paramount consideration. With the greatest of respect to him, I cannot understand this. If the child's welfare is the paramount consideration, then when everything else has been taken into account and weighed, it rules on or determines the issue before the court. It is the trump card. It might therefore be preferable for the matter to be reconsidered by the judge who is to try the criminal case, provided that he is authorised to exercise the inherent jurisdiction and has the benefit of the relevant material from the family proceedings.
- However, it is not necessary for me to resolve that dilemma. I understand that the Master of the Rolls and Lord Justice Latham, although agreeing with my analysis of the law, consider that Hedley J was entitled to reach the conclusion he did in this case and that his decision should not be disturbed. I, for the reasons given, would have allowed this appeal.
Lord Justice Latham:
- This appeal raises in an acute form the difficulties facing the courts in carrying out the balancing exercise required in cases where the court is asked to consider the right to private life of a child under Article 8 on the one hand and the right of the press to freedom of expression under Article 10 of the European Convention on Human Rights. In the context of the present appeal, it also involves, as Lord Phillips MR explains, consideration of this question in the context of Article 6 of the Convention. I entirely agree with the judgment of Hale LJ as to the issues and legal principles to be applied in this case. I also agree that in the passages from the judgment of Hedley J which have been cited by Hale LJ it would appear that the judge did not carry out the exercise now required under the Human Rights Act of identifying the extent to which refusing to grant the relevant terms of the injunction asked for would be a proportionate interference with the private life of the child on the one hand and their grant would be a proportionate interference with the rights of the press under Article 10 on the other hand. However, unlike Hale LJ, it seems to me that the conclusions to which the judge came sufficiently answer the questions posed by the need to carry out that exercise, and that he came to the right conclusion in this case.
- Hale LJ has set out in her judgment the development of the jurisdiction which Hedley J was asked to exercise. It is essentially based upon the jurisdiction of the High Court in cases involving the care and upbringing of children over whose welfare the court is exercising a supervisory role. In In Re R  1 Fam 254, Millett LJ at page 271 described the jurisdiction at that time as:
"……theoretically unlimited. But in practice its exercise is limited by the nature and source of the jurisdiction itself, which is historically derived from the protective jurisdiction of the Crown as parens patriae"
- Ward LJ sought, in In Re Z  1 FLR 191 to draw together the threads of previous authorities in the way described in her judgement by Hale LJ. A helpful encapsulation of the state of the authorities was given by Sir Thomas Bingham MR in his judgment in that case at page 217, where in dealing with the applicant mother's argument that she should be permitted to allow the child to take part in a television film, he said at D:
"The second reason was that freedom of expression should prevail and that no restraint should be inconsistent with that fundamental ideal. I agree with the thinking which underlies that submission. In the absence of a statutory warrant the restraining publicity (such as is found in section 39 of the Children and Young Persons Act 1933 or Section 97(2) of the Children Act 1989), and where there is no threat to the integrity of the court proceedings, the court should not restrain reports or comment which are not directed at a child or the child's carers, whether professional or not, and which relate only peripherally to the child itself. That is what the cases decide, and I regard that state of the law as healthy."
- Of the authorities considered in In Re Z, there are two which deal with the way the court should approach the effect on a child of a trial or a conviction of a parent. In R –v- Central Independent Television plc  Fam 192, an injunction had been granted by Kirkwood J granted an injunction in relation to a television programme dealing with the arrest and the conviction of a paedophile who was the father of a five year old child. The mother had sought an injunction the terms of which were to ensure that the programme in no way identified the paedophile. The Court of Appeal allowed the television company's appeal essentially on the ground that the programme did not so affect the care and upbringing of the child that it was appropriate to invoke the court's jurisdiction. Indeed there is some support from the judgments for the argument that the court considered that there was no jurisdiction unless the programme could have had that effect.
