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This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWHC 1949 (Fam)
||Case No: FD7P00295
IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE MACDONALD
|| Southend Borough Council
- and -
Ms Sarah Duxbury (instructed by the Local Authority Solicitor) for the Applicant
The First and Second Respondents appeared in person
Hearing date: 6 July 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Mr Justice MacDonald:
- On 27 September 2016, District Judge Molineaux granted care orders in respect of W, aged 15, C, aged 14, N, aged 9 and T, aged 3. T has a disability. The District Judge also granted placement orders in respect of N and T. The mother and the father of the children do not accept the validity of the District Judge's decision.
- Whilst there is no indication in the papers before me that the decision of the District Judge has been the subject of an appeal (although a subsequent email received by the court from the mother suggests she has, or intends to complete a Notice of Appeal with respect to the order of the District Judge), the parents, and in particular the mother, have sought to publicise their opposition to the decision of the District Judge by way of an online campaign. That online campaign has taken the form of a petition addressed to the United Kingdom Parliament and the Prime Minister on the Change.org website. The mother has also published some information on her Facebook page concerning the proceedings in respect of the children. The material on the Change.org website was brought to the attention of the local authority by the foster carers for N and T on 23 May 2017.
- Within this context, on 23 May 2017, Southend Borough Council issued proceedings seeking injunctive relief under the inherent jurisdiction of the High Court prohibiting the parents from publishing information about the proceedings and compelling them to remove such material as had already been published. The local authority is represented by Ms Sarah Duxbury of counsel. The parents represent themselves before the court.
- On 23 May 2017, this matter came before the court with the parents having been given short, informal notice of the application. I declined to deal with the matter without proper notice to the parents. In the circumstances, I abridged time for service and listed the matter for a hearing on notice. At a hearing on the 25 May 2017 the parents appeared in person and had constructive discussions with Ms Duxbury prior to the matter coming before me. As a result of those discussions, the parents agreed to submit to an order prohibiting them from publishing information about the care proceedings and the placement proceedings on any social media sites, including Facebook. The parents further agreed to remove the material that had been published on Facebook and to remove the pictures, names and ages of the children that had been published on the main page of the petition on the Change.org website.
- The parents were not, however, prepared to remove the petition on Change.org in its entirety as they submitted they had a right to protest about decision of the court and to petition Parliament and the Prime Minister in respect of their grievances. That remains their position today. For its part, the local authority declined to discontinue its application for injunctive relief compelling the parents to take down the petition in its entirety in circumstances where, whilst the parents had agreed to remove the pictures, names and ages of the children from the petition, the local authority contended that friends and acquaintances of the parents had identified, and may yet identify the children when responding to that petition. The local authority contended that this constituted a disproportionate interference with the Art 8 right to respect for private life of the children. That remains its position today. In the circumstances, I adjourned the matter for final hearing on the question of whether the parents should be compelled to remove their petition from the Internet in its entirety and have heard submissions on that question at this hearing.
- It will be apparent that the local authority seeks injunctive relief only against the parents in this matter. There has been no suggestion that injunctive relief is sought against Change.org (and accordingly no notice of these proceedings has been given to that company) nor has there has a wider application for a contra mundum injunction. Within this context, and before turning to the substantive issue, I must make some observations about an unfortunate course of conduct by the local authority following the granting of the order by consent on 25 May 2017.
- Following the hearing on 25 May 2017, the mother contacted the court to alert it to the fact that the local authority was writing to members of her family in a manner that suggested that those family members were bound by the order of 25 May 2017 and prohibited from adding their names and comments to the Change.org petition. Having seen a copy of the letter being circulated by the local authority, I was satisfied that it does indeed read in that way and I notified the local authority through my Clerk that I would require an explanation.
- The local authority now accepts that the letter it sent to family members does, wrongly, intimate that the order of 25 May 2017 prohibited family members from responding to the petition. Whilst the letter in question was written and sent by the allocated social worker, it would be wrong to criticise her. The social worker, as one would expect, sent the letter to the legal department of the local authority for checking before sending it out and the legal department returned the letter to the social worker un-amended for dissemination. The actions of this local authority legal department in permitting a letter in the terms drafted by the social worker to be sent are strongly to be deprecated. It is a matter of very grave concern that a local authority would seek to pass off an order of this court as something that it is not. There must be no repeat of this.
THE INFORMATION IN ISSUE
- Change.org is a website that allows people or organisations to start a petition. Once a petition is started, members of the public can sign the petition electronically subject to providing their first and last name, their email address and their postcode. There is the option for a person signing the petition to explain why they are signing it. The petition can be directed to a "Decision maker" such as the United Kingdom Parliament. The site seeks to operate in accordance with so called 'Community Guidelines', which guidelines include the following with respect to safeguarding children:
"Don't cause harm to children - Only parents and legal guardians have the right to post content about their children online, including images. Don't use Change.org to post content that violates laws on child protection, child pornography, or sexual exploitation. We want to protect children, which is one of the reasons why you have to be 13 years or older to use Change.org."
