Freedom of speech vs privacy of children: a tough balance

The Court of Appeal has ruled that an injunction restraining publication of information about a child, whose parents had separated but had agreed shared child care arrangements, should be discharged in the interests of free speech and replaced with a less restrictive order.

The father appealed against an injunction restraining him from publishing information concerning his daughter. The father and mother of the child had separated and proceedings had been commenced under the Children Act 1989. During the course of these proceedings, the father, a campaigner for fathers' rights, abducted the child, took her to Portugal and was subsequently imprisoned.

After his release from prison, the mother became aware that he was in contact with the BBC and wanted to take his daughter back to Portugal to film a video diary retracing their steps, which he thought would make good media footage. The mother then obtained an injunction preventing publication of any matter relating to the child which had not previously been published or referred to in open court, until her 18th birthday.

The Children Act proceedings were subsequently settled on the basis of shared child care arrangements. However, the judge maintained the injunction on the grounds that the child's freedom from publicity and right to privacy under the European Convention of Human Rights outweighed the father's right to freedom of speech.

The father appealed this decision and the Court of Appeal had to consider whether the prohibition on publication of virtually all material about the child should continue after the Children Act proceedings had come to an end.

The Court of Appeal decided to discharge the injunction on the basis that it was far too wide, especially given the father's role as an active campaigner on parenting issues, replacing it with a prohibited steps order, restraining the father from revisiting Portugal with his daughter, or involving her in any way with any publication about her illegal abduction.

In his judgment, Sir Mark Potter, the President of the Family Court said: "I would add that, in my judgment, the father would be wise not to write about it, but ultimately that is a matter for him. That, after all, is what freedom of speech is about."

The judgment focused on this issue of freedom of speech, under Article 10 of the European Convention on Human Rights, countered by the child's right to privacy under Article 8 and the court's powers to protect the welfare of the child.

Sir Mark Potter added: "Our judgments in this case are likely to have an impact, and must not be misunderstood. The fact that the provisions of the1989 Children Act cease to operate after the conclusion of the proceedings does not mean that parents are free at that point to draw their children into an ongoing public debate about their welfare or other wider issues.

"Quite where the line is to be drawn between the Children Act 1989 and the European Convention on Human Rights, in this context remains to be seen, although I venture to think that in practice most parents will recognise it. The court's powers under the 1989 Act remain, as do its powers to grant injunctions."

The case is the latest in a series of important decisions which have considered children's rights to privacy. Lord Justice Wall, who gave permission for the appeal last December, said the issues were "of public importance" and whether the injunction should stay was "a point of particular significance at the present time, when publicity and confidentiality are up for debate". He has recently called for the media to be admitted to family courts to shake off the stigma of secret justice.

This proposal has been endorsed by the Department of Constitutional Affairs. Where the welfare of children is at issue, their rights to privacy are likely to be paramount, but journalists should take heart that, even so, the courts will still carefully balance that interest with the right to freedom of speech and fully-informed public debate.

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