Family

Identification of a child in parent's prosecution: Human Rights Act 1998

Re S (Identification: Restrictions on Publication) (2003) The Times 21 July, CA

Under section 39 of the Children and Young Persons Act 1933, a court may prohibit publication of information 'calculated to lead to identification' of a child 'concerned with the proceedings' as a party, witness or the subject of the proceedings.

Where a parent was prosecuted for the murder of the brother of a child (S), but S was not 'concerned with the proceed-ings' as party, witness, etcetera, section 39 does not apply.

Re S considers what steps can then be taken to protect the child from possible effects of publicity.

On application on behalf of the child, Mr Justice Hedley ordered, in the court's inherent jurisdiction, that there should be no publicity that might identify S but that his order should not, of itself, prevent publication of information concerning any proceedings not held in private.

S appealed, seeking to narrow the ambit of publication.

The Court of Appeal judges agreed on the principles applicable, but differed in their conclusions.

Could the inherent jurisdiction be exercised at all in these circumstances, and if so what principles applied to its exercise? In relatively narrow circumstances, the inherent jurisdiction could be used, said the court.

Exercise of the jurisdiction depended on a balance between article 6 of the European Convention on Human Rights (right to a fair open trial), article 8 (respect for family life) and article 10 (freedom of expression).

It was the last two that were most clearly engaged here.

Proportionality (in convention terms) required that intervention be justified by sufficient and relevant grounds.

While the welfare of the child was not paramount, article 8 required consideration of such factors as the effects of press reporting on his family, risk of future harm to him and his schooling, said Lady Justice Hale.

In performing the balancing exercise required by articles 6 and 8, Lady Justice Hale allowed the appeal.

The majority, Lord Justice Latham and the Master of the Rolls, disagreed and held that Mr Justice Hedley's order should stand.

Financial provision

Re P (Financial Provision) [2003] EWCA Civ 837 [2003] 2 FCR 481, CA

In Re P the Court of Appeal considered financial provision for a child under section 15 and schedule 1 of the Children Act 1989, where the child's parents are not married to one another, and suggested the factors the court should have in mind when exercising its discretion under schedule 1 paragraph 5(1).

First, the court must consider the housing needs of the child during his minority or longer dependency, normally by means of a 'property settlement order' ([45]).

Next, the court considers what budget the mother reasonably requires, taking account of the 'sacrifice of the unmarried parent' (generally the mother) who is to be the primary carer ([47] and [49]); and such provision for the mother can be based on a generous approach ([43]).

The last factor stresses the limited application (and Lord Justice Thorpe was well aware of this shortcoming) of a case such as P; because it is only where the non-resident parent's income exceeds the child support level of 2,000 a week (around 180,000 gross a year) that the court can even contemplate a top-up for the carer parent (as in P).

Because of the operation of section 8(6) of the Child Support Act 1991, application can only be made to the court where income exceeds 2,000.

In Lord Justice Thorpe's judgment, P's father was 'fabulously rich' ('I can pay 10 million without noticing the difference').

Most single unmarried parents do not have former partners who can get close to that.

By David Burrows, David Burrows, Bristol