- The mother's petition on the Change.org website is entitled "Please help stop the adoption of my 2 beautiful children". It is directed to the United Kingdom Parliament and to the Prime Minister. In its original form, the explanatory narrative for the petition set out details of the final hearing before the District Judge, details of the orders granted by the court, the names, ages and disabilities of the children. The explanatory narrative also alleged that the social worker "lied under oath" and that the case was heard "without evidence" of emotional harm or neglect. Whilst, as I have already noted, there is no indication in the papers before me that the decision of the District Judge has been the subject of an appeal, but that certain information provided by the mother since the hearing suggests an appeal is at least contemplated, the explanatory narrative on the petition states that the mother is "applying to appeal to a higher court" to "put evidence before a judge to prove the social worker has lied under oath". In its original form, the petition also exhibited a photograph of N and T, T being dressed in her school uniform.
- Following the consent order of 25 May 2017, it took a little time for the parents to comply fully with the terms of that order. On 30 May 2017, the children's names had been removed from the main page of the petition but the photographs of N and T remained visible and the other details were unaltered. On 8 June 2017, the photographs of N and T had been replaced with a photograph of all four children with their faces partially obscured. Ms Duxbury has confirmed that the parents have now complied fully with the consent order of 25 May 2017 with respect to the pictures, names and ages of the children that had been published on the main page of the petition on the Change.org website. As I have noted, friends and acquaintances of the parents have, on a limited number of occasions, identified the children by their forenames when responding to the petition and those posts remain. The current front page of the Change.org petition, which names the mother, reads as follows:
"In May 2017 family court granted, a full care order and placement order on all 4 of my beautiful children, despite me having solid evidence and this case was heard without evidence of emotional harm, neglect so I am applying to appeal to higher court so I can put evidence before a judge to prove to them i have never neglected my children , nor would i ever put them at risk of any sort of harm (i love my children with all my heart <3 my focus on life is them) Having my children is my greatest achievement, they are my saviour they switched my focus from the outside to the inside. My children are gifts, they remind me of what's important. please help by signing this petition to reunite my family.<3"
- Ms Duxbury has confirmed that the parents have also removed the material relating to the proceedings from the mother's Facebook page. The local authority is however, concerned that the mother maintains a hyperlink on her Facebook page to her petition on the Change.org website and that the mother's Facebook page has on it photographs of the children. The local authority assert that the privacy settings on the mother's Facebook page are not activated.
- On behalf of the local authority, Ms Sarah Duxbury, for whose comprehensive skeleton argument and addendum the court is grateful, submits that in determining the application before it, the court must balance the Art 10 right to freedom of expression and the Art 11 right to freedom of peaceful assembly and association of the parents against the Art 8 right to respect for private life of the children.
- Ms Duxbury emphasises that the local authority recognises the importance of the Art 10 and Art 11 rights of the parents. However, she submits that in this case the balance comes down in favour of the children's right to respect for private life for the following reasons:
i) The risk that the presence of the petition, and its contents will cause emotional harm to C and W by causing them upset and potentially de-stabilising their respective foster placements. C and W each have their own Facebook accounts and Ms Duxbury submits that they are aware of some of the material online.
ii) The risk that the presence of the petition will disrupt efforts to find adoptive placements for T and N, or make an already challenging home-finding task (given T's disability and N's age) more difficult, by discouraging prospective adopters from putting themselves forward.
iii) The risk that material will cause ongoing embarrassment to the children as they get older in circumstances where it will remain on the Internet indefinitely in an easily accessible form.
- Ms Duxbury was candid with the court that she is not able to point to any specific evidence of emotional harm or upset caused to the children by the presence of the Change.org petition online or the fact that, on a limited number of responses to that petition, the children's first names are used in the narrative sections of those responses, in the context of the contributor expressing support for the parents' cause. Likewise, Ms Duxbury accepts that she has no direct evidence that the presence of the Change.org petition has disrupted, or is disrupting the home finding process although she relies on "the general view of the professionals that it could cause prospective adopters anxiety", with this being said to be the social worker's experience. Finally, Ms Duxbury accepts that, in relation to the assertion that the material will cause ongoing embarrassment to the children as they get older, this necessarily involves a degree of speculation but is, submits Ms Duxbury, based in common sense.
