Clashing Rights, the Welfare of the Child and the Human Rights Act
| DOI | http://doi.org/10.1111/j.1468-2230.2004.00517.x |
| Author | Helen Fenwick |
| Published date | 01 November 2004 |
| Date | 01 November 2004 |
THE
MODERN LAW REVIEW
Volume 67November 2004No 6
Clashing Rights, theWelfare of the Child and
the Human Rights Act
Helen Fenwick
n
Under the Human Rights Act so far there has been until very recentlyl ittle judicial or even aca-
demic recognition of the di¡erencebetween resolvingclashes of Conventionrights and addressing
con£ictsbetween utilitarian concerns and such rights.Thisarticle has chosen to illustratethat failure
of recognitionand to consider methods of resolving the con£ict betweenrights, byconcentrating
on one particular clash of rights^ that betweenmedia free speechunder Article10and the privacyof
children underArticle 8.It argues for presumptive equalityfor the two rightsand for conductinga
‘parallel analysis’ of their application tothe circumstances ofa particular case.It contends thatthere-
fore the principle that the child’s welfare is paramount must be abandoned in its present form, as
must the presumptivepriority accordedto Article10 wherethat principle is not foundto apply.
So far the academic literature on the Human Rights Act has concentrated largely
on the mechanics of the Act itself
1
and on its use in curbing the power of public
authoritiesas it impacts onindividual rights.
2
Very littlehas been written onthe
proper domestic approach to clashes of Convention rights.
3
Indeed, this topic is
also neglected in relation tothe Convention itself.
4
n
Professor of Law, HumanRights Centre, Universityof Durham. My thanks are due to Gavin Phil-
lipson, Universityof Durham, to ProfessorDavid Feldman,UniversityofCambridge and tothe anon-
ymous refereefor helpful suggestions on earlierversions of this article.The usual disclaimer applies.
1See egF. KlugandK.Starmer,‘Incorporation bythe‘‘Front Door’’:The First Year oftheHuman
Rights Act’[2001]PL 654; F. Klug and C. O’Brien,‘The First TwoYearsof the Human Rights Act’
[2002] PL 649; D. McGoldrick,‘The UK’s HRA in Theoryand Practice’ (2001) 50 (4) ICLQ901;
Lord Lester of Herne Hill QC,‘Interpreting Statutes under the HRA’ 20 (3) Statute LRev 218,
225;R. Clayton,‘The Limits of What’sPossible: Statutory Construction Underthe HRA’ [2002]
EHRLR 559; C. Gearty,‘Reconciling Parliamentary Democracyand Human Rights’ (2002) 118
LQR 248;G. Phillipson,‘(Mis)Reading Section 3 of the Human Rights Act’ (2003)119LQR 183;
C. Gearty,‘Revisiting Section 3 of the Human Rights Act’ (2003) 119 LQR 551; H. Fenwick,D.
Bonner and S. Harris-Short,‘Judicial Approaches to the HRA’ (2003) 52 ICLQ549^586.
2See eg A. Ashworth,Human Rights,SeriousCrime and Criminal Procedure (London: Sweet and Max-
well, 2002); S. Bailey,D. Harris and D. Ormerod,Bailey,Harris andJones Civil Liberties: Casesand
Materials (London: Butterworths, 5
th
ed, 2002).
3I. Leigh in‘Clashing Rights, Exemptions, and Opt-Outs:Religious Liberty and‘‘Homophobia’’’
(2001) 4 Current Legal Issues 247 considers the potential clash in question largelyfrom a compara-
tive and theoreticalperspective. G. Phillipson in‘Transforming Breach of Con¢dence:Towards a
Common LawRight of Privacy under the Human Rights Act’ (2003)66 MLR 726^758 consid-
ers the clash between speech and privacyr ights,but is inevitably mainly concerned with the legal
basis for asserting privacy rights ^ as the title of the article indicates.
4In the two leading texts on the Convention (D. Harris, M. O’Boyle and C.Warbrick, Law of the
EuropeanConvention on Human Rights (London: Butterworths,1995) and P. van Dijk and G. van
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(6) MLR 889^927
The horizontal e¡ect debate has so far dominated the question of the govern-
ance of relations between private parties by the Human Rights Act (HRA).
