Full case report

Re X & Y

Reference [2004] EWHC 762 (Fam); [2004] EMLR 607
Court Family Division

Judge Munby J

Date of Judgment 6 Apr 2004


Summary

Privacy – Injunctions – Reporting restrictions – Children


Facts

The Claimant (F) and his identical twin brother, U, lived in the same town. F was the father of twin 8 year old daughters, X and Y, who were both disabled. The Claimant and his brother were both convicted paedophiles. F’s 1996 trial and U’s 1997 trial (in which he was acquitted) were extensively reported in the local press. Following X and Y’s placement in care on the death of their mother, his own rehabilitation and risk assessment, F resumed sole care of X and Y. U was arrested in 2003 for raping and indecently assaulting minors. Both the charges and bail were reported locally and U’s property was vandalised. In advance of the trial F applied for an injunction against a local newspaper (as well as contra mundum) restraining the publication of information relating to X, Y and himself. A temporary order was granted. The renewed application was opposed by the Defendant and an intervener who argued that any injunction should contain an open court reporting proviso.


Issue

Whether a temporary order restraining publication of information relating to F, X or Y should be continued with the addition of a prohibition on the publication of photographs of U.


Held

Continuing the injunction in modified form,
(1) The Court was concerned with its protective rather than custodial jurisdiction—the interests of X and Y, whilst not paramount, have to be taken into account. Following <A
href=”http://www.5rb.com/casereports/detail.asp?case=221″ target=_parent>Re S, the court first has to decide whether the childrens’ Article 8 rights are engaged and, if so, conduct a balacing exercise of the competing rights considering the proportionality of the potential interference with each right.
(2) Public domain qualifications will not be appropriate in all circumstances—republication may be damaging to the child.
(3) Enhanced weight may properly be attached to the rights of the disabled to respect for private and family life.
(4) No public domain proviso was permitted, allowing the media to link previously published stories.
(5) Open court reporting would be qualified to prevent publication of references to X and Y.


Comment

Following <A
href=”http://www.5rb.com/casereports/detail_redirect.asp?case=221″ target=_parent>Re S, an overall balance was struck in this case between the Article 8 rights of two disabled twins and the freedom of the press to report criminal proceedings involving their uncle, their father’s identical twin, who was, understandably, frequently confused for their father.


Download this Judgment


Instructing Solicitors

Farrer and Co for the Defendant and Intervener, Cafcass for X and Y