Alcott (No. 2)

In applications concerning publication of family proceedings, the court must balance the competing rights under Articles 8 and 10 of the European Convention on Human Rights. Neither right has automatic precedence. The court must focus intensely on the specific rights engaged, assess the justification for restricting each right, and apply proportionality. A child’s welfare is a primary consideration, although it is not paramount and may be outweighed. Reporting of highly private evidence may be prohibited where the public interest is minimal and publication would significantly interfere with private and family life. Publication of the judgment and identification of adult parties may nevertheless be permitted where the facts justify it, subject to protection of the child’s identity.

The father applied for the summary return of the parties’ young child to Australia under the Hague Convention 1980. In a separate judgment the court determined that application. This judgment concerned applications by newspapers to report evidence heard in private and to publish the judgment naming the parents. The father opposed reporting of the evidence. The mother opposed reporting the evidence but did not seek a reporting restriction order preventing identification of the adults. The child’s interests were separately represented. The central issue was whether the competing privacy and freedom of expression rights justified reporting the evidence and identifying the parties.

1. Reporting the evidence. The court refused the application to lift the restriction under Administration of Justice Act 1960, section 12, so as to permit reporting of the parties’ evidence. The evidence contained highly private details concerning the parents’ personal lives, including allegations of infidelity. There was no legitimate public interest sufficient to justify the substantial interference with Articles 8 rights or the risk of harm to the child’s welfare.
2. Balancing exercise. The court applied the four propositions identified by Lord Steyn in Re S [2004] UKHL 47: neither Article 8 nor Article 10 has automatic precedence; the specific rights require intense comparative examination; the justification for restricting each right must be considered; and proportionality must be applied to each. The child’s best interests were a primary, but not paramount, consideration.
3. Publication and identification. On the unusual and specific facts, the court permitted publication of the judgment naming the parents. The possibility that the child might later suffer harm from identification was relevant but did not determine the outcome. The risk was assessed as relatively low because the judgment avoided sensational detail and the child’s identity was already discoverable from existing reports.
4. The court ordered under Children and Young Persons Act 1933, section 39, that the child’s name must not be published during his minority.

First-instance decision in the High Court (Family Division). The judgment records that the father’s Hague Convention application was determined in a separate judgment, but gives no citation for that decision.