5
But
little hasbeen said in relationto instances in which the main questionin relationto
private parties is not that of the legal basis of their claims, but of their resolution in
instanceswhere con£icting Convention rights under the HRAenter the arena. At
the same time large numbers of‘clashing rights’ cases are already arisingbefore the
domestic courts
6
- whether or not theyare viewed in those terms - and, as this
article will argue, there is widespread judicial uncertainty as to the proper means
of dealing with them. There has been little judicial or even academic recognition
of the di¡erence between, on the one hand grappling with utilitarian concerns
where they con£ict with individual rights under paragraph 2 of Articles 8 to11,
Schedule 1to the HRA, and on the other considering the proper balance to be
struck between two such rights when the value of both is assumed. The UKwill
soon have for the ¢rst time an Equality and Human Rights Commission
7
which
will inevitably have to grapple with con£icts of rights since its remit will be to
provide overarching protection for the Convention rightsas well as for rights to
freedom from discrimination on the established and the new protected grounds.
8
Thus the openingup of debate as to this matter is especially pressing at the present
Hoof,Theoryand Practiceof the European Convention on Human Rights(The Hague; Boston: Kluwer,
3
rd
ed, 1998)) avery small amountof material appearsin various chapters onthis issuebut no
general discussion of it is attempted at anypoint. Clapham considers the Convention in the pri-
vate sphere generallybutnot the clashing rights issue speci¢cally: A. Clapham, Human Rights in
the Private Sphere (Oxford: Clarendon, 1993); A. Clapham,‘The Privatisation of Human Rights’
[1995] EHRLR 20.
5See, eg M. Hunt,‘The ‘‘Horizontal’’ E¡ectof the Human Rights Act’ [1998] PL 423; I. Leigh,
‘Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth’
(1999) 48 ICLQ 57; H.W.R. Wade,‘Horizons of Horizontality’ (2000) 116 LQR 217; G. Phillip-
son,‘The Human Rights Act,‘‘Horizontal E¡ect’’ and the Common Law:A Bang or aWhimper’
(1999) 62 MLR 824; Buxton LJ,‘The Human Rights Act and Private Law’ [2000] LQR 48; I.
Hare,‘Vertically Challenged: Private Parties, Privacyand the Human Rights Act’ (2001) 5
EHRLR 526;R. ClaytonandH.Tomlinson, The Law of Human Rights (Oxford: OUP, 2000)
provide a very fulldiscussion ofthe various aspects of‘horizontal e¡ect’ that alsoconsider the
position in a variety ofjurisdictions(pp204^238).
6See the range of speech/celebrityprivacy cases, including DouglasvHello! [2001] QB 967, AvBPlc
[2002] EMLR 7 and Campbell vMGN [2004] 2 WLR1232, HL; [2002]EMLR 30, CA. Instances
also arise in the family context, where con£icts arise between the Art 8 rights of parents (espe-
cially fathers) and those of children (see eg Payne vPayne [2001] Fam 473) or between parents,
teachers and children on issues such assmacking (see R (W|lliamson)vSecretaryforState forEducation
and Employment[2003] 1Al l ER 385). Con£icts between Articles 2, 3 and10 and between Articles
8 and 10 have arisen in the context of protection for persons convicted of very high pro¢le crimes
after their release (Ve n a bl e svMGN Ltd [2001] 1 AllER 908andX, A WomanFormerlyknown as
Mary Bell, Y vSO,NewsGroupNewspapersLtd,MGNLtd[2003] 2 FCR 686).
7On 29 October 2003 Patricia Hewitt and Lord Falconer announced the inception of the new
Commission for Equality and Human Rights (CEHR). It will bring together the work of the
three existing equality Commissionsas well astaking onnew responsibil ities in relation to the
Human Rights Act and thenewgroundsof discrimination setout in the ‘Framework’ Directive -
Directive20 00/78/EC.
8Discrimination on grounds of religion and belief in employment was coveredfrom 2 December
2003 by the Employment Equality (Religion and Belief ) Regulations 2003, SI 2003 No1660;
discrimination on grounds of sexual orientation in employment was covered from 1 December
2003 by the EmploymentEquality (Sexual Orientation) Regulations20 03,SI 2003 No1661; both
SIs implement European Council Directive200 0/78/EC.
