Protection of Children Involved in the Judicial Process

Introduction

It is perhaps ironic that in a society with so much juvenile crime and high levels of sexual activity under the ages of 16 that law still maintains a hegemony about the general innocence of children. The ideology of the ‘best interests of the child’ dominates nearly every area of family law such as adoption, residence, contact, establishing parental responsibilities, care actions by local authorities and pertinently for this article protection of anonymity during court proceedings. The equitable nature of this test is well documented as having inhibiting effects on other competing principles, as was pointed out by Reece:

‘The indeterminacy of children’s welfare has allowed other principles and policies to exert an influence from behind the smokescreen of the paramountcy principle’^[1]

The main argument of the media is that the paramount nature of the welfare test as regards children has undermined more liberal notions of open justice and an unjustifiable encroachment on liberal notions of law. This dichotomy is not unique within this area as the quotation by Reece suggests however it is perhaps one of the most interesting areas where we can see the differences between grand liberal narratives of law and more equitable rights based approaches to law and as we shall see the law in the area is by no means exempt from external influence in changing their position on the issue.

The Law

Given that the massive majority of actions involving children are covered by the aegis of the Children Act 1989 the protection within that statute is of significant import. The issue is dealt with by s.97 of the 1989 Act which provides that a judge may make a rule under s.140 of the Magistrates’ Courts Act 1940 that requires the court to sit in private ‘in proceedings in which any powers under this Act may be exercised by the court with respect to any child’^[2]. The potential scope of this power is basically unlimited and by virtue of s.1 (1) of the CA 1989 must have regard to the welfare of the child as the paramount consideration. The most pertinent facet of s.97 is that it creates a criminal offence where material that is intended or likely to identify a child involved in private proceedings or the address or school of such a child is ‘published’. Published is given a wide enough ambit to catch every medium of information dissemination including broadcasting news^[3] and the concept of material is defined as ‘any picture or representation’^[4].

There is a similar duty under the Children & Young Persons Act 1933^[5] in s.39 which is more general and can cover criminal and civil proceedings whereas the CA 1989 is largely restricted to civil actions. The structure is very similar, it makes it an offence to publish ‘particulars calculated to lead to the identification’, whether they be the innocent or guilty party in the trial, and furthermore a judge can place a restriction on the taking of photographs of the aforementioned child.

The third main source of law on this issue is s.12 of the Administration of Justice Act 1960 which ‘forbids publication of details of proceedings held in private concerning wardship, adoption, custody, access etc (any breach being a contempt of court) other than the substance of a judgement’^[6]. Furthermore developing from the common law concept of the court as parens patriae and now contained in s.100 of the CA 1989 the court has the discretion to grant an injunction to prevent the publication of any information relating to a child in its ward^[7]

These are the main sources^[8] and they all provide for the stigmatisation of any such publication by attaching a criminal sanction to any breach of the duty. The operation of this crime however is doubtful for example there are often defences that the defendant did not know and was not likely to know it would lead to the identification of the defender, the defences and difficulty of proof have lead commentators to say that a successful prosecution is ‘virtually impossible’^[9] . The courts are also all subject to requirements to consider the welfare of the child as the paramount interest most poignantly in the CA 1989 and the extremely wide ambit of its opening section. The interesting point to make is that they all take the form that a court ‘may’ make an order and thus confers a discretion on the magistrate or judge which tells us nothing about the substantive nature of the law in this area doesn’t per se tell us anything about the competing concerns of liberal and equitable principles that legislators were envisaging in enacting these laws.

Case law And The Competing Principles

A study of this area of law highlights what Reece was talking about in relation to the welfare principle, the competition between liberal arguments of freedom of expression and equitable arguments of child protection has exerted their influence behind a smokescreen of neutrality to create a wholly inconsistent body of law which is unsurprising given the importance of the underlying principles. The problem is that there is no conceptual unity between the different sections and this can lead to trivial distinctions which undermine the importance of the issues involved^[10]. In a work of this size it is impossible to do justice to the breadth of the case law but we must focus on the main cases and the principles that these cases highlight.

