Kelly v BBC
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Court | Family Division |
Injunction – Ward of court – Media obtaining interview with child made a ward of court – Whether media requiring prior consent of court to either interview a ward of court or to broadcast interview – Whether court should grant injunction restraining freedom of media to publish and broadcast interview.
B, who was 16 years old, lived with his maternal grandmother. However on 27 June 2000 he left home very suddenly to join a religious group called ‘Jesus Christians’, and he had been missing ever since. On 12 July, on the grandmother’s application, B was made a ward of court, and the Official Solicitor was invited, and agreed, to act as his guardian ad litem. The following day the court enlisted the help of the media in tracing him, and the case generated considerable media interest and coverage. Upon being informed that the BBC had obtained a telephone interview with B, the grandmother applied for an injunction prohibiting its broadcast on the ground, inter alia, that she was concerned for B’s welfare. The judge granted the injunction, and the BBC applied on notice to discharge it. At the hearing the issue arose as to (i) whether the media required the prior consent of the court to either interview a ward of court or to publish or broadcast that interview; and (ii) whether the present case was a case for injunctive relief and, whilst the BBC contended that the court was exercising only its ‘protective’ jurisdiction and the child’s interests were not paramount, and thus the so-called balancing exercise had to be performed (ie the case fell into the second category identified in Re Z (a minor) (freedom of publication) [1996] 2 FCR 164), the grandmother and Official Solicitor contended that the court was exercising its ‘custodial’ jurisdiction, and thus the child’s interests were paramount (ie the third category in Re Z (a minor)).
Held – (1) The media did not require the prior consent of the court either to interview a ward of court or to publish or broadcast such an interview. So long as there was no breach of the restraints imposed by s 12 of the Administration of Justice Act 1960 and s 97(2) of the Children Act 1989, no contempt was committed by the media in interviewing a child who was known to be a ward of court or publishing or broadcasting such an interview. That conclusion was based on a number of considerations. Firstly, and as a matter of general impression, in this age of media saturation one would not expect a media interview to be a ‘major’ or ‘important’ step in a ward’s life, however exciting it might be for him. Secondly, there was a substantial difference between a
media interview, which might have nothing to do with the wardship proceedings, and other situations where leave of the court to interview a ward of court was required, which were more or less formal interviews in a forensic context where the child was being interviewed for the purpose of the proceedings and because he was or might be involved in those proceedings either as a witness or as the subject of the proceedings, and such comparisons did not provide a compelling analogy. That led to the third and very striking point, namely the absence of any judicial support for such a proposition. Fourthly, and the most compelling reason, there was no sensible basis for concluding that if the mere act of conducting and publishing and broadcasting an interview with a ward of court was not, of itself, a contempt of court, and if the publication of material not subject to the restraints imposed by s 12 of the 1960 Act was not of itself a contempt, the publication or broadcasting of such material if contained in an interview with the ward of court should, without more ado, constitute a contempt of court. Fifthly, given the existing scheme of statutory regulation between the media and wards of court, it would be inappropriate for judges to be discovering hitherto unknown forms of non-statutory restraint. Finally, 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, involved far too serious an invasion of the rights guaranteed by art 10 of the European Convention on Human Rights of the media and of the ward himself to fall within the exceptions contained in art 10(2).
(2) B’s participation in the interview with the BBC did not raise any question with respect to his upbringing and thus the court was only exercising its ‘protective’ jurisdiction. Accordingly the proper approach to the exercise of the court’s discretion was that set out in Re W (a minor) (wardship: publicity)[1992] 1 FCR 231. The burden was on those seeking to obtain an injunction to establish their case and to do so convincingly: it was not for the media to establish why it should be allowed to publish. There was a clear public interest in B’s story and in the interview with him obtained by the BBC, and in the media being encouraged to assist the court in cases, such as the present one, in which the court had itself sought to enlist the media’s assistance. Since no convincing case had been put forward that broadcasting the interview or further publicity of the sort it was reasonable to anticipate was significantly going to harm B, the case for injunctive relief had not been made out, and the injunction would be set aside.
Per curiam. (1) The principles set out in W v H (ex parte injunctions) [2000] 3 FCR 481 for the practice to be generally followed in the Family Division when injunctions are granted ex parte and without notice against third parties in ancillary relief cases should be treated as applying equally to cases relating to children, including cases where injunctive relief is sought against third parties or the world at large.
(2) Where the urgency in cases like the present one is such that there is no time to prepare comprehensive evidence in proper form, an undertaking should be given to swear and file an affidavit as soon as possible. Furthermore, it is wrong for a judge to be given material at an ex parte hearing which is not at a later stage revealed to the person affected by the result of the application.
Cases referred to in judgmentA v M (family proceedings: publicity) [2000] 1 FCR 1, [2000] 1 FLR 562.
A v UK (1997) 25 EHRR CD 159, ECt HR.
