Re S (A Child) (Identification: Restrictions on Publication)

JurisdictionUK Non-devolved
JudgeLORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOFFMANN,LORD CARSWELL
Judgment Date28 October 2004
Neutral Citation[2004] UKHL 47
CourtHouse of Lords
Date28 October 2004
In re S(FC)
(a child) (Appellant)

[2004] UKHL 47

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hoffmann

Lord Carswell

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

My Lords,

1

I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Steyn. I agree with it, and would make the order which he proposes.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he gives, with which I agree, I would dismiss this appeal.

LORD STEYN

My Lords,

3

On 19 February 2003 a judge in the Family Division of the High Court (Hedley J) dismissed an application for an injunction restraining the publication by newspapers of the identity of a defendant in a murder trial which had been intended to protect the privacy of her son who is not involved in the criminal proceedings: Re S [2003] EWHC 254 (Fam). By a majority (Lord Phillips of Worth Matravers MR and Latham LJ, with Hale LJ dissenting) the Court of Appeal dismissed an appeal against the order of Hedley J: [2004] Fam 43.

I. The death of a child and the criminal proceedings.

4

The child concerned is CS, who is now eight years old. On 20 August 2001, his older brother DS, then aged nine, died of acute salt poisoning in the renowned Great Ormond Street Hospital where he was a patient. Press reports about the death appeared soon afterwards, namely in the "Evening Standard" for 22 August, with headline "'Poison' theory over mystery death of boy, 9"; in "The Recorder" (a local paper) for 24 August, with headline "Police Probe into Boy's Death"; in the "Evening Standard" for 28 August, with headline "Boy's death from a mystery illness turns into murder inquiry"; in "The Independent" on 29 August, with headline "Poisoning suspected after heart attack kills boy aged nine"; in the local paper for 31 August with headline "'Poisoned' boy: Now it's murder"; and finally in the local paper for 5 October with headline "Boy's death: Man and woman arrested". All these reports 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 the dead child's parents or refer to his having a younger brother. "The Independent" named 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 the school he had attended.

5

Shortly after DS died, the London Borough of Havering brought care proceedings in relation to CS, to whom I will refer as the child. During the care proceedings the child was fostered. At a fact-finding hearing in July 2002, Hedley J found that the death was caused by salt poisoning administered by the mother. 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 Central Criminal Court on 15 November 2004. Her trial is expected to last three months.

6

The parents have 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 the child with his father. The child has therefore returned to live in his home and attend his old school. He has supervised contact with his mother and maternal grandparents. Contact is still in issue in the care proceedings and will probably remain so until after the criminal trial.

7

On 29 August 2002, in the criminal proceedings, Judge Moss QC made an order under section 39 of the Children and Young Persons Act 1933, prohibiting publication of information calculated to lead to the identification of the child. The judge stated that publication of the family's surname would be considered an act calculated to lead to such identification. On 11 October 2002, on the application of the local paper, Judge Focke QC discharged the order of 29 August 2002. He took the view, with which Hedley J later agreed, that section 39 was inapplicable to the case because the child was not a "child concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings were taken, or as being a witness therein".

II. The proceedings in the Family Division.

8

The guardian of the child made an application to Hedley J for an injunction under the inherent jurisdiction of the High Court. On 17 October 2002, the judge made an order based upon the standard form commonly used in the Family Division. The order prohibited publication (a) of the name or address of the child and his school; (b) of any picture of the child or either of his parents; and (c) of any other information which might lead to the child's identification. The order 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". The order was clearly designed to prohibit publication of the name of the mother and the deceased child in any report of the impending criminal trial. It is common ground that the order also prevented publication of any photographs of the mother or deceased child.

9

The parties and any person affected were at liberty under the order to apply to vary the order. On 13 November 2002 the local paper, the Romford Recorder, applied ex parte for a modification of the order. Hedley J changed the order 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 …" However, paragraph 8 was stayed until 13 December 2002 so that the matter could be fully argued at an inter partes hearing.

10

At the hearing before Hedley J in chambers on 12 and 13 December 2002 three national newspaper groups (the respondents) appeared on behalf of the press. The local newspaper withdrew to avoid the risk of being ordered to pay costs. The argument before Hedley J centred on whether the exception in paragraph 8(a) should remain in the order. The newspapers accepted that they should not refer to the child, but they wished to be able to publish the names and photographs of both parents and of the dead boy. At the hearing the court had before it a psychiatric report from a well-known child psychiatrist (Dr. Dora Black) who had already made reports on the child for the purpose of the care proceedings. When she had seen him in May 2002 he was apparently a well-functioning six-year-old who was attached to his parents. She said that he had coped well with the death of his brother and separation from his parents. She ascribed that to the good therapeutic programme put in place by the local authority. She understood that the child had now been told how his brother had died and that his mother was to stand trial for her alleged part in it. Dr. Black stated that the child was confused and his therapist and father were trying to help him. She said:

"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 mention 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."

The argument before Hedley J covered, among other things, the case law on the inherent jurisdiction of the High Court to restrain publication, the interplay between article 8 (Right to respect for private and family life), article 10 (Freedom of expression) of the European Convention on Human Rights as scheduled to the Human Rights Act 1998, and the balancing exercise required under the inherent jurisdiction and the ECHR.

11

On 19 February 2003 Hedley J delivered a carefully reasoned reserved judgment. He summarised his conclusions as follows (para 19):

"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...

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