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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> OPO v MLA & Anor [2014] EWHC 2468 (QB) (18 July 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/2468.html Cite as: [2014] EWHC 2468 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 July 2014

(Published on 2 June 2015, with minor redactions, following the decision of the Supreme Court in Rhodes v OPO)

Mr Justice Bean :

1. The claimant is an 11 year old boy living in the United States of America with his mother, who is his litigation friend for the purposes of this claim. He was born in the UK and has British citizenship. The first defendant, his father, is a British citizen resident in London. The second defendant is a publisher, based in Edinburgh, that wishes to publish an autobiographical book by the first defendant.
2. The father is a classical musician who has appeared on television, has his own website and is sufficiently well known to be the subject of a Wikipedia page. During his own childhood he was the victim of serious and sustained sexual abuse. He has a history of mental illness, including a period of inpatient treatment, suicide attempts and self harming by cutting. In 2008, using a pseudonym, he wrote (among other matters) about the sexual abuse he suffered as a child.
3. The father has now written his autobiography and the second defendant wishes to publish it, using his real name. A draft of the book was sent anonymously to the mother in February 2014. Following extensive correspondence between solicitors a modified draft has been produced. It includes graphic accounts of the father's childhood sexual abuse and the lasting harm that it has caused him; of his mental health issues as an adult with details of his treatment; of his suicidal thoughts; and of his attempts at suicide and his self-harming, including a particularly graphic account of cutting himself with a razor blade.
4. The leaked first draft had recounted the father's worries about a number of matters and a letter addressed to his son. These have been removed from the proposed book and replaced by a general expression of concern that the son will be at risk of harm. The references in the book to the claimant (who is referred to as "Jack", which is not his real name) are overwhelmingly positive and affectionate. There is nothing said against the son: quite the contrary.
5. The mother (who is referred to in the book as "Jane", again not her real name) considers that it would be harmful to the claimant if the book were to be published. In support of that argument she has obtained evidence from two expert witnesses. One of these, Dr Tizzard, a consultant psychologist, in an expert's report dated 24^th June 2014 (one week before the hearing), writes:-

"If either of the parties were to recount to [OPO] the contents of the Book prior to publication the effects would be devastating. [OPO] does not have the ability to process this information in an acceptable way. The result is likely to be extreme confusion, agitation and anger which would lead to enduring emotional distress………..The cumulative effect would lead to a poor prognosis in respect of his overall functioning and likely cause enduring psychological harm. In my professional opinion, exposure to this kind of material carries the risk of physical and emotional harm and is therefore abusive."

6. The mother and father were married in England and divorced in January 2008. By a consent order made in the Principal Registry of the Family Division by District Judge Segal on 15^th June 2009 the mother was granted leave to remove the claimant from the jurisdiction to live with her in the United States, with arrangements also being made for contact between the claimant and his father. There were two pages of recitals at the beginning of the order. Recital K reads that the order was made "upon the parties agreeing to use their best endeavours to protect the child from any information concerning the past previous history of either parent which would have a detrimental effect on the child's well being".
7. In the present claim the order sought is an injunction prohibiting the defendants from making available to the public the father's account of sexual abuse he suffered as a child; his suicidal thoughts and attempts; his history of and treatment for mental illness and incidents of self-harming; and certain other matters.
8. The scope of the order sought is not limited either geographically or temporally. Potentially the injunction could not only be worldwide but lifelong. As to its duration, the mother's case is that the claimant is at the moment vulnerable to serious psychiatric harm if he comes to learn of the contents of the book, and that it is impossible at this stage to predict when, if at all, he will show sufficient emotional development and maturity to be able to cope with it.
9. The factual evidence is that it is most unlikely that the claimant would come into possession of the book as such: but that he is a bright 11 year old who does Google searches on his father which would lead him to reviews of the book, extracts from it or references to its contents in (for example) his father's Wikipedia entry. In a witness statement, filed during the hearing before me, the mother states that the claimant found a reference to his father having been abused as a child and asked her what that meant. The mother has blocked certain sites on the claimant's computer but of course will not have the same degree of control over what he might view at school or elsewhere.

