The authority had carried out an inquiry into its handling of an application for a care order. It sought to restrain republication of the report.
Held: There were competing requirements under the Convention. Any jurisdiction to restrain publication must be exercised in such circumstances only to protect the children involved. The scope to act for adults under a disability by letters patent or parens patriae had lapsed, but an inherent jurisdiction remained. Pending any statutory creation, the court would act through the common law doctrine of necessity. Here the action was required for protective rather than a custodial jurisdiction, and again the competing interests under the Convention had to be weighed. In both cases the requirements were met. For the children, and injunction was continued, and for the adults one was made. The balance came down in favour of protecting vulnerable adults by preventing publication of a local authority report: ‘They have had considerable and distressing disruption of their lives and are, as set out in the report, vulnerable. A period of peace, stability and a chance to settle down again after the very real upset of their lives is threatened by the likely intense media cover if this report is published. They are all under some disability but not such, as far as I know, as to prevent possibly all of them, but certainly at least 4 of them, from understanding the impact of press and other media intrusion. That intrusion would affect their daily lives and would be very likely to be disruptive, distressing and contrary to the need for them to settle back in the home. They clearly have rights under article 8 which are engaged and would be breached if the report is published. I am satisfied that publication of the report would be deeply damaging and detrimental to their welfare.
The factors supporting the rights of the vulnerable adults under article 8 have to be balanced against the right of the local authority to publish under article 10. I have found that it would be lawful on their behalf to interfere with the article 10 right of freedom of expression. I have considered very carefully whether to exercise the court’s discretion in favour of the vulnerable adults would be a disproportionate response to the contents of the report, having regard to the importance attached to article 10 by section 12 of the Human Rights Act 1998. I am also fully aware of the factors in favour of not restraining publication of volume 1. I am satisfied, however, that the balancing exercise comes down in favour of recognising the importance of the protection of the vulnerable adults by the granting of a declaration to that effect.’
Judges:
Dame Elizabeth Butler-Sloss P
Citations:
[2003] EWHC Fam 2746, Times 05-Dec-2003, Gazette 22-Jan-2004, [2004] EWHC 2746 (Fam), [2004] Fam 96, [2004] Fam Law 179, [2004] 1 FCR 113, [2004] 1 All ER 480, [2004] 2 WLR 926, (2004) 7 CCL Rep 426, (2004) 76 BMLR 210, [2004] BLGR 117, [2004] 1 FLR 541
Links:
Statutes:
European Convention on Human Rights 8 10
Jurisdiction:
England and Wales
Citing:
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited by:
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Lists of cited by and citing cases may be incomplete.
Children, Administrative, Media, Local Government, Human Rights, Information
Updated: 05 May 2022; Ref: scu.188626