(Family Division; Eleanor King J; 18 May 2009)
The father of a 13-year-old boy contacted the media shortly after a 15-year-old girl gave birth, with the information that the 13-year-old boy was the baby's father. With the consent of the mother of the 15-year-old girl, the media took photographs of the three children together, and interviewed the 15 year old and 13 year old children. Within a matter of days there was press speculation that the 13-year-old boy was not the baby's father, and other children were identified by the press as potential fathers. The local authority was sufficiently concerned to obtain wardship orders in relation to the 15-year old girl, the 13-year-old boy and the baby, together with a reporting restriction order. The reporting restriction order prohibited publication in any medium of the names and addresses of the three children, of their parents or siblings, or of anyone educating, treating or caring for the children if, but only if, such publication was likely to lead to the identification of the child as related to the baby, or of the child as the subject of the court proceedings. The order contained the usual 'public domain exception' in respect of anything already made available to the public. The authority subsequently sought to delete the public domain exception in relation to photographs or images of the three children. Meanwhile DNA testing had established that the 13 year old was not the baby's father. A newspaper article announced this information, and published a picture of the 13 year old with the baby. The authority made an urgent without notice application, seeking a prohibition on publication of all pictures not in the public domain and of the results of the DNA tests. The judge granted the urgent application, and amended the reporting restriction order temporarily so that it read 'if but only if such publication was likely to lead to the identification of the child being related to (or, for the avoidance of doubt, not related to) the baby'. However, the judge was not prepared to remove the public domain exception. When the case returned to court a 14-year old boy, who had emerged as a candidate as father, was joined to the proceedings as an intervener.
This was an application in which the welfare of the children was to be balanced against the freedom of publication; welfare was not paramount because a question of upbringing was not being determined. The rights of all three children under European Convention on Human Rights, Art 8, were engaged. All information relating to paternity engaged the baby's Art 8 rights; as far as the 15-year-old girl was concerned the disclosure of the identity (or otherwise) of the father of the baby was linked inexorably to questions and comment as to her sexual activities and speculation as to the father of her baby, which could not be otherwise than part of both her family and private life. The court did not underestimate the magnitude of the interference with the children's Art 8 rights brought about by the press being granted access to the children, but preventing publication of the DNA results, or of pictures and images already in the public domain would represented a disproportionate interference in the Art 10 rights of the press, and in the rights of the 13-year-old boy to rectify erroneous information about him. Such an order would not only be disproportionate, it would also be futile. The availability of the material in dispute was so extensive and the material had been in the public domain for so long, that this had become the decisive factor. The court could not attempt to 'control' the release of such information, other than in respect of timing.