Super-injunctions and Privacy: What about the kids?

Chris McWatters wonders why the rights of children have been overlooked in the debate about super-injunctions

As a humble family law barrister, I trespass into the realms of media and privacy law with a little trepidation. But the recent frenzy over the naming of Ryan Giggs as the footballer who obtained an injunction to prevent disclosure of an alleged extra-marital affair raises an important issue about children’s rights. As far as I can see, it is something that has not really figured in the whole debate.

Newspapers such as the Sun would have us believe that the rich and famous are able to obtain super-injunctions at will, granted by egotistical judges keen to create their own version of a privacy law, and aided by European, and therefore foreign, human rights laws. So, the argument goes, they can buy silence about their misdeeds, thereby enabling them to wilfully cheat on their partners. And the likes of John Hemming MP, who spilled the beans in the Commons, appear to view court orders as a means by which the judiciary can override the will of Parliament.

The truth is, however, less sensational but much more important. As the photos of Ryan Giggs clutching his two small children, celebrating Manchester United’s Premiership title, so clearly illustrate, the protection is for the benefit of his wife and children. So much is clear from the initial judgment given in favour of Ryan Giggs by Mr Justice Eady on 16th May:

“The Claimant is a married man with a family. It is well established, in such circumstances, that the court needs to take into account and have regard to the interests of the claimant’s family members, and their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms”.

Mr Justice Eady cited the Court of Appeal decision in ETK v News Group Newspapers Ltd in support of his decision. That case involved an injunction against the News of the World, prohibiting it from publishing a story regarding the applicant’s adultery. The individual involved was also married with children. As explained by Lord Justice Ward in ETK:

“the purpose of the injunction is both to preserve the stability of the family while the Appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when it would inevitably follow publicity. They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment”.

Of course, the right to a private family life by no means trumps freedom of expression. As  Lord Justice Ward explained:

“To restrict publication simply to save the blushes of the famous, fame invariably being ephemeral, could have the wholly undesirable chilling effect on the necessary ability of publishers to sell their newspapers.”

However when children are involved, the court has to consider their welfare. As set out in Article 3 of the 1989 United Nations Convention of the Rights of the Child 1989:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

This consideration does not seem to have been a factor in the whole debate about super-injunctions and privacy law. Expertise in child psychology is not required to know the potentially long-lasting effect that can be visited on children who learn about their parents’ infidelity. Had the injunction order been maintained, one suspects that the Giggs may very well been able to protect their children from learning about the footballer’s alleged affair, given their apparent ages (8 and 5). But having details of the supposed wrongdoing spread across the front pages of the tabloids, even if the children knew about it, could only have caused further damage, and encouraged teasing and bullying in the playground.

So, do the children of the rich and famous deserve this kind of protection from the courts? No doubt the Giggs children will have sufficient trust funds to pay for the necessary therapy arising from any emotional damage inflicted upon them. Had they been the children of a plumber, it’s unlikely that their father would have had the funds to pay for an injunction, but then it’s unlikely that there would have been much press interest in the sex life of a plumber in the first place.

Whatever view one takes of the whole affair, the fact remains that judges, rightly, are bound to consider the welfare of children when deciding these sort of cases. There is no good reason why the press and politicians should not do the same when discussing them, no matter how rich the children’s parents might me. Unfortunately, this was obviously not something that even crossed John Hemmings’s mind when he named the footballer within the bubble of parliamentary privilege.

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