Re S (A Child) (Identification: Restrictions on Publication)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale,Lord Justice Latham |
| Judgment Date | 10 July 2003 |
| Neutral Citation | [2003] EWCA Civ 963 |
| Docket Number | Case No: B1/2003/0461 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 2003 |
[2003] EWCA Civ 963
Lord Phillips of Worth Matravers, M R
Lady Justice Hale and
Lord Justice Latham
Case No: B1/2003/0461
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (Mr Justice Hedley)
Cherie Booth QC and Frank Feehan (instructed by Messrs Moss & Coleman) for the Appellant
Gavin Millar QC and Anthony Hudson (instructed by Messrs Farrer & Co) for the 1 st– 3 rd Respondents
Alison H Russell and Siobhan F Kelly (instructed by Messrs Kenneth Elliott & Rowe) for the Appellant Mother
NOTE:
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.
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 facts
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...
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