COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (Mr Justice Hedley)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALE
LORD JUSTICE LATHAM
| S (a child), Re
Gavin Millar QC and Anthony Hudson (instructed by Messrs Farrer & Co) for the 1st – 3rd Respondents
Alison H Russell and Siobhan F Kelly (instructed by Messrs Kenneth Elliott & Rowe) for the Appellant Mother
Hearing date: 30th April 2003
Crown Copyright ©
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:
"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))
"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."
(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
" . . . 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."
"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)
"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)
"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
(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).
"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."
The ebb and flow of judicial opinion
"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.
'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.
"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."
". . . 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.
'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."
"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.
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."
"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.
The second issue: the Human Rights Act 1998
(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'.
"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."
"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.
"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.
"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."
"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."
(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.
Lord Justice Latham:
"……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". 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."
"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."
"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)  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."
Lord Phillips, MR:
"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."
"(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."
"(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."
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 inherent jurisdiction in relation to children
"…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."
"… 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 Human Rights Act
"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."