Re Roddy (A Child) (Identification: Restriction on Publication)
| Jurisdiction | England & Wales |
| Judgment Date | 2004 |
| Date | 2004 |
| Year | 2004 |
| Court | Family Division |
Child protection – Publication – Freedom of expression – Right to respect for private and family life – Balancing exercise – Teenage mother wishing to tell story to national newspaper – Whether injunction protecting identities should be discharged – Whether Convention rights engaged – Human Rights Act 1998, Sch 1, Pt 1, arts 8 and 10.
The 16-year old child fell pregnant at the age of 12. The putative father, X, was a boy of a similar age to the child. The local authority began care proceedings in relation to the child and after the birth, her baby, Y. Y was later adopted whilst the child remained in foster care. As a result of media interest, a series of injunctions was granted to protect their identities. A few years later, on the child’s application, the care order was discharged. The child then approached a national newspaper, in order to share her experiences in the care system. She was happy to be named and photographed for that purpose. Consequently, the newspaper’s solicitors contacted the local authority giving notice of their client’s intention to apply for a variation of the injunction. The local authority raised concerns in relation to the identification of Y. The issues raised required: (i) consideration of whether the parties’ respective rights to respect for private and family life and freedom of expression under arts 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) had been engaged; and (ii) a balancing of those rights.
Held – Article 8 embraced both the right to maintain one’s privacy and, if preferred, not merely the right to waive that privacy but also the right to share what would otherwise be private with others, or with the world at large. Therefore, the right to communicate one’s story to others was protected not only by art 10, but also by art 8. Furthermore, in the instant case, the right pursuant to art 10 was not only that of the press and those who might read the story, but also the right of the child to tell her story. Moreover, a child was as much entitled to the protection of the Convention, specifically arts 8 and 10, as anyone else, though the personal autonomy guaranteed by those articles was qualified in the
case of a child. It was the court’s responsibility and duty to defend the right of a child who had sufficient understanding to make an informed decision, to make his or her own choice. It was not, in such circumstances, for the parents, a court or any other public authority to make a decision on the child’s behalf. In the instant case, the child was a person of an age and maturity to decide for herself. However, an injunction would be granted to, inter alia, preserve Y’s anonymity. In the case of X, the balance required, inter alia, preservation of his anonymity but not prevention of his story being told anonymously. Accordingly, the injunction would remain in force in relation to X; Re S (a child) (identification: restriction on publication) [2003] 2 FCR 577 considered.
Cases referred to in judgmentA v B (a company) [2002] EWCA Civ 337, [2002] 2 FCR 158, [2002] 2 All ER 545, [2003] QB 195, [2002] 3 WLR 542, [2002] 1 FLR 1021.
Bensaid v UK (2001) 11 BHRC 297, ECt HR.
Botta v Italy (1998) 4 BHRC 81, ECt HR.
Clibbery v Allan[2001] 2 FCR 577, [2001] 2 FLR 819; affd[2002] EWCA Civ 45, [2002] 1 FCR 385, [2002] 1 All ER 865, [2002] Fam 261, [2002] 2 WLR 1511.
Cream Holdings Ltd v Banerjee[2003] EWCA Civ 103, [2003] 2 All ER 318, [2003] Ch 650, [2003] 3 WLR 999.
Gaskin v UK (1989) 12 EHRR 36, [1989] ECHR 10454/83, ECt HR.
Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, HL; rvsg [1985] 1 All ER 533, [1986] AC 112, [1985] 2 WLR 413, CA; rvsg [1984] 1 All ER 365, [1984] QB 581, [1983] 3 WLR 859.
Harris v Harris, A-G v Harris[2001] 3 FCR 193, [2001] 2 FLR 895.
J v C [1969] 1 All ER 788, [1970] AC 668, [1969] 2 WLR 540, HL.
Kelly v BBC[2000] 3 FCR 509, [2001] 1 All ER 323, [2001] Fam 59, [2001] 2 WLR 253.
M and N (wards: publicity), Re [1990] FCR 395; sub nom Re M and N (minors) (wardship: publication of information) [1990] 1 All ER 205, [1990] Fam 211, [1989] 3 WLR 1136, [1990] 1 FLR 149, CA.
M v BBC[1997] 1 FCR 229, [1997] 1 FLR 51.
Niemietz v Germany (1992) 16 EHRR 97, [1992] ECHR 13710/88, ECt HR.
Pretty v UK[2002] 2 FCR 97, ECt HR.
R v Central Independent Television plc[1995] 1 FCR 521, [1994] 3 All ER 641, [1994] Fam 192, [1994] 3 WLR 20, [1994] 2 FLR 151, CA.
R (A) v East Sussex CC (No 2) [2003] EWHC 167 (Admin), (2003) 6 CCLR 194, [2003] All ER (D) 233 (Feb).
S (a child) (identification: restriction on publication), Re[2003] EWCA Civ 963, [2003] 2 FCR 577.
