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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Kelley (A Minor) v BBBC [2000] EWHC 3 (Fam) (25 July 2000) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2000/3.html Cite as: [2001] 2 WLR 253, [2000] Fam Law 886, [2000] 3 FCR 509, [2000] EWHC 3 (Fam), [2001] 1 All ER 323, [2001] 1 FLR 197, [2001] Fam 59

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2
		25th July 2000

MR JUSTICE MUNBY:

I am grateful to you all for coming here this afternoon. Bobby Kelly, as you know, is 16 years old. He is missing and no one seems to know where he is. It is important that he should be found. In recent years he lived with his maternal grandmother, Ruth Kelly, at her home in Romford. By all accounts he was doing well at school and was planning to begin a course of higher education at a local college in the autumn.

On 27th June 2000 Bobby went shopping with his grandmother in Romford. Members of a movement known as the "Jesus Christians" were there in the town centre proclaiming the movement's faith and beliefs. Bobby gave them a small donation and collected some literature. Later that same day he returned to the town to talk to members of the movement. Bobby resolved to leave home at once and to devote himself entirely to the philosophy and the way of life of the movement. Naturally enough his grandmother and other members of his family were extremely upset and puzzled by Bobby's sudden decision. It was, to them, very much out of character. They nevertheless hoped that given time Bobby would come home. He has not done so. That was four weeks ago.

Presented with further information that Bobby might accompany members of the movement abroad, his grandmother decided to prevent that happening by making Bobby a ward of court. As his grandmother, and someone who had been caring for him, she was clearly entitled to take that step. Bobby has therefore been a ward of court since 12th July 2000. Because he is a ward Bobby may not travel beyond England and Wales without the court's permission. Equally no important step in his life may be taken without the court's approval. That includes where and with whom he should live. Efforts have been made to ascertain Bobby's whereabouts and his true feelings in this matter, thus far to no avail.

On 13th July 2000 another judge of the Family Division, Sumner J, enlisted the help of the media and members of the public in tracing Bobby. The case received a lot of publicity in the national press, on radio and on television. Since then Bobby has communicated from time to time with members of the media and his grandmother by way of e-mail and telephone call. He has stated that he is happy enough and does not understand what all the fuss is about.

Bobby's actual whereabouts remain completely unknown, although he is still believed to be in this country. His grandmother is worried that, in reality, all is far from well. She is concerned that his views as stated have been coloured or influenced by members of the movement and that they might be exerting influence on him to avoid contact with the court. Her concerns are not going to go away until such time as Bobby does come forward to allay them and to let her know where he is living. She is, in my view, rightly concerned for his well-being; it would be extraordinary were the situation otherwise. Until such time as Bobby is found this court has a very real difficulty in determining what it is that he actually wants.

The Official Solicitor, Mr Lawrence Oates, was appointed by the court to act as Bobby's legal representative on 12th July 2000. The Official Solicitor is a civil servant and has a staff of about 100. He is completely neutral and independent and has an unrivalled experience in representing teenagers in situations such as that in which Bobby finds himself. The Official Solicitor will give Bobby impartial and confidential legal advice and will put Bobby's own views before the court. Should Bobby so wish he could be represented by someone other than the Official Solicitor. There is no difficulty whatsoever in Bobby's views being fully presented to the court, including Bobby giving evidence, if he chooses to do so, whether orally, on paper, or both. Bobby will be permitted to play the fullest part in these proceedings, of that I can assure him. He should know that he has absolutely nothing to fear by coming forward at this stage. That is my very clear message to him.

His family will not be cross or upset, of that I am 100 per cent certain. All that they want to know, as indeed I do, is that he is safe and well, and what he wants for the future. The Official Solicitor also needs to have this information to ensure that he is properly represented.

For my part, I now appeal to Bobby to come forward and to those who are presently caring for him to help him to do so. At the same time I ask you all to assist Bobby's grandmother, the Official Solicitor and the court to find Bobby as soon as possible. These courts rely on the willingness of the press and members of the public to comply with appeals of the sort that I have made today. That help has always unfailingly been given in the past, as I am sure it will be in this instance.

Doubtless there will be renewed debate in the media about the rights or wrong of young people aligning themselves with religious movements, just as there will be about the rights and freedoms of mature young people to decide to do so. Freedom to express and to practise one's own religious beliefs are important in any democratic society.

I am not presently concerned with any such debate. I am simply concerned that Bobby should be found as soon as possible in order that his true wishes and feelings can be ascertained.

Should you come into possession of any information relating to the whereabouts of Bobby, please contact the court on 0207-947-6713. Equally, Bobby, should you read or hear any part of this statement, I do urge you to make contact with your legal representative, the Official Solicitor. You have your own independent lawyer and her name is Miss Zoe De. Her details are as follows:

The Office of the Official Solicitor,
81 Chancery Lane,
London WC2A 1DD
Telephone: xxx
Fax: xxx
E-mail: xxx


Until such time as you make contact with her, it is very difficult for me to address your grandmother's concerns properly.

That is all I have to say for the time being, except to say that I should be grateful if the media could give the widest possible publicity to the telephone and other numbers I have mentioned so that Bobby will know how to get in touch, if, as I very much hope, he decides to.

I repeat my thanks to you all for coming here today.

(Short adjournment)

MR JUSTICE MUNBY:

I am giving this judgment in open court for two reasons. It involves some important points of law and practice relating to the grant in the Family Division of injunctions restraining the freedom of the media to publish and broadcast. It arises in a matter which has already been the subject of widespread public interest and concern, namely the disappearance of Bobby Kelly, about whom I have just made a statement in open court to the press, the public and the media.

The Facts

Bobby Kelly was born on 5th April 1984 and is thus just over 16 years old. He has lived with his grandmother in Romford since February 1998. Very suddenly on 27th June 2000 he left home and has been missing ever since. I can best set out the story in his grandmother's own words:

"On 27th June 2000 Bobby came shopping with me in Romford. Outside Marks and Spencer he stopped to talk to a person who was handing out leaflets and gave him a small donation. I asked him what he was doing and he told me it was all right because the group was Christians. Bobby went back into Romford later that day to speak to these people again. Until 27th June 2000 they had never met Bobby before. That very afternoon Bobby returned home and informed me that he was going with them. He collected some food and clothing and left immediately.

Since then he has telephoned me and informed me that he must give up everything, including his family. He was wanting to clear his room and give all his possessions away but I would not let him. He has telephoned me on several occasions and is sounding very strange and most unlike the Bobby I know. He has called at my home but he is always in the company of the group and I have been unable to speak to him alone."

So far as I am aware Bobby has been with these people ever since. They are a religious group -- some would call them a cult but I prefer for the moment to use the more neutral expression -- called "Jesus Christians".

We do not know exactly what was in the leaflet but I have been shown part of their literature. It is a document headed "Forsaking All". After referring to the events recorded in the Gospel according to St Luke, c 5, vv 2-11, and c 9, vv 59-62, it continues as follows:

"God refuses to take second place to anything or anyone. He will not let you put any other gods before him, not your old job, or your old boss, nor even your old family and friends. God is now your Boss and he has a new job for you that will not wait. This is God's first test for every would-be disciple. To see if you love him enough to put him first by forsaking all immediately to follow him now."

It seems that that is exactly what Bobby did. The document continues:

"God will not tolerate you putting anything else before him and his work. If you can bring the boss and business with you, fine. But quite obviously the disciples' father was unwilling to leave his boat and business and all those nice new fish and follow Jesus along with them-and we never really hear of him again. The father who stuck by the business vanished into oblivion, whereas his sons wandered off with a perfect Stranger and made history, helping millions of souls for eternity."

Then a little further on:

"Which are you? Who and what and are you going to put first? Why not ask the boss and family to come along with you? They could follow just as well, you know. If they are not willing they do not deserve you nor your support. Which is more important: Serving them or saving the world? The time is Now! Tomorrow is too late."

It seems that Bobby took this quite literally. The document concludes:

"How about you? Are you ready to give up everything in absolute loyalty and full-time service to Christ? Do you want to be part of the last great spiritual revolution? If so, it requires 100 per cent dedication. Do or die! Amen."

On Wednesday 12th July 2000 Bobby's grandmother applied to the court to have Bobby made a ward of court. The same day the President of the Family Division made two orders. The first was a "seek and find" order directing the Tipstaff of the High Court to seek and find Bobby and ordering certain named people forthwith to hand over Bobby into the custody of the Tipstaff on pain of immediate arrest in the event of non-compliance. The second was an order that Bobby be made a ward of court and inviting the Official Solicitor to act as Bobby's guardian ad litem.

The next day, Thursday 13th July 2000, Sumner J made an order giving the Official Solicitor leave to give publicity about Bobby, including the disclosure of any photograph, to the press and to broadcasting companies for the purposes of placing Bobby. The Official Solicitor promptly issued a Press Statement. This immediately generated, as it was intended to, considerable media interest. Thus, although I have not necessarily been shown a complete set of relevant press cuttings, I have been shown copies of stories which appeared on Friday 14th July 2000 in the "Daily Mail", the "Daily Telegraph" and the "Express", and the next day, Saturday 15th July 2000, in the "Times", the "Mirror", the "Guardian", the "Express" and the "Birmingham Post".

Also on the Saturday the BBC's "Today" programme carried a debate examining the nature of the Jesus Christians. Participating in this debate was the founder of the group, David Mackay. During the programme he was urged to return Bobby. Bobby has not been returned.

