Child’s identity to remain a secret

24 March 2011 by Maria Roche

A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB)– read judgment

A High Court judge has ruled that a seven-year-old child with severe disabilities caused by medical negligence during his birth should be the subject of an order that prohibits their identification in any newspaper report.

The order was granted in the course of a hearing to approve the settlement between the child and the defendant hospital under Part 21.10 of the Civil Procedure Rules.  The judge held that there was a risk that the objective of such proceedings, namely to ensure that settlement money is properly looked after and wisely applied, would be defeated if the Claimant was identified.  Further, identification of the child would curtail his and his family’s right to respect for their private and family under Article 8 of the European Convention on Human Rights [‘ECHR’] and there was insufficient general public interest in identifying the child to justify that curtailment.

An order under section 39 of the Children and Young Persons Act 1933 was held to be a more acceptable alternative to an anonymity order in a case where the protection necessary for the child’s welfare and private life does not require a restrictive order.

The Case:

The claimant, A, been starved of oxygen due to a negligent delay in his birth.  As a result, A was physically very incapacitated but mentally entirely, or very substantially, intact. He was intelligent and able to communicate, albeit with difficulty. A’s preserved cognitive functioning meant that he might have legal capacity as an adult. A required care in every aspect of his life and the relevant proceedings were to approve a very large sum of money in settlement of his claim.

The application before the court was for an order under section 39 of the Children and Young Persons Act 1933 [‘section 39’] which provides that:

(39)(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 …(b) no picture shall be pushed in any newspaper as being or including a picture of any child or young person so concerned in the proceedings …

Tugendhat J noted that there is no clear guidance on the criteria to be applied in respect of a s.39 application, but that in R v Lee  [1993] 2 All ER 170 the Court of Appeal had held that nothing in the statute supported the stance that reporting restrictions should be granted except “in rare and exceptional cases”.  The judge considered that the passing of the Human Rights Act 1998 developed the law further by requiring the court to have regard to freedom of expression protected by Article 10 of the ECHR, as well as to the requirements of open justice under Article 6 and respect for private life under Article 8.

The Court of Appeal’s guidance given in JIH v News Group Newspapers Ltd  [2011] EWCA Civ 42 in respect of anonymity orders was held to apply equally to orders applied for under section 39.  In JIH Lord Neuberger MR held that the general rule was for the names of parties to an action to be included in orders and judgments of the court and that an anonymity order or any order restraining publication is a derogation from open justice and an interference with the Article 10 rights of the public at large.  Accordingly, a court should only make such an order after close scrutiny and considering whether restraint on publication is necessary and if so, whether any less restrictive alternative would suffice. The question for the court is whether there is sufficient general, public interest in publishing a party’s identity or normal reportable details to justify any resulting curtailment of the right to privacy and family life.

Tugendhat J considered that a s.39 order:

interferes less with the principle of open justice and freedom of justice, and is less restrictive, than an anonymity order…[and] is therefore a more acceptable alternative to an anonymity order if the case is one in which some protection is necessary for the child’s welfare and private life and if it is not necessary to make a more restrictive order [14].

In considering the impact on A’s rights, the judge noted that modern technology meant that any report of the proceedings would be as readily accessible by the time A reached adulthood as it would be today.  The purpose of the instant proceedings under Civil Procedure Rules Part 21.10 was to ensure that the settlement sums were properly looked after and wisely applied so that the Claimant had access to the finances necessary to compensate him.  A’s physical disabilities meant that A would be vulnerable as an adult and if the sums at A’s disposal were readily known, it would put him at risk of losing that money to “inappropriate friends, fortune hunters or even thieves” [§17] thereby defeating the object of the proceedings.

Further there was no sufficient general, public interest in publishing a report of the proceedings which identified A to justify the resulting curtailment of his right and his family’s right to respect to their private and family life [§19].  Consequently an order under section 39 was appropriate.

Commentary:

This judgment, like that in JXF (a child) v York Hospitals NHS Foundation Trust [2010] EWHC 2800 (QB) where an anonymity order was granted to a child, will be of importance whenever a child claimant who is likely to attain capacity seeks anonymity. Tugendhat J stressed, however:

“each case depends on its own facts.  Judgments explaining why orders derogating from open justice are made, cannot, in the nature of things, set out in any great detail the particular facts which gave rise to the need for the order.  In some cases greater protection will be needed than in others” [§18].

As previously discussed by Matthew Hill, in JXF Tugendhat J had sought to limit the ambit of his decision to grant an anonymity order and to ensure that courts considered anonymity applications carefully and methodically. The judge referred to the decision of the Supreme Court  in In Re Guardian News and Media Ltd [2010] UKSC 1 that when addressing any application for anonymity, a court should give careful consideration to how to balance the competing rights of the applicant to private and family life under Article 8 and the press and general public to freedom of expression under Article 10 of the ECHR.  In that case, Counsel for the applicant newspapers and media had complained to the Supreme Court:

“Your first term docket reads like alphabet soup.”

Both A and JXF can be viewed as authority that orders restricting publication are to be very much the exception and not the rule, and the latest judgment indicates that, in relation to child claimants, section 39 orders are to be preferred over other anonymity orders unless severe restrictions are necessary.

Margaret Bowron QC of 1 Crown Office Row represented the Claimant.

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