- The mother, CO, was clearly somewhat overawed by courtroom setting and upset at having to listen to the outcome of the care and placement proceedings being revisited. The mother did however feel able to tell me that she felt that the Change.org petition should remain up so that she could have her say with respect to a decision that she does not agree with. As to the balance to be struck between her right to say what she wanted to say and her children's right to privacy she said she was "not sure" where the balance lay. Whilst I made clear to the mother that if she wanted to make any further representations to the court she could, this was the limit of her submissions.
- The father, DW, was much more combative than the mother and began his submissions with an attempt to engage the allocated social worker in debate rather than the court. Once the father's energies had been appropriately re-directed by the court he told me he wanted the petition to remain up even if the local authority do not like it. He said that he is not a man who often stands up for himself (an assertion that I must confess I find hard to believe) but on this issue, he felt he had to. The tenor of his submissions was that the children should not have been removed from their mother's care and that it is "my right, my freedom to say so". The father submitted that just because the local authority does not like what he is saying that is no reason to prevent it being said. He concluded by stating that an order for the petition to be taken down would also infringe "the civil rights" of all those who had signed the petition.
- The restrictions on the publication of information relating to proceedings with respect to children are contained in the Children Act 1989 s 97 and the Administration of Justice Act 1960 s 12. The Children Act 1989 s 97 prohibits the publication of "material which is intended, or likely, to identify" the child. This prohibition comes to an end once the proceedings have been concluded, as they have been in this case (see Clayton v Clayton  Fam 83). The Administration of Justice Act 1960 s 12 continues to have effect after the proceedings have concluded but does not protect the identity of anyone involved in the proceedings, not even the child (see Re B (A Child) (Disclosure)  2 FLR 142 at , A v Ward  1 FLR 1497 at  and In re X and others (Children) (Morgan and others intervening)  1 WLR 182, sub nom Re X, V and Z (Expert Witness)  2 FLR 1437 at ). The court has power both to relax and to supplement these statutory restrictions.
- The foundation of the Court's jurisdiction to relax or supplement the statutory restrictions is derived from rights under the European Convention on Human Rights and Fundamental Freedoms 1950 (the ECHR) and, accordingly, applications for orders restraining or permitting publication are determined by balancing the competing human rights engaged (Re S (Identification: Restrictions on Publication)  1 AC 593 at ).
- The nature and ambit of the balancing exercise is well established. In considering whether to grant an order with respect to the publication of information the judge must balance the competing rights engaged. In many cases these will be the rights under Art 8 (respect for private and family life) and Art 10 (freedom of expression), although other rights may also have to be placed in the balance when reaching a decision regarding the publication of information. When conducting a balancing exercise between Art 8 and Art 10 (and any other rights engaged), the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) at , namely:
i) First, no article has, as such, precedence over the other;
ii) Secondly, where the values under the articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary;
iii) Thirdly, the justifications for interfering with or restricting each right must be taken into account;
iv) Finally, the proportionality test must be applied to each, referred to by Lord Steyn as "the ultimate balancing test".
- In applying what Lord Steyn described as the "ultimate balancing test" of proportionality the court must consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve (JXMX v Dartford and Gravesham NHS Trust  EWCA Civ 96). This will involve an exacting analysis of the factual case advanced in defence of the measure in question (in this case the removal of the petition) to determine (a) whether the objective of the measure is sufficiently important to justify the limitation of a fundamental right, (b) whether the measure is rationally connected to the objective, (c) whether a less intrusive measure could be used and (d) whether having regard to these matters and to the severity of the consequences a fair balance has been struck between the rights of the individual and the needs of the community (Bank Mellat v HM Treasury (No 2)  2 AC 700 at ).
- In A Local Authority v W, L, W, T and R (by the Children's Guardian)  1 FLR 1 at , Sir Mark Potter P summarised the approach to the requisite balancing exercise as follows:
"The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity in that neither article has precedence over or 'trumps' the other. The exercise of parallel analysis requires the courts to examine the justification of interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test …"
- Within the balancing exercise, the child's best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations (Re J (Reporting Restriction)  1 FLR 531 at ).
- In undertaking the requisite balancing exercises, the impact of publication on the child must be weighed by the court (Re S (A Child) (Identification: Restrictions on Publication) at ). Whilst in many cases it will be demonstrated that publication will have an adverse impact on the child, this will not be the position inevitably. In Clayton v Clayton at  Sir Mark Potter P said:
"…given the existence of section 12 of the Administration of Justice Act 1960 which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save in so far as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life."
- In the circumstances, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publication will be inevitably harmful to the child (see also R v Robert Jolleys, Ex Parte Press Association  EWCA Crim 1135 at  and PGS (Appellant) v News Group Newspapers Ltd (Respondent)  UKSC 26 at ).
- Within this context, the court will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation (Re W (Children)(Identification: Restrictions on Publication)  1 FLR 1) although there comes a point where evidence is not merely speculative but pure speculation (Birmingham City Council v Riaz and others  EWHC 4247 (Fam)).