The next day, Sunday 16th July 2000, stories about Bobby appeared in both the "Independent" and the "Mail on Sunday". The "Mail on Sunday" quoted an e-mail message purporting to have been sent by Bobby in which he said, if indeed the message was genuine, "I've never been happier". He was quoted as saying that he missed his mother and grandmother but was not being held against his will. He was quoted as saying:

"I believe there is something better to do with my life instead of working for money. Because I have joined the Jesus Christians, I can work for God full-time."

The newspaper quoted the group as saying they would defy the court order to return Bobby. Mr Mackay was quoted as saying:

"If we were to support the court decision, we would be admitting Bobby is in danger because he is living with us. That is not true."

The same day, Sunday 16th July 2000, the Today Programme decided to approach the Jesus Christians for an interview with Bobby. I am satisfied that that decision was taken conscientiously and only after careful consideration. The BBC has explained its thinking to the court as follows:

"The decision was not taken lightly; paramount in our concerns were the public interest issue and the welfare of Bobby and the possible effect upon his family such an interview might have. We concluded that the interview was in the public interest for the following reasons:

1. Public concern about cults has now also become a matter of Government concern. There is enormous public interest-and-worry about the way such cults operate. Crucial to the issue of how to combat such cults is to understand the motives and aspirations of young people who join them and therefore to speak with them whilst they are still part of the movement.

2. Freedom of speech: Leading members of the Jesus Christians have spoken to the Media; so too had the boy's family and representatives for the boy's family. Bobby Kelly had been described in newspaper articles as "brain-washed". In such a situation the Today Programme felt he deserved the right to reply.

3. Fair play: Invidious though many people consider such cults to be, they are no less subject to the BBC's strictures on fair coverage than any other legal organisation. Part of that fair coverage involves hearing at first hand from the central character in the story.

4. Understanding: Through hearing the interview with Bobby Kelly the public at large would have a unique opportunity to judge the boy's state of mind. Everything they would have heard previously would have been merely claim and counterclaim.

5. Age: At 16 years old we felt he was sufficiently mature to explain his decision.

Such an interview, however, would take place only under the following conditions: (i) that the boy's family would be approached for an interview; (ii) that the boy's family would be told of Bobby Kelly's interview and given full details about its contents in advance; (iii) that the interview would be pre-recorded; (iv) that no coercion or pressure of any kind would be placed upon the boy to take part; (v) that, when broadcast, the interview would be placed in context, not merely with the offer of an interview to a family member but also with experts able to interpret and analyse both what he said and the way in which he said it."

Eventually, after a number of telephone calls to Mr Mackay, the BBC producer was told that Bobby had the BBC's telephone number and would telephone on Monday afternoon.

There was extensive coverage of the story in the media on Monday 17th July 2000, with stories in the "Independent", the "Daily Mail" and the "Birmingham Post" (all of which published extracts from the e-mail in the previous day's "Mail on Sunday") the "Express" and the "Daily Telegraph". The newspapers also contained extensive quotations from Mr Mackay. On Monday afternoon at about 5 o'clock Bobby telephoned the Today programme. He was immediately put through to the studio to the reporter who had been briefed for the interview. He said that he was in a phone box and that he was alone, although the person he had come down with was standing outside the box. The interview terminated when he ran out of money. He rang back about half an hour later to conclude the interview. Immediately after the interview the BBC contacted Bobby's mother and grandmother to tell them what had happened.

I have both heard a tape recording of the interview and read and re-read a transcript of it. I do not propose to quote at all extensively from it. There are just four matters which I think I ought to mention. In one place a comment Bobby makes seems to indicate a belief on his part that if he is to comply with the group's teaching he will not be able to live his life for God if he returns home. A little later he says that:

"all the media coverage just shouldn't have happened,"

which suggests that it is not Bobby who has been courting all the publicity and does raise the question whether he really does welcome publicity. Later on he says:

"I'm very homesick ... I miss my mum, my mum and my nan and my sister and a lot of other friends quite a lot."

The fourth matter arises in this way. A considerable amount of material, much of it about Bobby, has been disseminated by the Jesus Christians, some by way of e-mails and some on the group's Internet website. One of these documents is headed "Media Interviews" and appears to give advice to members of the group about how they should handle interviews with the media. It is apparent that Bobby must have been shown this document, or at least made aware by the group of its contents, because in the course of his interview with the BBC he gave by way of answer to a question from the reporter a form of answer suggested in the document.

On Tuesday 18th July 2000 the "Belfast News Letter" published extracts from what were said to be answers given by Bobby in an e-mailed reply to questions which had been posed by PA News. He was quoted as saying:

"There is no way I am being held from home against my will."

Asked what had made him to decide to leave home, he said:

"I had two choices. The first was to follow my previous ambition to become an entrepreneur, or to give my life to God and work for Him full-time. There is more to life than money and fame. Obviously I have chosen the "God option", as well as having rewards like eternal life."

Asked where he was now he wrote:

"Sector 1685 in the alpha Quadrant 1. The phone number is -- I have forgotten."

Meanwhile late on Monday 17th July 2000 the BBC's interview with Bobby had been brought to the attention of Singer J. Following what I am told was a series of telephone conversations conducted by Singer J with the lawyers acting for the Official Solicitor, the BBC and Bobby's grandmother, there was a six way telephone conference which started at about midnight and went on until about 3 o'clock in the early morning of Tuesday 18th July 2000: those taking part were Singer J, the Official Solicitor's representative, counsel for the BBC, the BBC's solicitor, counsel for Bobby's grandmother and her solicitor. Eventually Singer J made an order in the following terms:

"An injunction is hereby granted restraining until 5th April 2002, or until further order in the meantime, any person, (whether by himself or by his servants or agents or otherwise howsoever, or in the case of a company whether by its Directors or Officers, servants or agents or otherwise howsoever) from publishing in any newspaper or broadcasting in any sound or television broadcast, or by means of any cable or satellite programme service or other computer network, the detail or substance of any report, interview or communications received from or by any means emanating from [Bobby, Mr Mackay or certain other named persons], being members or representatives of "Jesus Christians", and from the continuation of any such publication which has been published on any computer network or other medium."

If anyone took any note of the proceedings I have not been shown it. It is accordingly not altogether clear to me exactly what materials were available to Singer J. The only note I have of the reasons given by Singer J is the account given in an affidavit sworn by the grandmother's solicitor on Wednesday 19th July 2000. She says:

"Having heard submissions from all parties, the learned judge was satisfied in particular upon two grounds, namely:

(1) that to give any publicity by way of an interview with the young man would be giving a platform to the organisation to broadcast their views, to manipulate the public through the press to their point of view; and

(2) if in fact there was a broadcast of an interview given, it would make it difficult for the Ward to go back on any future occasion on the opinions which he expressed and to return to his grandmother or a safe placement.

He expressed his view that the continuation of the publication of communications by the group would cause potential injury to the child. Also that he had concern that continuing press comment was potentially harmful to the exercise of the court's jurisdiction in Wardship."

In the same affidavit she sets out the grandmother's concerns. She says that since he left Bobby has telephoned his grandmother on several occasions and told her that he must give up everything including his family. His grandmother maintains that he is sounding very strange and unlike the Bobby she knows. She (Bobby's grandmother) is aware that these conversations are held in the presence of others because she is able to hear whispering in the background. She is concerned for Bobby's welfare if he remains in the glare of publicity. She fears that he is currently being manipulated by the group who have him in their care and is being used by them for promoting their interests. She fears that a media circus has resulted in Bobby cutting off all telephone contact with her and going further underground. She is frustrated by her inability to contact Bobby and advise him not to give interviews and be influenced by the people to whom he has entrusted himself. She is concerned that he is receiving advice solely from a group who thrive on publicity. Her sole concern is for Bobby's welfare. She firmly believes that he will suffer greater psychological harm if he is used by the group for the purposes of obtaining further media coverage.

Amongst the materials about Bobby which have been disseminated by the Jesus Christians is an e-mail which contains a clear admission by Mr Mackay that members of the group have whispered advice to Bobby during telephone conversations with his grandmother and a statement posted on its website of the group's belief in what it calls "civil disobedience" under certain circumstances. In an update, dated 17th July 2000, the group admits to "harbouring" Bobby but seeks to justify its stance as follows:

"Since he is not a criminal it seems a very Christian thing to do. Quakers were condemned in the United States during the days of slavery for harbouring slaves who were running away from their master. We feel that we are following in that tradition with regard to the draconian measures being taken to rob Bobby of his rights as an individual."

On Wednesday 19th July 2000 the BBC applied on notice to discharge the injunction granted by Singer J. The application came before Sumner J on the same day and was adjourned until the following day, when it came on for hearing before me. I reserved judgment on Friday 21st July 2000.

Mr Michael Tugendhat QC and Mr Richard Parkes appeared for the BBC, Mr Gordon Murdoch QC and Miss Annemarie Harris for Bobby's grandmother and Mr Anthony Kirk for the Official Solicitor.

I now, Tuesday 25th July 2000, give judgment. Immediately before doing so, and with the approval of the Official Solicitor, I made a Statement in Open Court to the press, the public and the media, seeking the assistance of the media in finding Bobby and, addressing myself directly to Bobby, urging him to contact the Official Solicitor.

