29 January 2019

Is protecting children's privacy always paramount?


Claire Blakemore
Partner | UK

Last week I posted about the child abduction case (see here), where the mother has unilaterally taken the children to Ukraine and the father had made an application to allow the press more freedom to report on the case and identify the parties in the hope that will assist their return here. We now know that Mr Justice Mostyn ruled that the press could publish the names and photographs of the mother, her new husband and her father, something that is very unusual in cases involving children. However, despite his decision, the names and photographs will not be published as the mother is appealing the decision, and so the press must wait for that appeal to be heard.

In most cases involving children, publishing information in relation to the case would be a contempt of court (punishable by prison or a fine). However it is possible to apply to the court for permission to report. In this case the father’s application was supported by Times Newspapers, the BBC and Associated Newspapers. The father argued that to allow the press to publish the information would help to secure the return of the children as he was anxious that the proceedings (pursuant to the Hague Convention), would not be fruitful.

Balancing act

Mr Justice Mostyn had to balance the various competing rights (right to freedom of expression, right to privacy and right to a fair trial) to determine the extent to which the press should be able to report the case without encroaching unnecessarily on the family’s right to privacy. It is a delicate balance, especially when children are involved. The court will take into account what is in the children’s best interests, and in this case, whether breaching their right to privacy might result in their safe return. Whilst what is in their best interests is not a ‘trump card’ it is extremely relevant.

The court will also take into account the IPSO code, which came into force in January 2016, and means that editors must demonstrate an exceptional public interest to override the normal paramount interests of children under 16.

Children’s voice

Once children reach a certain level of maturity, their opinion as to what is in their best interests will also be taken into account. This poses a particular problem in child abduction cases where it might not be possible for the court to hear from the children, or they have not yet been located. Research into children’s reaction to court hearings being reported has shown that they are, on the whole, concerned about reporters in court. They are also concerned about jigsaw identification. In this case, hearing the children’s views is less of an issue, as the children are only 3 and 5, but the fact that their mother’s name and photograph will be in the paper is likely to result in jigsaw identification. The fact that they are not named, or not yet in this country, would not restrict the potential impact. It seems to me that the fact that the court could not ascertain their thoughts on this issue would be cause for concern for the judge as regardless of their age, the court must also think about the children’s future and the digital footprint that this case is likely to create.

Future press interest

The court must also consider the likely future press interest. Ironically, the fact that the press has been involved in application has, to an extent, increased the risk of further press interest.

Future implications

It is reported in some press today that the decision is a victory for the media and that it may mean that those who abduct children will be ‘named and shamed’ in the future. In my view, that is taking it too far. These cases are highly fact sensitive and nuanced. In each case, the court will have to consider the particular facts and individuals involved to make a decision as to how to balance the competing rights.

It will be interesting to see, however, whether the Court of Appeal uphold this decision, and will agree that there is sufficient general public interest in the case to justify publication and the resulting curtailment of the mother, her husband, her father and their children’s right to respect for their private and family life.

Claire Blakemore Partner | London

Category: Article