- Hoffmann LJ considered that the court should eschew interference with the freedom of the press when exercising its wardship jurisdiction. At page 204 he said:
"In any area of human rights like freedom of speech, I respectfully doubt the wisdom of creating judge made exceptions, particularly when they require a judicial balancing of interests. The danger about such exceptions is that the judges are tempted to use them. The facts of the individual case often seem to demand exceptional treatment because the newspaper's interest in publication seems trivial and the hurt likely to be inflicted very great. The interests of the individual litigant and the public interest in the freedom of the press are not easily commensurable. It is not surprising that in this case the misery of a five year old girl weighed more heavily with Kirkwood J than the television company's freedom to publish material which would heighten the dramatic effect of the documentary. That is what one would expect of a sensitive and humane judge exercising the wardship jurisdiction. But no freedom is without cost and in my view the judiciary should not whittle away freedom of speech with ad hoc exceptions. The principle that the press is free from both government and judicial control is more important than the particular case."
- Then dealing with the case itself, he said at page 205:
"But this new jurisdiction is concerned only with the privacy of children and their upbringing. It does not extend, as Lord Donaldson of Lymington MR made clear in In Re M and N at page 231 B to "injunctive protection of children from publicity which though inimicable to their welfare is not directed at them or those who care for them". It therefore cannot apply to publication of the fact that the child's father has been convicted of a serious offence, however distressing it may be for the child to be identified as the daughter of such a man. If such a jurisdiction existed it could be exercised to restrain the identification of any convicted criminal who has young children. It may be that the decision of Balcombe J in X County Council –v- A  All ER 53 can be brought within Lord Donaldson of Lymington MR's language because the child's mother at whose past the intended publication was directed, was actually caring for the child at the time of the application. But the events in question had happened long before the child was born. The publication was not directly concerned with the child or its upbringing, and for my part I think that the judge, for wholly commendable reasons, was asserting a jurisdiction which did not exist."
- Waite LJ at page 208, having reviewed previous authorities, said:
"These authorities establish, in my judgment, that anonymity or confidentiality for a child or its circumstances can only be enforced by injunction in cases where the publicity would, or might in the view of the court threaten the effective working of the court's own jurisdiction, whether it be in deciding a question about the upbringing of the child, or in exercising, as in Re C  Fam 39, a continuing supervisory role over a child whose future has already been determined. A mere desire to secure for a child the advantages of confidentiality cannot of itself supply such an issue. Confidentiality is an aid to administration of the jurisdiction, and not a right or status which the jurisdiction itself has any power to confer."
- In In re R, to which I have already referred, the court was concerned with an injunction which had been granted to the guardian ad litem of a ward of court who had been abducted by the child's father restraining publication of any material which related to the ward or was likely to lead to her identification arising out of the father's trial for abducting the child. Judge Coningsby granted the application holding that although Section 39 of the Children and Young Persons Act 1933 would apply so as to give jurisdiction to the judge at the criminal trial to make an order under that Act, that would not give sufficient protection to the child. This court allowed the appeal. Sir Thomas Bingham said, at page 266:
"I have for my part reached the following conclusions which are sufficient, I think, for the purposes of deciding this appeal. First, the starting point must be that in the absence of a statutory restriction, reports of proceedings in a public court of law should only be restrained where and to the extent that restraint is shown to be necessary for the purpose of protecting the proper administration of justice. Second, it is obviously very desirable, in the interests of the ward, for the reasons given by the judge, that the publicity concerning the upbringing of the ward, her abduction and her family situation should be as limited as possible. In that connection it is relevant to remind oneself that the broad sweep of the judge's injunction was not challenged. Third, it is in my view clear that this is a case in which there is no statutory provisions which automatically restrains reporting these proceedings. Further it is my opinion that this case is not one in which restraint on the reporting of the criminal proceedings is necessary to enable the judge to do justice in the wardship proceedings. Moreover, it is in my view clear that the judge in the criminal court has power to make an order under section 39 of the Act of 1933 ….
