Torbay Borough Council v News Group Newspapers [2003] EWHC 2927 (Fam)

“in relation to the media the exercise of the court’s inherent parens patriae or wardship jurisdiction is divided into three parts: the first part, in which the jurisdiction is not exercisable at all and the child is left to whatever remedies against the media the law would give an adult in comparable circumstances; a second part in which the jurisdiction is exercisable, but in circumstances where, because the court is exercising only its “protective” jurisdiction, the child’s interests are not paramount and where a so-called balancing exercise has to be performed; and the third part, in which, because the court is exercising its “custodial” jurisdiction, the child’s interests are paramount. Well known examples of cases falling into the first category, where no injunction can be granted, are In re X (A Minor) (Wardship: Jurisdiction) [1975]Fam 47; R v Central Television plc [1994] Fam 192 and M v British Broadcasting Corpn [1997] 1 FLR 51.”

“only where the proposed publication is directly about a child whose care and upbringing are already being supervised by the court and is such as might threaten the effective working of the court’s jurisdiction or the ability of the child’s carers to carry out their obligations to the court for the care of the child.”

“Whatever the theoretical limit of the jurisdiction may be, the authorities suggest that the court should not even consider exercising that jurisdiction in cases where publicity is not directed at the child or the child’s carers unless it could have an adverse affect on the court’s ability to deal properly with the care proceedings in question. I prefer the view that the jurisdiction is, as Ward LJ said in re Z and Millett LJ said in R v Central Television plc, theoretically unlimited, but that as Waite LJ said in the latter case at page 207: “The courts have nevertheless found it necessary to set self-imposed limits upon its exercise.”

“If the existence of the jurisdiction is accepted, it may now be unnecessary to resolve the tension between the various statements made in the earlier decisions of this court. These cases all preceded the implementation of the Human Rights Act 1998. Now that the Human Rights Act is in force, the relevance of the jurisdiction may simply be to provide the vehicle which enables the court to conduct the necessary balancing exercise between the competing rights of the child under Article 8 and the media under Article 10.”

“The cases to which I have referred predate the Human Rights Act At the same time they reflect, to a large degree, an attempt to balance the rights conferred by Article 8 of the Human Rights Convention with the Article 10 right to freedom of expression I consider, however, that the principles to be derived from the pre Human Rights Act authorities cannot be rigidly applied. It is necessary in the individual case to balance Article 8 rights which are engaged against Article 10 rights.”

“[52] ... the court, in deciding whether to exercise its jurisdiction to restrain publication, whether under the inherent jurisdiction or under section 39 or any other statutory provision, has to consider both Article 8 and Article 10 as independent elements ... As Sedley LJ said in Douglas v Hello! Ltd [2001] QB 967, at p 1005, “Neither element is a trump card. They will be articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualified rights. It will be remembered that in the jurisprudence of the Convention proportionality is tested by, among other things, the standard of what is necessary in a democratic society.” [53] In A v B plc [2003] QB 195, Lord Woolf CJ observed at para 6: “There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights which both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account.” [54] This is the approach which should have been followed in this case. The concept of proportionality means that the proposed interference or restriction must be supported by ‘relevant and sufficient grounds’; it must respond to a ‘pressing social need’; and it must be no greater than necessary to meet the legitimate aim pursued. [55]In considering the proportionality of the proposed interference with freedom of expression, a court must not only consider the importance of press freedom in principle: as Lord Woolf CJ also said in A v B plc, at para 11(iv), ‘The existence of a free press is in itself desirable and so any interference with it has to be justified’. It must also consider those features which enhance its importance in the particular case. [60] It would be so much easier if there were a trump card or governing principle, whether it be press freedom or the rights of the child, But there is in my judgment no escape from the difficult balancing exercise which the Convention requires … the judge did not consider each Article independently, and thus did not conduct that exercise …”

“identifying the extent to which refusing to grant the relevant terms of the injunction asked for would be a proportionate interference with the private life of the child on the one hand and their grant would be a proportionate interference with the rights of the press under Article 10 on the other hand.” “Neither element is a trump card. They will be articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualified rights. It will be remembered that in the jurisprudence of the Convention proportionality is tested by, among other things, the standard of what is necessary in a democratic society.” “There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights which both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account.”

“The information in this case lies somewhere in between that in Re X and R v Central Television and that in Re M and N or Re W. The proposed publication will not relate directly to how CS is currently being brought up ... On the other hand, this is not the sort of remote and unconnected information about a deceased or long-absent parent with which the cases of Re X and R v Central Independent Television plc were concerned. The publication will relate to events within his recent family life in which he has been directly involved. These have already had and will continue to have a serious impact upon the way in which he is brought up.”