Jurisdiction, applicable law and causes of action

10. There is a high degree of artificiality in the formulation of the claim. Although in form it is a claim in tort by a son against his father, it is in truth a family dispute in which the mother seeks an injunction prohibiting the father from doing something which she believes will cause emotional harm to their child.
11. If the mother and son were still living in England, the appropriate tribunal to resolve issues of this kind would be the Family Court exercising its jurisdiction to make a prohibited steps order as defined in s 8 of the Children Act 1989 or the inherent parens patriae jurisdiction of the High Court in relation to children. But since the son is now neither habitually resident nor present in England and Wales, the Family Court has no jurisdiction: see the Family Law Act 1986, sections 1(1)(a), 2(1)(b)(ii) and 3(1). Moreover, there is no prospect at all that any court in the United States would make the order sought. This is not simply because of the apparently limited jurisdiction of the family court in the state where the claimant now lives. It is because, as is well known and is confirmed by a witness statement from Russell Smith, a New York attorney, no court in the United States (save in the context of intellectual property) would grant a "prior restraint" injunction restraining free speech. The First Amendment to the US Constitution has primacy over considerations of privacy, emotional distress and, it seems, even national security.
12. Mr Smith cites as an example the decision of the Supreme Court of Alabama in Doe v Roe 638 So. 2d 826 (1994). An author wished to publish a book about the murder of a woman by her husband. The adoptive father of the victim's three children had obtained an injunction restraining publication of the book: the lower court held that the children were likely to suffer "irreparable mental and emotional injuries" on reading it. The Supreme Court discharged the injunction, holding that the author's right to free speech was not outweighed by the children's privacy interests. It will be noted that the author was not, as in the present case, seeking to tell his own life story.
13. Matthew Nicklin QC for the claimant is thus thrown back on causes of action in tort. He relies on three: (a) what is described in his skeleton argument as a threatened breach of the claimant's Article 8 rights; (b) negligence; (c) the tort established by the decision in Wilkinson v Downton [1897] 2 QB 57.
14. Mr Nicklin submits that English law applies to all of these. Jacob Dean, for the publishers, disputes this. In summary his argument is as follows:

(a) The Private International Law (Miscellaneous Provisions) Act 1995 sets out the rules for choosing the applicable law to be used for determining issues relating to tort;

(b) By s 11(1) the Act lays down the general rule that the applicable law is the law of the country in which the events constituting the tort in question occur;

(c) For a cause of action in respect of personal injury caused to an individual, the applicable law under the general rule is to be taken as being the law of the country where the individual was when he sustained the injury (s 11(2)(a)); and for these purposes "personal injury" includes any impairment of any physical or mental condition;

(d) Since any injury to the claimant would occur in the USA, the law of the relevant state should therefore apply;

(e) Insofar as any of the torts relied on by Mr Nicklin is not a claim of personal injury within the meaning of s 11(3), s 11(2)(c) provides for the application of the law of the country in which the most significant element or elements of the events constituting the tort take place; this also leads to the applicability of the law of the relevant state of the USA, since only publication of the book to the claimant there would constitute the cause of action;

(f) Section 12 of the Act permits the general rule to be displaced if, from a comparison of the significance of the factors which connect the tort with the relevant state and those which connect it with England, it is substantially more appropriate for the applicable law to be English law; that, Mr Dean submits, does not assist the mother in the present case;

(g) There is a possible argument that s 15A of the 1995 Act applies at least in relation to negligence and the Wilkinson v Downton tort: this excludes the rules under sections 9 to 15 in relation to torts falling within the Rome II Regulation passed by the European Parliament and EU Council in 2007;

(h) Under Article 4(1) of the Rome II Regulation the applicable law is that of the country in which the damage occurs, which in this case would be the United States;

(i) By Article 4(3), where it is clear from all the circumstances of the case that the tort is manifestly more connected with a country other than the one in which the damage occurs, the law of that other country shall apply. A manifestly closer connection may be based in particular on a pre-existing relationship between the parties closely connected with the tort in question; but, Mr Dean submits, this cannot apply in the present case.

