Freedom of expression: are children’s interests ‘paramount’?

In her update on transparency on the Transparency Project blog ‘Lucy R’  raised what has been said by Sir James Munby P: that ‘the interests of the child are NOT paramount on questions of publication’. This she said ‘does indeed represent the established view, but is a point which is not entirely uncontroversial’; by which she meant this view of Sir James was not universally agreed.

She went on to point out that in Re W (Children) [2016] EWCA Civ 113 (pas 41-43) – which concerned the extent of publicity which there for Poppi Worthington – McFarlane LJ in the Court of Appeal ‘queried (obiter) whether this [view of paramount interests of children] was in fact correct’. That is, he mentioned in passing in his judgment, that he did not necessarily agree with Sir James on this question.

This note looks at ‘paramount’, ‘primacy’ and other terms used; and briefly examines how lawyers can argue the dance of angels on the point of a needle in discussing their meaning. McFarlane LJ’s comments in Re W (Children) [2016] EWCA Civ 113 included the following:

[41] … In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand….

[42] The key authorities to which I am referring are a criminal case in the House of Lords, Re S (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, a private law family case in the Court of Appeal, Clayton v Clayton [2006] EWCA Civ 878; [2007] 1 FLR 11 and a public law child case in the High Court, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam); [2007] 1 FLR 1146.

In the last case cited (Re Webster) Munby J said only (before moving on):

[56] It is clear from Re S (Identification: Restrictions on Publication) and A Local Authority v W that in this context at least the interests of the child are not paramount. Nor is there anything novel in this. As I said in Re X (Disclosure of Information)  [2001] 2 FLR 440, at para [23], summarising the relevant pre-Convention case-law: ‘The interests of the child (which … typically point against disclosure) are a “major factor” and “very important” … But … it is clear that the child’s interests are not paramount.’

In children law ‘paramount’ is a totemic term, now preserved in Children Act 1989 s 1(1). Judges use it, but rarely say what they mean by it. The Shorter Oxford dictionary speaks of ‘paramount’ as meaning being ‘above in rank or scale’, or above all in ‘order or jurisdiction’. (On this basis I wonder how Munby J distinguished ‘paramount’ from a ‘major factor’ in the Webster case?) As defined by the Shorter OxfordLord Kerr’s ‘no factor given greater weight’ (discussed in H(H) (below)) may come to the same thing as paramount. (Lord Kerr, incidentally, describes the definition debate as a ‘fairly arid one’ ([143]).)

If the issue is between the freedom of expression of the media (European Convention 1950 Art 10; Human Rights Act 1998 s 12(4)) and a child’s right to respect for family life (Art 8) that child is entitled to ask whether Munby J’s view in Re Webster would find favour with the Supreme Court today.

‘No factor greater weight’

Two further Supreme Court cases case be thrown into the mix of cases mentioned by McFarlane LJ in ‘Poppi’s’ case. In PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251, [2016] 2 WLR 1253 (the ‘three-way sex’ reporting restrictions order injunction case) Lady Hale said:

[72]   I agree that this appeal should be allowed and the interim injunction restored for the reasons given by Lord Mance. I wish only to add a few words about the interests of the two children whom PJS has with YMA. It is simply not good enough to dismiss the interests of any children who are likely to be affected by the publication of private information about their parents with the bland statement that ‘these cannot be a trump card’. Of course they cannot always rule the day. But they deserve closer attention than they have so far received in this case, for two main reasons. First, not only are the children’s interests likely to be affected by a breach of the privacy interests of their parents, but the children have independent privacy interests of their own. They also have a right to respect for their family life with their parents. Secondly, by s 12(4)(b) of the HRA 1998, any court considering whether to grant either an interim or a permanent injunction has to have ‘particular regard’ to ‘any relevant privacy code’. It is not disputed that the IPSO [media editors’] Code, which came into force in January, is a relevant Code for this purpose. This, as Lord Mance has explained, provides that ‘editors must demonstrate an exceptional public interest to override the normally paramount interests of [children under 16]’.

A helpful formulation of the importance of children’s interests comes from Lord Kerr (who also agreed with Lady Hale’s judgment in PJS (above)) in H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338 (a deportation case, which concerned also the welfare of the deportees children). He was discussing his and Lady Hale’s views in the earlier ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, [2011] 1 FLR 2170 on children’s interests in the Convention Art 8/Art 10 balance:

[145] Baroness Hale JSC (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department  [(above)] as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between “a factor of primary importance” and “the factor of primary importance”. What I was seeking to say was that… no factor must be given greater weight than the interests of the child….

At [144] Lord Kerr sets out his proposed ‘sequencing of interests’ to define where a child’s interests, in human rights terms, lies; and the proportionality of interference with them:

[144] … This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests.

Does Lord Kerr’s suggestion that ‘no factor [should] be given greater weight’ than children provide a definition of ‘paramount’ which works for Children Act 1989 s 1 and for European Convention 1950 human rights questions? Lady Hale’s comments in PJS suggest that she might agree with Lord Kerr on this. It puts children’s interests top of any list. If Re S (Identification: Restrictions on Publication) (referred to by McFarlane LJ: press Art 10 interests held to come before Art 8 interests of children who might be affected by publicity) had been decided by Lady Hale and Lord Kerr today, I wonder which way it would have gone?