Re H (Minors) (Injunction: Public Interests)
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 1993 |
| Court | Court of Appeal (Civil Division) |
NEILL, LJ AND WARD, J
Children – living with transsexual father – father subject to media attention – injunction granted prohibiting father from exposing children to any form of publicity a rising from his custody of the children or his transsexuality – whether injunction obscure and too widely drawn – balancing freedom of media to publish against risk of harm to children.
The parents were married in 1975. They had three children now aged 17, 13 and 10. The marriage became unhappy as a result of the father's growing ambivalence to his sexuality. The parents separated in 1983 and were divorced in 1984. The mother was granted custody of the children. The father regularly dressed and sought to pass himself off as a woman. This caused the mother distress and led to her suffering a nervous breakdown. Her health also failed in other unrelated respects. By 1987 she could no longer cope with the children. The children were received into care but after a short period went to live with the father. In 1989 the mother sought the return of the children. At that time the father made it plain that he wished to be addressed in the feminine and proposed to undergo a sex-change operation. There was a court hearing. The Judge varied the order made in 1984 and ordered that the children remain in the custody of the father subject to the supervision of the local authority. During the course of that hearing the father indicated that he wished at some future time to write a book of his experiences but denied any intention to exploit the situation or to earn money by selling the story to the press.
Within a week of the hearing the father participated in a television programme about transsexualism. Publicity ensued and the identity of the father and the children was revealed and photographs of them were published. Just over a year later there was another blaze of publicity when once again the children were named and photographed. On the application of the mother, on 8 June 1990, a county court Judge granted an injunction ordering the father not to take or permit any action likely to expose the children to any form of publicity arising from his custody of the children, his transsexuality and sex-change operation until the mother's application for custody was heard or further order. Within days of that order two more articles identifying the family by name and by photograph appeared in the local press. The mother applied for the father's committal for breach of the injunction but no order was made.
In 1991 the mother applied to vary the custody order and the father applied to discharge the injunction. The Judge refused both applications.
The father, having been given leave to do so out of time, appealed against the refusal to discharge the injunction.
Held – allowing the appeal: (1) It was submitted that the Judge was wrong because there was no expert evidence of harm to the children from the earlier publicity or of harm likely to be suffered by them from any further publicity. But such expert evidence, or specific evidence of harm, was not normally necessary to assist a Judge in balancing the welfare of the child and the right to publish and whether the child and others in the proceedings should or should not be identified. In the present case there was ample
evidence before the Judge justifying his finding that the children would be adversely affected by the publicity.
(2) The injunction was obscure in its meaning and too widely drawn. It would, for example, prevent the father informing the school that the children were being cared for by another whilst he went into hospital for his sex-change operation. The purpose of the mother's original application for an injunction was to prevent publicity in the book that the father intended writing and by the media. The important question in the appeal was whether the father's freedom to publish and the media's freedom to publish matters of public interest outweighed the risk of harm to the children. The facts of the present case disclosed a matter of public interest which the media were entitled to publish, namely the fact that the court, with the support of the local authority, had approved of young children being and remaining in the care of a parent who was a transsexual and had undergone the sex-change operation. The public might know the facts but public interest turned into public curiosity as soon as information was sought as to the identity of the parties. When that became the focus of attention, the public interest in the protection of the children concerned became the greater public interest and the interest of the particular children became the more important factor. The order would be varied and the terms of the injunction would provide that the father should not pursue any dealings with the media from the property where he and the children lived or elsewhere in their presence. Further, the communications must respect the children's privacy.
(3) In cases such as the instant case, competing and conflicting matters of public interest needed always to be held in delicate balance. In future, where an injunction was sought the effect of which was to impose a restraint upon the freedom of the press, the matter should be transferred to the High Court and the Official Solicitor invited to represent the child concerned.
Statutory provisions referred to:Administration of Justice Act 1960, s 12(2).
Convention for the Protection of Human Rights and Fundamental Freedoms 1985, Articles 8 and 10.
Guardianship of Minors Act 1971, s 1.
Cases referred to in judgment:C (A Minor) (Wardship: Medical Treatment) (No 2), Re [1990] FCR 220; [1990] Fam 39; [1989] 3 WLR 252; [1989] 2 All ER 791.
M and N (Wards: Publicity), Re [1990] FCR 395; sub nom Re M and N (Wardship: Publication of Information) [1990] Fam 211; [1989] 3 WLR 1136; [1990] 1 All ER 231.
M (A Minor) (Wardship Documents: Disclosure), Re[1993] 1 FCR 476; sub nom Re Manda [1993] Fam 183; [1993] 2 WLR 161; [1993] 1 All ER 733.
W (A Minor) (Wardship: Publicity), Re[1992] 1 FCR 231; [1992] 1 WLR 100; [1992] 1 All ER 794.
AppealAppeal from His Honour Judge Crowther, QC sitting at Blackwood county court.
Wyn Williams, QC and Jennet Treharne for the father.
Elizabeth Szwed and Celia Graves for the mother.
MR JUSTICE WARD.This is the judgment of the court.
The case is a most unusual one, the details of which merit being recited as fully as the limited facts before us make possible, subject always to the need to preserve the anonymity of the parties and their children.
The children of the family with which we are concerned are a boy, J, now nearly 18 years of age, and two girls, M, who is 13, and G, who is 10 years of age. Their parents had married in 1975. It was an unhappy marriage. A major cause of their unhappiness arose from the husband's growing ambivalence towards his own sexuality. He said that from as far back as the age of five he had wished he was a girl. After his wife discovered his dressing as a woman, there were many arguments and, his transvestite urges being beyond his control, the parties final]yseparated in 1983. The wife...
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