- In addition to the parents right to freedom of expression under Art 10, Ms Duxbury's skeleton argument addresses at some length the question of whether the parents' right under Art 11 to freedom of peaceful assembly and to freedom of association is also engaged in this case in circumstances where, submits Ms Duxbury, the parents' online petition constitutes a form of protest, albeit one that does not involve a physical assembly or association of people.
- The right to express views publicly about which a person feels strongly is protected by Art 10. The right of that person to assemble with others for the purposes of publicly expressing those views and discuss them is protected by Art 11, the latter protecting the freedom to meet and band together with others in order to share information and ideas and give voice to them collectively. It is the right to assemble and to associate to attain various ends (see Anderson v United Kingdom (1998) 25 EHRR CD 172).
- There is plainly some overlap between Arts 10 and 11. There will be cases where, notwithstanding its autonomous role and particular sphere of application, Art 10 must be considered in light of Art 11 (see Palomo Sanchez and Others v Spain Appl No. 28955/06, 28957/06, 28959/06 and 28964/06 21 September 2011 at ). Likewise, notwithstanding its autonomous role and particular sphere of application, Art 11 must be considered in light of Art 10 where the aim of the exercise of freedom of assembly is the expression of personal opinions (see Kudrevicius and Others v Lithuania Appl. No. 37553/05 15 October 2015). In cases where rights under both Art 10 and Art 11 may be engaged, the ECtHR has, in a number of cases, considered the substantive issue under the right deemed most relevant to the facts (the lex specialis) drawing on the jurisprudence relating to the other right (the lex generalis) where this is helpful (see for example Schwabe and MG v Germany Appl No. 8080/08 and 8577/08 1 December 2011 at - and Galstyan v Armenia (2007) 50 EHRR 618 at -). Within this context, forms of protest in which the 'assembly' element may be insignificant have been considered only under Art 10, including cases where the form of protest comprised gathering signatures for a petition and displaying posters (see Kandzhov v Bulgaria Appl No. 68294/01 6 November 2008).
- Within this context, I am satisfied that it is not necessary for me to decide the question of whether the Art 11 right to freedom of peaceful assembly and to freedom of association is engaged in the context of an online petition for the purposes of determining this application. In this case, the online petition constitutes the parents expressing their personal views publicly and seeking support for those personal views by gathering electronic signatures with the aim of securing redress for their personal grievance. Whilst the activity in question may be argued to comprise an element of assembling with others online to discuss and promote ideas collectively, the primary aim of the activity remains protest by way of the expression of personal opinions to secure redress. Within this context, and having regard to their respective nature and scope, I am satisfied that the right most relevant to the facts is the Art 10 right to freedom of expression rather than the Art 11 right to freedom of peaceful assembly and freedom of association. Accordingly, I am satisfied that it is appropriate to proceed to determine this case by balancing the Art 8 and Art 10 rights engaged without the need to consider Art 11.
- Finally, in respect of the law, it is also important to note that what the parents seek to do in compiling their online petition is to obtain redress from Parliament or the Government or both regarding a personal grievance by way of petition.
- The right of the subject to petition the Crown for redress for personal grievances was recognised in Magna Carta (although it probably dates to the Anglo-Saxon monarchs of England) and, more explicitly, in an Act of 1406 (Rotuli Paliamentorium 7 & 8 Hen. IV, No 63). The Bill of Rights of 1689 (1 William & Mary, session 2, cap 2) restated the right to petition the Crown, and the protection afforded to that right, in clear and unambiguous terms, stipulating that "…it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal." The Bill of Rights continues to apply in England and Wales. The right of the citizen to petition Parliament or the Government in respect of a personal grievance has thus been, and remains a fundamental constitutional principle (within the context of the right to Petition the European Parliament under Art 44 of the European Charter of Fundamental rights, the right to petition has been described as a fundamental right (see C-261/13 P Schönberger v Parliament)). Within this context, the House of Commons has a comprehensive body of rules that make provision for the submission of public petitions (see HC Standing Orders (Public Business) (2009)).
- I did not hear detailed submissions on the operation of the Bill of Rights in this case and, specifically, on the effect (if any) of the prohibition it contains on "commitments and prosecutions" with respect to petitions seeking redress. Given the answer produced by the balancing exercise in respect of the ECHR rights engaged in this case, it has not been necessary to consider the point further. However, in a case where the balancing exercise were to come down in favour of injuncting a parent from circulating online a petition aimed at seeking redress from Parliament, it may well be necessary to go on to consider whether the fact that "all commitments and prosecutions for such petitioning are illegal" under the Bill of Rights of 1689 renders such a course unlawful.
