S (a child), Re [2003] EWCA Civ 963

"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."

"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."

“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.”

“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.”

"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."

“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.”

“. . . 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.”

“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.”

“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.”

“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.”

'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.'

“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.”

"(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 [1982] AC 363; (b) the immigration authorities, as in Re Mohammed Arif [1968] Ch 643 and Re A (A Minor) (Wardship: Immigration) [1992] 1 FLR 427; and (c) another court of competent jurisdiction as in Re R (above)." (a) the local authority, as in A v Liverpool City Council [1982] AC 363; (b) the immigration authorities, as in Re Mohammed Arif [1968] Ch 643 and Re A (A Minor) (Wardship: Immigration) [1992] 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."

“(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. . . . Hence he concluded, at pp 207 to 208: (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.”

"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 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 . . ."

“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.”

“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.”

“……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”

“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.”

“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.”

“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”

“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 [1990] 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.”

“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.”

“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.”

“The classic statement of the modern law is to be found in the judgment of Russell LJ in In Re Mohamed Arif (an infant) [1968] 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.”

“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.”

“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.”

“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.”

“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.”

“(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.” (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 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.”

“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.”

“… 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.”

“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.”

“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.”

“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.”