15. I am minded to accept Mr Dean's submissions as to the applicable law being that of the state of the USA where the claimant is resident, but on the view I have formed of the case applying English law, as Mr Nicklin argues I should, it is unnecessary to consider them further. I note Mr Nicklin's submission that the claimant's English causes of action and his rights under the ECHR cannot be overthrown or subverted by the First Amendment to the US Constitution. But there is force in Hugh Tomlinson QC's observation in his skeleton argument on behalf of the father that "the purpose of the application is to prevent an act in a jurisdiction where it is lawful (England and Wales) in order to prevent damage taking place in a jurisdiction where publication would also be lawful (the United States)."

Article 8 of the ECHR

16. The first and foremost of the three alternative English law causes of action on which Mr Nicklin relies is put in his skeleton argument under the simple heading "Article 8". Article 8(1) of the ECHR states that everyone has the right to respect for his private and family life, his home and his correspondence. Mr Nicklin submits that "by reason of being a child, [the claimant] has enhanced rights". He refers to the recent decision of the Court of Appeal in AAA v Associated Newspapers Ltd [2013] EWCA Civ 554, a case about breach of a baby girl's right of privacy by repeated publication of a photograph, and the references in that case to the best interests of the child; to the well known judgments of Baroness Hale and Lord Kerr in ZH(Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166; and to Murray v Express Newspapers [2009] Ch 481, the case about photographs of the young son of JK Rowling, where the Court of Appeal at [37-38] approved the following observations of Patten J:-

"The question whether a child in any particular circumstances has a reasonable expectation for privacy must be determined by the court taking an objective view of the matter including the reasonable expectations of his parents in those same circumstances as to whether their children's lives in a public place should remain private. … The court can attribute to the child reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing."

17. For the father, Mr Tomlinson submits, firstly, that residents of the USA are not within the jurisdiction of the UK for the purposes of the European Convention on Human Rights and so do not have Convention rights at all. Secondly, even if the claimant had been resident in England, he would not have ECHR Article 8 rights as against his father or the publishers, because neither of them is a public authority. Thirdly, there is in any event no private law cause of action.
18. It is unnecessary to consider whether the claimant as a resident of the US has the protection of the ECHR, since my view is that, even if he were present or resident in England and plainly had Convention rights on that basis, he would nevertheless have no cause of action.
19. In McKennitt v Ash [2008] QB 73 Buxton LJ summarised the state of the law of privacy and confidence as follows at paragraphs 8 and 12:

"i) There is no English domestic law tort of invasion of privacy. Previous suggestions in a contrary sense were dismissed by Lord Hoffmann, whose speech was agreed with in full by Lord Hope of Craighead and Lord Hutton, in Wainwright v Home Office [2004] 2 AC 406 at [28]-[35].

ii) Accordingly, in developing a right to protect private information, including the implementation in the English courts of articles 8 and 10 of the European Convention on Human Rights, the English courts have to proceed through the tort of breach of confidence, into which the jurisprudence of articles 8 and 10 has to be "shoehorned": Douglas v Hello! (No3) [2006] QB 125 at [53].

iii) That a feeling of discomfort arises from the action for breach of confidence being employed where there was no pre-existing relationship of confidence between the parties, but the "confidence" arose from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use: as was the case in Douglas, and also in Campbell v MGN [2004] 2 AC 457. Two further points should, however, be noted:

iv) At least the verbal difficulty referred to in (iii) above has been avoided by the rechristening of the tort as misuse of private information: per Lord Nicholls of Birkenhead in Campbell [2004] 2 AC 457[14]

v) Of great importance in the present case, as will be explained further below, the complaint here is of what might be called old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information…