- Having considered carefully the local authority's application for injunctive relief, and as I have already intimated, I am not satisfied that the local authority has made out a case for an order compelling the parents to remove the petition from the Change.org website in its entirety and, accordingly, I must dismiss that aspect of its application. My reasons for so deciding are as follows.
- I begin by examining the importance of, and the justifications for interfering with the parents' Art 10 right to freedom of expression, which right is clearly engaged in this case. Art 10 of the ECHR provides as follows with respect of the right to freedom of expression:
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
- The provisions of Art 10 of the ECHR must read in the context of s 12(4) of the Human Rights Act 1998 which provides as follows in relation to the importance of the right to freedom of expression:
"(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the public interest for the material to be published, [and] (b) any relevant privacy code."
- The right to freedom of expression has been described as the "touchstone of all human rights" (UN General Assembly Resolution 59(1) of 14 December 1946). It is the freedom to outwardly manifest an opinion. Within this context, an intense focus on the comparative importance of the specific rights being claimed in this case demonstrates that the Art 10 right to freedom of expression is important to the parents for the following reasons.
- The courts have recognised clearly the importance of ensuring that parents who are, or have been involved in care proceedings can voice their grievances publicly where they have them. In Re J (Reporting Restriction) the President reiterated:
"The workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it, are, as Balcombe LJ put it in Re W (Wardship. Discharge. Publicity)  2 FLR 466, 474, "matters of public interest which can and should be discussed publicly". Many of the issues litigated in the family justice system require open and public debate in the media. I repeat what I said in Harris v Harris, Attorney–General v Harris  2 FLR 895, paras -, about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system. And the same goes, of course, for criticism of local authorities and others."
- Within this context, in addition to the importance of Art 10 in its own right, the Art 10 right to freedom of expression is important to the parents in this case in circumstances where they seek to speak out against intervention in their family by the State in circumstances where they consider that intervention to have worked and injustice. The importance of the Art 10 right to freedom of expression in this context remains irrespective of the merits of the views expressed by the parent, even if their expressed views and opinions may be misconceived, ill-thought out or misguided, even if the criticisms they level constitute a misunderstanding or misrepresentation of the facts and even if, as a matter of objective fact, there was no error or miscarriage of justice (see Re J (Reporting Restriction) and Norfolk County Council v Webster  1 FLR 1146). In Redmond-Bate v DPP (1999) 163 JP 789 Sedley J (as he then was) observed that:
"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided that it does not tend to provoke violence. Freedom to speak only inoffensively is not worth having."
- The right to freedom of expression is also important to the parents in this case because protects the ability to make clear who is speaking out or seeking to petition for redress, it being self-evidently very difficult to effectively protest a contended for injustice or petition for redress of a personal grievance if the protester or the petitioner must remain anonymous (Norfolk County Council v Webster at ). In JXMX v Dartford and Gravesham NHS Trust at  Moore-Bick LJ said, in the context of identifying parties to civil proceedings:
"The identities of the parties are an integral part of civil proceedings and the principle of open justice requires that they are available to anyone who may wish to attend the proceedings or who wishes to provide or receive a report of them. Inevitably, therefore, any order which prevents or restricts publication of a party's name or other information which may enable him to be identified involves a derogation from the principle of open justice and the right to freedom of expression. Whenever the court is asked to make an order of that kind, therefore, it is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required for that purpose. The approach is the same whether viewed through the lens of the common law or that of the European Convention on Human Rights, in particular articles 6, 8 and 10"
- Finally, it is again important to recall that what the parents seek to do in compiling their online petition is to obtain redress from Parliament or the Government or both regarding a personal grievance by way of petition. Within this context (and independent of the question of the significance of the prohibition in the Bill of Rights on "commitments and prosecutions" with respect to petitions seeking redress) the fact that the right of the citizen to petition Parliament or the Government in respect of a personal grievance has been, and remains a fundamental constitutional principle further illuminates the importance for the parents of the Art 10 right to freedom of expression in this case. In Scott v Scott  AC 417, Lord Shaw of Dunfermline, in observations which deal with both the importance of open justice and, by reference to Hallam, the constitutional right of the citizen to petition Parliament or the Government with respect to a personal grievance, stated as follows:
"It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice". "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial". "The security of securities is publicity". But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise." I myself should be very slow indeed (I shall speak of the exceptions hereafter) to throw any doubt upon this topic. The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary – and they appear to me still to demand of it – a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves. I must say frankly that I think these encroachments have taken place by way of judicial procedure in such a way as, insensibly at first, but now culminating in this decision most sensibly, to impair the rights, safety, and freedom of the citizen and the open administration of the law."
