Varying the Order to identify C but preserving YY’s anonymity
At the main hearing in the judicial review proceedings, no application was made to vary the anonymity order since C’s case was that he wished to avoid the prospect of being identified as a transgender parent and, in that regard, it was, he argued, important that YY’s birth certificate should not present a potential trigger for any such identification. So far as C’s Article 8 rights were concerned, following the film and associated publicity it was a given that his status as a transgender male would be widely known to many of those who know him, either socially or professionally. It was justified to question what still fell to be protected by continuing to afford C anonymity as the Claimant.
The Court did not consider that the level of intrusion from negative comment and publicity that was likely to follow the court’s determination of the judicial review claim if C was identified as the Claimant was of the highest order. The fact that the circumstances had been generated entirely by C’s own actions and decisions was in contrast to most, if not all, of the relevant authorities.
When an ‘intense focus’ was applied to the Art 8 and Art 10 rights that were in play with respect to naming C as the Claimant, the Court did not regard that issue as being of a significantly different order to the information that C had already deliberately made freely and publicly available. Conversely, there was a genuine public interest to be served by publicity and debate about the issues raised in the case such as would normally justify naming the individual involved.
Children have independent privacy interests of their own and YY’s position required analysis that was independent of that relating to TT, and his best interests were a primary, but not determinative, consideration.
The reality was that the core information about YY’s parentage had already been made public, at least to the extent that it was likely to be known by all those who know C, and it was due to be given significantly wider publicity by the television broadcast of the documentary film. The prospect of YY growing up in circumstances where those who knew him did not know that the parent who gave birth to him was a transgender male was probably remote.
Key to determining where the balance lay with respect to YY was the question of the likely additional harm that he may suffer if he was identified as the child who was the subject of the judicial review, over and above any harm that he may experience from it being known that he was a child born to a transgender man. In this regard, YY’s age was relevant. He would not have any direct knowledge of any publicity, let alone its content, that was generated by the proceedings when judgment was handed down in the coming month or months. The potential for immediate and direct harm to YY from any publicity and comment arising from publishing material around the court proceedings was effectively zero.
The potential for direct harm to YY that it was possible to foresee would arise when he was older and of school age. The Court did not accept that the fact that he was the subject of a legal dispute as to the status of his parent significantly elevated the potential or level of harm above that which may follow the more general knowledge of the circumstances of his conception and birth.
The Court’s primary conclusion with respect to YY was that the publication of the additional information, namely the fact that YY’s father was the Claimant in these proceedings, was, of itself, sufficient to engage YY’s Art 8 rights.
If a balance fell to be struck between YY’s Art 8 rights and those of the media under Art 10, YY’s interests were a primary consideration but the intrusion into YY’s Art 8 rights that would follow from publication of the fact that his parent had applied to be registered as ‘father’ rather than ‘mother’, was both necessary and proportionate given the genuine public interest in the issue raised which otherwise justified naming C as a party, and indirectly YY to those who knew him, or would come to know him, as C’s child.