Freedom of Speech

Not surprisingly, and entirely properly, Mr Tugendhat puts freedom of speech at the forefront of his submissions, though, as he points out, the present case involves also the right to respect for private life and freedom of religion. The starting point he says in a case involving children, religion and the media is the principles of freedom of expression, protection of private life and freedom of religion, including (a) the right of the public to be informed through the press, (b) the right of Mr Mackay and the other persons named in Singer J's order to express their views and (c) Bobby's right and the rights of others to freedom of religion. Any derogation from these rights must, he submits, be convincingly established.

For his part Mr Kirk makes clear that the Official Solicitor fully understands and respects the rights of Bobby, Mr Mackay and those others named in Singer J's order to their freedoms of thought, conscience and religion and expression. He fully accepts that any derogation or interference with such freedoms must be no more than is necessary and proportionate.

The books are full of statements about the high value attributed to freedom of speech by our law and the vital role it plays in our democracy. The most recent, the authoritative and one of the most eloquent is to be found in the speech of Lord Steyn in R v Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328 at 337A:

"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 616,600, Mr 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."

Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides as follows:

"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."

Well-known jurisprudence of the European Court of Human Rights establishes: (i) that the exceptions in paragraph 2 must be narrowly interpreted, (ii) that if a restraint is to be justified under paragraph 2 it must be "necessary in a democratic society" -- that is to say, the necessity for any such restriction must be "convincingly established" by reference to the existence of a "pressing social need", and the restriction must be "proportionate to the legitimate aim pursued", and (iii) that the restriction must be "prescribed by law" -- that is, the law must be "adequately accessible" to the citizen and must be "formulated with sufficient precision to enable the citizen to regulate his conduct": see Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670 citing The Sunday Times v United Kingdom (1979) 2 EHRR 245 and The Sunday Times v United Kingdom (No 2) (1991) 14 EHRR 229.

As Mr Tugendhat, in my judgment correctly, points out the interests identified in paragraph 2 of article 10 are not trump cards which automatically override the principles of open justice and freedom of expression. The derogations from article 10 (and from article 8), which he correctly recognises as being themselves important interests of a democratic society, only override the guaranteed rights when it is "necessary" that they should do so. So, he submits, it is not a question of "balancing" freedom of expression against one or more of the interests identified in paragraph 2 of article 10. There is, he says, no balancing exercise. The question, he says, is whether those who seek to bring themselves within the protection of paragraph 2 can demonstrate convincingly that they are. He relies on what was said by Lord Templeman in Attorney General v Guardian Newspapers Limited [1987] 1 WLR 1248 at 1297C.

"The European Court pointed out that this House applying domestic law had balanced the public interest in the public interest in freedom of expression with the due of administration of justice. But the European Court [1979] 2 EHRR 245, 281, para 65:

'is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted ... It is not sufficient that the interference involved belongs to that class of exceptions listed in article 10(2) which has been invoked; neither is it sufficient that the interference was imposed because its subject matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms: the court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it.'

The question is therefore whether the interference with freedom of expression constituted by the Millett injunctions was, on 30 July 1987 when they were continued by this House, necessary in a democratic society in the interests of national security, for protecting 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 having regard to the facts and circumstances prevailing on the 30 July 1987 and in the light of the events which had happened".

He refers also to what Lord Griffiths said in relation to the same passage in In re An Inquiry Under The Companies Securities (Insider Dealing) Act 1985 [1988] AC 660 at 706D:

"In this passage the European Court is not giving a restricted meaning to any of the exceptions but stressing that before interference with freedom of expression can be justified it must be shown to be necessary on the facts of the particular case."

I agree with Mr Tugendhat's submissions on this point which, as it seems to me, are reinforced by what Hoffmann LJ said in R v Central Independent Television PLC [1994] Fam 192 at 202F:

"There are in the law reports many impressive and emphatic statements about the importance of the freedom of speech and the press. But they are often followed by a paragraph which begins with the word 'nevertheless'. The judge then goes on to explain that there are other interests which have to be balanced against press freedom. And in deciding upon the importance of press freedom in the particular case, he is likely to distinguish between what he thinks deserves publication in the public interest and things in which the public are merely interested. He may even advert to the commercial motives of the newspaper or television company compared with the damage to the public or individual interest which would be caused by publication.

The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which 'right-thinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.

Furthermore, in order to enable us to meet our international obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), it is necessary that any exceptions should satisfy the tests laid down in article 10(2). They must be 'necessary in a democratic society' and fall within certain permissible categories, namely:

'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, for maintaining the authority or impartiality of the judiciary.'

It cannot be too strongly emphasised that outside the established exceptions, or any new ones which Parliament may enact in accordance with its obligations under the Convention, there is no question of balancing freedom of speech against other interests. It is a trump card which always wins."

Furthermore, says Mr Tugendhat, and I agree, if those who seek to bring themselves within paragraph 2 of article 10 are to establish "convincingly" that they are -- and that is what they have to establish -- they cannot do so by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required (and this is even if the case involves national security) is proper evidence: see The Zamora [1916] 2 AC 77, 108, Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 406F, and ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130.

The Human Rights Act 1998 is not yet in force. However, as Mr Tugendhat correctly observes, it has been established for some years now by numerous decisions of the House of Lords and the Court of Appeal that article 10 mirrors the English common law: see, for example, Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1248, Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, Derbyshire County Council v Times Newspapers Ltd [1992] QB 770, [1993] AC 534, ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130, R v Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328 and Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010. It is also well established that recourse can properly be had to article 10 both in resolving any ambiguity in a statute or any uncertainty in the common law and in determining how the court should exercise any discretion which it has: see Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670 referring to R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696.

Wardship

For their part Mr Murdoch and Mr Kirk equally understandably emphasise Bobby's welfare and rely on the fact that he is a ward of court.

So far as concerns the issues with which I am concerned the origins, history and ambit of the court's inherent parens patriae jurisdiction and its jurisdiction in relation to wards of court are fully set out in Ward LJ's judgment in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1. For immediate purposes I observe only that wardship confers on the ward a status to which the law attaches certain incidents. Precisely what those incidents are is one of the matters which I have to determine.

At one time it was believed that the mere publication of information about a ward of court was contempt of court. Although that heresy was exploded by the Court of Appeal in In re F (A Minor) (Publication of Information) [1977] Fam 58, the belief seems to have lingered on well into the 1980s: see for example Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846, 849. Let it be said clearly, once and for all: the publication of information about a ward, even if the child is known to be a ward, is not, of itself and without more ado, a contempt of court. In saying this I am doing no more than to repeat what was said by Booth J in Re L (A Minor) (Wardship: Freedom of Publication) [1988] 1 All ER 418 and by Connell J in Official Solicitor v News Group Newspapers [1994] 2 FLR 174. As Lord Denning MR said in In re F (A Minor) (Publication of Information) [1977] Fam 58 at 86D:

"The existence of wardship does not give the ward a privilege over and above other young people who are not wards. It does not give her exemption from comment on her activities, be they favourable or adverse, be they helpful to her or injurious. The remedy for defamatory remarks about a ward is the law of libel, not of contempt of court."

See also to the same effect Scarman LJ at pages 93H and 99D.

This was echoed by Millett LJ in In re R (Wardship: Restrictions on Publication) [1994] Fam 254, 271D when he said:

"... the wardship court has no power to exempt its ward from the general law, or to obtain for its ward rights and privileges not generally available to children who are not wards of court ...

Nor can it protect the ward from adverse publicity as such."

Section 12 of the Administration of Justice Act 1960, as amended, provides so far as material for present purposes as follows:

"The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say: -

(a) where the proceedings --

(i) relate to the exercise of the inherent jurisdiction of the High Court in respect of minors;

(ii) are brought under the Children Act 1989; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor."

At one time, and even after the Court of Appeal's decision in In re F (A Minor) (Publication of Information) [1977] Fam 58, there was widespread misunderstanding as to the ambit of section 12 and, in particular, as to the meaning of the critical words:

"information relating to proceedings before [the] court sitting in private."

For long it was thought that the effect of section 12 was to prevent publication of any information whatever about wardship proceedings. Again it was only in the late 1980s that a true understanding of the limited ambit of section 12 emerged: see Re L (A Minor) (Wardship: Freedom of Publication) [1988] 1 All ER 418 and Re W (Wards) (Publication of Information [1989] 1 FLR 246. This is not the place nor is there any need for me to examine in any detail the ambit of section 12. That is to be found mapped out in Re W (Wards) (Publication of Information) [1989] 1 FLR 246, Pickering v Liverpool Daily Post and Echo Newspapers PLC [1991] 2 AC 370, Re G (Celebrities: Publicity) [1999] 1 FLR 409 and X v Dempster [1999] 1 FLR 894. It suffices for present purposes to say that, in essence, what section 12 protects is the privacy and confidentiality: (i) of the documents on the court file and (ii) of what has gone on in front of the judge in his courtroom. (I might add that the confidentiality of documents held by the court is also protected by rule 4.23 of the Family Proceedings Rules 1991, S1 1991/1247). In contrast, section 12 does not operate to prevent publication of the fact that wardships proceedings are on foot, nor does it prevent identification of the parties or even of the ward himself. It does not prevent reporting of the comings and goings of the parties and witnesses, nor of incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings. Nor does section 12 prevent public identification and at least some discussion of the issues in the wardship proceedings.

