OPO (A Child by BHM his litigation friend) v MLA and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean |
| Judgment Date | 18 July 2014 |
| Neutral Citation | [2014] EWHC 2468 (QB) |
| Court | Queen's Bench Division |
| Date | 18 July 2014 |
| Docket Number | case No: HQ14X02328 |
[2014] EWHC 2468 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Bean
case No: HQ14X02328
Matthew Nicklin QC (instructed by Aslan Charles Kousetta LLP) for the Claimant
Hugh Tomlinson QC (instructed by Bindmans LLP) for the First Defendant
Jacob Dean (instructed by Simons Muirhead & Burton) for the Second Defendant
Hearing dates: 1–3 July 2014
(Published on 2 June 2015, with minor redactions, following the decision of the Supreme Court in Rhodes v OPO )
The claimant is an 11 year old boy living in the United States of America with his mother, who is his litigation friend for the purposes of this claim. He was born in the UK and has British citizenship. The first defendant, his father, is a British citizen resident in London. The second defendant is a publisher, based in Edinburgh, that wishes to publish an autobiographical book by the first defendant.
The father is a classical musician who has appeared on television, has his own website and is sufficiently well known to be the subject of a Wikipedia page. During his own childhood he was the victim of serious and sustained sexual abuse. He has a history of mental illness, including a period of inpatient treatment, suicide attempts and self harming by cutting. In 2008, using a pseudonym, he wrote (among other matters) about the sexual abuse he suffered as a child.
The father has now written his autobiography and the second defendant wishes to publish it, using his real name. A draft of the book was sent anonymously to the mother in February 2014. Following extensive correspondence between solicitors a modified draft has been produced. It includes graphic accounts of the father's childhood sexual abuse and the lasting harm that it has caused him; of his mental health issues as an adult with details of his treatment; of his suicidal thoughts; and of his attempts at suicide and his self-harming, including a particularly graphic account of cutting himself with a razor blade.
The leaked first draft had recounted the father's worries about a number of matters and a letter addressed to his son. These have been removed from the proposed book and replaced by a general expression of concern that the son will be at risk of harm. The references in the book to the claimant (who is referred to as "Jack", which is not his real name) are overwhelmingly positive and affectionate. There is nothing said against the son: quite the contrary.
The mother (who is referred to in the book as "Jane", again not her real name) considers that it would be harmful to the claimant if the book were to be published. In support of that argument she has obtained evidence from two expert witnesses. One of these, Dr Tizzard, a consultant psychologist, in an expert's report dated 24 th June 2014 (one week before the hearing), writes:-
"If either of the parties were to recount to [OPO] the contents of the Book prior to publication the effects would be devastating. [OPO] does not have the ability to process this information in an acceptable way. The result is likely to be extreme confusion, agitation and anger which would lead to enduring emotional distress………..The cumulative effect would lead to a poor prognosis in respect of his overall functioning and likely cause enduring psychological harm. In my professional opinion, exposure to this kind of material carries the risk of physical and emotional harm and is therefore abusive."
The mother and father were married in England and divorced in January 2008. By a consent order made in the Principal Registry of the Family Division by District Judge Segal on 15 th June 2009 the mother was granted leave to remove the claimant from the jurisdiction to live with her in the United States, with arrangements also being made for contact between the claimant and his father. There were two pages of recitals at the beginning of the order. Recital K reads that the order was made "upon the parties agreeing to use their best endeavours to protect the child from any information concerning the past previous history of either parent which would have a detrimental effect on the child's well being".
In the present claim the order sought is an injunction prohibiting the defendants from making available to the public the father's account of sexual abuse he suffered as a child; his suicidal thoughts and attempts; his history of and treatment for mental illness and incidents of self-harming; and certain other matters.
