OPO (by his litigation friend) and another v Rhodes
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Toulson,Lord Clarke,Lord Wilson,Lord Neuberger |
| Judgment Date | 20 May 2015 |
| Neutral Citation | [2015] UKSC 32 |
| Court | Supreme Court |
| Date | 20 May 2015 |
[2015] UKSC 32
Lord Neuberger, President
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Toulson
Appellant
Hugh Tomlinson QC Sara Mansoori Edward Craven
(Instructed by Bindmans LLP)
Respondent (OPO)
Matthew Nicklin QC Adam Speker
(Instructed by Aslan Charles Kousetta LLP)
Respondent (Canongate Books Ltd)
Antony White QC Jacob Dean
(Instructed by Simons Muirhead & Burton Solicitors)
Interveners (English PEN, Article 19 and Index on Censorship — Written Submissions Only)
Adrienne Page QC Can Yeginsu
(Instructed by Olswang LLP)
Heard on 19 and 20 January 2015
Lady Hale AND (with whom Lord Clarke and Lord Wilson agree)
By these proceedings, a mother seeks to prevent a father from publishing a book about his life containing certain passages which she considers risk causing psychological harm to their son who is now aged 12. Mother and son now live in the United States of America and so the family court in England and Wales has no jurisdiction to grant orders protecting the child's welfare. Instead, these proceedings have been brought in his name, originally by his mother and now by his godfather as his litigation friend, alleging that publication would constitute a tort against him. The tort in question is that recognised in the case of Wilkinson v Downton [1897] 2 QB 57 and generally known as intentionally causing physical or psychological harm. What, then, is the proper scope of the tort in the modern law? In particular, can it ever be used to prevent a person from publishing true information about himself?
As the object of the proceedings has been to protect the child from harm, all the parties have until now been anonymous, as has the country where the child now lives. This court has decided that the tort does not have the scope contended for on the child's behalf and hence that the book may be published including the specific passages to which objection is taken. This means that the book will inevitably be published in the very near future. In those circumstances there can be no justification for keeping secret the information contained in the book. This includes, obviously, the author's name and also the country where mother and son are now living. The book, however, uses pseudonyms for both the mother and the child and so this judgment will continue to do so. But this court is now able to describe the book and its contents more fully than the lower courts were able to do. In this way, the reasons why both the mother and the father have been motivated to act as they have should become much clearer than perhaps they have been hitherto.
The father is James Rhodes, the concert pianist, author and television filmmaker. The book is entitled Instrumental. The author believes that "music has, quite literally saved my life and, I believe, the lives of countless others. It has provided company where there is none, understanding where there is confusion, comfort where there is distress, and sheer, unpolluted energy where there is a hollow shell of brokenness and fatigue". He wants to communicate some of what music can do, by providing a sound track to the story of his life. "And woven throughout is going to be my life story. Because it's a story that provides proof that music is the answer to the unanswerable. The basis for my conviction about that is that I would not exist, let alone exist productively, solidly – and, on occasion, happily – without music." So the book juxtaposes descriptions of particular pieces of music, why he has chosen them, what they mean to him, and the composers who wrote them, with episodes of autobiography. He wants the reader to listen to the 20 music tracks while reading the chapters to which they relate.
Thus far, there would be nothing for anyone to worry about. But the author's life has been a shocking one. And this is because, as he explains in the first of the passages to which exception is taken, "I was used, fucked, broken, toyed with and violated from the age of six. Over and over for years and years". In the second of those passages, he explains how he was groomed and abused by Mr Lee, the boxing coach at his first prep school, and how wrong it is to call what happened to him "abuse":
"Abuse. What a word. Rape is better. Abuse is when you tell a traffic warden to fuck off. It isn't abuse when a 40 year old man forces his cock inside a six-year-old boy's ass. That doesn't even come close to abuse. That is aggressive rape. It leads to multiple surgeries, scars (inside and out), tics, OCD, depression, suicidal ideation, vigorous self-harm, alcoholism, drug addiction, the most fucked-up of sexual hang-ups, gender confusion ('you look like a girl, are you sure you're not a little girl?'), sexuality confusion, paranoia, mistrust, compulsive lying, eating disorders, PTSD, DID (the shinier name for multiple personality disorder) and so on and on and on.
