Re X (A Minor) (Wardship: Jurisdiction)
| Jurisdiction | England & Wales |
| Date | 1975 |
| Court | Court of Appeal (Civil Division) |
Infant - Ward of court - Jurisdiction - Limitations on exercise - Application to stop publication of book containing passages about private conduct of word's dead father - Ward likely to suffer if contents brought lo her knowledge - Whether wardship jurisdiction to extend to interference with freedom of publication - Duty of court in exercising jurisdiction
The stepfather of a girl aged 14, whose own father had died in 1967, made her a ward of court on October 23, 1974, for the purpose of applying for an injunction to restrain the publishers and author of a book ready for publication on October 24 from publishing it so long as it contained in its first chapter passages describing aberrant private activities and practices attributed to the ward's dead father. Affidavit evidence was adduced and accepted that the ward would suffer grave psychological damage if the offending passages came to her knowledge, as they were likely to do if they were published. The publishers and author, having rejected an open offer of financial contribution to the cost of issuing the book without the offending passages, opposed the application.
Latey J. granted the injunction asked for, holding that the wide powers and duty of the court in wardship jurisdiction were available to protect the young against injury of whatever kind from whatever source and that it was wholly right and proper to invoke those powers to protect the ward if she were in peril; and that as it had been shown that there was a real likelihood of the book's contents coming to her knowledge and of ensuing harm therefrom it was proper to exercise the jurisdiction and prevent publication.
On appeal by the publishers and author: —
Held, allowing the appeal, that though the court exercising the parental power of the Crown in wardship had in theory an unrestricted jurisdiction ta do what was considered necessary to protect an infant, the jurisdiction should in practice be exercised within limits and with due regard to other rights which the court had a duty to protect; that in particular the jurisdiction should not be invoked in the present circumstances to interfere with the right of outside parties to freedom of publication which was already sufficiently circumscribed at common law and by statute.
The following cases are referred to in the judgments in the Court of Appeal:
Iredell v. Iredell (
Reg. v. Ensor (
Rex v. Topham (
Wellesley v. Wellesley (
The following additional cases were cited in argument in the Court of Appeal:
C. (An Infant), In re, The Times, June 18, 1969.
Heath v. Crealock (
J. v. C. [
K. (Infants), In re [
L. (An Infant), In re [
The following cases are referred to in the judgment of Latey J.:
K. (Infants), In re [
Mohamed Arif (An Infant), In re [
Wellesley v. Duke of Beaufort (
Wellesley v. Wellesley (
The following additional cases, supplied by the courtesy of counsel, were cited in argument before Latey J.
Basset's Case (
Beaufort (Duke) v. Berty (
Iredell v. Iredell (
L. (An Infant), In re [
Ramsbotham v. Senior (
Scott v. Scott [
ORIGINATING SUMMONS
On October 23, 1974, the stepfather of a girl then aged 14 applied ex parte in the Family Division naming as defendants the publishers and author of a book on the point of publication, and asking that the girl be made a ward of court. On October 24, Latey J., on an undertaking by the stepfather to issue an originating summons and serve copies of it as soon as possible on the proposed defendants, made an interim order restraining the proposed defendants from publishing the book and from making any statement, save as approved by the court, referring to the order in any way such as directly or indirectly to identify the ward; and it was further ordered that the girl should become and remain a ward of court during her minority or until further order. The summons was taken out on October 24. On October 30 after submissions inter partes the interim order was continued. The hearings were all in chambers, but on November 5 Latey J. gave his judgment in open court.
Bryan Anns Q.C., Lionel Swift and David Vaughan for the stepfather.
Frederic Reynold for the publishers and author.
November 5. Latey J. read the following judgment. This case concerns recourse to the wardship jurisdiction in wholly novel circumstances. Because it does so it is of some public importance and for that reason the judgment is being given in open court. I have tried to frame the judgment in terms which give no indication of the identities of the book concerned, its author, its publishers, the ward's dead father or above all the ward herself. Whether or not I have succeeded, it is within the spirit and purpose of the judgment and the orders I have made and am about to make in chambers that there should be no public speculation in the media about those identities.
The ward is a girl of 14 years of age. Her father died some years ago. I shall refer to the child as X.
A book has been written and is on the point of publication. The book begins with a short chapter about the child's father. In it there are several explicit descriptions of the father's alleged sexual predilections and behaviour. They are described in the author's affidavit filed in the summons as “somewhat extravagant” and elsewhere as “bizarre.” Others might regard them as revolting, or, as the plaintiff in his affidavit describes them, as “salacious and scandalous.”
The child's mother has remarried. The child's stepfather first heard of the book within a day or so before the date scheduled for publication, when friends who had been sent copies for review told him about it expressing their disgust and sympathy. He obtained a copy, and in agreement with his wife, X's mother, moved immediately, instructing solicitors, taking counsel's advice and applying to make the child a ward of court and for an injunction restraining the publication of the book so long as it contains the offending passages. If it be relevant the offending passages are all in the first short chapter of eight pages. The rest of the book is unaffected. I made interim orders and the case has since been fully argued in chambers. In opposing the application the author and publishers have rejected proposals that this short chapter should be deleted or rewritten.
The questions for decision are, first, whether in circumstances of this kind recourse to the wardship jurisdiction can ever be appropriate. Secondly, if it can be, is it right that the court should exercise its powers in the circumstances of this particular case?
Mr. Reynold, for the author and publishers, was at first disposed to argue that the case is outside the limits of the wardship jurisdiction. Later, after the authorities had been gone through at length, he accepted that the jurisdiction is wide enough and said that the question is whether an exercise of the jurisdiction would be appropriate. That, in my view, states the basic question accurately.
Before coming to those questions I must say something about what the evidence proves. To review it at length might give indications of identities which might defeat the orders I am making. I summarise it briefly. X is 14. She is a very sensitive child. The family doctor, who has been her doctor for 10 years, says that she is rather more vulnerable emotionally than most children and is psychologically fragile and highly strung. If she were to read this chapter or hear about it from others it would be psychologically grossly damaging to her. Another witness says the effect of it upon her would be appalling. Mr. Reynold, whose able presentation of the defendants' case (that is to say, of the author and publishers) was all the more persuasive for being realistic, does not dispute this. Then there is evidence on both sides of the likelihood or otherwise of what is written coming to X's knowledge. I will return to that important point later.
On the first of the two questions already stated, for the defendants it is argued, first, that because the wardship jurisdiction has never been invoked in any case remotely resembling this, the court, though theoretically having jurisdiction, should not entertain the application, but bar it in limine.
I do not accept that contention. It is true that this jurisdiction has not been invoked in any such circumstances. I do not know whether such circumstances have arisen before or, if they have, whether anyone has thought of having recourse to this jurisdiction. But I can find nothing in the authorities to which I have been referred by counsel or in my own researches to suggest that there is any limitation in the theoretical scope of this jurisdiction; or, to put it another way, that the jurisdiction can only be invoked in the categories of cases in which it has hitherto been invoked, such as custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations. That list is not exhaustive. On the contrary, the powers of the court in this particular jurisdiction have always been described as being...
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