Abrams v US (1919) 250 US 616, US SC.
A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, [1988] 3 All ER 545, [1988] 3 WLR 776, HL.
A-G v Guardian Newspapers Ltd [1987] 3 All ER 316, [1987] 1 WLR 1248, Ch D, CA and HL.
An Inquiry Under the Companies Securities (Insider Dealing) Act 1985, Re [1988] AC 660, [1988] 1 All ER 203, [1988] 2 WLR 33, HL.
C (a minor) (wardship: medical treatment) (No 2), Re [1990] FCR 220, [1990] Fam 39, [1989] 2 All ER 791, [1989] 3 WLR 252, [1990] 1 FLR 263, CA.
C (a minor) (wardship: surrogacy), Re [1985] FLR 846.
C (a minor), Re (15 March 1990, unreported), Fam D.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, [1984] 3 All ER 935, [1984] 3 WLR 1174.
D (minors) (adoption reports: confidentiality), Re[1996] 1 FCR 205, [1996] AC 593, [1995] 4 All ER 385, [1995] 3 WLR 483, [1995] 2 FLR 687, HL.
Derbyshire CC v Times Newspapers Ltd [1992] QB 770, [1992] 3 All ER 65, [1992] 3 WLR 28, CA; affd [1993] AC 534, [1993] 1 All ER 1011, [1993] 2 WLR 449, HL.
Ex p Guardian Newspapers Ltd [1999] 1 All ER 65, [1999] 1 WLR 2130, CA.
F (orse A) (a minor) (publication of information), Re [1977] Fam 58, [1977] 1 All ER 114, [1977] 3 WLR 813, CA.
G (minors) (celebrities: publicity), Re[1999] 3 FCR 181, [1999] 1 FLR 409, CA.
H (minors) (injunction: public interest), Re[1994] 3 FCR 90; sub nom Re H-S (minors) (protection of identity) [1994] 3 All ER 390, [1994] 1 WLR 1141, [1994] 1 FLR 519.
Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd (1999) Times, 10 November, Ch D.
Khreino v Khreino (No 2) (court’s power to grant injunctions) [2000] 1 FCR 80, CA.
L (a minor) (wardship: freedom of publication), Re [1988] 1 All ER 418, [1988] 1 FLR 255.
M and N (wards: publicity), Re [1990] FCR 395; sub nom Re M and N (minors) (wardship: publication of information) [1990] Fam 211, [1990] 1 All ER 205, [1989] 3 WLR 1136, [1990] 1 FLR 149, CA.
M v BBC[1997] 1 FCR 229, [1997] 1 FLR 51.
Official Solicitor to the Supreme Court v K [1965] AC 201, [1963] 3 All ER 191, [1963] 3 WLR 408, HL.
Official Solicitor v Newsgroup Newspapers[1994] 2 FCR 552, [1994] 2 FLR 174.
Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, [1991] 1 All ER 622, [1991] 2 WLR 513, HL.
R (wardship: restrictions on publication), Re[1994] 2 FCR 468, [1994] Fam 254, [1994] 3 All ER 658, [1994] 3 WLR 36, CA.
R v Central Independent Television plc[1995] 1 FCR 521, [1994] Fam 192, [1994] 3 All ER 641, [1994] 3 WLR 20, [1994] 2 FLR 151, CA.
R v Secretary of State for the Home Dept, ex p Brind [1991] AC 696, [1991] 1 All ER 720, [1991] 2 WLR 588, HL.
R v Secretary of State for the Home Dept, ex p Simms [1999] 3 All ER 400, [1999] 3 WLR 328, HL.
Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670, [1993] 4 All ER 975, [1993] 3 WLR 953, CA.
Reynolds v Times Newspapers Ltd [1999] 4 All ER 609, [1999] 3 WLR 1010, HL.
Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339, [1984] 3 All ER 601, [1984] 3 WLR 986, HL.
Sunday Times v UK (No 1) (1979) 2 EHRR 245, ECt HR.
Sunday Times v UK (No 2) (1991) 14 EHRR 229, ECt HR.
T (AJJ) (an infant), Re [1970] Ch 688, [1970] 2 All ER 865, [1970] 3 WLR 315, CA.
W (a minor) (wardship: publicity), Re[1992] 1 FCR 231; sub nom Re W (a minor) (wardship: restriction on publication) [1992] 1 All ER 794, [1992] 1 WLR 100, [1992] 1 FLR 99, CA.
W (minors) (continuation of wardship), Re[1996] 1 FCR 393, [1995] 2 FLR 466, CA.
W (wards) (publication of information), Re [1989] 1 FLR 246.
W v H (ex parte injunctions) [2000] 3 FCR 481.
X (a minor) (wardship: injunction), Re [1985] 1 All ER 53, [1984] 1 WLR 1422.
X (a minor) (wardship: jurisdiction), Re [1975]...
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