Despite Mr Nichol's argument to the contrary, it seems to me quite plain that the ward in the present case is a person in respect of whom the proceedings were taken, even though she is not the person "by or against whom" proceedings are taken. She is the victim of the alleged crime and is a person in respect of whom proceedings are taken in the same way as a child who is the victim of an alleged sexual offence or of ill-treatment. Fourthly, I have the greatest doubt whether the wardship judge had the power to make this injunction or restrain the making of a report of the criminal trial for the reasons Millett LJ will give more fully, but even if the judge had power to make such an order I am of the opinion that he should have left it to the criminal judge to decide whether an order should be made under Section 39 or not. Section 39 is a special statutory power directed at a specific situation and it is a power exercisable by the trial judge. It seems to me obviously preferable that the matter should be left to him."
- Millett LJ said at page 270:
"The legal context in which this question arises may be sufficiently summarised as follows: (1) section 12(1) The Administration of Justice Act 1960 makes it a contempt for a court to publish information relating, inter alia in wardship proceedings heard in private; (2) the wardship judge has in addition an inherent jurisdiction to prohibit the publication concerning the ward which is directed at the ward or at those having responsibility for the ward's upbringing, thereby threatening the effective working of the courts jurisdiction; (3) this last mentioned of jurisdiction is of recent origin. Its source and justification to lay in the inherent power of the court to protect the integrity of its own process. There is no jurisdiction in the wardship court to protect its wards from adverse publicity which does not threaten the effective working of the courts jurisdiction merely on the ground that such publicity would be contrary to the interests of the ward or damaging to its welfare; (4) prior to the decision of Judge Coningsby in this case, in practice this new jurisdiction has been confined to prohibiting the publication of the ward's name or address or other information calculated to lead to the identification of the ward; (5) in relation to judicial proceedings Section 39 of the Children and Young Persons Act 1933 gives the court having the conduct of those proceedings power to direct that no proceedings should include the name, address or school or any particular calculated to lead to the identification of any child or young person concerned in the proceedings. Unlike the wardship jurisdiction, the statutory power may be exercised for the sole purpose of protecting the child from adverse publicity which would be harmful to him. I agree with Sir Thomas Bingham MR and Henry LJ that the ward in this case is "a person concerned" in the criminal proceedings in question as that expression is defined in Section 39."
- Later on page 271, after the passage that I have cited earlier in this judgment, he said:
"The classic statement of the modern law is to be found in the judgment of Russell LJ in In Re Mohamed Arif (an infant)  Chancery Ch 642 662 to 663 where he pointed out that the control of the wardship court over the person of its ward is far from absolute. It is ousted in a wide variety of situations in which the law has entrusted such controlled persons other than those having responsibility for the upbringing of the ward. This limiting principle may be expressed more generally by saying that the wardship court has no power to exempt its ward from the general law, or to obtain for its ward rights and privileges not generally available to children who are not wards of court; or by saying that the wardship court can seek to achieve for its ward all that wise parents and guardians acting in concert and exclusively for the interest of the child could achieve, but no more."
- Although these passages may be instructive, they are not decisive in the present case. First, this is not a case where the child's parent has been convicted: she may well be acquitted. Second, Section 39 of the Children and Young Persons Act 1933 cannot be invoked in the criminal trial unlike in re R, as the child is neither a witness nor the alleged victim. Third in both these cases the court's jurisdiction had been invoked purely for the purposes of obtaining the injunction sought. Fourth, these were decisions prior to the Human Rights Act 1998. But the passages from the judgments which I have cited make it clear that in this area the court should be extremely cautious about exercising any jurisdiction it may have to protect a child from the consequences of trial or conviction of a parent.