Clashing Rights
890 rThe Modern Law ReviewLimited 2004
time.This article has chosen to concentrate on one particular con£ict of rights ^
thatbetween media freespeech and the privacy ofchildren.This particularcon£ict
has been chosen since the clash between the rights appears to be so profound and
has elicited such a stark and, this article will contend, misguided response from
the domestic courts.
9
Further, it forms a highly signi¢cant but neglected aspect
of the post-HRA speech/privacyclash and so is verypertinent at thepresent time.
10
The range of restrictions on what can be published about child welfare matters
and disputes concerningchildren is at an unprecedented level.
11
Where restrictions
cover the matter of upbringing theyare enhanced bythe ‘paramountcy principle’ -
the principle deriving from section 1(1) of the Children Act1989 (CA) that the
child’s welfare relating to upbringing automatically prevails over the rights of other
parties.
12
In so far as the restrictions leave leeway to the courts to consider free
speech considerations the principle stands in the way, where it applies. In other
words, it pre-empts a principled resolutionof the con£ict byensuring thatone side
automatically wins out. In the terms of the European Convention on Human
Rights, theArticle 8 rights of the childto respect forprivate and family life
13
trump
the Article 10
14
rightsofthemedia,
15
where upbringing is in issue. But judicial
unease with this situation, especially in relation to the Human Rights Act, has
failed to lead to debate as towhat the welfare ofthe child genuinely requires where
9The pre-HRA academic conse nsus was also to the e¡ectthat the juri sprudence in this area was
seriously £awed in relationto its failure to probe the limits of free speech in a principled fashion
where it con£icts with minors’privacyclaims. See: I. Cram,‘Minors’ Privacy, Free Speech and the
Courts’[1997]PL 410^419; L.Woods,‘FreedomofExpression and the protection of minors’(2001)
13CFLQ 209^223.
10 This topic has been extensively considered in relation to the privacy of adult celebrities, see eg
G. Phillipson, n 3 above; H.Tomlinson QC and H. Rogers,‘Privacy and Expression:Convention
Rights and Interim Injunctions’[2003] EHRLR (Special Issue: Privacy)37.
11 They are discussed below; for recentcomment on their extent, see: M. Dodd,‘Children, thePress
and a Missed Opportunity’ [2002] CFLQ103^108 esp at103; J. Dixon,‘Children and the Statutory
Restraints on Publicity’[2001] FamLaw 757,esp 761.
12‘Whena court determinesany question with respect to upbringingof a child orthe administra-
tion of a child’s property or the application of anyi ncomeari sing from it, the child’s welfare shall
be the court’s paramount consideration.’
13Article 8 provides:‘1. Everyonehas the right to respect for his privateand family life, his home and
his correspondence. 2.There shall beno interference by a public authority with the exercise ofthis
right except such as is in accordance with the lawand isnecessary in a democratic society in the
interests of national security,public safety or the economic well being of the country, for the pre-
vention of disorder or crime, for the protection of health or morals, orfor the protection of the
rights and freedoms of others.’
14Article 10provides:‘1. Everyonehas the right to freedom ofexpression. This right shall include the
freedom to hold opinions and receive and impart informationand ideas without interference by
public authority and regardlessof frontiers . . .2. The exercise ofthese freedoms,since itcarries
with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribedby law and are necessary in a democratic society in theinterests of
national security, territorial integrity or public safety,for the prevention of disorder orcr ime,for
the protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of informationreceived in con¢dence or for maintaining the authority
and impartiality of thejudiciary.’
15There is a reluctance in the family law ¢eld to view the con£ict in question as a matter of indivi-
dual rights; see Butler Sloss LJ in Re L (A Child)(Contact: DomesticV|olence) [2001] Fam 260, CA, at
para 294.The trump card metaphor is becoming common parlance, as indicated below: see Re S
(A Child) [2003] 2 FCR 577, para 62.
Helen Fenwick
891rThe Modern LawReview Limited 2004
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting