East Sussex County Council v Stedman and othersRe Stedman
| Jurisdiction | England & Wales |
| Judge | ELEANOR KING J |
| Judgment Date | 18 May 2009 |
| Court | Family Division |
Privacy – Right to respect for private and family life – Right to freedom of expression – Child born to 15-year-old mother – 13-year-old alleged to be child’s father – Children becoming subject of intense media interest – Speculation developing as to identity of actual father – Newspaper publishing DNA test results ruling out 13-year-old as father – Local authority obtaining wardship order in relation to children and seeking restriction on publication of photographs, images and DNA results – Press opposing reporting restrictions – Whether welfare of children paramount – Whether interference with mother and child’s right to private and family life justified – Whether interference with right of press to freedom of expression justified – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, arts 8, 10.
The application related principally to three children: M (two months), C (15 years), who was M’s mother, and A (13 years), who was allegedly M’s father. A’s father alerted the media as to the circumstances of M’s birth and, as a consequence, M, C and A became the subject of intense media interest. With C’s mother’s consent, video footage and photographs of the children were taken, they participated in an interview and the story became publicised both nationally and internationally. Within a matter of days there was speculation in the press that A was not in fact M’s father. The applicant, East Sussex County Council (the local authority), concerned about the media coverage, obtained wardship orders in respect of the children and applied for reporting restrictions to prevent further publicity about them. A judge sitting in the Family Division of the High Court made an order which prohibited the publication of certain information about the children but did not restrict the publishing of information which was already in the public domain. Additionally the judge made a further order in the wardship proceedings, continuing the wardship and making an in personam order against C’s parents and A’s parents, prohibiting them from further contact with the media. Subsequently the local authority made an application to vary the reporting restrictions by deleting the public domain exception. Before that application could be heard, test results confirmed that A was not M’s father, and a tabloid newspaper published those results. It was
speculated that another child, T, was M’s father. The local authority made an urgent without notice application in the Family Division of the High Court for a variation of the order seeking a prohibition of any pictures or images that were not in the public domain and of the results of the DNA. The judge hearing the urgent application agreed to enjoin the press from releasing the results of the DNA test even though they were already to some extent in the public knowledge. However, he declined to restrict the use of pictures already in the public domain. At the substantive hearing of the application, the local authority sought to vary the reporting restrictions so as to prevent the publication of photographs or images of any of the children and prohibit the reporting of the DNA test results, regardless of the fact that both the images and the results were already in the public domain. The local authority were supported in their submissions by C’s mother and by C and M through their guardian. Counsel for C and M argued that the court’s paramount consideration when determining the application should be the welfare of the children. On that basis, it was submitted that C and M’s right to respect for their private and family life, pursuant to art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998), should be protected and any interference with the right to freedom of expression, under art 10 of the Convention, was justified by the additional harm it would cause C and M. News Group Newspapers (NGN) opposed the application and was supported by A’s parents and A, through his guardian. It relied on the right to freedom of expression and submitted that the interference with the right under art 8 could be justified by the public interest in knowing the results of the DNA test and the fact that the information had already entered the public arena.
Held – (1) The instant matter concerned an application for an injunction contra mundum, in contrast with an injunction in personam. The principles to be applied were, therefore, those relevant to a case where, because the court was exercising only its ‘protective’, rather than ‘custodial’ jurisdiction, the child’s interests were not paramount, and there had to be a balancing exercise between the welfare of the child and the freedom of publication; Re Z (a minor) (freedom of publication)[1996] 2 FCR 164 and Kelly v BBC[2000] 3 FCR 509 applied.
(2) The interplay between arts 8 and 10 of the Convention could be illuminated with reference to a series of considerations: (i) neither article had precedence over the other; (ii) where the values under the two articles were in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case was necessary; (iii) the justifications for interfering with or restricting each right had to be taken into account; and (iv) the proportionality test had to be applied to each. In the instant case, the fundamental conflict between the parties was the desire of C and M to put behind them the consequences of the gross error of judgment made by A’s father and C’s mother; the desire of NGN to report
on the developments of a newsworthy story; and the desire of A to have the DNA test results in the wider public arena and to put an end to speculation about his familial relationship to M. Although it was clear that C and M had suffered harm, there was no evidence as to the consequences of additional publicity that would justify a restriction of the right to publication. The balancing exercise had to be conducted with care, remembering that in the context of the instant matter, the welfare of the wards was not the paramount consideration. Furthermore, in considering proportionality, the court had to take into account the extent to which the interference with the art 8 rights of the children had already happened and on a consensual basis. In the instant case, the availability of the material in dispute was so extensive and had been in the public domain for such a length of time as to make it the decisive factor. Allowing the application to amend the restriction order to prevent publication of the DNA test and/or of photographs already in the public domain would represent a disproportionate interference in the art 10 rights of the press and in A’s arts 8 and 10 rights to rectify erroneous information about him. Furthermore, it was not appropriate to make an order controlling the release of the information; art 10 protected not only the substance of the information expressed, but also the form in which that information was conveyed; Re W (a minor) (wardship: publication of information)[1992] 1 FCR 231 and Re S (a child) (identification: restriction on publication)[2004] 3 FCR 407 applied. Mosley v News Group Newspapers Ltd[2008] EWHC 687 (QB), [2008] All ER (D) 135 (Apr) and Re X, Y [2004] EMLR 607 considered. Campbell v MGN Ltd [2004] 2 All ER 995 distinguished.
Accordingly, the application would be dismissed.
Cases referred to in judgmentA v M (family proceedings: publicity) [2000] 1 FLR 562.
A-G v Greater Manchester Newspapers Ltd (2001) Times, 7 December, [2001] All ER (D) 32 (Dec).
A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545, sub nom A-G v Observer Ltd, A-G v Times Newspapers Ltd [1990] 1 AC 109, [1988] 3 WLR 776, HL.
C (a minor), Re (15 March 1990, unreported).
Campbell v MGN Ltd[2004] UKHL 22, [2004] 2 All ER 995, [2004] 2 AC 457, [2004] 2 WLR 1232.
Clayton v Clayton[2006] EWCA Civ 878, [2006] 2 FCR 405, [2007] 1 All ER 1197, [2006] Fam 83, [2006] 3 WLR 599.
Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444.
Douglas v Hello! Ltd (No 2) [2005] EWCA Civ 595, [2005] 2 FCR 487, sub nom Douglas v Hello! Ltd (No 3) [2005] 4 All ER 128, [2006] QB 125, [2005] 3 WLR 881.
Gilbert v Star Newspaper Co Ltd (1894) 51 TLR 4.
Kelly v BBC[2000] 3 FCR 509, [2001] 1 All ER 323, [2001] Fam 59, [2001] 2 WLR 253.
Mosley v News Group Newspapers Ltd[2008] EWHC 687 (QB), [2008] All ER (D) 135 (Apr).
Murray v Big Pictures (UK) Ltd[2008] EWCA Civ 446, [2008] 3 FCR 661, sub nom Murray v Express Newspapers plc [2008] 3 WLR 1360.
R v Central Independent Television plc[1995] 1 FCR 521, [1994] 3 All ER 641, [1994] Fam 192, [1994] 3 WLR 20, CA.
Rantzen v Mirror Group Newspapers (1986) Ltd [1993] 4 All ER 975, [1994] QB 670, [1993] 3 WLR 953, CA.
Roddy (a child) (identification: restriction on publication), Re, Torbay BC v News Group Newspapers[2003] EWHC 2927 (Fam), [2004] 1 FCR 481.
S (a child) (identification: restriction on publication), Re[2004] UKHL 47, [2004] 3 FCR 407, [2004] 4 All ER 683, [2005] 1 AC 593, [2004] 3 WLR 1129; affg[2003] EWCA Civ 963, [2003] 2 FCR 577, [2004] Fam 43, [2003] 3 WLR 1425, [2003] 2 FLR 1253.
Sunday Times v UK (1979) 2 EHRR 245, ECt HR.
Sunday Times v UK (No 2) (1991) 14 EHRR 229, ECt HR.
W (a minor) (wardship: publication of information), Re[1992] 1 FCR 231, [1992] 1 All ER 794, [1992] 1 WLR 100, CA.
X, Y (children), Re[2004] EWHC 762 (Fam), [2004] EMLR 607.
Z (a minor) (freedom of publication), Re[1996] 2 FCR 164, [1995] 4 All ER 961, [1997] Fam 1, [1996] 2 WLR 88, CA.
ApplicationThe applicant, East Sussex County Council, applied for an order to (i) prevent the publication of any photographs or images of any of the children, Maisie Stedman, Chantelle Stedman, Alfie Patten and Tyler Barker, regardless of the fact that such photographs or images were already in the public domain; and (ii) prohibit the reporting of the results of a...
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