- Whatever the theoretical limit of the jurisdiction may be, the authorities suggest that the court should not even consider exercising that jurisdiction in cases where publicity is not directed at the child or the child's carers unless it could have an adverse affect on the court's ability to deal properly with the care proceedings in question. I prefer the view that the jurisdiction is, as Ward LJ said in re Z and Millett LJ said in R –v- Central Television plc, theoretically unlimited, but that as Waite LJ said in the latter case at page 207, "The courts have nevertheless found it necessary to set self-imposed limits upon its exercise." It seems, to me, however, that the limitations so far imposed on its exercise have to be reconsidered in the light of the Human Rights Act 1998. As there is a proper foundation for the court to exercise jurisdiction, the child's rights under Article 8 must be taken into account by the court if it is to comply with its obligations under Section 6 of the Act. It follows that the court is at least entitled to consider the grant of an injunction in cases such as this even if publicity is not directed at the child or his carers and could not be shown to have an adverse effect on the care proceedings, although that will undoubtedly be a significant factor in deciding whether or not an injunction should ultimately be granted. This conclusion has the added benefit of enabling the family court to make an order in an appropriate case if it is clear that the criminal court would have made an order under section 39 of the Children and Young Persons Act 1933 but for the fact that, for what may be wholly fortuitous reasons, the child in question is not a witness or does not happen to be a victim identified in the indictment.
- It follows that in considering whether or not to make an order such as the order applied for in the present case, the Court has to carry out the exercise which was identified at the beginning of this judgment. In doing so, the court will have to bear in mind on the one hand the effect that publicity will have on the child, and the extent to which it will affect the ability of the court to carry out its obligations to the child in the exercise of its care jurisdiction on the one hand, and the effect that the order will have on the ability of the press to provide the public with a full and fair report of the proceedings bearing in mind the interest which the public has in knowing the identity of a defendant, which is one of the important and usually inevitable consequences of a public trial. In addition, in a case such as the present, the court will need to take into consideration the extent of the protection which Parliament has provided in section 39 of the Children and Young Persons Act 1933, which gives the press a discretion as to how to report a case in order to give effect to that protection. And it should bear in mind the cautionary words of Glidewell LJ in ex parte Crook  1 WLR 139 at page 145 A to B which have already been cited by Hale LJ in her judgment at paragraph 38.
- In the present case Hedley J, an experienced family judge, was right to conclude that he had jurisdiction to make an order and was in the best position to judge the effect which the publicity would have on the child and the extent to which it would interfere with his ability to deal properly with the child's case. He acknowledged that identification of his mother as the defendant was bound to have an effect on the child, and might have some effect on the way day to day care might have to be organised for him during the trial. But the fact of the matter is, as the judge himself recognised, that it is already well known in the area in which he lives that the child's mother has been charged with and will be tried for the murder of the child's brother. Anonymity will therefore only have, if anything, a mitigating effect. On the other hand, there is a clear and proper public interest in knowing the name of the defendant in a trial such as this. The exercise required by the Human Rights Act is at the end of the day a balancing exercise. It seems to me that the judge, whilst not expressing it in a way which is appropriate to that exercise nonetheless had the issues that he was required to balance well in mind, and came to what seems to me to be a clear view in paragraph 18 of his judgment where he said:
"I have given this matter long and anxious consideration nor can I assert that my mind has been unwavering throughout. On the contrary, I have found each case, cogently presented as it was, to be compelling. But however compelling each may be, the plain fact is that they are mutually contradictory and the court must in the end decide for one or the other. In the end, not without a degree of regret, I have concluded that this proviso must remain in the injunction and that I should not prevent the reporting of the name of the defendant and the identity of the deceased child as her son. My regret is engendered by the recognition that these will be dreadfully painful times for Craig."
- His view as to where the balance should be struck is underlined by a passage in paragraph 19 of the judgment in which he said:
"I should add, although it is not strictly necessary to do so, but I think I would have come to the same conclusion even had I been persuaded that this was a case where Craig's welfare was indeed my paramount consideration under Section 1(1) of the 1989 Act."
- Whilst I share the doubts expressed by both Hale LJ and Lord Phillips MR as to whether, had the child's welfare been his paramount consideration, he could properly have struck the balance in the same way, this passage gives a clear indication that he considered that the interference with the child's rights under Article 8 was proportionate in the light of public interest and the rights of the press under Article 10.
- I would therefore dismiss this appeal.
