(Queen's Bench Division (Administrative); Latham LJ and Bennett J; 16 July 2008)
The mother, aggrieved by the way in which she had been treated by the court in the course of family proceedings, contacted Fathers 4 Justice, and took part in a demonstration attracting media attention. She gave newspaper interviews, providing detailed information about the court orders made in the family proceedings, and about her involvement in Fathers 4 Justice; she identified herself, but not the child's father. She did not mention Children Act 1989, s 97(2)(a), prohibiting publication of any material intended, or likely, to identify any child as being involved in any court proceedings. The father was identified in one of the articles. The mother brought a private prosecution against the newspaper under s 97 for publishing material likely to identify the child. The judge rejected the newspaper's application for a stay of proceedings as an abuse of process. On the newspaper's application for judicial review the mother's litigation friend, who wished to write about the proceedings using the names of those concerned, sought a declaration that Children Act 1989, ss 97(2)(6), 103 did not apply to the reporting of a criminal prosecution for an offence under ss 97(2)(6), 103, nor to the reporting of appellate or judicial review proceedings arising out of such a prosecution.
There was no reason in principle why a private prosecution should not be considered an abuse of process if the crime was one that had been encouraged by the private prosecutor, or if in some other way the private prosecutor had essentially created the same mischief as that complained of. This prosecution would be stayed as abuse of process; the mother, by being prepared to be identified, had provided material willingly and deliberately that was likely, indeed certain, to identify her child as being the subject of proceedings, at least to that section of the public living in her area. In relation to the anonymity of the current proceedings, the court should not entertain an application in the criminal jurisdiction for a declaration as to the legality of a future course of action save in a truly exceptional case, and it was more appropriate in this case to consider what reporting restrictions should be imposed. The court had an inherent jurisdiction to secure the interests of the child; the right order was merely to anonymise the mother's identity.