"[12] … [In] order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10. Those articles are now not merely of persuasive or parallel effect but, as Lord Woolf says, are the very content of the domestic tort that the English court has to enforce. Accordingly, in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If no, that is the end of the case. If yes, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10? The latter enquiry is commonly referred to as the balancing exercise. …"

20. None of the cases relied on by Mr Nicklin is analogous to the present one. AAA and Murray both concern publication of photographs of a young child. K v News Group Newspapers Ltd [2011] 1 WLR 1827 was an application for an injunction to restrain publicity about a married man's affair with a colleague. The claim was brought by the man with the support both of his wife and of the colleague. The Court of Appeal held that the court was required to take into account the best interests of the claimant's children as "a factor that would rank higher than any other" and that the claimant was likely to establish at trial that publication should not be permitted. This decision is binding on me and I have no doubt that it remains good law, but in that case the claimant (the adulterous father) had a common law cause of action for misuse of his private information. The best interests of his children reinforced his claim, but did not create his cause of action. The case is not authority for saying that the children could have been claimants in their own right.
21. Mr Nicklin laid emphasis on the fact that the father has already written publicly about the experiences of his early life, although using a pseudonym. He submits that this should dilute the importance of the father's Article 10 rights in the balancing exercise. I do not agree. Firstly, the right to freedom of expression using one's real name is very important. Secondly, the right of journalists and others to comment on, and the public to read, the story of a real, identified individual is highly significant: see the judgment delivered by Lord Rodger of Earlsferry JSC in the "alphabet soup" case, In re Guardian News and Media Ltd [2010] 2 AC 697, at [63]. Thirdly, the texts of the previous publication and the proposed book are markedly different. The proposed book has chapter headings referring to famous pieces of classical music and makes extensive references to the father's career as a musician.
22. Mr Tomlinson's basic submission is both straightforward and compelling. The information which the claimant seeks to restrain in this case is not information about him, but about his father. There is of course a sense in which Article 8 is engaged, because this is information about a member of the claimant's family; but that is not sufficient. A claim by a child seeking to restrain his father from talking about his (the father's) life largely before the child was born is misconceived. As Baroness Hale said in a well-known passage in Campbell v MGN ([2004] 2 AC 457 at [131]):

"The [Human Rights Act 1998] does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights... The action for breach of confidence is not the only relevant cause of action: the inherent jurisdiction of the High Court to protect the children for whom it is responsible is another example: see In re S (a child) (identification: restrictions on publication) [2003] 3 WLR 1425. But the courts will not invent a new cause of action to cover types of activity which were not previously covered: see Wainwright v Home Office [2003] 3 WLR 1137. That case indicates that our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties."

23. Even if the claimant did have some form of English law cause of action deriving from Article 8, in my judgment the balancing exercise would come down very firmly on the side of the father's Article 10 rights. He wishes to tell the story of his own life. The present draft of the book does not contain private information about the lives of the claimant or the mother. I accept the submission that there is simply no arguable cause of action under this heading.

Negligence

24. Mr Nicklin's second cause of action is common law negligence. He submits that the father is under a duty to take reasonable steps not to do acts which it is reasonably foreseeable will cause either physical or psychiatric injury to his son. He relies not only on general principles but on Recital K to the English consent order of 15^th June 2009, to which I have referred above, although he does not argue that this is a breach of contract claim.
25. The Claimant contends that a duty of care arises in this case because:

"(1) MLA [the father] knows about and has previously acknowledged OPO's severe vulnerability to serious harm by reason of his age and medical condition to exposure to disclosures about his father's past;

(2) MLA has himself assumed a responsibility to OPO by agreeing with BHM [the mother] that he would not make the disclosures to OPO until he was old enough to cope with such disclosures….;

