This is a post by Sarah Phillimore about why she is going to take her football and go home now.
Recently, two judgments were posted on BAILII relating to a sad case about two parents who could no longer be in a relationship with each other, but who had a small child together. See Alcott (No 1) [2016] EWCH 2413 (Fam) (27 September 2016) and Alcott (No 2) [2016] EWHC 2414 (Fam) (29 September 2016).
The father lived far outside the UK; the mother visited with the child but after discovering the very extensive sexual infidelities of the father, no longer wished to be in a relationship with him and wanted to come home, accompanied by her child. As courts cannot apply the judgment of Solomon and simply divide the child in two, a decision had to be made. That decision was that the child’s mother should be allowed to return to the UK, with the child ‘D’. She had not agreed to make a permanent move abroad and quite reasonably could no longer contemplate sustaining a romantic or sexual relationship with the father. This decision was made on entirely familiar and uncontroversial legal principles about whether or not the child ‘D’ had acquired habitual residence in the father’s country and should thus remain.
So far, so sad and familiar. There does not seem to be anything at all about this case that should attract the attention of any journalist. Relationships end all the time. Children usually have to go and live with one parent. Sometimes those parents live far apart. This is no doubt an huge personal sorrow for those people involved. Investigating the personal sorrow of others can only be justified if there is a compelling public interest argument.
But the journalists were interested. Why? Because the mother had been on television. So this happened. The Judge comments at paras 6 and 7:
The case attracted a significant interest in the media. Before the hearing commenced articles appeared in this jurisdiction in The Times, Daily Mail and The Sun. In these the parties’ identities were not revealed. However an article also appeared in the Daily Telegraph of Sydney, together with an accompanying photograph, in which the parties and D were named. It is difficult to understand how that newspaper obtained the details for that story, which is written very much from the father’s perspective and obtained the photograph without the father’s cooperation and Miss Renton on his behalf was unable to provide the court with any clarity on this point. I was told that the details of the case, by link to the Australian article, are available by using Google UK but only with a search of the names of both the father and mother.
Various journalists therefore attended the morning of the first day of the hearing. I heard in particular from Mr Famer from the Press Association. I confirmed that the press were able to report the fact that the proceedings were being heard and repeat the details that had already appeared in the media in this jurisdiction but should not identify the parties and D.
The following arguments were made to justify naming the parents:
Mr Callus submitted that the public interest in these proceedings amply justifies that his clients should be allowed to report beyond the information already in the public domain, including on behalf of NGN the evidence heard in private and on behalf of NGN and The Times that the judgment should be made public and the parties identified. He relies on the following factors which he submits distinguishes this case from others:
a. The mother is an actress and television celebrity and a public figure in this country;
b. The mother has given numerous interviews about her professional role and motherhood in which D has been named;
c. D is part of M’s brand;
d. D is frequently named on the mother’s Twitter account;
e. The allegation of wrongful removal from Australia is a serious one;
f. There is a high public interest in reporting such legal proceedings;
g. Justice should be administered in the open;
h. D is very young and unlikely to be distressed by short term media attention and also can be easily insulated by his parents from media coverage;
i. The more reasonable media outlets will respect D’s privacy;
j. Much material is already in the public domain albeit written mainly from the perspective of one party and so lacking balance.
The Judge considered the relevant law – a balancing exercise between Articles 8 and 10 of the ECHR, paying particular attention to section 12(4) of the Human Rights Act which emphasises the importance of protecting freedom of speech when it relates to a matter of public interest.
He concluded at paras 28-30:
I have reached the clear conclusion that the restriction imposed by section 12 should not be lifted to allow for the reporting of the parties’ evidence. This was a highly unusual part of the application and none of the advocates were able to provide me with any authority where the restriction has previously been lifted. Mr Callus also accepted that if my judgment was published which identified the parties and provided sufficient detail to explain the outcome and satisfy the legitimate public interest, the corresponding public interest in seeing a report of the evidence was much diminished. He accepted the two applications were linked. Moreover, on the facts of this case, I am completely satisfied that there is no legitimate public interest in a report of the evidence which would be a significant interference with the parties right to respect for private and family life and pose a risk of harm to D’s welfare if it was reported given that the evidence included full details about his parents’ private lives, in particular the allegations of the father’s infidelities. The real public interest in knowing about the detail of these matters is minimal; on the contrary the interest would be inappropriately inquisitive, prying, prurient and voyeuristic. My judgment comes down firmly in favour of Article 8 and so I refuse the application to report the evidence.
As for publishing a judgment and identifying the parties within it I am persuaded, on the unusual and specific facts of this case, by Mr Callus’ arguments as summarized at paragraph 12 above. I accept that once the proceedings are over there is no bar on the parties being named in the absence of the court making a reporting restriction order and in this case none of the parties applies for such an order.
I appreciate that naming the parties in my judgment leads indirectly to the further identification of D. I accept that currently, given his young age, he can be protected by his parents from exposure to any such publicity. I accept that in years to come he may, as a result of the press reporting this case and his parents being named, learn more about the history of the case and some personal details of his parents’ private lives and he may suffer harm as a result. However there is also a chance, despite the digital footprint left by this news that in years to come such details will be less accessible. The court has to look at the likelihood of this harm and evaluate how serious the risk is but these are not the only factor to take into account and do not take precedence and in my judgment on the facts of this case are outweighed. My assessment is that the likelihood of harm and risks are relatively low given the contents of my judgment, which is carefully crafted to avoid the sensationalist detail. The reality also is that identification of D is already possible given the press reports today in particular the Australian article and the resulting Google searches and although this is not a determinative factor it is an important one.
I hope I am not alone in being disturbed by this case. This mother is emphatically NOT a public figure. Being ‘on television’ is neither a necessary nor a sufficient condition of being a ‘public figure’. She is not a politician, pontificating on family values or criticising single mothers. If she were, I might then be able to discern some slender justification for spreading prurient details of her personal tragedy all over the newspapers.
And even if she were a ‘public figure’ – what noble Article 10 argument can legitimately be raised that it is right to parade her private life in the media? So she has discussed herself in public before? So what? She has exercised her choice to discuss what she wants. This cannot mean it is ‘open season’ to report on anything else a journalist can dig up. The child ‘D’ is emphatically NOT part of anyone’s ‘brand’. I find that possibly the most disturbing of all the arguments raised in favour of revealing details about this case.
Naming the parents will inevitably lead to identification of the child – because his mother has chosen to publish his photograph elsewhere. There is a legitimate debate to be had about the wisdom of publishing photographs of one’s child on social media. However, we can surely be allowed the freedom to do so if we wish without worrying that it will later be linked to scurrilous gossip about our private lives in the press.
In a case such as this, the cat was already out of the bag so I can see that there was little to be gained from refusing to publish the parents’ names. But what a horrible precedent to set. If someone unscrupulous leaks information to a newspaper in a foreign jurisdiction, this then becomes an argument for publishing the same information here.
There is now a digital footprint for this young child to discover in years to come about the nature of his parents’ relationship and its fracture. This is deeply personal and private stuff, of interest only to those adults directly involved. There is no public interest in simply revealing and revelling in other people’s misery.
This is very difficult for me, as a previous staunch advocate of openness in family proceedings. I fear I sense a shift in my position, to recognise that our journalistic culture in this country appears so debased that increased openness and reporting of judgments will do nothing to aid public understanding – all the journalists will wish to do is print gossip about who is having sex with who.
So I am seriously wondering about throwing in my transparency towel. The press have made it very clear over the years what interests them. Perhaps I should just now save my energy and leave them to it.