The courts have been on the whole cautious of placing any restrictions on the freedom of expression of the press in reporting issues of children within the judicial process, the seminal case in this respect is R v Central Independent Television plc ^[11] which stated ‘This freedom is subject only to clearly defined exceptions laid down by common law or statute’^[12]. This lead to a distinction in injunction cases which follow from the dicta of Waite J in that case to the effect that right to privacy is not an equitable recognition of children’s rights but a way of ensuring that the wardship jurisdiction maintains it’s integrity and ability to deal with future cases^[13]. This was confirmed in the case of Re Z (A Minor) (Freedom of Publication)^[14] which made a seminal judgment of the operation of the injunctive power inside and outside the courtroom. In Re Z it was stated that the power to restrict the identity of a child inside the courtroom was limited to situations where it was invoked to protect the jurisdiction of the court rather than the individual welfare of the child. In the latter case there wouldn’t be a justification for restricting publication and thus freedom of expression. The justification is that the law needs to support failing jurisdictions by providing confidentiality otherwise it may not be abused. In many child cases such as abuse this will be vital and these are the concerns rather than a child’s right per se that motivate the courts here. Outside the courtroom i.e. not directly related to reporting of proceedings, this effectively has limited the injunctive process to where a child is under the parens patriae jurisdiction already or the publication is about the child’s upbringing or inimical to its welfare. The linking of the protection to a justification premised on jurisdictional protection however is sometimes inconsistent because the publicity may well not be directed to the exact facts of the case but the protection can be invoked through the coincidence that the child is involved in the legal process when a similar child could have no injunctive right because they weren’t involved^[15].

However, it isn’t purely the injunctive power that we are concerned with but the justifications for other restrictions under different strands of law. Particular interest is to be paid to the operation of s.39 of the CYPA 1933 which can only be exercised on intervention by the court into the status quo of freedom of expression. The courts opinion has oscillated on the operation of this power in R v Leicester Crown Court ex parte S^[16] the court here seemed to feel that in criminal cases the fact of being a juvenile would usually be sufficient to invoke s.39 and it would be ‘rare and exceptionable’^[17] for this power to be overridden. However, this construction was heavily criticised in R v. Lee^[18] and they rejected any fettering of the discretion of the judge to decide on the facts of the case. Dodd cites ‘gravity of the offence, the potential harm publicity might bring, and the deterrent effect of publicity on possible offenders’^[19] as potential factors in the decision. The obvious interest of the media in juvenile crime and the liberal notions that people be tried in the open is obviously subverted by incorrect sue of these powers and the effect could be particularistic in the extreme. There is no guidance for judges in deciding to make s.39 orders but they seem to be moving towards a more liberal point of view and accepting that in fact publicity itself can act as a deterrent for example in R v Inner London Crown Court ex parte B^[20] the judge held that given the age of the offender, the seriousness of the crimes and the deterrent effect of publicity a decision to remove a s.39 order was upheld. It will in the criminal sphere be this balance against the welfare of the child, it would appear that it will narrow the situations where the accused child may not be disclosed whilst encouraging anonymity of witnesses or victims who are children.

In Kelly v. BBC^[21] the court summarised that in general actions concerning children and restrictions on the freedom of expression there were three different approaches that could arise under various actions:

• • Where the case does not concern the courts in any supervisory role then the child will be left to its own devices
  • Where the case technically involves the supervisory role but welfare is not paramount and thus a balancing of interests must occur
  • Where the supervisory role is invoked and the child’s welfare is paramount which overrides freedom of expression.^[22]

The former will be children outside the legal framework as discussed above, the latter will be those involved in serious cases which involve the protection of the jurisdiction as discussed in relation to Re Z and the law surrounding that area. The margins of public policy are clear here but the middle is hazy and it is here that journalists and children’s rights supporters will clash. The case law is confused and incoherent in many ways and suggests that the use of the powers is based on individual cases rather than universal norms.