I went, literally overnight, from a dancing, spinning, gigglingly alive kid who was enjoying the safety and adventure of a new school, to a walled-off, cement shoed, lights-out automaton. It was immediate and shocking, like happily walking down a sunny path and suddenly having a trapdoor open and dump you into a freezing cold lake.
You want to know how to rip the child out of a child? Fuck him.
Fuck him repeatedly. Hit him. Hold him down and shove things inside him. Tell him things about himself that can only be true in the youngest of minds before logic and reason are fully formed and they will take hold of him and become an integral, unquestioned part of his being."
He describes how he learnt to dissociate himself from what was happening, to block it out of his memory, how when he moved to other schools he had learnt to offer sexual favours to older boys and teachers in return for sweets and other treats. He gives a searing account of the physical harms he suffered as a result of the years of rape and of the psychological effects, which made it hard for him to form relationships and left him with an enduring sense of shame and self-loathing.
He recounts the ups and downs of his adult life: a year at Edinburgh University filled with drugs and alcohol, leading to his first admission to a psychiatric hospital; a year working and sobering up in Paris; three years studying psychology at University College London, leading to a highly successful career as a salesman in financial publishing; meeting and marrying the mother, whom he calls Jane, an American novelist then living in London; making a "perfect home" with her. He is kind about his wife – "The poor thing didn't stand a chance" – and hard upon himself:
"I've honestly no idea what I was thinking, beyond that rather sad hope that if I continued to do what normal people did then I would somehow become normal. But the idea that a man like me could not only get married, but maintain, nurture, commit to a marriage was fucking ridiculous. My whole concept of love was skewed."
Then their child, whom he calls Jack, was born: "My son was and is a miracle. There is nothing I will experience in my life that will ever match the incandescent atomic bomb of love which exploded in me when he was born." He wanted to be a perfect father, but "I don't think that I will ever be able to make my peace with the fact that the ripples of my past became tidal waves when he was born". His past had installed "an unshakeable belief that all children suffer through childhood in the most abominable ways and that nothing and no-one can protect them from it". Eventually, he looked for professional help from a charity specialising in helping victims of child sexual abuse and was told that he must tell his wife about the abuse. So he did. Their child was then four years old. "It is, apparently, very common for the world to spin completely off its axis when your child approaches the age you were when the abuse began".
Instead of returning to drink and drugs he resorted to self-harm: "That's the thing about cutting – not only do you get high, but you can express your disgust at yourself and the world, control the pain yourself, enjoy the ritual, the endorphins, the seedy, gritty self-violence privately and hurt no-one other than yourself". But his wife found out and he was persuaded to go into hospital again. Among the passages which have not been challenged is a graphic account of the effect of the psychotropic drugs which he was forced to take in hospital. He tried to commit suicide, escaped from the hospital, planned a second attempt at suicide but rang his wife for a last word with his son, and was persuaded to meet her. So he was returned to hospital. He worked hard at being a model patient so that he could be let out. But it was not a cure. "Even out of hospital, off meds, physically present for my family, I was a ghost." A friend offered him a life-line, treatment in a hospital in the United States, where he spent two months. "By the end of it I had, miraculously, stopped hating myself quite so much. I'd put on weight, cleared away a lot of the wreckage of the past, repaired some relationships and found a way to live with myself that, most days, left me relatively calm and composed." There is a moving passage about rebuilding his relationship with his son: "That's the weird thing about kids – they have a capacity for forgiveness that most adults can only aspire to. He has always loved me – it was inbuilt and immutable – and I him. After a few weeks of playing, singing, hanging out, we felt absolutely connected and back to normal."
But the marriage could not be repaired. Mother and father agreed to a trial separation and he moved out. Things "started to get more and more wobbly", not helped by his...
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