As was pointed out by Lord Bridge of Harwich in Pickering v Liverpool Daily Post and Echo Newspapers PLC [1991] 2 AC 370, there may be circumstances in which such discussion will involve contempt, not under section 12, but as interfering with or prejudicing the administration of justice. There is, of course, no suggestion of any such species of contempt in the present case. I therefore need say little on this topic. However, cases in which such contempts are committed are likely to be fairly rare in the context of wardship. As Mr Tugendhat pointed out, at common law such a contempt requires proof of a specific intention to interfere with the administration of justice. Moreover, as he pointed out, strict liability under section 2 of the Contempt of Court Act 1981 requires proof that the relevant publication "creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced" -- something which will probably not very often be established in relation to wardship proceedings tried by a judge, rather than a jury, and in which many of those typically involved -- the Official Solicitor, Court Welfare Officers, local authorities, panel guardians and others -- will similarly be immune to outside pressures and distractions.

The fact that neither the common law nor section 12 prevented the identification of a ward of court was widely thought to be unsatisfactory. Indeed, it necessitated frequent recourse to the court's injunctive powers. Parliament has very recently intervened to cover this lacuna. Section 97(2)of the Children Act 1989, as amended by the Access to Justice Act 1999, provides that:

"No person shall publish any material which is intended, or likely, to identify:

(a) any child as being involved in any proceedings before the High Court, a county court, or a magistrates court, in which any power under this Act may be exercised by the court with respect to that or any other child; or

(b) an address or school as being that of a child involved in any such proceedings."

The combined effect of sections 10(1) and 8(3)(a) of the Act is that the prohibition in section 97(2)applies to wardship and other proceedings under the inherent parens patriae jurisdiction. Section 97(4) empowers the court to dispense with the requirements of section 97(2). That of course is what Sumner J did in this case on 13th July 2000, with the consequence that for the next few days, and until Singer J made his order on 18th July 2000, the only restrictions on the media's reporting of the case were those restrictions -- of comparatively limited scope -- imposed by section 12 of the Administration of Justice Act 1960.

Growing appreciation of the limited restrictions imposed by the common law and section 12 led to increased recourse to the court's injunctive powers. At one time it was thought that the court had unlimited jurisdiction to grant injunctions to restrain the publication not merely of information about a ward of court but even of information not itself about the ward but which might be damaging to the ward if it came to his or her attention. That heresy was exploded by the Court of Appeal in In re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47, where an ultimately unsuccessful attempt was made to invoke the wardship jurisdiction to suppress a book describing the aberrant private activities of a 14 year old girl's dead father, publication of which would be "psychologically grossly damaging" to the child and where the injury to her emotional psychological health would be "very grave indeed".

Nonetheless, starting with Balcombe J's decision in In re X (A Minor) (Wardship: Injunction) [1984] 1 WLR 1422 (the Mary Bell case), increasing recourse was had to the court's asserted power to grant injunctions to restrain the publication of information about its wards or other children. (In parenthesis one may note the irony that the invention of this jurisdiction -- a development of which Hoffmann LJ in R v Central Independent Television PLC [1994] Fam 192, 204D, observed that:

"... the courts have, without any statutory or, as far as I can see, other previous authority, assumed a power to create by injunction what is in effect a right of privacy for children,"--

was in large measure facilitated by the News of the World, the target of judicial attention in the Mary Bell case, which objected to being restrained unless the media as a whole was also restrained.)

Landmarks in the development and understanding of this novel jurisdiction -- Balcombe J's order is the first reported example of the grant of such an injunction subsequent to the Court of Appeal's decision in In re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47 -- were In Re C (A Minor) (Wardship: Medical Treatment) (No 2) [1990] Fam 39, In re M & N (Minors) (Wardship: Publication of Information [1990] Fam 211, In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100, R v Central Independent Television PLC [1994] Fam 19 and In re R (Wardship: Restrictions on Publication) [1994] Fam 254. The leading authority is now Ward LJ's judgment in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1. (I note in passing that, as Mr Murdoch pointed out, an application by the mother to challenge the decision in In re Z was ruled inadmissible by the European Commission of Human Rights as manifestly ill-founded: see A and ors v United Kingdom (1997) 25 EHHR CD 159.)

As is well-known the authorities in this field draw a distinction between the court's jurisdiction to grant so-called "in personam" injunctions and its jurisdiction to grant so-called "in rem" injunctions or "injunctions contra mundum".

The court has power, exercising normal equitable principles, to grant an injunction restraining a child's parents or other carers from misusing information which is properly confidential to the child: see In re C (A Minor) (Wardship: Medical Treatment) (No 2) [1990] Fam 39, In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1. But quite apart from this equitable jurisdiction the court, as Thorpe LJ put it in In re G (Celebrities: Publicity) [1999] 1 FLR 409, 414H:

"... has jurisdiction in personam to restrain any act by a parent that if unrestrained would or might adversely affect the welfare of the child the subject of the proceedings."

This jurisdiction can be exercised and a parent can be restrained either by an in personam injunction or, where appropriate, as explained by Ward LJ in In re Z (A Minor) (Identification: Restrictions on Publication)[1997] Fam 1, by a prohibited steps order under section 8 of the Children Act 1989. Well-known examples of the exercise of this jurisdiction are to be found in In re Z (A Minor) (Identification: Restrictions on Publication) [1997]Fam 1, In re G (Celebrities: Publicity) [1999] 1 FLR 409 and A v M (Family Proceedings: Publicity) [2000] 1 FLR 562. I say no more about this branch of the court's jurisdiction since it is common ground that I am concerned exclusively with an injunction contra mundum.

As is also well known the result of the analysis in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 is that in relation to the media the exercise of the court's inherent parens patriae or wardship jurisdiction is divided into three parts: the first part, in which the jurisdiction is not exercisable at all and the child is left to whatever remedies against the media the law would give an adult in comparable circumstances; a second part in which the jurisdiction is exercisable, but in circumstances where, because the court is exercising only its "protective" jurisdiction, the child's interests are not paramount and where a so-called balancing exercise has to be performed; and the third part, in which, because the court is exercising its "custodial" jurisdiction, the child's interests are paramount. Well-known examples of cases falling into the first category, where no injunction can be granted, are In re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47, R v Central Television PLC [1994] Fam 19 and M v BBC [1997] 1 FLR 51. Familiar examples of cases falling into the second category, where there is a so-called balancing exercise, are In re M & N (Minors) (Wardship: Publication of Information) [1990] Fam 211 and In re W (A Minor) (Wardship: Restrictions on Publication [1992] 1 WLR 100. So far as I am aware, and none of the counsel appearing before me was able to identify any other example, In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 is the only reported case falling within the third category.

It is common ground before me, and I agree, that the present case is one in which the court does have jurisdiction to grant injunctive relief. The dispute is whether the case falls into the second or third category. Accordingly I do not need to explore in any detail what precisely is the feature that distinguishes cases in the first category and cases in the second category. For present purposes it suffices to note that, as explained by the Court of Appeal in R v Central Independent Television PLC [1994] Fam 192, the jurisdiction is exercisable only where the proposed publication is directly about a child whose care and upbringing are already being supervised by the court and is such as might threaten the effective working of the court's jurisdiction or the ability of the child's carers to carry out their obligations to the court for the care of the child.

I must return in due course to consider in more detail what distinguishes cases in the second category from whose in the third. For the moment I merely observe in general terms that it would seem from In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 that the "custodial" jurisdiction will only be in play, and thus that the case can only fall into the third category, if the court is concerned with media activities which either relate directly to the child's "upbringing", as that word is used in section 1 of the Children Act 1989, or which involve an exercise of parental responsibility by the child's parent.

The Status of Wardship

However, before I turn to deal with this point I must first return to consider the status which wardship confers on the ward and the incidents attached to that status.

As is well-known, no "important" or "major" step in the life of a ward of court can be taken without the prior consent of the court. This is not some empty exhortation or mere platitude for, subject to proof of knowledge that the child in question is a ward of court, it is a contempt of court to undertake or facilitate any such step without the consent of the court.

Both Mr Murdoch and Mr Kirk submit that for the BBC to interview Bobby for the purpose of later broadcasting was an important step in his life which should not have taken place without the leave of the court and which, since the BBC knew that Bobby was a ward of court, in fact amounted to a contempt of court. Alternatively, it is said that even if the interview itself was not such a step the broadcasting of the interview would be. Accordingly, they submit, the BBC requires the leave of the court before it can broadcast. Both Mr Murdoch and Mr Kirk accept that there is no authority directly in point.

Mr Tugendhat for his part declines to seek such leave. He denies that there is any such rule as that asserted by Mr Murdoch and Mr Kirk and submits that, unless injuncted by the court, he is entitled to broadcast.

On this point I agree with Mr Tugendhat. I cannot accept Mr Murdoch and Mr Kirk's submissions, attractively though they were put. In my judgment the media do not require the leave of the court either to interview a ward of court or to publish or broadcast such an interview. It makes no difference for this purpose that the child is known by those conducting, publishing or broadcasting the interview to be a ward of court. In publishing or broadcasting the media will of course have to take care to avoid any breach of the restraints imposed by section 12 of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989 (and for that matter by section 2 of the Contempt of Court Act 1981), but, so long as they do, no contempt as such is, in my judgment, committed by the media interviewing a child who is known to be a ward of court or publishing or broadcasting such an interview.