It is clear that this middle ground is respected by many press organisations as the Press Complaints Commission in its codified rules in both Rules 6 & 7 identify that normally any issues to do with a child’s welfare must be authorised by the adult who has responsibility for them. The issue seems to be strictest in regards sexual offences where it advocates adherence to a higher standard than just legality but encourages sensible reporting. The rules about children are however seen as being overruled in situations of public interest and it will be here that the conflict with the courts will most often occur. The press will obviously be less likely to respect privacy.

Conclusion

The brief discussion of case-law above highlights the facts that the equitable rights of children are not given any special pre-dominance and that in the vast majority of cases freedom of expression will prevail. The problem with the balancing of equitable rights is the potentially deleterious effects that it can have on freedom of expression and thus democracy as is much bemoaned by the press. In The Prolife Alliance v The British Broadcasting Corporation^[23] the court held that in issues of freedom of expression ‘the courts owed a special responsibility to the public as the constitutional guardian of the freedom of political debate’^[24]. It is clear that public policy may require infringement so as to encourage use of the legal process as it is equally clear the law may have a benefit in criminal law of publicity however in between these expression the balancing test as outlined in Kelly will continue to obscure the reality of judicial biases based on individual cases. The unreasonability of this position depends on your belief in equity and generalisations about the fairness or unfairness of the current legal apparatus defy simple answers and must inevitably end in particularistic judgements on individual cases merits the same as judges.

Bibliography

Articles

Brown, Simon &NLJ Law Reports2002 NLJ 433

Parker, Jonathon

Dixon, JohnChildren and the Statutory Restraints on2001 FamLJ 757

Publicity

Dodd, MikeCase Commentary: Privacy and the press – 1999 CFam 171

the latest stage in the battle

Gregory, RichardOpen Justice at Finchley Centralwww.fnf.org.uk

Moriarty, JaclynChildren, privacy and the press1997 CFam 217

Reece, HelenThe Paramountcy Principle: Consensus or 1996 CLP 267

construct?

Scott, TimothyAutomatic Prohibitions On Disclosure2003 FamLJ 594

Woods, L JCase Commentary: Freedom of expression 2001 CFam 209

and the protection of minors

Online Resources

www.lexisnexis.com

www.fnf.org.uk

www.pcc.org.uk

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Footnotes

^[1] Reece (1996)

^[2] S.97 (1) CA 1989

^[3] S.97 (5)

^[4] Ibid.

^[5] Note that s.49 of this Act provides for an automatic recognition where the proceedings are in youth courts. From now on CYPA 1933

^[6] Gregory (2000)

^[7] The case law starts with Scott v Scott [1913] AC 417 See Woods (2001) and for recent cases see Nottingham City Council v October Films Ltd[1999] 2 FLR 347. and Kelly v BBC [2001] 1 FLR 197

^[8] There a few minor other provisions for example Domestic and Appellate Proceedings Act 1968, s 1 and Magistrates’ Courts Act 1980, s 71(1) both deal with publications but are of very minor use. See Dixon (2001)

^[9] Moriarty (1997) FN 158

^[10] A prime example of this is the inter-operation of s.12 (1) of the Administration of Justice Act 1960 and s.97 (2) of the CA 1989 which distinguish between the former that refers only to documents but not identification and vice versa See Dixon Ibid.

^[11] [1994] 2 FLR 151.

^[12] As per Hoffman LJ Ibid. See Moriarty (1997)

^[13] This has been established in a number of cases before and since such as Re R (A Minor)(Wardship: Restriction on Publication) [1994] 2 FLR 637 and

^[14] [1996] 1 FLR 191.

^[15] See Re L (A Ward) (Publication of Information) [1988] 1 FLR 255. as an example in Moriarty Supra N11

^[16] [1993] 1 WLR 111.

^[17] See Dodd (1999) for discussion of these issues in more depth.

^[18] [1993] 1 WLR 103.

^[19] Supra N16

^[20] [1996] COD 1-91 17.

^[21] [2001] 1 FLR 197

^[22] Woods Supra N 7

^[23] Reported in NLJ 2002

^[24] Ibid.