Re Z (A Minor) (Freedom of Publication)
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0731-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1995 |
[1995] EWCA Civ J0731-3
Mr. Justice Cazalet
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Auld Lord Justice Ward
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
MR. G ROBERTSON QC appeared on behalf of the Appellant
MR. J PRICE QC appeared on behalf of the First Respondent
MR. J MUNBY QC (Instructed by the Official Solicitors) appeared for the Guardian ad Litem
Monday 31 July 1995
The parents and child in this case have been the objects of such publicity that on an application in fact made by the mother but in reality made by the parents jointly, the court in the exercise of its inherent jurisdiction granted an injunction in rem, the general effect of which was to restrain the media from publishing the identity of the child, and of any school or other institution or establishment in or at which the child is residing or being educated or treated; or publishing any information calculated to lead to the identification of the child or such establishment. The injunction also prohibited the soliciting of any information relating to child. It is important to stress that this injunction remains in full force. I shall, therefore, say as little as possible about the facts of this case which any court considering this judgment will find fully reported in the previous judgments which lie on the court file. Although this judgment may be reported under initials, omitting also the names of the solicitors (except the Official Solicitor who appears as guardian ad litem for the child) I emphasise for the avoidance of doubt that the various judgments and proceedings in the court below are NOT to be published.
Some while after this injunction had been granted, the mother took part in a live television broadcast and deliberately made remarks which constituted a breach of that order. Her apology for that contempt was accepted by the court. The unfortunate but wholly predictable consequence of the broadcast was, however, as the judge found, that it "prompted a volume of sensational media reporting". That led to the court making an injunction against the mother in personam which restrained her from discussing or otherwise communicating (except for ordinary social domestic purposes) any matter relating inter alia to the education of the child. As this order was made on short notice whilst the mother was appearing in person, though with her solicitor present to advise her, liberty was given to apply to vary or discharge the order if, upon calmer reflection, the mother thought its terms were too restrictive. No application was made. Time passed.
The child has special educational needs which are difficult to meet. The mother has been devoted in her support and determined to do all she possibly can to bring out the best in her child. She has recently been receiving help from a very specialized Institution which offers a unique —and it would seem highly successful —method of treating complex problems of the kind which confront this child. A television production company wishes to publicise their remarkable results in one of a series of programmes they are producing. Precisely because this child has been in the glare of publicity, they would wish to use film of her treatment (identifying her by name) in order to attract public attention to their programme so that others who care for disadvantaged children may gain strength and encouragement from this child's progress and so that, also, the methods of this foreign institution may be more freely applied by educational authorities in this country. As part of the ordinary routine of work in the institution, a skilled camera-man has now video recorded the child's progress. These recordings are capable of being used for the television film which the company is anxious to make. The mother is willing to cooperate in the making of the programme and to be interviewed on it in order to proclaim its success for her child, sincerely believing that the benefits of this work should be made more widely available but also, and importantly, that it will enhance the child's confidence publicly to be seen making such rewarding progress and that she will gain in self esteem from the knowledge that her example will have led to the improved the chances of others being helped by these methods. There is no challenge to the bona fides either of the mother or the production company.
Because the making and broadcasting of the film would be a breach by the mother of the injunction against her and would also constitute a breach of the in rem injunction which binds the production company, the mother very properly seeks the court's leave to proceed and asks that the injunctions be discharged or at least that they be so varied as to permit the production and broadcast of this programme. Cazalet J. refused her application and she appeals to this court.
Cazalet J. gave a long and careful judgment to which I hope I risk no injustice by summarising his salient findings and directions in this way:-
1. He rejected Mr Robertson Q.C.'s submission that confidentiality extended only to the professional obligations owed to a patient and that the court had no power to intervene to reverse a responsible parent's decision, supported by experts, that aspects of a child's educational progress should be made the sympathetic subject of the television documentary and that the mother was best placed to decide whether it was in the child's best interests to allow her to become the subject of such a documentary because it was essentially a parental decision.
2. He accepted the correctness of the submissions of Mr Browne Q.C. for the father and Mr James Munby Q.C. for the Official Solicitor as guardian ad litem for the child and consequently he held that:-
"The duty of confidentiality does go beyond the medical field. However, I consider that, in the circumstances of this case, there is a very clear medical overlay which, as I have indicated does, in my view, go beyond the educational matters properly so called. Accordingly, even if contrary to my view, the right to confidentiality is restricted to what may be called "professional matters", then nonetheless I consider that the filming and any publication of the proposed film at the Institute would constitute a breach of that more limited professional confidentiality."
3. He rejected Mr Robertson's submission that because the child is not a ward, then her care and upbringing are not under the supervision of the court whatever the position as to her right of confidentiality.
4. At p.45.19 he found:-
"In the instant case the proposed filming of (the child) at the institute is, in my view directly concerned with her care and upbringing…It is a film directly made about her with her playing the leading role. This, in my view, is a highly relevant and distinguishing factor from the line of publicity cases to which I have made reference."
5. At p.46.23 he held:-
"In my view, bearing in mind further that the application is directly concerned with (the child's) care and upbringing, I consider that the court has jurisdiction to consider the merits of this application in the context in which it is brought."
6. At p.47.7 he found:-
"I further have no hesitation in forming the view that, however sympathetically made or projected the film may be, the overwhelming probability is that (the child) will be adversely affected by it. It is the secondary tabloid media publicity…which causes me concern."
7. At p.48.31 he held:-
"Because I am concerned with (the child's) right of confidentiality, I do not consider that I have to weigh competing public grounds which arise in the line of cases with which re W has been concerned."
8. At p.49.3 he said:-
"Furthermore in regard to Article 10 of The European Convention (of Fundamental Human Rights), I bear in mind the importance of the freedom of publication, not least of the media, but I am satisfied that the exception to Article 10 (2) of the European Convention is clearly established, for the reason that I have given."
9. At p.49.9 he added:-
"I would also add that, if it were necessary for me to follow the guide lines referred by Neill L.J. in re W, that is to say weighing the public interest of the film in general terms helping others against the private interest, I would firmly see the scales coming down in favour of there being an order against the film being made. I bear very much in mind the importance of safeguarding the freedom of the media generally. I take account of Article 10 of The European Convention, but, by way of carrying out a balancing exercise, I am fully satisfied that it is appropriate to grant the restriction on publication within the provisions of Article 10 (2). I also, in carrying out this balancing exercise, bear in mind that the welfare of the child is not the paramount consideration."
10. Then, at p.49.23 he said:-
"As to the question of public interest it has been urged upon me that there is much to be said for the encouragement which a successful outcome to this film would give to others suffering like problems to those of (the child). If that be right, then there is no reason why some other child should not be selected to go through this filming process."
11. Finally, at p.50.17 he "reiterated in the clearest possible terms" that:-
"This court is not concerned in any way to protect the father's privacy or that of his family."
In raising questions about the width of the right of confidentiality and the ambit of the parental power to decide to sacrifice it, this case focuses on...
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