“(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”

“the test is not that of the balance of probabilities but rather that of a real prospect of success, convincingly established.”

“Press conferences held by those who wish to attract attention to their views, and interviews conducted by the media, are both essential mechanisms for facilitating the exercise of the rights guaranteed by article 10. Both the press conference and the interview are means by which those wishing to disseminate their views exercise their Convention right to ‘impart’ information and ideas and by which the media exercise their Convention rights both to ‘receive’ and in turn to ‘impart’ information and ideas.”

“Private life, in the court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Art 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”

“[46] Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court’s case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity. [47] Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.”

“As the Court has had previous occasion to remark, the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”

“The very essence of the Convention is respect for human dignity and human freedom.”

“True it is that the phrase [human dignity] is not used in the Convention but it is surely immanent in article 8, indeed in almost every one of the Convention’s provisions. The recognition and protection of human dignity is one of the core values — in truth the core value — of our society and, indeed, of all the societies which are part of the European family of nations and which have embraced the principles of the Convention. It is a core value of the common law, long predating the Convention.”

“unless there is a total ban ... someone somewhere may put the story to the person. That seems to me to be inevitable ... to those who know the facts any description, for instance from this judgment, will lead to identification.”

“It is to be anticipated that in almost every case the public interest in favour of publication can be satisfied without any identification of the ward to persons other than those who already know the facts. It seems to me, however, that the risk of some wider identification may have to be accepted on occasions if the story is to be told in a manner which will engage the interest of the general public.”

“[a] striking fact ... that in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WUR 100, 102, the Court of Appeal refused to prevent publication of a story which it was likely would be read by the ward himself in circumstances where there was cogent evidence that his placement might be jeopardised and that the article would have a “devastating effect” on the ward, who was likely to be seriously affected both by the article itself and by his fear of the reaction of others to it.”

“the identification of Southwark London Borough Council as the local authority responsible for the placement in question may well increase the risk of identification of the ward and his foster parents. Nevertheless it is the action of this particular council which gives rise to the matter of public interest on which the newspaper wishes to comment, and for these reasons it seems to me that it would be imposing a greater degree of restraint than is essential to protect the interests of the ward to prohibit the newspaper from identifying the council.”

“It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents’ relax their control gradually as the child develops and encourage him or her to become increasingly independent. Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts. Social customs change, and the law ought to, and does in fact, have regard to such changes when they are of major importance.”

“The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of “growing up” fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change. ... The underlying principle of the law ... is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”

“the law and practice in relation to infants ... have developed, are developing and must, and no doubt will, continue to develop by reflecting and adopting the changing views, as the years go by, of reasonable men and women, the parents of children, on the proper treatment and methods of bringing up children for after all that is the model which the judge must emulate.”

“Accordingly the older the child concerned the greater the weight the court should give to its wishes, certainly in the field of medical treatment. In a sense this is merely one aspect of the application of the test that the welfare of the child is the paramount consideration. It will normally be in the best interests of a child of sufficient age and understanding to make an informed decision that the court should respect its integrity as a human being and not lightly override its decision on such a personal matter as medical treatment, all the more so if that treatment is invasive. In my judgment, therefore, the court exercising the inherent jurisdiction in relation to a 16- or 17-year-old child who is not mentally incompetent will, as a matter of course, ascertain the wishes of the child and will approach its decision with a strong predilection to give effect to the child’s wishes.”

“In considering the welfare of the child, the court must not only recognise but if necessary defend the right of the child, having sufficient understanding to take an informed decision, to make his or her own choice. In most areas of life it would be not only wrong in principle but also futile and counter-productive for the court to adopt any different approach.”

“I ... accept that a boy of 15 may be sufficiently mature to be able to speak directly to, and be interviewed by, representatives of the press or broadcasting media.”

“In my judgment any rule which made it a contempt of court, of itself and without more ado, for the media to interview a ward of court without first obtaining the leave of the court … involves far too serious an invasion of the article 10 rights both of the media and, I stress, of the ward himself to pass muster under paragraph 2.”

“I ... believe it is in the public interest for Ms Roddy to be permitted to tell her story. Ms Roddy has a compelling story to tell about the experience of getting pregnant at a young age, and the consequences which resulted, which included her being put into care, and losing her child to adoption. Her story raises crucial questions of real public interest about young people’s attitudes to under—age sex and pregnancy, and how society and the authorities should deal with situations of this kind when they arise.”

“The court has seen a copy of the article to be published by the newspaper. It is not for me to comment on the style of the article. ... But I have no doubt whatever that the newspaper should be free to publish this story and to publish it in a manner which will engage the interest of their readers.”