- A decision to order the parents to take down the petition on the Change.org website would, self-evidently, constitute an interference with their Art 10 right to freedom of expression (as well as an interference in the Art 10 rights of those who have signed and commented upon it), which interference would have to be justified by reference to the terms of Art 10(2). Within that context, I turn to deal with the contended for justifications for interfering with the parents' Art 10 rights.
- Before considering in detail the three points of justification for interfering with the parents' Art 10 rights advanced by the local authority, it is important to be clear what the information the parents seek to publicise in this case now comprises of. The information comprising the petition consists, essentially, of (a) a statement that the children were the subject of care and placement proceedings, (b) a statement that the parents do not agree with the decision of the court, (c) a statement that they do not think the proceedings were fair, nor the decision evidence based, (d) a statement that they are seeking to try and overturn the decision and (e) statements by a number of people expressing agreement with them, a small number of which statements refer to the children by their forenames notwithstanding the parents agreement to remove the children's names from the front page of the petition. The information in the petition contains no details of the evidence and submissions the court heard during proceedings, no details of the significant harm the court found the children to have suffered and no details of the children's current circumstances, save that two of the children are the subject of a plan for adoption. The mother is referred to by both her forename and surname as the instigator of the petition and, thus, in circumstances where a limited number of responses to the petition mention the children using their forenames, the children are, in places, identifiable as having been the subject of proceedings (a situation that is not prohibited by the terms of the Administration of Justice Act 1960 s 12 (A v Ward  1 FLR 1497)). Finally, the petition has been in the public domain since May 2017. It has been signed by 160 people. There have been no new signatures since 30 May 2017.
- Turning in detail to the contended for justifications for interfering with the Art 10 rights of the parents relied on by the local authority, Ms Duxbury essentially submits that it is a matter of common sense that if C and W see online that their mother does not accept the outcome of the proceedings nor the validity of the care orders, this will act to upset the two children and undermine the stability and security of their respective foster placements. However, aside from this assumption, the local authority provides no specific evidence to support its contention that the presence of the petition, and its contents will cause emotional harm to C and W by means of causing them upset and potentially de-stabilising their respective foster placements.
- Whilst it is the case that W's foster placement has recently broken down, and Ms Duxbury informs the court that the foster carers feel that the precipitating issue was a level of anger and frustration being generated in W resulting from conflicting information being received from his birth family, there is no evidence before the court demonstrating that the breakdown resulted from the petition on the Change.org website (as opposed to, for example, exchanges during contact). Further, the assumption inherent in Ms Duxbury's submission itself must be interrogated by reference to the nature of the information contained in the petition. W is 15 years old and C is 14 years old. Both children are fully aware that they were the subject of care and placement proceedings, that their parents do not agree with the decision of the court and that the parents wish the boys to be returned to their care. Within this context, the information set out in the petition will not result in the children becoming aware of views held by their parents' regarding their placements of which they were previously oblivious. Whilst it may be said that, if it is permitted to remain online, the fact of, and the information contained in the petition acts to reinforce in the children's minds their parents lack of acceptance of their placements following the outcome of proceedings, once again there is no evidence before the court that this is in fact the case.
- Likewise, the local authority provides no specific evidence to support its contention that the presence of the petition, and its contents will disrupt efforts to find adoptive placements for T and N, or make an already challenging home-finding task more difficult, by discouraging prospective adopters from putting themselves forward. The highest that Ms Duxbury can put that submission is to assert that the online petition "could create anxiety with potential adopters". Once again, whilst it may be said that it is a common-sense proposition that prospective adopters will be more reluctant to consider children who are the subject of an active online campaign, each case turns on its own facts and the assumption must be interrogated by reference to the evidence before the court. Within this context it is again important to look at the nature of the information contained in the petition. The petition makes clear that the children were the subject of proceedings, that the parents opposed to the plan of adoption and that the parents do not accept, and continue to oppose the outcome of the proceedings. All this is information that will be known to any prospective adopters. Within this context, the information set out in the petition will not result in prospective adopters becoming aware of information they would not otherwise be privy to. Whilst it may be argued that the presence of a petition indicating continued, active opposition by a parent following the conclusion of proceedings may act in more subtle ways on an adopter's willingness to consider the children, once again this is an assumption rather than an evidenced fact. Indeed, information communicated to the court by the mother following the hearing tends to suggest that the local authority has now located adopters for T notwithstanding the existence of the online petition.
- Finally, the local authority offers no evidence at all to support the alleged risk that the material already in the public domain will cause ongoing embarrassment and, potentially, emotional harm to the children as they get older in circumstances where it will remain on the Internet indefinitely in an easily and repeatedly accessible form. I accept that the fact that information is already in the public domain does not prevent injunctive relief where it can be shown that the repetition of known facts about an individual amounts to an unjustified interference with the private life of that person (see JIH v News Group Newspapers Ltd  EWHC 2818 (QB) at ). However, once again, in this case the nature of the information is important.