W (a minor) (medical treatment: court’s jurisdiction), Re[1992] 2 FCR 785, [1992] 4 All ER 627, [1993] Fam 64, [1992] 3 WLR 758, [1993] 1 FLR 1, CA.
W (a minor) (wardship: publicity), Re[1992] 1 FCR 231, [1992] 1 All ER 794, [1992] 1 WLR 100, CA.
W (minors) (continuation of wardship), Re[1996] 1 FCR 393, [1995] 2 FLR 466, CA.
X (a minor) (wardship: restriction on publication), Re [1975] 1 All ER 697, [1975] Fam 47, [1975] 2 WLR 335, Fam D and CA.
X (a woman formerly known as Mary Bell) v O’Brien[2003] EWHC 1101 (QB), [2003] 2 FCR 686.
Z (a minor) (freedom of publication), Re[1996] 2 FCR 164, [1995] 4 All ER 961, [1997] Fam 1, [1996] 2 WLR 88, [1996] 1 FLR 191, CA.
ApplicationAssociated Newspapers Ltd applied for a variation of an order protecting the identities of the child (Angela Roddy), the father, and the baby. Subsequently, the local authority applied for a contra mundum order prohibiting any identification of the baby. The facts are set out in the judgment.
Mark Warby QC (instructed by Reynolds Porter Chamberlain) for Associated Newspapers Ltd.
Lee Arnot (instructed by Legal Services) for the local authority.
The defendant was neither present nor represented.
Cur adv vult
2 December 2003. The following judgment was delivered.
MUNBY J.[1] Angela Roddy was born on 4 December 1986. In 1999, when only 12 years old, she became pregnant. The putative father was a boy of about the same age who I will refer to as X. The local authority—it is in south-west England—began care proceedings on the basis that Angela was beyond the control of her parents. Her pregnancy came to public attention amidst some controversy when it became known that the Roman Catholic church had, as the press reported it, paid her not to abort her baby. The local authority obtained from Bracewell J on 21 September 1999 an order which, amongst other things, protected the identities of both Angela and X. That did not, of course, prevent the Scottish media from publishing stories, albeit that neither Angela nor X nor the local authority were named. (I have been shown the articles published in The Scottish Express on 11 October 1999, in the Scottish Daily Mail, on 11, 12 and 13 October 1999 and in the Daily Record on 12 October 1999. The tenor of the debate at that time is encapsulated in the following headlines: ‘Church to pay girl aged 12 to keep her baby’, ‘Was Church right to offer her money?’, ‘Prosecute the boy who made my girl of 12 pregnant’, ‘Cardinal’s cash will buy us pram—Dad of girl, 12, welcomes church aid’.) The order made by Bracewell J was replaced by an order made by Johnson J on 26 October 1999 which continued to protect the identities of all those involved.
[2] On 27 January 2000 Angela gave birth to a daughter who I will refer to as Y. The same local authority thereupon began care proceedings in respect of Y. Angela was separately represented in the care proceedings because she did not
agree with the guardian’s views. She was represented by an experienced children’s solicitor who I will refer to as B. On 25 May 2000 Bracewell J made care orders in relation to both Angela and Y. The care plan for Y was for her adoption; Angela was to remain in foster care. Angela opposed the plan for Y’s adoption, but on 28 September 2001 a circuit judge made an order under the Adoption Act 1976 dispensing with her consent. Y was adopted. I know nothing of Y’s adoptive placement save that she and her adoptive parents live somewhere in England. There is continuing indirect contact between Y and Angela: as recently as 25 November 2003 Angela was sent an update and a photograph of Y.
[3] The orders made by Bracewell J on 25 May 2000 did not long remain secret. On 7 June 2000 a local newspaper published a front-page story under the headline ‘School girl to have child put up for adoption’. The article identified the local authority. On 2 July 2000 the Mail on Sunday published a story under the headline ‘Distraught girl of 13 must give up her baby’. The opening paragraph reported that ‘A devastated 13-year-old mother went on the run last week in protest after social services took away her baby’, this being, according to the newspaper, ‘her desperate cry for help after she was forced to say goodbye to her five-month-old daughter for the last time’. The article continued:
‘The tragic story of this family, torn apart by social services and the legal process, cannot be told in full: an injunction prevents the parents, who believe an injustice has been done, from speaking out. The future of three generations has been decided by the authorities behind a wall of silence. Social services, who took the girl into care last year, rightly insisted the young mother and teenage father should not be identified. But they have gone further, persuading a High Court judge to issue a draconian gagging order on everyone, including the girl’s parents.’
[4] On 7 July 2000 Associated Newspapers Ltd (ANL), the publishers of, inter alia, the Scottish Daily Mail, the Mail on Sunday and the Daily Mail, applied to me to vary the terms of the order made by Johnson J. I discharged my brother’s order and made an order contra mundum in standard form. That order, operative until 4 December 2004 (Angela’s eighteenth birthday), was...
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