S (a child), Re

Factual and Procedural Background

Two brothers were involved in this matter. In August 2001 the elder brother died from acute salt-poisoning while a patient in The Hospital. Press reports identifying the family appeared almost immediately. During subsequent care proceedings the younger brother (“the Appellant”) was placed in foster care while investigations continued. In July 2002 Judge Hedley found that the mother (“the Defendant”) had administered the salt; she was charged with murder the following month and is due to stand trial in The Crown Court.

Meanwhile, an order under s 39 Children and Young Persons Act 1933, intended to protect the Appellant’s anonymity, was discharged on the basis that the statute did not apply to a child who was not a party or witness in the criminal proceedings. The Appellant’s guardian therefore sought an injunction under the High Court’s inherent jurisdiction to restrain the press from naming the Defendant, the deceased child, or publishing photographs. On 19 February 2003 Judge Hedley refused that injunction. A majority of the Court of Appeal upheld his decision; permission to appeal was ultimately granted, bringing the case before the House of Lords.

Legal Issues Presented

1. Whether the High Court (and, on appeal, the House of Lords) could grant an injunction restraining publication of the Defendant’s and deceased child’s identities in order to protect the Appellant’s Article 8 rights when the Appellant is not directly involved in the criminal trial.
2. How to conduct the required balancing exercise between the Appellant’s right to respect for private and family life under Article 8 of the European Convention on Human Rights and the media’s freedom of expression under Article 10, in light of the Human Rights Act 1998 and the principle of open justice.

Arguments of the Parties

Appellant’s Arguments

• The state is obliged to protect the Appellant from publicity likely to cause emotional or psychiatric harm, engaging Article 8.
• A proportionate response would allow reporting of the criminal trial but prohibit use of the family surname and any photographs, thereby minimising the risk of identification.
• The majority in the Court of Appeal misapplied the proportionality test and gave insufficient weight to the vulnerability of the child.

Respondents’ (Newspapers’) Arguments

• The ordinary and “strong” rule of open justice permits the press to report all that occurs in a criminal court.
• Section 39 is clear evidence that Parliament limited anonymity to children directly “concerned in” criminal proceedings; courts should not extend that protection by injunction to non-parties.
• Restricting identification would create a chilling effect, particularly on local and regional papers, and undermine informed public debate about the administration of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The House affirmed that since the Human Rights Act 1998 came into force, applications to restrain publicity should be dealt with directly under Convention rights rather than older inherent-jurisdiction case law.

1. Starting Point – Open Justice: Both Articles 6 and 10, domestic common law, and multiple Strasbourg authorities establish a “strong rule” in favour of unrestricted press reporting of criminal trials.
2. Article 8 Engagement: The Court accepted that the Appellant’s private and family life would be affected, but noted that the impact was indirect: the child is neither witness nor party, and no photographs or personal details about his private life would be published.
3. Statutory Context: Parliament has chosen, through s 39 CYPA 1933 (and its forthcoming replacement), to confer anonymity only on children directly “concerned in” criminal proceedings. The absence of legislative protection for collateral family members weighed against judicial extension by injunction.
4. The Ultimate Balancing Test: Applying the Campbell four-stage methodology, the Court found no precedence of one Convention right over the other; instead, proportionality was central. The intrusion into the Appellant’s Article 8 rights, though real, was rated lower in gravity than the systemic value of open reporting.
5. Practical & Policy Consequences: Granting the injunction would chill reporting, particularly by regional papers, encourage a cascade of similar applications from non-parties (adults as well as children), and risk “piling exception upon exception” to the principle of open justice.
6. Evaluation of First-Instance Decision: Contrary to the Court of Appeal majority, the House concluded that Judge Hedley had correctly applied ECHR principles; any analytical imperfections did not alter the correctness of his conclusion.

Holding and Implications

Appeal Dismissed.

The injunction sought to anonymise the Defendant and the deceased child was refused. As a result, the media may publish their names and photographs when reporting the pending criminal trial, subject only to existing statutory restrictions.

Implications: The decision re-affirms that courts will rarely restrict contemporaneous reporting of criminal proceedings to protect relatives who are not parties or witnesses. It emphasises the primacy of open justice and signals that any expansion of anonymity beyond statutory limits should come from Parliament, not judicial innovation.