OPO v MLA & Anor

A child cannot obtain an injunction merely because publication of a parent’s life story may cause the child emotional or psychiatric harm. The Human Rights Act 1998 does not create a new private cause of action between individuals, and Article 8 rights must operate through an existing cause of action. A child’s best interests may reinforce an existing privacy claim but cannot create one. There is no general parental duty in negligence to protect children from psychological injury. The tort in Wilkinson v Downton is not a general tort covering deliberate acts likely to cause psychiatric harm. Where no arguable cause of action exists, an injunction restraining publication cannot satisfy the statutory threshold and will not be just and convenient.

The claimant, an 11-year-old boy living in the United States, sought an injunction restraining his father and the proposed publisher from publishing the father’s autobiography. The book contained graphic accounts of the father’s childhood sexual abuse, mental illness, suicidal thoughts, suicide attempts and self-harm. The claimant argued that publication might cause him serious psychological harm.

The claim was advanced under Article 8 of the ECHR, negligence and the tort in Wilkinson v Downton. The court also considered the relevance of a prior family order, the statutory threshold for publication injunctions and whether the dispute should properly be addressed through the Family Court.

1. Claim dismissed. The claimant had no arguable cause of action under Article 8. Article 8 rights do not themselves create a private law claim between individuals. The domestic law of privacy proceeds through existing causes of action, principally misuse of private information or breach of confidence. The information concerned the father’s life, not the claimant’s private information. Even if Article 8 were engaged, the balance would strongly favour the father’s Article 10 right to tell his own life story.
2. The claimant’s reliance on the best interests of children was insufficient. Authorities concerning publication of children’s photographs or publicity about a parent’s private life involved an existing cause of action belonging to the claimant. The interests of children could reinforce that claim but could not create a claim where none otherwise existed.
3. There was no general common law duty on parents to protect their children from emotional or psychological injury. The policy reasoning in Barrett v Enfield LBC applied. The prior family order did not establish a tortious duty, and the proposed publication was not a step taken by a parent in meeting parental responsibility for the purposes of a prohibited steps order under section 8 of the Children Act 1989.
4. The court declined to extend Wilkinson v Downton into a tort covering every deliberate act likely to cause recognisable psychiatric injury. That tort was not dependent on parenthood or a pre-existing duty of care. Extending it as proposed would create very wide liability.
5. Under sections 12(3) and 12(4) of the Human Rights Act 1998, the claimant could not obtain an interlocutory publication injunction. He was nowhere near establishing that publication should not be allowed, and the court had to give particular weight to freedom of expression. Even assuming an arguable claim, an injunction would not have been just and convenient. The claim was therefore dismissed in its entirety.