- The information contained in the petition setting out the mother's objections and assertions regarding the fairness of the proceedings is, as I have outlined, relatively innocuous (once again, it does not contain details of the evidence before the court or details of the harm the court was satisfied that the children have suffered and does not seek to discuss the children's individual needs), particularly when compared to other information that the courts have permitted to remain online (see for example Re J (Reporting Restriction), where the information in question was a video of the execution of an emergency protection order showing the child being removed in circumstances that were distressing, which video the court permitted to remain online subject to an order requiring the anonymisation of the name of the child). Further, the local authority offers no evidence to suggest that a petition placed online in response to a judicial decision in 2016, to which 160 people signed up and which received its last signature two months ago, is likely to be accessed in future years by others to the extent that it will result in embarrassment to the children, much less emotional harm. Again, whilst it is possible to speculate that this might be the case, given the nature of the information and the relatively small number of people who have accessed it at a time when it is relatively current, the court needs more than mere speculation before such a conclusion can be drawn. I also again bear in mind that the Administration of Justice Act 1960 does not act to prevent child being identified as having been the subject of proceedings.
- In the circumstances, I am satisfied that there is very little cogent evidence before the court that each of the children or any of them will suffer embarrassment, much less emotional harm if the petition on the Change.org website remains in place online. Within this context, once again, it must be remembered that what the court is examining is whether there is evidence which amounts to a justification for interfering with the cardinal right of freedom of expression for the purposes of Art 10(2). Whilst it is, of course, possible to formulate a number of common-sense assumptions with respect to the potential impact on each of the children of persons accessing the online petition, the reality is that the justifications on which the local authority seeks to rely for interfering with the parents' right to freedom of expression under Art 8 are poorly evidenced and largely speculative in nature.
- I turn next to deal with the importance of, and the justifications for interfering with the Art 8 right to respect for private and family life of the children, which right is, again, clearly engaged in this case. Art 8 of the ECHR provides as follows:
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
- As I have observed elsewhere, when balancing the rights under Art 10 with the rights under Art 8, it is important in the context of applications to restrain the publication of information concerning children based on the Art 8 right to respect for private life to consider the proper ambit of that right. In R (Countryside Alliance) v A-G  1 AC 719 Lord Roger observed that the European Human Rights Commission long ago rejected any Anglo-Saxon notion that the right to respect for private life was to be equated with the right to privacy. In Botta v Italy (1998) 26 EHRR 241 at  the European Court of Human Rights made clear that:
"Private life, in the court's view, includes a person's physical and psychological integrity; the guarantee afforded by Art 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings."
- In Bensaid v United Kingdom (2001) 33 EHRR 205 at  and  the European Court of Human Rights reiterated that:
"Art 8 protects the right to identity and personal development, and the right to develop and establish relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to the effective enjoyment of the right to respect for private life."
- The ambit of the right to respect for private life of the children is a thus wide one, encompassing not only the narrow concept of personal freedom from intrusion but also psychological and physical integrity, personal development and the development of social relationships and physical and social identity.
- Within this context, it is important to note that the safeguarding and promoting of psychological and physical integrity, personal development and the development of social relationships and physical and social identity are all key aims of foster care placements or adoptive placements for children. For each of W, C, N and T, the Art 8 right to private life is thus of cardinal importance to them because it helps to ensure that their respective placements achieve these aims, aims which are central to ensuring each child's current and future welfare, which welfare is, in respect of each child, a primary consideration of the court.
- The Art 8 right to respect for private life is also important for each of the children in circumstances where it acts to protect information that is both personal and sensitive, involving as it does private matters concerning family life, the publication of which might cause a child or young person dismay, upset, embarrassment or, at the extreme end of the spectrum, significant emotional harm. In concluding unanimously in Scott v Scott  AC 417 that, so far as its powers to sit in private were concerned, the Probate, Divorce and Admiralty Division (the pre-cursor to the Family Division) stood in principle in no different position than the Queen's Bench and Chancery Divisions, Lord Shaw of Dunfermline nonetheless recognised that family matters are:
"…truly private affairs; the transactions are transactions truly intra familiam and it has long been recognized that an appeal for the protection of the court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs."
- In so far as the petition on the Change.org website publicises information concerning the proceedings in relation to the children, and allows the children to be identified as associated with the petition and the information contained in it (whether by reason of contributors mentioning the names of the children or by reason of the hyperlink on the mother's Facebook page), I am satisfied that the petition constitutes an interference in each child's right to respect for private life under Art 8. To be sustained, that interference must be justified by reference to the terms of Art 8(2).