(3) MLA has recognised his responsibility as a parent to ensure that disclosure to OPO is handled appropriately and when he is ready….;

(4) MLA now has clear and uncontradicted expert evidence from two professionals as to the likely harm that OPO will suffer if he learns of the material in the Book and the clearest indication that, at 11 years old and with his additional individual responsibilities, he is not old enough to cope with the proposed disclosure;

(5) MLA, by dedicating the Book to his son, and by including in an earlier draft an open letter directed at OPO at the age he is now, clearly intends (or at least recognises) that OPO is likely to read it or learn of its contents;

(6) It is fair, just and reasonable in the particular circumstances that the Court recognise that MLA has a duty of care towards OPO in relation to the threatened publication of the Book."

26. Parents owe a common law duty of care to their children to protect them from physical injury in a variety of circumstances. Three obvious examples are: (a) as drivers of cars; (b) as occupiers of premises; or (c) as supervisors of young children. None of these duties is confined to parents; and there is no authority for a general common law duty of parents, enforceable by injunction or compensatable in damages, to protect their children from emotional or psychological injury. In the Court of Appeal in Barrett v Enfield LBC ([1998] QB 367 at 377) Lord Woolf MR said (in a passage approved by Lord Hutton in the House of Lords [2001] 2 AC 550 at 587):

"…..[P]arents are daily making decisions with regard to their children's future and it seems to me that it would be wholly inappropriate that those decisions, even if they could be shown to be wrong, should be ones which give rise to a liability for damages."

27. Mr Nicklin submits that the claimant is especially vulnerable, and that even if there is no general duty of care to protect children from psychological injury it would be no more than a small incremental step to extend negligence liability to protect this child. I disagree. Many parents think their child is uniquely, or at least specially, in need of protection from trauma. Cases in which one parent says that the other parent has done, or plans to do, something which will traumatise their children occur routinely in the family courts. Yet there is no recorded example of an injunction being granted to prevent a parent from telling a child something about himself (the parent), nor of telling the world at large something which might traumatise the child if he came to hear of it. Although, as Mr Nicklin reminded me, everything was unprecedented once, that omission is very striking.
28. If the threatened act were a "step which could be taken by a parent in meeting his parental responsibility for a child" then the Family Court would have power to grant a prohibited steps order under s 8 of the Children Act 1989 to prevent it. But even if I had jurisdiction to grant such an order, I would not do so: I do not consider that the father's proposed book falls even arguably within that definition.

Wilkinson v Downton

29. Mr Nicklin's third alternative is the tort in Wilkinson v Downton [1897] 2 QB 57, the celebrated decision of Wright J in favour of a plaintiff who had suffered nervous shock when told (falsely and as a practical joke) that her husband had been seriously injured. This decision antedates the establishment of the modern law of negligence in Donoghue v Stevenson [1932] AC 562. It was approved by the Court of Appeal in Janvier v Sweeney [1919] 2 KB 316; the headnote to which reads:

"False words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered, are actionable".

30. With the qualification that a recognisable psychiatric illness amounts to physical injury for these purposes, this headnote was described by Buxton LJ in Wainwright v Home Office [2002] QB 1334 at [79] as one which "comes as close as it is possible to do to a general statement of the rule in Wilkinson v Downton". Lord Woolf CJ in the same case approved the observations of Hale LJ (as she then was) in Wong v Parkside Health NHS Trust [2003] 3 All ER 932, to which I shall come in a moment, but emphasised that in his view the court was concerned with "an intentional tort and intended harm". Mummery LJ agreed with both judgments. When Wainwright reached the House of Lords Lord Hoffmann said ([2004] 2 AC 406 at [44]) that:

"….the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend".

31. Wilkinson v Downton was analysed by Hale LJ in Wong in terms which Mr Nicklin submits are fully satisfied in the present case:

"For the tort to be committed, as with any other action on the case, there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant's interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not 'mean' it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour."