Understandably no one has ever sought to define what constitutes an "important" or "major" step for this purpose. I certainly do not propose to do so. Mr Murdoch has helpfully referred me to the list set out in Hershman and MacFarlane, Children Law and Practice (1999) Vol 1 paras C 1060-1062. Other useful discussions can be found in chapters 5 and 8 of Lowe & White Wards of Court (ed 2, 1986) and in Borrie & Lowe, Law of Contempt (ed 3, 1996) pp 451-456. These show that included in the category of "important" or "major" steps for this purpose are: marrying the ward; removing the ward from the jurisdiction; making a material change in the ward's education, residence or whereabouts (including placing the ward in secure accommodation, moving the ward between foster parents or placing the ward for adoption); instituting adoption proceedings or freeing for adoption proceedings with respect to the ward; changing the ward's name; making an application on behalf of the ward to the Criminal Injuries Compensation Board; administering a police caution; or subjecting the ward to the more significant forms of medical treatment (for example, an abortion or a sterilisation).

Also included in the list, and perhaps of more relevance for present purposes, are: a psychiatric examination for forensic purposes; interviews by an independent social worker; police interviews; and interviews on behalf of a defendant in criminal proceedings: see as to these Practice Direction (Minor: Independent Reporter) [1983] 1 WLR 416, Practice Direction (Minor: Psychiatric Report) [1985] 1 WLR 360, Practice Direction (Minor: Psychiatric Report) (No2) [1985] 1 WLR 1289, Practice Direction (Ward: Witness at Trial) [1987] 1 WLR 1739 and Practice Direction (Ward: Witness at Trial) (No2) [1988] 1 WLR 989.

Mr Murdoch, supported in this submission by Mr Kirk, submits that, having regard to the principle illustrated by the various examples in this list, and particularly by analogy to the examples set out in the last paragraph, media interviews -- or at least certain types of media interview -- constitute "important" or "major" steps in a ward's life which require the leave of the court. He refers to in In re T (AJJ) (An Infant) [1970] Ch 688, 689H, where Russell LJ, giving the judgment of the Court of Appeal, which also included Cross LJ, said:

"But it must be borne in mind that the infant is a ward of court under the judge's order, and if anyone is minded to question or interview the infant they may well be at risk of being in contempt."

Recognising, as I do, the vast experience of wardship which both Russell and Cross LJJ had in the days when wardship was still in the Chancery Division, I have to say that I share the same doubts and uncertainties as to what exactly it was they had in mind which are expressed in Lowe & White, Wards of Court (ed 2, 1986) paras 5-28 and 8-11, Borrie & Lowe, Law of Contempt (ed 3, 1996) pp 230 and 456, and Arlidge, Eady & Smith on Contempt (ed 2, 1999) para 11-320, none of whom seem to evince much enthusiasm for what Russell LJ said. It may also be not unimportant to remember that Russell LJ was speaking in 1970, before the decisions of the Court of Appeal in In re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47 and In re F (A Minor) (Publication of Information) [1977] Fam 58, and long before the current understanding of matters had begun to emerge in the late 1980s.

A number of considerations drive me to the conclusion to which I have come:

(1) First, and as a matter of general impression, one would not in this age of media saturation usually consider an interview by the media an "important" or "major" step in a child's life, however interesting or exciting it may be for the child.

(2) Secondly, and comparing the other examples in the list, it is far from immediately obvious that there is any very compelling or helpful analogy. Even those particularly relied on by Mr Murdoch and Mr Kirk (interviews by independent social workers, the police or on behalf of a defendant in criminal proceedings) do not in my judgment provide any very compelling analogy. There is, as it seems to me, a substantial difference between an interview with the media, which may have nothing at all to do with the wardship proceedings, and more or less formal interviews in a forensic context where the child is being interviewed for the purpose of the proceedings and because he is or may be involved in those proceedings either as a witness or as the subject of the proceedings. Moreover, it is to be noted that each of those other cases is regulated by a specific Practice Direction; there is no Practice Direction regulating media interviews.

(3) This leads on to a third and, as it seems to me, very striking point. So far as I am aware, and neither Mr Murdoch nor Mr Kirk has been able to point me to any such case, with the sole exception of Russell LJ's comment in In re T (AJJ) (An Infant) [1970] Ch 688 there is not to be found in any of the numerous cases to which I have referred in this judgment, or indeed anywhere else in the reported case law, any judicial support for the proposition for which Mr Murdoch and Mr Kirk contend. That is, as it seems to me, a very striking silence, given that this is a very well-tilled field which has been subjected to such very close scrutiny in recent years. Particularly surprising if the argument is sound is that the point appears not to have been canvassed in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466, where four wards of court aged between nine and 14 had given an interview to a newspaper reporter, who plainly knew that they were wards of court, in circumstances which clearly troubled both the Official Solicitor, their guardian ad litem, who immediately applied for injunctions to restrain any repetition, and the Court of Appeal, which included Balcombe and Waite LJJ, both judges with vast experience of wardship in both the Chancery Division and the Family Division. There was, however, no suggestion that the interview itself amounted to contempt.

Interestingly, given some of the issues which arise in the present case, Balcombe LJ commented at page 474E:

"I accept that the representation of children in family proceedings, and the role of the Official Solicitor, are matters of public interest which can and should be discussed publicly. I also accept that a boy of 15 may be sufficiently mature to be able to speak directly to, and be interviewed by, representatives of the press or broadcasting media. However, there can be no public interest in identifying members of his family: that would be only public curiosity.

Further, the three younger boys are unlikely to be of sufficient intellectual or emotional maturity to appreciate the dangers inherent in becoming involved in media publicity. In my judgment, a proper balance between these conflicting considerations can be achieved by amending the order of 19th May 1994."

(4) However, and this leads on to the fourth point, this silence is not as surprising as might otherwise be thought given that, as it seems to me, Mr Murdoch and Mr Kirk's contentions fit at best very awkwardly with the established principles derived from the cases to which I have referred earlier in this judgment. As I have already said, the publication of information about a ward, even if the child is known to be a ward, is not, of itself and without more ado, a contempt of court.

In his judgment in In re F (A Minor) (Publication of Information) [1977] Fam 58, 86C Lord Denning MR, immediately before the passage which I have already quoted, gave the example of a newspaper reporting of a ward of court that she has just won a scholarship to Oxford. If it is not a contempt of court, as in my judgment it is not, for the local newspaper to report of a child prodigy whom it knows to be a ward of court that she has just won a place at the age of 15 to study mathematics at Oxford, the report containing a photograph of the ward and interviews with the child's schoolteachers, parents and elder siblings, I can see no sensible basis for saying that it is contempt to include in the article a very short quotation of what the ward herself has told the reporter. Nor, in my judgment, could it make any difference that the interview was published in a national newspaper. Understandably perhaps Mr Murdoch and Mr Kirk shrank from going quite this far. They suggested that it might be different if the interview were to be broadcast, particularly if it were to be broadcast nationally (as in the present case) rather than only locally. This cannot in my judgment be a sensible basis of distinction. Particularly in this era of rapidly emerging new communication technologies spreading news and information continuously throughout what is rapidly becoming a global village, the issue of contempt or no contempt cannot turn on distinctions between the local or national media or between the print and broadcast media.

Seeking to escape from this difficulty Mr Murdoch and Mr Kirk suggest that, even if an interview or broadcast which has nothing to do with the wardship proceedings does not, as in my judgment it does not, involve, of itself and without more ado, any issue of contempt, the case is different if the ward is interviewed (as in the present case) about matters relating to the wardship proceedings themselves. Of course, if what is done breaches the restraints imposed by section 12 of the Administration of Justice Act 1960 or section 97(2) of the Children Act 1989, there will be a contempt, but that will not be because the interview is with the ward. And, as has already been seen, the ambit of section 12 is fairly narrow. The difficulty with the suggestion that it makes all the difference that the interview with the ward touches on matters relating to the proceedings, whether or not it thereby breaches the restraints imposed by section 12, is this: if it is not, as on this hypothesis it is not, a contempt of court to conduct and publish the interview merely because the interview is with the ward, and if it would not be a contempt to publish the material contained in the interview with the ward if precisely the same material were contained in an interview with someone other than the ward, why should the mere combination of the two factors, neither of which taken on its own would constitute a contempt, make all the difference? I can see no sensible basis for concluding that if the mere act of conducting and publishing and broadcasting an interview with a ward of court is not, of itself, a contempt of court, as in my judgment it is not, and if the publication of material not subject to the restraints imposed by section 12 is not of itself contempt, as in my judgment it is not, the publication or broadcasting of such material if contained in an interview with the ward should, without more ado, constitute a contempt. This, as it seems to me, is a most compelling reason why Mr Murdoch and Mr Kirk's argument is not soundly based.

(5) Fifthly, Mr Tugendhat points out that the field of what might be called "automatic restraint" in respect of the relationship between the media, on the other hand, and the court and its wards, on the other hand, is the subject of a scheme of statutory regulation -- that is regulation by section 12 of the Administration of Justice Act 1960, section 97(2) of the Children Act 1989 and section 2 of the Contempt of Court Act 1981 -- and, moreover, a scheme of statutory regulation last adjusted as recently as the amendment of section 97(2) by the Access to Justice Act 1999. So it would, he says, be inappropriate for the judges at this stage to be discovering hitherto unknown forms of non-statutory restraint. There is, as it seems to me, some force in this point.