- With respect to the justifications for interfering with the children's Art 8 right to respect for private life, the discussion of the importance of the Art 10 right to freedom of expression has already resulted in these contended for justifications being articulated in broad outline. Within this context, beyond the fact that the court must, pursuant to s 12(4) of the Human Rights Act 1998, have regard to the importance of the right to freedom of expression generally, the following contended for justifications fall for consideration.
- It is important that citizens whose lives have been the subject of State intervention, in this case parents who have been the subject of public law proceedings under the Children Act 1989 brought by the State, are able to express their opinions about that intervention, and to protest such intervention where they contend that it has worked an injustice (whether that intervention has, in fact, worked an injustice or not). The reasons that this must be so were eloquently articulated by Lord Steyn in R v Secretary of State for the Home Department ex parte Simms and Another  2 AC 115 at :
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market": Abrams v United States (1919) 250 US 616, at 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country."
- Within the context of the right of the citizen to petition Parliament or the Government in respect of a personal grievance being of fundamental constitutional importance, it is also important that citizens in the position of these parents, who consider that they have a personal grievance, can express themselves by articulating their grievances fully and effectively by way of petition, gain support for their views and, by doing so, seek redress. Further, in circumstances where, as the parents do here, a person seeks to petition the State for redress in respect of a personal grievance arising out of alleged actions of the State, it is particularly important that the State should not, without very good reason, be permitted, as it seeks to be permitted here by way of an application for injunctive relief, to restrain that person from petitioning. Indeed, once again, whilst I did not hear detailed submissions on the point, it is arguable that the prohibition on "commitments and prosecutions" with respect to petitions seeking redress contained in the Bill of Rights of 1689 would render such restraint unlawful.
- Finally, in respect of the contended for justifications for interfering in the Art 8 right of the children for respect for private life, in this case one of the main factors driving the interference in the children's Art 8 right is the fact that the mother's name appears on the front page of the petition and the children are referred to by their forenames in a limited number of the responses to that petition. Against this, the ability of a parent to make clear who is speaking out or seeking to petition for redress is self-evidently very important, it being very difficult, if not impossible, to effectively protest a contended for injustice or petition for redress of a personal grievance if the protester or the petitioner must remain anonymous and prevented from providing any salient details of their grievance that may breach that anonymity.
- Having regard to the foregoing parallel analysis of the importance of the rights engaged in this case and the respective justifications for interfering with the same set out above, in which I have considered each of the children's best interests as a primary consideration, and applying the ultimate balancing test of proportionality, I am satisfied that the local authority's application for an injunction compelling the parents to take down their online petition must be dismissed.
- Balancing the Art 10 right to freedom of expression of the parents (in the context of the importance of that right, the importance of parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress) against the Art 8 right of the children to respect for their private and family life (in the context of the importance of that the right for the psychological integrity, personal development, development of social relationships and physical and social identity of the children and the court not being satisfied, having regard to the nature of the information and the children's prior knowledge of it, that the evidence establishes that publication will cause emotional harm to C and W and potentially de-stabilising their respective foster placements, disrupt efforts to find adoptive placements for T and N or cause ongoing embarrassment to the children as they get older) leads me to conclude in this case the Art 10 right to freedom of expression outweighs the Art 8 right to respect for private and family life when it comes to the question of the online petition being taken down. Applying the ultimate balancing test of proportionality, in my judgment it cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother's name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains.
- For all the reasons I have given, the application of the local authority for an order compelling the parents to take down their petition on the Change.org website is accordingly dismissed. The order made by agreement on 25 May 2016 will continue in force.
- I recognise that my decision will leave online a limited amount of information concerning the children in a format that has the potential to identify them as having been the subject of proceedings. However, cases dealing with the publication of information concerning children must be decided by the careful and rigorous application of the well-established legal principles articulated earlier in this judgment. As the President observed in Re J (Reporting Restriction), in the face of the challenges presented by the Internet we cannot simply abandon basic legal principles, as Lord Sumption observed in Prest v Petrodel Resources Ltd  2 AC 415, courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different and as Hayden J observed in Re J (A Minor)  EWHC 2595 (Fam), with respect to the balancing exercise required in cases of this nature, in a mature family justice system the weight afforded to the right to freedom of expression must be recognised and engaged with.
- Within this context, cases dealing with the publication of information concerning children who are, or who have been the subject of family proceedings will necessarily involve competing interests. The court is required to balance a right that is important to the individual subject children, children who will often have been exposed to significant personal trauma, against a cardinal right that is important to parents, to children and to society as a whole. Where the court is required to strike this balance, a solution that comprehensively satisfies all interests is not possible.
- Finally, I emphasise that this is a decision that turns on its own facts. It is not a judgment on the merits or demerits of online petitions generally, whether in the context of family proceedings or otherwise. Rather, it represents only the product of applying the required balancing exercise to the very particular circumstances of this case.
- That is my judgment.
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