A legal test case that focuses on the conflict between the need to protect the privacy rights of children involved in care and the rights of the press to freedom of expression is on its way to the House of Lords.
Permission has been given for an appeal to the law lords in the case of a mother facing a murder charge for the alleged poisoning of one of her sons.
The other son is subject of care proceedings.
The question is whether the mother’s identity should be suppressed in the interest of the surviving child.
Last July the Appeal Court backed a High Court ruling that it was in the public interest that the mother should be named. It was held that public interest in the case and freedom of expression outweighed the privacy rights of the child.
The Appeal Court gave important guidelines on the way the balancing act between the rights to privacy contained in Article 8 of the European Convention on Human Rights and the rights to freedom of expression contained in Article 10 should be approached.
Lord Phillips and Lord Justice Latham, in the ruling now to be challenged, backed the High Court decision of Mr Justice Hedley that the mother could be named.
Lord Justice Latham said the case raised “in an acute form” the difficulties facing courts carrying out the balancing exercise required in cases where the court is asked to consider the right to private life of a child under Article Eight and the right of the press to freedom of expression under Article 10.
He said in considering whether or not to make orders allowing such identification the court had to bear in mind the effect publicity would have on the child, and the extent to which it would affect the ability of the court to carry out its obligations to the child in the exercise of its care jurisdiction.
On the other hand it had to consider the effect that the order would have on the ability of the press to provide the public with a full and fair report of the proceedings.
He considered in this case the High Court judge who ordered identification was in the best position to gauge the effect publicity would have on the child and the extent to which it would interfere with his ability to deal properly with the child’s care.
In the decision to grant permission for an appeal, the law lords said that the case will raise the question of whether the inherent jurisdiction of the High Court can be used to ban the press from identifying the defendant in a criminal trial for the sake of a child who is not concerned with the proceedings.
If the Lords decide courts are entitled to do this, the question of the balancing act between the rights of the child to private or family life and the freedom of the press will then be examined.
By Roger Pearson