The court did not have power to stop a TV program identifying a ward of court, but which was not about the care of the ward. The first instance court had granted an injunction in relation to a television programme dealing with the arrest and the conviction of a paedophile who was the father of a five year old child. The mother had sought an injunction the terms of which were to ensure that the programme in no way identified the paedophile.
Held: The court allowed the television company’s appeal essentially on the ground that the programme did not so affect the care and upbringing of the child that it was appropriate to invoke the court’s jurisdiction. The court considered that there was no jurisdiction unless the programme could have had that effect. The court should eschew interference with the freedom of the press when exercising its wardship jurisdiction.
Waite LJ said: ‘These authorities establish, in my judgment, that anonymity or confidentiality for a child or its circumstances can only be enforced by injunction in cases where the publicity would, or might in the view of the court threaten the effective working of the court’s own jurisdiction, whether it be in deciding a question about the upbringing of the child, or in exercising, as in Re C [1990] Fam 39, a continuing supervisory role over a child whose future has already been determined. A mere desire to secure for a child the advantages of confidentiality cannot of itself supply such an issue. Confidentiality is an aid to administration of the jurisdiction, and not a right or status which the jurisdiction itself has any power to confer.’
Hoffmann LJ said: ‘In any area of human rights like freedom of speech, I respectfully doubt the wisdom of creating judge made exceptions, particularly when they require a judicial balancing of interests. The danger about such exceptions is that the judges are tempted to use them. The facts of the individual case often seem to demand exceptional treatment because the newspaper’s interest in publication seems trivial and the hurt likely to be inflicted very great. The interests of the individual litigant and the public interest in the freedom of the press are not easily commensurable. It is not surprising that in this case the misery of a five year old girl weighed more heavily with Kirkwood J than the television company’s freedom to publish material which would heighten the dramatic effect of the documentary. That is what one would expect of a sensitive and humane judge exercising the wardship jurisdiction. But no freedom is without cost and in my view the judiciary should not whittle away freedom of speech with ad hoc exceptions. The principle that the press is free from both government and judicial control is more important than the particular case.’
and ‘But this new jurisdiction is concerned only with the privacy of children and their upbringing. It does not extend to ‘injunctive protection of children from publicity which though inimicable to their welfare is not directed at them or those who care for them’ (M and N). It therefore cannot apply to publication of the fact that the child’s father has been convicted of a serious offence, however distressing it may be for the child to be identified as the daughter of such a man. If such a jurisdiction existed it could be exercised to restrain the identification of any convicted criminal who has young children. It may be that the decision in X County Councilcan be brought within Lord Donaldson of Lymington MR’s language because the child’s mother at whose past the intended publication was directed, was actually caring for the child at the time of the application. But the events in question had happened long before the child was born. The publication was not directly concerned with the child or its upbringing, and for my part I think that the judge, for wholly commendable reasons, was asserting a jurisdiction which did not exist.’
Judges:
Waite LJ, Hoffmann LJ
Citations:
Independent 17-Feb-1994, [1994] Fam 192, [1994] 2 FLR 151, [1994] 3 All ER 641
Jurisdiction:
England and Wales
Citing:
Cited – In re M and N (Minors) (Wardship: Publication of Information) CA 1990
The court considered whether to order that a child’s name be not published where the decision to publish would not affect the way in which the child is cared for, the child’s welfare is relevant but not paramount and must be balanced against freedom . .
Cited – X County Council v A and another 1984
The court made orders about the future of the child born to Mary Bell, who had been convicted at the age of 11 of the manslaughter of two little boys. He was asked to protect the new identities under which the child and her mother were living. . .
Cited by:
Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Livingstone v The Adjudication Panel for England Admn 19-Oct-2006
The claimant challenged a finding that as Mayor of London offensive remarks he had made to a journalist as he was pursued leaving a private party had brought his office into disrepute.
Held: The appeal succeeded. Though the remarks may have . .
Cited – X and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Cited – In Re G (Minors) (Celebrities: Publicity) CA 4-Nov-1998
Where extra publicity might attach to proceedings because of the celebrity of the parents, it was wrong to attach extra restrictions on reporting without proper cause. There remains a need to balance the need for the freedom of speech and the . .
Lists of cited by and citing cases may be incomplete.
Children, Human Rights, Media
Updated: 15 May 2022; Ref: scu.86320
