UK Family Law: The Right to Privacy vs. The Right to Freedom of Expression

By Tanya Kriplani Manglani

Article 8 of the European Convention on Human Rights enshrines the “right to respect for private and family life, home and correspondence”. Article 10 of the same Convention enshrines the “right to freedom of expression”.

Individuals in the UK have access to both of these rights, amongst others, by way of the Human Rights Act 1998. When it comes to proceedings in family law cases, however, these rights can often clash.

In the recent case of Newman v Southampton City Council & Ors [2020], the High Court handed down the first recorded judgment regarding these rights in the context of journalistic access to court documents where children are involved. In this case, journalist Melanie Newman applied to the High Court in an attempt to gain access to court documents detailing the care proceedings of a child: “M”. M’s mother had lost custody of M when she was two years old. The reason behind this was that, at the time, the court believed she has administered an EpiPen to her daughter unnecessarily. M’s mother, however, made an appeal and the Court of Appeal overturned the previous decision. The court stated that the decision to remove M from her mother had been made on “the slimmest of evidence”, and as such, placed M back in her mother’s care after she had spent over three years in foster care.

The Court of Appeal’s decision is what sparked Newman’s interest in the case, leading her to apply to view (not publish) the relevant court files. She made three main arguments to support her application: (i) the case raised public interest, thereby justifying further press inspection; (ii) a lot of information about M, such as her family’s ethnicity, immigration history, religious beliefs, and socio-economic background were already public, meaning the matter of protecting M’s privacy was “damaged beyond repair”; and (iii) M’s mother agreed with the previous point and as such had consented to the documents being handed over.

When making a decision, Mrs. Justice Roberts of the High Court cited the judgment of a House of Lords family law case, Re S (A Child) [2004]. This explicitly stated that “neither article [8 or 10 of the ECHR] has precedence over the other” and that “an intense focus […] of the specific rights being claimed in the individual case is necessary”.

In this individual case, the judge made sure to highlight that whilst weight must be given to M’s mother’s support of Newman’s application as a parent, M has her own individual privacy rights separate from her mother’s rights. She also outlined the importance of protecting children’s right to privacy in the internet age where information, once published, remains easily accessible forever. Whilst she did acknowledge the press’s role in holding the judiciary and other powers of the state accountable through demanding transparency, she once again cited the strong interest to protect children’s privacy rights, especially in the digital era, as a legitimate reason to limit this role. As such, Newman was only granted access to a small number of documents.


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