Re Z (A Minor) (Identification: Restrictions on Publication)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Year | 1996 |
| Court | Court of Appeal (Civil Division) |
SIR THOMAS BINGHAM, MR, AULD AND WARD, L JJ
Child – publicity – injunctions made preventing identification of child – child suffering from learning difficulty but benefiting from treatment at specialist institution – mother agreeing to child's identification and participation in television film about the treatment at the institution – mother applying to discharge or vary injunctions – whether issue related to upbringing of child – whether child's welfare the court's paramount consideration in the circumstances.
The child had special educational needs which were difficult to meet. She attended a specialized institution which offered a unique and highly successful method of treating complex problems of the kind which confronted the child. The parents and child had been the objects of such publicity that the parents obtained an injunction 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 was residing or being educated or treated, or from publishing any information calculated to lead to the identification of the child or such establishment. Subsequently, the mother breached the order when she took part in a live television broadcast. This prompted a volume of sensational media reporting. This led to the court making a further injunction against the mother restraining her from discussing or otherwise communicating any matter relating to the education of the child.
A television company wished to publicize the remarkable results of the institute by way of a film of the child's treatment, identifying the child, in order to attract public attention to the institute's successful treatment. The mother was willing to co-operate in the making of the programme, in which she and the child would play an active part. The mother sincerely believed that it would enhance the child's confidence to be seen publicly making such rewarding progress. She therefore applied to the court seeking leave to proceed and asking that the injunctions be discharged or varied so as to permit the production and broadcast of the programme. The Judge refused her application.
The mother appealed.
Held – dismissing the appeal: (1) There was a category of case where the child was not already under the court's protective wing in that the court was not exercising some supervisory role over some aspect of the child's care and upbringing and, crucially, where the material to be published was not directly about the child or directed at the child's upbringing. In such a case, where there was no threat to the integrity of the proceedings, and in the absence of a statutory warrant to restrain publicity, the court should not restrain reports or comment which were not directed at the child or the child's carers and which
related only peripherally to the child. However, where the court was obliged to determine any question with respect to the upbringing of the child the position was otherwise. By virtue of s 1(1) of the Children Act 1989 the welfare of the child was the court's paramount consideration. Such a question arose whenever the central issue before the court was one which related to how the child was being reared. In the present case the mother wished her child to perform for the making of a television film: to bring up her child as one who would play an active part in the film. The court was, therefore, required to determine a question with respect to the upbringing of the child. The child's welfare was the court's paramount consideration. Consequently, the court was required to give priority not to freedom of expression but to the welfare of the child.
(2) The decision of a devoted and responsible parent should be treated with respect. It should not be disregarded or lightly set aside. But the role of the court was to exercise an independent and objective judgment and, if that was not in accord with that of the parent, to give effect to its own judgment. In the present case the Judge did not share the bona fide view of the mother as to the beneficial effect of the proposed publicity on the welfare of the child. The Judge had taken the entirely tenable view that the proposed publicity would be harmful to the welfare of the child. Consequently, he had in truth no choice but to refuse to discharge or modify the injunctions. There was no ground upon which his decision could be impugned.
Decision of Cazalet, J affirmed.
Statutory provisions referred to:Children Act 1989, ss 1, 3, 8, 10(1)(b) and 97(2).
Children and Young Persons Act 1933, s 39.
Law Reform (Miscellaneous Provisions) Act 1949.
Cases referred to in judgment:A (A Minor)(Wardship), Re [1991] FCR 1013.
A v Liverpool City Council [1982] AC 363; [1981] 2 WLR 948; [1992] 3 All ER 872.
Albert (Prince) v Strange (1849) 2 De G & Sm 652.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680.
C (A Minor) (Wardship: Medical Treatment) (No 2), Re [1990] FCR 220; [1990] Fam 39; [1989] 3 WLR 252; [1989] 2 All ER 791.
E (A Minor) (Wardship: Medical Treatment), Re[1992] 2 FCR 219.
Falkland (Viscount) v Bertie (1696) 2 Vern 333.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 WLR 830; [1985] 3 All ER 402.
H (Minors) (Injunction: Public Interest), Re[1994] 3 FCR 90; sub nom. Re H-S (Minors) (Protection of Identity) [1994] 1 WLR 1141; [1994] 3 All ER 390.
J v C [1970] AC 668; [1969] 2 WLR 540; [1969] 1 All ER 788.
JR v Merton London Borough[1992] 2 FCR 174; sub nom Re A (Minors) (Residence Orders: Leave to Apply) [1992] Fam 182; [1992] 3 WLR 422; [1992] 3 All ER 872.
K (Infants), Re [1965] AC 201; [1963] 3 WLR 408; [1963] 3 All ER 191.
KD (A Minor) (Wardship: Termination of Access), Re [1988] FCR 657; [1988] AC 806; [1988] 2 WLR 398; [1988] 1 All ER 577.
L (An Infant), Re [1968] P 119; [1967] 3 WLR 1645; [1968] 1 All ER 20.
M and N (Wards: Publicity), Re [1990] FCR 395; [1990] Fam 211; [1989] 3 WLR 1136; [1990] 1 All ER 205.
Mohamed Arif (An Infant), Re [1968] Ch 643; [1968] 2 WLR 1290; [1968] 2 All ER 145.
N (Infants), Re [1967] Ch 512; [1967] 2 WLR 691; [1967] 1 All ER 161.
O'Hara, Re [1900] 2 IR 232.
R (Wardship: Restrictions on Publication), Re[1994] 2 FCR 468; [1994] Fam 254; [1994] 3 WLR 36; [1994] 3 All ER 658.
R v Central Independent Television plc[1995] 1 FCR 521; [1994] Fam 192; [1994] 3 WLR 20; [1994] 3 All ER 641.
Richards v Richards [1984] AC 174; [1983] 3 WLR 173; [1983] 2 All ER 807.
S v McC (orse S) and M (DS intervenor); W v W [1972] AC 24; [1970] 3 WLR 366; [1970] 3 All ER 107.
Scott v Scott [1913] AC 417.
Spence, Re (1827) 2 Ph 247.
W (Minors) (Continuation of Wardship), Re[1996] 1 FCR 393.
W (A Minor) (Wardship: Publicity), Re[1992] 1 FCR 231; [1992] 1 WLR 100; [1992] 1 All ER 794.
Wellesley v Duke of Beaufort (1827) 2 Russ 1.
Wellesley v Wellesley (1828) 2 Bli NS 124.
X (A Minor) (Wardship: Injunction), Re [1984] 1 WLR 1422; [1985] 1 All ER 53.
X (A Minor) (Wardship: Jurisdiction), Re [1975] Fam 47; [1975] 2 WLR 335; [1975] 1 All ER 697.
X, Y and Z (Wardship Files: Confidentiality), Re [1991] FCR 954; sub nom Re X (Minors) (Wardship: Disclosure of Documents) [1992] Fam 124; [1992] 2 WLR 784; [1992] 2 All ER 595.
Geoffrey Robertson, QC and Julian Knowles for the mother.
James Munby, QC for the Official Solicitor acting as the child's guardian ad litem
James Price, QC for the father.
LORD JUSTICE WARD.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 the 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 maybe reported under initials, omitting also the names of the solicitors (except the Official Solicitor who appears as guardian ad litem for the child) I emphasize 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...
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