Law Report: Media's interest is recognised: HS v HS; Court of Appeal (Lord Justice Neill and Mr Justice Ward), 21 December 1993

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The fact that the court, with the support of a local authority, had approved of children in care being in the custody of a parent who was a transsexual was a matter of public interest which the media was entitled to publish provided that the children's identities and privacy were protected.

The Court of Appeal allowed a parent's appeal by varying an injunction to allow the parent to communicate with the media under strict controls which respected the children's privacy.

The parents divorced in 1984 when the father became ambivalent about his own sexuality. The three children lived with the mother until she became unable to cope. The children were received into care and began to live with the father, subject to the supervision of the council. In 1989 court proceedings resolved that the children should live with the father, subject to the council's supervision, since the mother was incapacitated and the father had looked after them satisfactorily.

Shortly afterwards, the father participated in a television programme about transsexualism and was deluged by the media. The identities of the father and children were revealed and photographs published.

An injunction was made in 1990 restraining the father from exposing the children to any publicity arising from the father's custody of them or her transsexualism and sex change. The father had written a book and wanted to publicise it for financial reward. The father's application to discharge the injunction was refused and the injunctions were continued until 2001 when the youngest child attained her majority.

Wyn Williams QC and Jennet Treharne (Fonsecca & Partners, Ebbw Vale) for the father; Elizabeth Szwed (Fraser Brown, Nottingham) for the mother.

LORD JUSTICE NEILL, giving the court's judgment, said that the present form of injunction was obscure in its meaning and could not stand. There was ample evidence that the children would be adversely affected by having the public prying into their lives.

The important question was whether the father's freedom to publish and the media's freedom to publish matters of public interest outweighed the risk of harm to the children. More than a question of the upbringing of the children arose for determination by the court. The freedom of the press was in issue.

Re M and N(minors) (1990) Fam 211 and Re W (a minor) (1992) 1 WLR 100 established that 'in this situation the welfare of the child was not the paramount consideration'. The facts of the case disclosed a matter of public interest which the media were entitled to publish and about which the public might legitimately debate, namely the fact that the court, with the support of the local authority, had approved of young children being and remaining in the care of a parent who was transsexual and who had undergone a change of sex.

The public might know the facts but public interest turned to public curiosity as soon as information was sought as to the identity of the parties. When that became the focus of attention, then the public interest in the protection of the children became the greater public interest.

Where an injunction was sought, the effect of which was to impose a restraint on the freedom of the press and the media generally, such a matter should be transferred from the county court to the High Court and the Official Solicitor should be invited to represent the child concerned.

The giving of any information by the father to the media and their soliciting information must be strictly controlled so that the less the children knew about it the better. Accordingly, the father must not pursue any dealings with the media from the property at which the children lived or elsewhere in their presence. Communications must respect the children's privacy.