(6) Finally, as Mr Tugendhat correctly points out, the argument put forward by Mr Murdoch and Mr Kirk raises serious issues in relation to article 10. Press conferences held by those who wish to attract attention to their views, and interviews conducted by the media, are both essential mechanisms for facilitating the exercise of the rights guaranteed by article 10. Both the press conference and the interview are means by which those wishing to disseminate their views exercise their Convention right to "impart" information and ideas and by which the media exercise their Convention rights both to "receive" and in turn to "impart" information and ideas. Any rule of domestic law of the kind contended for by Mr Murdoch and Mr Kirk thus prima facie offends article 10 and must accordingly be justified under paragraph 2. Given that on this issue there is, on any view, uncertainty as to what the rule of domestic law is, I am, in my judgment, required by the principle in Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QC 670 to which I have already referred, to have recourse to article 10 in resolving that uncertainty. This raises two questions:

(i) First, is the rule for which Mr Murdoch and Mr Kirk contend "necessary in a democratic society" to safeguard the interests of wards of court? Is there a "pressing social need" for such a rule in order to safeguard those interests? Would such a rule be "proportionate to the legitimate aim pursued"? Mr Tugendhat says no. I agree. Such a rule would be taking a sledgehammer to crack a nut. There are other ways in which the legitimate interests of wards of court can properly be protected. In my judgment any rule which made it a contempt of court, of itself and without more ado, for the media to interview a ward of court without first obtaining the leave of the court, even if the rule were to be confined in the way in which ultimately Mr Murdoch and Mr Kirk agreed it would have to be confined, involves far too serious an invasion of the article 10 rights both of the media and, I stress, of the ward himself to pass muster under paragraph 2.

(ii) Secondly, is it possible to formulate the rule for which Mr Murdoch and Mr Kirk contend with sufficient precision to enable citizens -- in particular the media -- to regulate their conduct? Mr Tugendhat, having observed their valiant attempts to do just that in the course of argument, submits that the answer is obvious. He asked rhetorically, to which part of the media is the rule to apply? Who for this purpose is to be treated as a journalist? With disarming forensic charm he hints that even Mr Murdoch and Mr Kirk do not know and cannot say. Nor do I. What if the editor of a school magazine publishes an article about a pupil who is known to be a ward? Or the editor of a parish magazine? On this ground also, it seems to me, the suggested rule fails to pass muster under article 10.

Accordingly, I reject the submission that the BBC requires the leave of the court before it can broadcast. I accept Mr Tugendhat's submission that, unless injuncted by the court, the BBC is entitled to broadcast. I agree with Mr Tugendhat that the major step in Bobby's life was his leaving home and joining the group, not his giving an interview to the BBC about it.

Injunctive relief

I turn, therefore, to consider whether this is a case for injunctive relief. Mr Murdoch and Mr Kirk accept that the injunction granted by Singer J in the early hours of 18th July 2000 is too wide in its terms and requires to be revisited. They submit that I should grant an injunction in the following terms.

"IT IS ORDERED THAT:

1. and an injunction is hereby granted restraining until 5th April 2002 or until further order in the meantime any person (whether by himself or by his servants or agents or otherwise howsoever or in the case of a company whether by its directors or officers servants or agents or otherwise howsoever) from:

(1) publishing in any newspaper or broadcasting in any sound or television broadcast or by means of any cable or satellite programme service or public computer network or any other public medium:

(a) the detail or substance of any interview correspondance or communication emanating from, or purporting to emanate from, the minor Third Defendant Bobby Kelly and the continuation of any such publication which has already been made;

(b) any comments made by any of the following persons in relation to the said minor being members or representatives of the "Jesus Christians".

(2) soliciting or attempting to solicit any information relating to the minor:

(a) from the minor,

(b) from the Plaintiff,.

(c) from the minor's mother,.

PROVIDED THAT nothing in the order shall of itself prevent any person.

(i) publishing any particulars of or information relating to any part of the proceedings before any court other than a court sitting in private

(ii) seeking or receiving information from any person who has previously approached the person seeking or receiving information with the purpose of volunteering information

(iii) soliciting information relating to the child in the course of or for the purpose of the exercise by the person soliciting such information of any duty or function authorised by statute or by any court of competent jurisdiction"

Mr Tugendhat says that there should be no injunction at all, alternatively, that any injunction should be much more narrowly drawn, in particular (i) so as to permit the BBC, even if it is to be prevented from broadcasting the sound recording of the interview, to report and comment on the content of the substance of the interview, and (ii) so as to permit the re-publication of material already in the public domain. As a quite separate matter he submits that there is no warrant for imposing any restraint on the persons identified in paragraph (1)(b) of the draft.

There are, as it seems to me, four issues, which I propose to deal with in the following order:

(i) Should the media be restrained by an injunction in rem or injunction contra mundum from publishing any, and if so what, communications from Bobby?

(ii) Should the media be restrained by an injunction in rem or injunction contra mundum from publishing comments about Bobby made by the persons named in paragraph (1)(b) of the draft?

(iii) Should any such injunction be expressed to be subject to a proviso permitting the further publication of material already in the public domain?

(iv) Should an order be made against the soliciting of information about Bobby from him, his mother or his grandmother?

First, however, I must deal with Mr Kirk's submission that I should not decide any of these matters at this stage but adjourn the matter until Bobby is found. He points out that the Official Solicitor is in the unusual position of never having met the child on whose behalf he is acting. He is therefore unable to take any of the steps he would usually take in order to ascertain the wishes of a boy of Bobby's age and, moreover, is greatly hampered in coming to any informed view as to where Bobby's best interests truly lie and what his true wishes really are. He says that any assessment of Bobby's welfare must in the circumstances be speculative. He says that there exist substantial concerns about Bobby's general welfare and whether or not the broadcast should go ahead in the light of those concerns without Bobby's express and specific agreement. He submits that the issues cannot properly be judged on the information presently available to the court and that the matter should therefore be adjourned until Bobby is found.

Whilst appreciating the difficulties in which both the Official Solicitor and indeed the court find themselves, I have come to the clear conclusion that it would be wholly wrong to accede to Mr Kirk's invitation. As I have said, I accept Mr Tugendhat's submission that, unless injuncted by the court, the BBC is entitled to broadcast. It is for those seeking to obtain an injunction to establish their case and to do so convincingly. If they cannot establish that case then the BBC is entitled to broadcast. It should not be deprived of that right by reason of the granting of an indefinite adjournment of its application to discharge an injunction which it asserts should never have been granted in the first place. To grant such an adjournment would in my judgment be to infringe its rights under article 10.

(i) Injunctive relief in respect of communications with Bobby

As I have already indicated, it is common ground before me, and I agree, that the present case is one in which the court does have jurisdiction to grant injunctive relief. The dispute is whether the case falls into the second or third of the three categories identified in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1, that is to say, whether, because the court is exercising only its "protective" jurisdiction, the child's interests are not paramount, so that the so-called balancing exercise has to be performed (which is what Mr Tugendhat asserts), or whether, because the court is exercising its "custodial" jurisdiction, the child's interests are paramount (which at least in relation to this part of the case is what Mr Murdoch and Mr Kirk both assert).

This raises the question, which is far from easy, as to what precisely it is that distinguishes cases in the second category from those in the third. The view which I have tentatively expressed in general terms is that In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 would seem to indicate that the "custodial" jurisdiction will only be in play, and thus that the case can only fall into the third category, if the court is concerned with media activities which either relate directly to the child's "upbringing", as that word is used in section 1 of the Children Act 1989, or which involve an exercise of parental responsibility by the child's parent.

In In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 the child's mother had permitted the child to be filmed over a period receiving treatment in a specialist institution treating the child's complex problems she wished to co-operate in the making of a television documentary in which both the mother and the child would take part. In the course of a discussion of parental responsibility and prohibited steps orders, Ward LJ, [1997] Fam 1, 26E, 27D, held that what he variously described as,"giving permission for the making of this film" and the "decision to permit this child to be filmed and to appear on television" quite clearly involved an exercise of parental responsibility by the mother within the meaning of section 3(1) of the Children Act 1989, entitling the court on that ground alone to make a prohibited steps order against the mother under section 8(1) of the Act.

That part of Ward LJ's analysis was directed primarily, of course, not to the grant of an injunction in rem or contra mundum but to the grant of relief in personam against the child's mother. On that issue, as Ward LJ said, [1997] Fam 1, 30D, the child's welfare was of course paramount. That, however, does not arise in the present case where, as I have said, it is common ground that I am concerned exclusively with an injunction contra mundum.

So far as concerns relief in rem or contra mundum, I read Ward LJ's analysis as indicating that the child's welfare will be paramount only if the court is determining a question with respect to the child's upbringing: see the discussion at [1997] Fam 1, 28B to 29F. That being so, the critical question then becomes, what is meant by "upbringing"? As Ward LJ commented wryly at 28F:

"It is not always easy to decide when a question of upbringing is being determined."

I agree with Mr Tugendhat when he submits that not everything a child does is a matter of upbringing. Ward LJ's conclusion at 29E was that:

"A question of upbringing is determined whenever the central issue before court is one which relates to how the child is being reared."

The reference to how the child is being "reared" (which I observe reflects the dictionary meaning of the word "upbringing") is revealing. Both words carry the connotation of the bringing up, care for, treatment, education and instruction of the child throughout childhood by its parents or by those in loco parentis. Upbringing thus involves a process in which the parent, or other person in loco parentis, is the subject and of which the child is the object. In formal grammatical terms the statutory phrase "upbringing of a child" is an objective genitive, not a subjective genitive. Section 1(1)(a) of the Children Act 1989 therefore applies only to those processes or actions of which the child is the object, and not to those in which the child is the subject.