32. However, even a judgment of Baroness Hale is not to be treated as a statute. I do not read it as creating or approving a tort consisting of doing any deliberate act which is likely to cause an individual emotional harm amounting to recognisable psychiatric injury. If such a tort had existed at common law, much of the modern statutory law of harassment would have been unnecessary. Moreover, liability under Wilkinson v Downton does not depend on any pre-existing relationship such as parenthood nor any pre-existing duty of care. If the defendants are to be liable for psychiatric injury to the claimant, why not to any other vulnerable individual who reads the book or extracts from it? The floodgates which Mr Nicklin invites me to open seem to be very wide indeed. I decline to open them. As for parental liability in tort, the policy arguments set out by the Court of Appeal in Barrett v Enfield LBC are also in my judgment applicable mutatis mutandis to Wilkinson v Downton.

The application for an injunction

33. I am concerned by the form of this litigation. There are certainly cases where the Family Division, in the exercise of the parens patriae jurisdiction, has granted injunctions to restrain publicity about a child. But in such cases the child's interests are represented by the Official Solicitor or CAFCASS, not by one parent acting in opposition to the other (see re H-S (Minors) [1994] 1 WLR 1441). Moreover, in family cases generally, expert evidence is inadmissible except with the leave of the court: see r 25 of the Family Proceedings Rules 2010 and the Practice Directions which accompany it. The latter rule has been reproduced in the Children and Families Act 2014: indeed s 13(3) of that Act will provide that parents and others "may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings". It would be contrary to this policy development in the Family Court if common law litigation effectively between parents concerning the welfare of a child were to allow expert evidence to be adduced without such permission and the other safeguards and controls contained in the Practice Directions.
34. In any event, by s 12(3) of the Human Rights Act 1998 an interlocutory injunction to restrain publication must not be granted unless the court is satisfied that the applicant is likely to establish that publication should not be allowed; and by s 12(4) the court must have particular regard to the importance of the Convention right to freedom of expression. There is an extensive discussion of the meaning of this provision in the speech of Lord Nicholls in Cream Holdings v Banerjee [2005] 1 AC 253. Mr Nicklin points to Lord Nicholls' observation that a lower degree of likelihood than one of "more likely than not" may be justified where the potential adverse consequences of disclosure are particularly grave, and submits that they are particularly grave in this case. But on the view I take of this case the claimant has no arguable cause of action which would justify the case in proceeding further at all. Certainly he comes nowhere near surmounting the s 12(3) threshold.
35. Quite apart from s 12(3), even if there were (contrary to my view) some form of arguable cause of action for damages at common law, I would not regard the grant of an injunction (using the time-honoured phrase in s 37 of the Senior Courts Act 1981) as "just and convenient". In many cases of family breakdown parent A alleges that parent B has done something or is planning to do something likely to have a traumatic effect on the child. If it is a threatened act which would be done by B in the course of meeting his or her parental responsibility for the child, then the Family Court may grant a prohibited steps order: see s 8 of the Children Act 1989. But if it is not, the common law courts should be slow to put their oar in.
36. Mr Tomlinson drew my attention in the course of argument to the fact that much of the information in the proposed book has already been published (using the father's real name, not a pseudonym) and is accessible on the internet. When injunctions to restrain publication are granted, an exception is usually carved out for information already in the public domain. It would be extremely difficult to formulate the wording of the exception in this case; but it would be oppressive and indeed absurd not to have one at all.
37. When one stands back from the ingenious legal arguments which Mr Nicklin deployed with his customary skill and panache, this is an attempt by a mother to stop a father from telling his life story to the public because she believes it would traumatise their child if he were to learn about it. There is no precedent for such an order; nor should there be.
38. For these reasons I indicated at the conclusion of the oral argument that the application for an injunction would be dismissed. Mr Nicklin realistically concedes that in the light of what I have said in this judgment it must follow that the claim as a whole should be dismissed, and I make that order accordingly.