Southend Borough Council v CO & Anor

Applications to restrain publication concerning children require an intense, fact-sensitive balancing of the competing rights under articles 8 and 10 of the ECHR. Neither right has automatic precedence. The child’s best interests are a primary consideration, but are not paramount in the balancing exercise. The court must assess the actual impact of publication by reference to clear and cogent evidence. Common-sense assumptions and pure speculation are insufficient. Proportionality requires consideration of the importance of the objective, rational connection, less intrusive measures and the fair balance struck. Parents involved in care proceedings retain an important right to express grievances and petition Parliament or Government. On the particular evidence, removing an online petition was disproportionate.

Following care and placement orders made in respect of four children, the parents published an online petition opposing the decisions and seeking public support. They removed the children’s photographs, names and ages from the petition pursuant to an earlier consent order, but the local authority sought an injunction requiring removal of the petition in its entirety. Some responses identified the children by their first names.

The local authority relied on the children’s article 8 rights and alleged risks of emotional harm, disruption to foster or adoptive placements and future embarrassment. The parents relied on their rights to freedom of expression and to petition Parliament and Government. The issue was whether the petition should be removed from the internet.

1. Application dismissed. The local authority failed to establish that removing the petition in its entirety was a proportionate interference with the parents’ article 10 rights.
2. The court applied the parallel analysis required when articles 8 and 10 rights conflict. Neither right takes precedence. The court must focus intensely on the particular rights asserted, examine the justification for interfering with each right and apply proportionality as the ultimate balancing test. The child’s best interests are a primary consideration, but may be outweighed by other considerations.
3. Under the proportionality analysis, the court considered whether the objective was sufficiently important, whether removal was rationally connected to it, whether a less intrusive measure was available and whether a fair balance had been struck. The actual impact on the children had to be established by the evidence. Although some speculation may be unavoidable, the evidence must be clear and cogent and cannot be merely pure speculation.
4. The parents’ article 10 rights were particularly important because they wished to criticise State intervention in their family, express grievances publicly and petition Parliament or Government for redress. The importance of those rights was not diminished by the possibility that their views were mistaken or misconceived.
5. The petition interfered with the children’s article 8 rights because it publicised information concerning the proceedings and permitted identification of the children as having been involved. However, the information was limited, the older children already knew their parents opposed the orders, and there was no specific evidence that the petition had caused emotional harm, disrupted placements or was likely to cause future embarrassment. The asserted risks were largely speculative.
6. The court therefore held that article 10 outweighed article 8 on the particular facts. The order made by agreement on 25 May 2017 continued in force.

Not an appeal. The judgment concerned a first-instance application for injunctive relief under the inherent jurisdiction of the High Court.