That this is the sense in which Ward LJ understood the word "upbringing" to be used in this context is, in my judgment, borne out by the important passage in which he explains why in In re Z itself the child's upbringing was indeed implicated. He said at [1997] Fam 1, 30E to 31A:

"This case is not simply about some third person (the television company) publishing without parental involvement information about the way in which this child is being cared for and brought up as in In re M and M (Minors) (Wardship: Publication of Information) [1990] Fam 211 and In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100 etc. This is not a case where the parent stands by acquiescing in competent teenagers taking their story to the press as they did in In re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466. If there was more than mere acquiescence and if there was active encouragement by the father in that case, it was not argued or presented on that basis. This is not a case like the transsexual father in In Re H.-S (Minors) (Protection of Identity) [1994] 1 WLR 1141 who tells the family story but who does not require the children to participate in its telling. This case is one where the mother wishes her child to perform for the making of the film. This mother wishes to bring up her child as one who will play an active part in a television film. This is a case where the mother wishes to exercise her parental responsibility and waive confidentiality which the child otherwise enjoys in keeping her medical treatment and/or education private. This is a case, quite unlike any of the other cases I have discussed, where the court is being asked to decide whether the child shall take part in the activity. The court is, therefore, required to determine a question with respect to the upbringing of the child."

There are three things of importance which I derive from that passage.

(1) First, as I read what he was saying, Ward LJ treated Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466, where, it will be remembered, four wards of court had been interviewed by a journalist, as being a case which did not involve their upbringing. (I note in parenthesis that this agrees with the approach which was actually adopted by the Court of Appeal in Re W; the court treated the case as involving the balancing exercise which is characteristic of cases in the second category.) This is because, as Ward LJ explained it, the boys had themselves taken their story to the press without their father's active encouragement and, at most, with his acquiescence.

(2) Secondly, and again as I read what he was saying, the reason why Ward LJ treated the facts of in In re Z differently from the facts of Re W was because Z's mother:

"... wishes her child to perform for the making of the film,"

because she:

"... wishes to exercise her parental responsibility ...,"

and, most significant of all, because she:

"... wishes to bring up her child as one who will play an active part in a television film." (emphasis added).

(3) Thirdly, and this follows from the other two points, when Ward LJ said of In re Z that:

"This is a case quite unlike any of the other cases I have discussed, where the court is being asked to decide whether the child shall take part in the activity." (emphasis added),

it would seem to follow that he did not consider the mere fact of giving an interview to a journalist as amounting to "taking part in an activity" for this purpose, or at least not in such a way as to involve any question with respect to the child's upbringing.

It follows, in my judgment, that Bobby's participation in the interview with the BBC -- something done, I might add, without reference to either his mother or his grandmother -- does not raise any question with respect to his upbringing. I agree therefore with Mr Tugendhat that the present case falls into the second and not the third category. As a consequence Bobby's welfare is not the paramount consideration.

Assuming that the present case does indeed fall into the second category, all counsel are agreed that the proper approach to the exercise of the court's discretion is that set out by Neill LJ in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100, 103A to G:

"(1) The court will attach great importance to safeguarding the freedom of the press. In Attorney General v Guardian Newspapers Limited (No 2) [1990] 1 AC 109, 183, Sir John Donaldson MR explained the crucial position occupied by the press:

'It is because the media are the eyes and ears of the general public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public. Indeed, it is that of the general public for whom they are trustees.'

(2) The court will also take account of article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) which is designed to safeguard the 'freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...' (3) These freedoms, however, are subject to exceptions which include restrictions upon publication which are imposed for the protection of children. (4) In considering whether to impose a restriction upon publication to protect a ward of court the court has to carry out a balancing exercise. It is to be noted, as Butler-Sloss LJ pointed out in In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211, 233, that 'in this situation the welfare of the child is not the paramount consideration'. (5) In carrying out the balancing exercise the court will weigh the need to protect the ward from harm against the right of the press (or other outside parties) to publish or to comment. An important factor will be the nature and extent of the public interest in the matter which it is sought to publish. A distinction can be drawn between cases of mere curiosity and cases where the press are giving information or commenting about a subject of genuine public interest. (6) It is to be anticipated that in almost every case the public interest in favour of publication can be satisfied without any identification of the ward to persons other than those who already know the facts. It seems to me, however, that the risk of some wider identification may have to be accepted on occasions if the story is to be told in a manner which will engage the interest of the general public. (7) Any restraint on publication which is imposed is intended to protect the ward and those who care for the ward from the risk of harassment. The restraint must therefore be in clear terms and be no wider than is necessary to achieve the purpose for which it is imposed. It also follows that, save perhaps in an exceptional case, the ward cannot be protected from any distress which he may be caused by reading the publication himself."

It will be observed that Neill LJ makes explicit reference to article 10. In my judgment it is clear that the Court of Appeal in that case was intending to give effect to the Convention jurisprudence to which I have already referred. That is clear, first, from Neill LJ's use of the word "necessary" in the phrase:

"The restraint must ... be no wider than is necessary to achieve the purpose for which it is imposed,"

and Balcombe LJ's use of the word "essential" in the phrase:

"essential to protect the ward from clear and identifiable harm,"

and, secondly, from Balcombe LJ's reference in that context to "clear and identifiable harm".

Consistently with Convention jurisprudence and with what the Court of Appeal said in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100, it seems to me, first, that the burden is on those who seek to invoke the court's jurisdiction to establish "convincingly" by proper evidence, that an injunction is "necessary" in order to protect Bobby from "clear and identifiable harm", and, secondly, that any injunction granted must be "proportionate" to that aim and no wider than is necessary. The need for proper evidence does not of course mean that the court cannot use its common sense. As Butler-Sloss LJ said in In re M & N (Minors) (Wardship: Publication of Information) [1990] Fam 211 at 226G:

"It has also been suggested that the evidence to be presented to the judge, at least on the inter partes hearing, should include specific evidence of, for instance, psychological harm likely to be caused to the child by the publication proposed. Again, in my view, that is a misconception, both of the function of and the experience of those sitting in the Family Division. In In re X that evidence was available and rightly did not sway the decision. The evidence of child psychiatrists is invaluable in many of the difficult decisions to be made in child cases. In my view, it is not normally necessary in order to assist a judge in balancing the welfare of the child and the right to publish and whether the child and others in the proceedings should or should not be identified"."

What it is vital to appreciate, however, is that it is for those seeking to obtain an injunction to establish their case and to do so convincingly; it is not for the media to establish why it should be allowed to publish. Save in relation to matters the publication of which is regulated either by section 12 of the Administration of Justice Act 1960 or by section 97(2) of the Children Act 1989 the media, as I have already said, do not require the leave of the court to publish material about a ward of court. Mr Tugendhat does not come to court seeking leave to do anything at all. He comes to court asserting his right to broadcast. The only relief he seeks from the court is an order setting aside an injunction which, he says, should never have been granted in the first place.

This is an elementary point, but it is one which, I fear, nonetheless requires emphasis. As Hoffmann LJ said in R v Central Independent Television PLC [1994] Fam 192 at 204B:

"In any area of human rights like freedom of speech, I respectfully doubt the wisdom of creating judge-made exceptions, particularly when they require a judicial balancing of interests. The danger about such exceptions is that judges are tempted to use them. The facts of the individual case often seem to demand exceptional treatment because the newspaper's interest in publication seems trivial and the hurt likely to be inflicted very great. The interests of the individual litigant and the public interest in the freedom of the press are not easily commensurable. It is not surprising that in this case the misery of a five year old girl weighed more heavily with Kirkwood J than the television company's freedom to publish material which would heighten the dramatic effect of its documentary. This is what one would expect of a sensitive and humane judge exercising the wardship jurisdiction. But no freedom is without cost and in my view the judiciary should not wittle away freedom of speech with ad hoc exceptions. The principle that the press is free from both government and judicial control is more important than the particular case."

The point was repeated by Thorpe LJ in In re G Celebrities: Publicity) [1999] 1 FLR 409 at 418B:

"As Hoffmann LJ rightly said in his judgment in R v Central Independent Television there is an inevitable tendency for the Family Division judge at first instance to give too much weight to welfare and too little weight to freedom of speech. That reality is reflected in the number of appeals in this field which succeed. Beyond that, as this case illustrates, all the advocates and the draftsmen before the court are equally child centred. Those who are to be bound by contra mundum orders have no opportunity to make submissions as to where the boundary should be drawn nor to contribute their expertise to the drafting. In my opinion consideration should be given to establishing a procedure to meet this deficit."

There is, I fear, a real danger that what Thorpe LJ refers to as the "child centred" approach of those who are usually involved in the initial stages of such an application which may on occasions lead not merely to the problems in drafting the appropriate injunction to which Thorpe LJ drew attention but also, and even more seriously, to a failure to assess whether those seeking relief really have convincingly established on the facts that the injunction they seek is necessary.

I shall return to the procedural implications of this at the end of my judgment.

There is a further point which emerges from the passages in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100 to which I have just referred. As we have seen the Court of Appeal in In re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47 disavowed any power to prevent publication of a book which would be "psychologically grossly damaging" to the ward and where the injury to her emotional psychological health would be "very grave indeed". That was a publication of material which related not to the ward herself but to her dead father. In In re W that principle was extended to the case of publication of material relating to the ward himself. Both Neill and Balcombe LJJ seem to have been very doubtful about the power of the court to protect the ward from harm suffered by reading about himself in the publication in question -- a power which neither was prepared to contemplate except (as Neill LJ said "perhaps") in an "exceptional", or as Balcombe LJ put it a "wholly exceptional" case. The striking fact is that in In re W the Court of Appeal refused to prevent publication of a story which it was likely would be read by the ward himself in circumstances where there was cogent evidence that his placement might be jeopardised and that the article would have a "devastating effect" on the ward, who was likely to be seriously affected both by the article itself and by his fear of the reaction of others to it: [1992] 1 WLR 100, 102F.