Lord Phillips, MR:
- This appeal relates to an Order made on 17th October 2002 by Hedley J on the application of all the parties to care proceedings relating to a child, CS, who is now 7 years old. The facts have been set out by Hale LJ and I shall not repeat them. The Order stated that it bound all persons with knowledge of it. It prohibited, among other matters, any information which might lead to the identification of CS. A particular object of the Order was to protect CS against publicity that would identify him as the child of his mother, who stands charged with the murder of his brother. Had the Order stood as originally made, its effect would have precluded those newspapers reporting proceedings at the mother's trial from disclosing her identity. The Order was, however, varied on the application of the respondent newspaper publishers so as to provide that the Order should not prevent any person from publishing 'any particulars of or information relating to any part of the proceedings of any court other than a court sitting in private'.
- By this appeal the parties to the care proceedings seek to set aside this variation, so that the Order will stand in its original form. It is important to identify at the outset the justification advanced by the appellants for seeking to restrict the reporting of the mother's trial in this way. It is that, if the reports of the trial lead to the identification of CS as the son of the accused, the stress of coping with the curiosity of, and possible teasing and bullying by, the schoolchildren who know him is likely to increase the likelihood that he will develop a psychiatric disorder,
- The Order stated that it was made pursuant to section 12(1) of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989. Neither section confers jurisdiction to make the Order in question and, in his judgment of 19 February 2003, giving his reasons for varying the Order, Hedley J made it plain that the jurisdiction that he had purported to exercise was the inherent jurisdiction that he enjoyed as a Judge of the High Court. That the Judge had inherent jurisdiction, at least in theory, to make the Order has not been in issue between the parties. Hale LJ has considered at length the extent of this jurisdiction and concluded that it extends to making an Order that will have the effect of restricting the reporting of the criminal trial. It seems to me that it is important to identify, not merely the nature of the jurisdiction, but such guidance as the law provides as to the principles that should be applied when exercising the jurisdiction.
- There are a number of provisions that entitle the Judge in charge of proceedings in court to impose restrictions on reporting those proceedings that are binding on the world at large. To set the scene, however, I shall first set out Article 6 of the Human Rights Convention.
- Article 6 of the Human Rights Convention is one with which, in accordance with the Human Rights Act 1998, English courts are required to comply. So far as material it provides:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice."
- While the first sentence of this Article is concerned with the rights of the parties to a trial, it is at least arguable that the second sentence also has regard to the rights of the press and the public.
- It is implicit, from the reference to the press, that proceedings that take place in public can be reported. This is consistent with the right of freedom of expression conferred by Article 10 of the Convention. It is also implicit, in my view, that, in circumstances where the press and the public can be excluded, the court can take the less extreme step of imposing restrictions on reporting the court proceedings. Those circumstances include circumstances where restrictions are necessary for the protection of juveniles.
- The Contempt of Court Act 1981 introduced a "strict liability rule" under which conduct may be treated as contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so – see section 1. Section 4 provides:
"4-(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith
(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."
- Sub-section (2) should, in my judgment, be read in its context as restricting the circumstances in which sub-section (1) provides a defence to the strict liability rule. It does not implicitly preclude other circumstances in which reporting restrictions may be imposed. Its limited terms emphasise, nonetheless, the importance that is attached to the principle that the administration of justice should take place in public.
- Section 12 of the Administration of Justice Act 1960 provides:
"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say-
(a) where the proceedings-
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b) where the proceedings are brought under Part VIII of the Mental Health Act 1959, or under any provision of that Act authorising an application or reference to be made to a Mental Health Review Tribunal or to a county court;
(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;
(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published."
- The reference to "having power to do so" in (1)(e) emphasises the fact that there are limits on the power of the court to prohibit the reporting of proceedings, even where the proceedings are held in private.
- Section 39 of the Children and Young Persons Act 1933 provides:
"(1) In relation to any proceedings in any court … the court may direct that-
(a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person [by or against] or in respect of whom the proceedings are taken, or as being a witness therein;
(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except in so far (if at all) as may be permitted by the direction of the court."
