Re X (a child) (injunctions restraining publication)
| Jurisdiction | England & Wales |
| Judgment Date | 13 October 2000 |
| Court | Family Division |
Injunction – Child in care – Black African child subject of care order removed from care of white European foster parents – Newspaper wishing to publish details relating to local authority fostering policy in respect of transracial placements – Local authority obtaining injunction restraining publication – Newspaper applying to discharge or vary injunction – Whether publication affecting welfare of child – Whether injunction too wide – European Convention on Human Rights, art 10(2).
Child X was a four year old black African by ethnic origin who had been living with white European foster carers since 9 December 1998 and had developed a strong attachment to them. She also had a relationship with the Y family who were of the same ethnic origin and with whom she and her mother had previously lived. X had been on the child protection register in the past and had been removed from her mother’s care as a matter of emergency. The local authority applied for a care order. The care plan proposed that X should be placed with the Y family with a view to adoption. At the hearing of the application the judge found that X had picked up from her foster parents an unconscious antipathy to the Y family and further that the foster mother’s attachment to X had interfered with her ability to prepare X to move on to another placement. She further found that in the long term the Ys would be better able to meet the challenges facing X throughout her childhood as a black girl in a predominantly white society and that the foster mother had the strength of character to give her seal of approval to the Y family. She accordingly made the care order. The relationship between the local authority and the foster carers subsequently deteriorated and the carers brought an application for adoption while the local authority made an application to remove X from their care, although both applications were withdrawn. In September 2000 the local authority became aware of newspaper interest in the matter and applied for and obtained a recovery order, which was executed, and an injunction against publicity which was later extended to protect the identity of the social workers involved in the case. The injunction prohibited (1) publication of any details of the child’s care and upbringing, even if those details did not identify her or her carers; (2) press approaches about the child directed to former carers, neighbours or former neighbours, relations, members of the family who used to care for her, or their friends or acquaintances; (3) the press from receiving even unsolicited communications from former foster parents or any information about the child’s care and upbringing; and (4) publication of the names,
addresses or likenesses of the social workers involved in removing the child from the home of her former foster parents. Associated Newspapers Limited (ANL) brought an application to vary or discharge the injunction and was supported in that application by the foster carers. It was their contention that it was in the public interest that the story be published and that the injunction was a breach of their right to freedom of expression pursuant to art 10 of the European Convention on Human Rights. They accepted that the identity of the child and her current carers had to be protected but argued that seeking and receiving information about the child’s upbringing prior to her removal from the foster carers would not impact on her current upbringing. Further, they argued that there would be no balancing exercise to be performed as regards freedom of expression versus any interest identified in art 10(2) of the Convention because those who sought to bring themselves under the protection of art 10(2) had to provide evidence that they were entitled to that protection. The local authority contended that the injunction was necessary to protect the welfare of the child and that the restriction on freedom of expression was justified.
Held – (1) The court had jurisdiction under s 1(1) of the Children Act 1989 to restrain publication of material relating to a child’s upbringing where the child’s welfare would be affected. ‘Upbringing’ meant the bringing up, care for, treatment, education and instruction of the child by parents or substitute parents. In the present case the issue was in relation to an alleged policy of the local authority regarding transracial placements and the consequences of that policy in respect of the foster parents caring for the child rather than in relation to the child’s upbringing, so that s 1(1) did not apply. It was not, however, a case where the court would decline jurisdiction on the basis that the publicity was only indirectly concerned with the child, and there were also questions of confidentiality. It followed that the court had jurisdiction but that the child’s welfare was not the paramount consideration. Kelly v BBC[2000] 3 FCR 509 followed.
(2) Any restraints on freedom of expression called for the most careful scrutiny. The court had to approach the question on the basis of s 12 of the Human Rights Act 1998 and reach a decision in a manner compatible with the Convention rights. It was essential for the court to examine the particular facts of the case to establish whether any interference by injunction with freedom of expression fell within one of the exceptions provided for in art 10(2) and was prescribed by law, had an aim which was legitimate and was necessary in the sense of a pressing social need. Those who sought to bring themselves within art 10(2) had to establish convincing evidence that they were indeed protected and could not merely assert the claim nor invite the court to make assumptions. Moreover, only information that a reasonable foster parent would be likely to realise was so sensitive that it should not be disclosed without the permission of the local authority would be subject to a duty of confidence. There were categories of information which foster parents received in confidence such as
information about a child’s medical history but there were also many aspects such as affection, the wish to adopt and distress upon removal which would not be confidential. In the present case there was a legitimate public interest in publishing information about alleged controversial doctrines in relation to the fostering of children and it was for the court to decide on the facts whether there was convincing evidence that it was essential to protect the child and the confidentiality attaching to the child and to what extent. The local authority had failed to place any evidence before the court and had relied only on a general assertion of confidentiality. The injunction was too wide and could not be justified on the basis that freedom of expression had to be restricted in order to protect the rights of others. However, there was a serious potential for harm to the child if the social workers were identified as they were still involved in planning the child’s care. Moreover, their identification would not significantly add to the story and the rules of confidentiality would prevent them from rebutting any allegations made against them. On the other hand the foster parents wished to be identified and to volunteer information to the press and it would be a breach of their rights if they were prevented from openly expressing their views. Accordingly, the application to vary the order would be allowed.
Cases referred to in judgmentA-G v Guardian Newspapers Ltd [1987] 3 All ER 316, [1987] 1 WLR 1248, Ch D, CA and 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.
Coco v A N Clarke (Engineers) Ltd [1969] RPC 41.
Kelly v BBC[2000] 3 FCR 509, [2001] 1 All ER 323.
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.
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.
Sunday Times v UK (1979) 2 EHRR 245, ECt HR.
Times Newspapers Ltd v MGN Ltd [1993] EMLR 443, 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.
Z (a minor) (freedom of publication), Re[1996] 2 FCR 164, [1997] Fam 1, [1995] 4 All ER 961, [1996] 2 WLR 88, [1996] 1 FLR 191, CA.
ApplicationAssociated Newspapers Ltd applied to discharge or vary injunctions made by Hogg J on 20 September 2000 restraining any person from publishing specified categories of information about or connected with the child X. That injunction had been extended on 28 September 2000 to restrain publication of pictures of
named social workers, their names or addresses. The facts are set out in the judgment of Bracewell LJ.
Richard Parkes (instructed by Swepstone Walsh) for Associated Newspapers Ltd.
Suzanne Shenton (instructed by Head of Legal Services, London Borough of Richmond) for the local authority.
The first and second defendants appeared in person.
Cyrus Larizadeh (instructed by Lovell Chohan) for X’s natural mother.
Gordon Murdoch QC (instructed by the Official Solicitor) for X.
BRACEWELL J.This is an application by Associated Newspapers Ltd (ANL) to discharge or vary certain injunctions. On 20 September 2000, Hogg J made an order restraining any person from publishing the name or address of a child (X), her school or her present foster parents, a picture of X or her foster parents, the name, address, nationality or any personal details of anyone having care of X, or any other matter calculated to lead to X’s identification. That part of the order is not challenged by ANL which has no wish to identify the child.
Hogg J also ordered that no person should publish any details concerning the past, present or future upbringing and/or care of...
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