The scope of the order sought is not limited either geographically or temporally. Potentially the injunction could not only be worldwide but lifelong. As to its duration, the mother's case is that the claimant is at the moment vulnerable to serious psychiatric harm if he comes to learn of the contents of the book, and that it is impossible at this stage to predict when, if at all, he will show sufficient emotional development and maturity to be able to cope with it.
The factual evidence is that it is most unlikely that the claimant would come into possession of the book as such: but that he is a bright 11 year old who does Google searches on his father which would lead him to reviews of the book, extracts from it or references to its contents in (for example) his father's Wikipedia entry. In a witness statement, filed during the hearing before me, the mother states that the claimant found a reference to his father having been abused as a child and asked her what that meant. The mother has blocked certain sites on the claimant's computer but of course will not have the same degree of control over what he might view at school or elsewhere.
Jurisdiction, applicable law and causes of action
There is a high degree of artificiality in the formulation of the claim. Although in form it is a claim in tort by a son against his father, it is in truth a family dispute in which the mother seeks an injunction prohibiting the father from doing something which she believes will cause emotional harm to their child.
If the mother and son were still living in England, the appropriate tribunal to resolve issues of this kind would be the Family Court exercising its jurisdiction to make a prohibited steps order as defined in s 8 of the Children Act 1989 or the inherent parens patriae jurisdiction of the High Court in relation to children. But since the son is now neither habitually resident nor present in England and Wales, the Family Court has no jurisdiction: see the Family Law Act 1986, sections 1(1)(a), 2(1)(b)(ii) and 3(1). Moreover, there is no prospect at all that any court in the United States would make the order sought. This is not simply because of the apparently limited jurisdiction of the family court in the state where the claimant now lives. It is because, as is well known and is confirmed by a witness statement from Russell Smith, a New York attorney, no court in the United States (save in the context of intellectual property) would grant a "prior restraint" injunction restraining free speech. The First Amendment to the US Constitution has primacy over considerations of privacy, emotional distress and, it seems, even national security.
Mr Smith cites as an example the decision of the Supreme Court of Alabama in Doe v Roe 638 So. 2d 826 (1994). An author wished to publish a book about the murder of a woman by her husband. The adoptive father of the victim's three children had obtained an injunction restraining publication of the book: the lower court held that the children were likely to suffer "irreparable mental and emotional injuries" on reading it. The Supreme Court discharged the injunction, holding that the author's right to free speech was not outweighed by the children's privacy interests. It will be noted that the author was not, as in the present case, seeking to tell his own life story.
Matthew Nicklin QC for the claimant is thus thrown back on causes of action in tort. He relies on three: (a) what is described in his skeleton argument as a threatened breach of the claimant's Article 8 rights; (b) negligence; (c) the tort established by the decision in Wilkinson v Downton [1897] 2 QB 57.
Mr Nicklin submits that English law applies to all of these. Jacob Dean, for the publishers, disputes this. In summary his argument is as follows:
(a) The Private International Law (Miscellaneous Provisions) Act 1995 sets out the rules for choosing the applicable law to be used for determining issues relating to tort;
(b) By s 11(1) the Act lays down the general rule that the applicable law is the law of the country in which the events constituting the tort in question occur;
(c) For a cause of action in respect of personal injury caused to an individual, the applicable law under the general rule is to be taken as being the law of the country where the individual was when he sustained the injury (s 11(2)(a)); and for these purposes "personal injury" includes any impairment of any physical or mental condition;
(d) Since any injury to the claimant would occur in the USA, the law of the relevant state should therefore apply;
(e) Insofar as any of the torts relied on by Mr Nicklin is not a claim of personal injury within the meaning of s 11( 3), s 11(2)(c) provides for the application of the law of the country in which the most significant element or elements of the events constituting the tort take place; this also leads to the applicability of the law of the relevant state of the USA, since only publication of the book to the claimant there would constitute the cause of action;
(f) Section 12 of the Act permits the general rule to be displaced if, from a comparison of the significance of the factors which connect the tort with the relevant state and...
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