- These provisions may, incidentally, assist the due administration of justice by, for instance, making young witnesses more ready to give evidence. Their primary object is, however, plainly to protect the young, including defendants in criminal cases, from the adverse consequences of publicity in respect of court proceedings in which they are involved.
- CPR 39.2 provides:
"(1) The general rule is that a hearing is to be in public.
(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.
(3) A hearing, or any part of it, may be in private if-
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or patient;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
(g) the court considers this to be necessary, in the interests of justice.
(2)sic The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness."
- It is possible to derive the following general principles from the various provisions set out above:
i) It is an important principle that justice should be conducted in public and that judicial proceedings should be freely reported;
ii) By way of exception, restrictions can be justified where necessary for the due administration of justice;
iii) In civil and criminal proceedings reporting restrictions are usually justified in order to protect children and young persons who are involved in the proceedings as parties or witnesses.
iv) In civil proceedings the court has jurisdiction to prevent the disclosure of the identity of a party or a witness in order to protect his interests.
- The English courts have long recognised an inherent jurisdiction to sit in private if necessary for the due administration of justice – see Scott v Scott  AC 417. In Attorney-General v Leveller  AC 440 the House of Lords held that Magistrates could properly permit a witness to be identified only by an initial as an acceptable extension of the power of a court to control its own proceedings in the interests of the due administration of justice by sitting in private. The House further held that it would be a contempt of court in such circumstances for anyone knowingly to defeat the court's purpose by publishing the name of the witness. It is of interest that their Lordships expressed doubt as to whether the court had power to make an order binding directly on persons not before the court that the identity of a witness should not be disclosed.
- There is another situation where the court can make an order in the interests of the due administration of justice which restricts the publication of information and which indirectly affects third parties. Where a claimant seeks to restrain a defendant from publishing allegedly confidential information the court will often grant an interlocutory injunction restraining publication of that information pending the trial of the action. If a third party, with knowledge of the injunction, publishes the information in question, that third party risks being found in contempt of court. The basis upon which he may be held in contempt is not that he breached the injunction. He cannot be in breach of an injunction made in proceedings to which he was not party. The injunction is only binding on the party against whom it is made. The contempt lies in deliberately defeating the object with which the court ordered the injunction and thus interfering with the due administration of justice – see A-G v Punch  UKHL 50;  2 WLR 49.
- Dame Elizabeth Butler-Sloss P, sitting in the Family Division, has asserted a jurisdiction to issue an injunction against the World in support of a private law right to confidentiality which is without precedent. In Venables and Thompson v News Group Newspapers Ltd and others  Fam 430 an application for an injunction was made by the child murderers of James Bulger, who were about to be discharged from prison, having each reached the age of 18. They were to be given false identities and each sought an injunction against the whole World, to continue for his entire lifetime, restraining publication that might lead to the identification of their identities or whereabouts. The President granted the injunctions. In so doing she was strongly influenced by the fact that the claimants human rights under Articles 2 and 3 would be threatened if their identities were disclosed. This decision was novel in at least two respects: (1) The President recognised a private law right to confidentiality protecting the identities and whereabouts of the two claimants valid against the whole World. (2) The President held that she had jurisdiction to grant an injunction in protection of private law rights against all the World.
- In X and others v New Group Newspapers Ltd  EWHC 1101, the President made similar orders protecting the identity and whereabouts of Mary Bell and her daughter. These two decisions are not directly relevant to the present case. They exemplify, however, the manner in which the courts have extended both the scope of confidential information and the use of the injunction to protect this, thereby giving effect to the right to respect for private life conferred by Article 8 of the Human Rights Convention.
The inherent jurisdiction in relation to children
- None of the heads of jurisdiction considered above can support the relief sought by the appellants in the present case. They rely upon the inherent jurisdiction that High Court Judges sitting in the Family Division and their predecessors have asserted and established to grant injunctions restraining the publication of information that may impact adversely on children. This jurisdiction arises out of a quite different activity of the court from that of trying criminals or resolving civil disputes. The activity is the protection of children in the exercise of the parental power of the Crown. As Viscount Haldane remarked in Scott v Scott at p.437 "its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction".
