Law Report: Broadcast cannot be restricted: Regina v Central Independent Television plc - Court of Appeal (Lord Justice Neill, Lord Justice Hoffmann and Lord Justice Waite), 9 February 1994

A court cannot restrict the media in order to protect the interests and privacy of a child unless the publication directly concerned the court's jurisdiction in relation to the care or upbringing of the child.

The Court of Appeal gave reasons for allowing on 27 January 1994 an appeal by the television company from an order of Mr Justice Kirkwood preventing the company from broadcasting a programme without making changes.

The company was broadcasting a series of programmes about the work of Scotland Yard. One programme related to the work of detectives in tracing and arresting a father who was convicted of indecency involving young boys. The father's former wife was concerned that the programme would identify herself and their child, S. The company undertook to remove any references to her or S, such as the house in which he had lived and been arrested. The wife remained concerned and on her application, Mr Justice Kirkwood ordered that the programme could be broadcast only if pictures of the father were obscured.

Patrick Moloney (Mishcon de Reya) for the television company; Walter Aylen QC and Nigel Jones (German & Soar) for the former wife.

LORD JUSTICE NEILL said that in cases such as Re M and N (minors) (1990) Fam 211 and Re W (a minor) (1992) 1 WLR 100, where the Court of Appeal laid down guidelines relating to the publication of information about minors who were wards of court, the publications restrained related to the care and upbringing of children over whose welfare the court was exercising a supervisory role. The activities restrained were not only likely to affect the welfare of the ward himself but also the ability of the carers to carry out their obligations to the court for the care of the ward. The court itself therefore had an interest in the integrity of its own wardship jurisdiction.

The present case was quite different. The programme was in no way concerned with the care or upbringing of S. His Lordship was unable to accept the proposition that a balancing act, weighing the interests of the child against the rights of free speech, had to be carried out in every case where a threatened publication might be likely to affect a ward. A balancing exercise only became necessary where the threatened publication touched matters which were of direct concern to the court in its supervisory role over the care and upbringing of the ward. Here, the programme had nothing whatever to do with the care or upbringing of S. There was nothing to put in the balance against the freedom to publish.

The company was entitled to publish the programme in full, but its responsible attitude should be applauded. It did what it could to reduce the risk of identification of S and one hoped that in similar circumstances others would act in a similar way.

LORD JUSTICE HOFFMANN said that the freedom of speech and the press was subject only to clearly defined exceptions laid down by common law or statute. The jurisdiction to restrain publication could not apply to publication of the fact that the child's father had been convicted of a serious offence. There was no jurisdiction to restrain the company from publishing pictures of the father or of the house. It was considerate and responsible of the company to give the undertakings it did, but it was not obliged to do so.

LORD JUSTICE WAITE said that no child, simply by virtue of being a child, was entitled to a right of privacy. That was true of a ward of court as of any other child.

The anonymity or confidentiality of a child or its circumstances could only be enforced in cases where publicity would or might threaten the effective working of the court's own jurisdiction, whether in deciding a question about the child's upbringing or in exercising a continuing supervisory role over a child whose future had already been determined. Confidentiality was an aid to administration of the jurisdiction and not a right or status which the jurisdiction of itself had any power to confer.