Reference:  EWCA Civ 963;  Fam 43;  3 WLR 1425;  HRLR 911
Court: Court of Appeal
Judge: Lord Phillips MR, Hale & Latham LJJ
Date of judgment: 10 Jul 2003
Summary: Family law - Reporting restrictions - Inherent jurisdiction - Injunctions - Human rights - Privacy - Article 8 ECHR - Freedom of expression - Article 10 ECHR
Instructing Solicitors: Moss & Coleman for the appellant; Farrer & Co for the media; Kenneth Elliott & Rowe for the appellant mother.
A child (‘S’), the subject of care proceedings, sought to protect the identity of the defendant in a murder trial (S’s mother) and the victim (S’s brother), in order to protect his own privacy. Hedley J held that although the court had jurisidiction to restrain publication of these identities, on this occasion it would not do so. S appealed.
(1) Whether the inherent jurisdiction of the High Court should be used to prohibit identification of the defendant in a criminal trial in the interests of a child to whom s.39 Children and Young Persons Act 1933 did not apply. (2) If so, what was the proper approach to be taken to balancing the right to freedom of expression (both at common law and under Art 10, ECHR) against the welfare of the child and his right to respect for their private and family life under Art 8, ECHR.
(1) Where situations arose that were not covered by statute, courts should be slow to extend any incursion into the right of freedom of expression by use of the inherent jurisdiction. The present case was within the court’s “protective jurisidiction”. The information to be published concerned S’s family life and would have a serious impact on how he was to be brought up. Accordingly jurisdiction existed. (2) In deciding whether to exercise this jurisidiction, the court had to balance Art 8 against Art 10. Neither had pre-eminence. In considering the proportionality of the proposed interference with S’s Art 8 rights, the court had to consider its magnitude and what steps could be taken to prevent or minimise it. Here, as the incident and the identity of the parties were already in the public domain, anonymity would have only a mitigating effect. There was a clear and proper interest in knowing the identity of the defendant in a murder trial. S’s appeal was dismissed (Hale LJ dissenting)
In theory, at least, the jurisdiction of the family division to make orders protecting children the subject of proceedings is unlimited. This decision is a useful reminder that the power has to be exercised in accordance with the familiar principles of Article 10 and Article 8. Where both are engaged – as in this case – neither right has pre-eminence and each must be carefully balanced.