- Hale LJ has made a detailed analysis of this jurisdiction. It is not one in which the law has developed coherently or consistently. It is well established that the court has an inherent power to restrain the publication of information that will impede or frustrate action being taken on behalf of the court in looking after a child. In this respect the jurisdiction resembles the court's jurisdiction to restrain disclosure of information which will impede or frustrate action being taken by the court in the administration of justice. The difference is that, since the decision of Balcombe J in Re X (A Minor)  1 WLR 1422 the Family Division has granted injunctions against the whole World – a jurisdiction that Balcombe J held at p.1425 that he would have had no power to make had he not been exercising a wardship jurisdiction.
- The Family Division also exercises this jurisdiction in relation to publications that are directed at a child or those caring for a child. So far as this exercise of jurisdiction is concerned I would echo the observations of Hoffman LJ in R v Central Independent Television PLC [1994 Fam. 192:
"…The courts have, without any statutory or, so far as I can see, other previous authority, assumed a power to create by injunction is in effect a right of privacy for children.
However that may be, the existence of a jurisdiction to restrain publication of information concerning a child and its upbringing is no longer open to dispute in this court."
Hoffman LJ went on, however, to state at p.205:
"But this new jurisdiction is concerned only with the privacy of children and their upbringing. It does not extend, as Lord Donaldson of Lymington M.R. made clear in re M. and N. at p.231B to 'injunctive protection of children from publicity which, though inimical to their welfare, is not directed at them or those who care for them'. It therefore cannot apply to publication of the fact that the child's father has been convicted of a serious offence, however distressing it may be for the child to be identified as daughter of such a man. If such a jurisdiction existed, it could be exercised to restrain the identification of any convicted criminal who has young children."
- When attempting to summarise the state of the law in Re Z  1 FLR 191 Ward LJ stated at p.208:
"… the wardship inherent jurisdiction will be exercised where the material to be published is directed at the child or is directed to an aspect of the child's upbringing by his parents or others who care for him in circumstances where that publicity is inimicable to his welfare."
- Sir Thomas Bingham MR's judgment had a passage to similar effect at p.217:
"In the absence of a statutory warrant for restraining publicity (such as is found in s.39 of the Children and Young Persons Act 1933 or s.97 (2) of the Children Act 1989), and where there is no threat to the integrity of the court's proceedings, the court should not restrain reports or comment which are not directed at a child or the child's carers, whether professional or not, and which relate only peripherally to the child itself. That is what the cases decide, and I regard that state of the law as healthy."
- As Hale LJ's analysis demonstrates, some of the authorities state that a restraint on publication can only properly be ordered to prevent adverse impact upon the manner in which a child is being brought up. Others, including those to which I have just referred, support a more generous exercise of the jurisdiction to permit a restraint on a publication directed at the child or its carers that will have an adverse effect on the welfare of the child. There are powerful observations to the effect that it is not a proper exercise of the jurisdiction to prevent the publication that only inferentially relates to the child, such as distressing information about a parent of the child, in order to protect the child. Some judgments suggest that there is not even jurisdiction in such circumstances – others that there is a theoretical jurisdiction but one that should never be exercised.
- On these authorities, I consider that the conclusion reached by Hedley J was correct. The trial of the mother of CS will not directly involve him and, inasmuch as a full report of the trial, including his mother's name, will affect him, this is likely to be indirectly, by reason of his association with her. The adverse impact on CS relied upon is not that the publication will affect the way in which he is being brought up and cared for. It is the psychiatric effect that the full publication may have on him as a consequence of the reaction of his peers to the publicity. These facts place the case squarely into the category where, on the authorities, the interest of the press in freedom of expression should prevail. There is, moreover, the added factor that the freedom of expression in issue is the right to report fully a criminal trial.
