Stedman, Re

In an application to restrict publication by the press, the court must balance the children’s rights under article 8 against the media’s and other parties’ rights under article 10. Neither right has automatic precedence. The court must focus intensely on the particular rights engaged, consider the justification for interfering with each right, and apply proportionality to each.

Where material is already extensively and readily available, its public-domain status may become decisive. An injunction may then be disproportionate and futile. The court should not direct the press to use a particular form or style of reporting where the underlying publication is lawful.

The local authority sought continuation and extension of reporting restriction orders concerning three children, principally to prevent publication of DNA test results and further publication of photographs and images already in the public domain. The children had attracted intense national and international media attention after the birth of a baby whose presumed father was aged 13.

The application concerned an injunction against the world, rather than the existing in personam injunctions against family members. The central issues were whether the children’s welfare was paramount, whether their article 8 rights were engaged, and whether restricting publication was proportionate having regard to the press’s article 10 rights and the extent to which the material was already publicly available.

1. Applicable jurisdiction. The application concerned an injunction contra mundum. It was therefore a category 2 case, in which welfare was relevant but was not the paramount consideration. The court rejected the submission that the application was a category 3 case under In Re Z (A Minor).
2. Convention balancing exercise. Following Re S (A Child), neither article 8 nor article 10 had precedence. The court had to examine the comparative importance of the specific rights claimed, the justification for interfering with each right, and the proportionality of each proposed interference.
3. The article 8 rights of Maisie and Chantelle were engaged by publication of the DNA results. The results concerned Maisie’s paternity and necessarily implicated Chantelle’s private and family life. The article 8 rights of all three children were also treated as engaged in relation to publication of the photographs and images. Alfie’s article 10 rights were engaged because he wished to communicate that he was not the father.
4. Public domain and proportionality. The extent to which the material was already available to the public was a mandatory consideration under section 12(4)(a)(i) of the Human Rights Act 1998. The court accepted that further publication could cause Chantelle distress and harm. However, the material had been disseminated on an exceptional scale, including through the internet, and could readily be accessed worldwide. Preventing publication by the respondents would therefore make little practical difference.
5. The proposed restriction would be both disproportionate and futile. The court declined to adopt a controlled-release order requiring publication without names, photographs or comment. Article 10 protected the form as well as the substance of journalistic expression, and the court should not substitute its own preferred presentation for that of the press.
6. The application was refused. The temporary injunction against publication of the DNA results and the relevant images was continued until the results of Tyler Barker’s DNA tests became available and the matter returned to court. Thereafter the reporting restriction order was to continue in its existing form, subject to the stated amendment concerning identification as not related to Maisie.