Orders under section 39 of the Children and Young Persons Act 1933 (“S.39 Orders”) are commonplace in the courts of England and Wales. Every journalist knows they are frequently imposed incorrectly, and the way to challenge them is well established.

But what can you do if one is imposed, correctly, albeit against the wishes of the child’s family? And what effect does a S.39 Order have on your website archives?

I have recently encountered a scenario in which a S.39 order was imposed on a child who was “concerned in the proceedings”, even though the parents of the child (one of whom was the defendant) wanted the case to be publicised.

The parents wanted to be named in reports of the proceedings because they believed the case to be a travesty, but naming them would inevitably lead to the identification of their child.

The result – the Court ignored the parents’ unequivocal wishes and made a S.39 order anyway, which meant that all parties had to be anonymised in reports of the proceedings.

So, is there anything you can do if you find yourself in this situation?

Of course, you can challenge the Order on the usual grounds – for example: that the child is young enough not to be affected by publicity; or that freedom of expression should outweigh the child’s right to privacy. The Judicial College’s guide to Reporting Restrictions in the Criminal Courts (June 2014) is very helpful in this respect.

But ultimately, the Court has the final stay and it is entitled to make a S.39 Order irrespective of the wishes of the parents.

The nanny state gone mad? Or the proper and reasonable exercise of judicial powers to protect children from adults who should know better? I’ll let you, readers, make that call.

As a mere lawyer, all I know is that if the Order remains in place, the identity of the child must be protected, even if that means, by extension, that it is not possible to report the defendant’s name or certain details of the offence.

The other issue that this case brought into the reckoning was the impact of a S.39 Order on a newspaper’s internet archives.

It is not uncommon for a S.39 Order to be imposed at the case management hearing or trial of a case, rather than at the very outset of the prosecution. Therefore, previous reports of hearings may already be out there in the archives, which might identify the child in question. Whilst the fact that a child has already been identified to the public is a persuasive argument when challenging a S.39 Order, it is not necessarily going to result in the Order being overturned.

What happens to those previous reports if the S.39 Order remains in place?

The answer is easy – the previous reports of proceedings will need to be anonymised or removed if they directly identify the child, or create a risk of jigsaw identification.

As you will know, a S.39 Order can only apply to “reports of the proceedings”, so, what if there are reports in your archives, which were published prior to the case getting to court, but which relate to the same issue?

Unfortunately, the answer is that, if those previous articles are likely lead to the jigsaw identification of children covered by the S.39 Order, they must also be removed, or anonymised.

I do not generally advocate removing content from archives, because setting such a precedent is usually unnecessary, and has the potential to become a huge burden. However, when there is risk of jigsaw identification, resulting in a breach of a S.39 Order, I have no doubt that it is a necessary and worthwhile step.

After all, the alternative could be a criminal conviction for both the editor and the publisher – which no-one wants.