- In this context, so far as the relevant Statutes and the CPR provide for orders prohibiting identification, these are restricted to those involved as parties or witnesses in the legal proceedings. On the one hand it can be argued that the courts should not go beyond the limits that Parliament has deliberately set. On the other it can be argued that the Statutes establish the principle that children should not be harmed by reports of legal proceedings where this can be avoided by restrictions on reporting facts which will enable their connection with the proceedings to be identified. It seems to me that these arguments are nicely balanced and I do not consider that these Statutes cut either way on the facts of this case.
The Human Rights Act
- The cases to which I have referred predate the Human Rights Act. At the same time they reflect, to a large degree, an attempt to balance the rights conferred by Article 8 of the Human Rights Convention with the Article 10 right to freedom of expression. I consider, however, that the principles to be derived from the pre Human Rights Act authorities cannot be rigidly applied. It is necessary in the individual case to balance Article 8 rights which are engaged against Article 10 rights.
- Hedley J has stated in paragraph 16 the manner in which he addressed this exercise:
"The contrary argument starts of course with Article 8 and asserts Craig's right to respect for his private and family life. Nevertheless in the light of section 12(4) of the Human rights Act 1998 which requires the court to have particular regard to the importance of the Convention right to freedom of expression, it is recognised that this is not a true balance in that in order to justify the restriction it will have to be shown as justifiable in accordance with article 10 (2). That is not to say (and this I accept) that Article 10 has some inherent pre-eminence over Article 8 but it is to say that the court's enquiry should be directed to the question as to whether this restriction, bearing in mind Article 8 rights, is justifiable under Article 10(2). In my judgement this is the true issue not just as a matter of convention rights but of domestic law applicable to this case."
- The appellants have criticised this approach on the ground that it tilts the scales in favour of freedom of expression, and there is some merit in that criticism. The approach to the balancing exercise that Hale LJ commends would plainly have been preferable. At the end of the day, however, the question is whether, had Hedley LJ adopted that approach he would or should have come to a different conclusion.
- The reasoning for the judge's conclusion appears in the following passage of his judgment:
"In the end, and not without a degree of regret, I have concluded that this proviso must remain in the injunction and that I should not prevent the reporting of the name of the Defendant and the identity of the deceased child as her son. My regret is engendered by the recognition that these will be dreadfully painful times for Craig.
The essence of my reasons for that conclusion are as follows. First I recognise the primacy in a democratic society of the open reporting public proceedings on grave criminal charges and the inevitable price that that involves in incursions on the privacy of individuals. Secondly, I recognise that Parliament has in a number of statutes qualified that right to report and, in the context of this case, most notably in section 39 of the 1933 Act; where a set of circumstances arise not covered by those provisions the court should in my judgement be slow to extend the incursion into the right of free speech by the use of the inherent jurisdiction. Thirdly, I have to recognise that not even the restrictions contended for here offer real hope to Craig of proper isolation from the fallout of publicity at this trial; it is inevitable that those who know him will identify him and thus frustrate the purpose of the restriction. Lastly, I am simply not convinced that, when everything is drawn together and weighed, it can be said that grounds under article 10(2) of the ECHR have been made out in terms of the balance of the effective preservation of Craig's Article 8 rights against the right to publish under Article 10. I should add, although it is not strictly necessary to do so, that I think I would have come to the same conclusion even had I been persuaded that this was a case where Craig's welfare was indeed my paramount consideration under Section 1(1) of the 1989 Act."
- The last sentence of this passage is a little puzzling, having regard to the effect of the word 'paramount'. It seems to me, however, that it indicates that Hedley J did not consider that, in practice, the additional restriction sought by the appellants was likely to make a significant difference to S and that, accordingly, his Article 8 rights came no way towards outweighing the freedom of expression urged by the press. It seems clear that if Hedley J had performed the balancing exercise recommended by Hale LJ he would not have reached a different conclusion.
- I do not consider that the Judge's conclusion is one that we should set aside. On the contrary I consider that it was one that he was entitled to reach on the evidence. For these reasons I would dismiss this appeal.