Mr Tugendhat says that there is a clear public interest in the story which the BBC wishes to broadcast. He submits that, just as Lord Donaldson of Lymington MR in In re M & N (Minors) (Wardship: Publication of Information) [1990] Fam 211, 230A, correctly identified the clear public interest in knowing more of why two young children living with long term foster parents should have been "spirited away" by a local authority from what had become their family between breakfast and supper without explanation or warning, so there is an equally clear public interest in knowing more of why Bobby should have been "spirited away" by a religious organisation from what had become his home within a few hours of first having come into contact with them.

He says, furthermore, that there is a public interest in understanding how it is that someone in Bobby's position should apparently feel unable to turn for assistance to the court and the Official Solicitor -- an argument, as it seems to me, which finds support in the observations of Balcombe LJ in In re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 to which I have already referred.

He points further, and tellingly, to the public interest which, he says, arises out of the fact that in this very case the court itself has, as it were, "gone public", and invited the assistance of the media in finding Bobby. He says that if Bobby is encouraged to contact the media that is all to the good, because it might lead to him being found. Realistically he comments that the media cannot be expected to take quite the same interest in the story as would otherwise be the case if they are injuncted from saying anything that Bobby tells them. There is, in other words, he says, a clear public interest in the media being encouraged to assist the court in cases, such as this, in which the court has itself sought to enlist the media's assistance.

I agree with Mr Tugendhat. There is, in my judgment, a clear public interest in Bobby's story and in the interview with him obtained by the BBC.

Mr Murdoch and Mr Kirk point to a number of reasons why, as they would have it, the balance nonetheless comes down in favour of an injunction. They say that Bobby is a vulnerable and impressionable child who, on any view, has behaved in an extraordinary fashion, first, in leaving home in the circumstances I have described and subsequently in staying in hiding. They point to matters which I have already referred to as suggesting that Bobby is being used and manipulated by the group for its own ends and in a manner which disregards his welfare. They suggest that the group is seeking to use Bobby to win a public opinion battle and that the BBC is allowing itself to be drawn into a trial by the media of issues which are properly matters for judicial decision.

The Official Solicitor, having considered Bobby's interview with the BBC, questions whether it reveals him as expressing his views with any degree of mature independence and detachment. Mr Kirk questions whether Bobby really appreciates the implications of the interview being broadcast, for example, the risk that it may generate a substantial amount of secondary publicity presented in a more sensational fashion than the broadcast itself. He questions whether the interview accurately reflects what Bobby might say in a different context. He questions whether Bobby is actually himself seeking publicity at all.

Mr Murdoch also suggests that, unless a protective injunction is granted, prospective litigants who in future find themselves in the position of Bobby's grandmother may be deterred from approaching the court at all.

Their prime concerns are three-fold: (1) First, that if publication of the interview is not injuncted Bobby will, they say, find it very much more difficult to return to his grandmother's home (or anywhere else) should he wish to do so. He has aligned himself with the views of the group and, says Mr Kirk, there is a respectable argument that, if he is seen as committing himself any further to the group, Bobby will feel unable to extricate himself, or, at the very least, will feel extremely disloyal and under a degree of pressure in doing so. As Mr Murdoch puts it, he will see himself as fighting the cause for the group. If the interview is broadcast he will, they assert, become even more entrenched in his present position. (2) Secondly, says Mr Kirk, Bobby may feel inhibited in giving the Official Solicitor instructions that differ from the views that he will know have been made public. (3) Thirdly, the "glamorising" of Bobby's situation and his being thrust further into the limelight may, they say, make it more difficult for him to resume a "normal" life at a later stage and may cause him embarrassment with his peer group.

In answer to these submissions Mr Tugendhat points to the fact that Bobby is 16 and that it was he who telephoned the BBC. He points out that, in very large part because of the orders which the court itself has made, there has already been very wide publicity about Bobby and the predicament in which he finds himself. He points out that Bobby's views are already well publicised -- in particular in the newspapers which published the extracts from the e-mail and the PA interview to which I have already referred. There is, he says, substantial material already in the public domain both about Bobby and about the views which he apparently holds. He says that, if there is any substance in the argument that Bobby may find himself in an entrenched position from which he cannot retreat, there is little reason to fear that broadcasting the BBC interview is going to make matters any worse. Bobby has already, says Mr Tugendhat, committed himself in public to the assertion that he is happy with the group.

He says that Bobby has the right to put over his point of view, if he wishes to outside court, by talking to the media. He says that at 16 Bobby's expression of his own position must be taken seriously. He says, correctly, that the proposed injunction would prevent any reporting of anything said either by Bobby or, in relation to Bobby, by the other named persons. This he submits is as great an interference with their rights as is possible, and it can, accordingly, be justified only by correspondingly strong evidence which convincingly establishes the need for such drastic restraints.

He submits that the reasons put forward for injuncting the media and preventing the BBC broadcasting the interview are speculative and have no solid evidential foundation. He says that it is equally, indeed he would say more, plausible to conclude that allowing the BBC to broadcast the interview will actually further Bobby's interests. If he feels that he is being listened to, that may make it easier for Bobby and give him the confidence to come forward; but if he feels that no one is listening to him and that what he wants to say is being ignored he may be driven even further into the laager and all the more easily persuaded by the group that his only recourse is to remain in hiding with them.

Mr Tugendhat points out that the BBC wishes to use the interview as part of a balanced debate -- it is not simply going to broadcast the tape raw. He says that there is no reason to fear such secondary publicity as there may be. He points to the tone of the media reporting thus far which he says, correctly as it seems to me, has been balanced and not sensational in tone. He suggests that, if anything, the media is likely to be antagonistic towards rather than supportive of the group and that there is nothing in anything that has yet been published to suggest that the media is going to glamorise either Bobby or the group.

Directing myself in accordance with the principles which I have outlined above, and having regard to all the material in the case (including the impressions which I have formed listening to the tape and reading the transcript of the interview), I have come to the clear view that Mr Tugendhat is correct in his submission that this is not a case in which the need for injunctive relief has been established.

Given all the publicity there has already been, and given that Bobby's apparent views have already been widely reported, I do not think that any convincing case has been put forward that broadcasting the interview or further publicity of the sort it is reasonable to anticipate is going significantly to harm Bobby. There is, in my judgment, no "clear and identifiable harm" established of the kind which alone would justify injunctive relief of the kind sought. On the contrary, the argument that further publicity of the kind which the proposed injunction would prevent might actually be in Bobby's best interests seems to me to be, in the unusual circumstances of this case, at least as plausible as the contrary argument put forward by Mr Murdoch and Mr Kirk. Furthermore, an injunction framed as widely as that which I am invited to make would, in my judgment, be wholly disproportionate to any aim that could legitimately be pursued on Bobby's behalf. Such a degree of restraint could, in my judgment, be justified only if there was much more compelling reason to fear than in my judgment there is a significantly greater degree of possible harm to Bobby than any which, in my judgment, is reasonably to be anticipated. Moreover, the public interest arguments identified by Mr Tugendhat seem to me to carry considerable weight. Such evidence as there is to suggest that Bobby's interests may be prejudiced if the injunction is not granted does not, in my judgment, come near to outweighing the clear public interests which, as it seems to me, have been correctly identified by Mr Tugendhat.

For these reason I have come to the clear conclusion that the case for injunctive relief has not been made out.

For the sake of completeness I should deal with two other matters. First, and quite apart from the reasons which I have already given for refusing to grant the injunction sought, Mr Murdoch and Mr Kirk would, as it seems to me, have great difficulty in overcoming the point made by Neill and Balcombe LJJ in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100 that save perhaps in an exceptional case the court has no power to protect a ward from harm caused by reading about himself. This is an issue which was not explored fully in argument and on which accordingly I express no final view. There is no need for me to do so for, as I should like to make clear, this is not the basis upon which I have come to my decision in this case.

Secondly, and relying on passages in In re M & N (Minors) (Wardship: Publication of Information) [1990] Fam 211, 226D, 230E, Mr Kirk submits that this is a case in which the injunction should continue, even if no longer, at least until Bobby is found. I reject that submission essentially for the same reasons as those which I have already set out. Moreover, Mr Tugendhat submits with compelling force, as it seems to me, first, that news is an inherently perishable commodity and, secondly, that this particular story will never be published in the way in which the BBC would wish to publish it if it has to be delayed until Bobby is found; it is a story about a boy in hiding who is speaking out whilst still in hiding and that story will die as soon as Bobby is found.

(ii) Injunctive relief against those named in paragraph (1)(b) of the draft

Mr Murdoch and Mr Kirk accept that on any view this injunction falls into the second and not the third category. I agree.

If there is to be, as I have ruled, no injunction to restrain the media publishing information about Bobby emanating from Bobby himself, I agree with Mr Tugendhat's submission that it would not be appropriate to restrain the media from publishing comments about Bobby emanating from the other named individuals. I do not treat the second point as simply following a fortiori from my ruling on the first point. But for very much the same reasons as those which I have already set out at some length I have come quite clearly to the conclusion that no proper case has been made out for injuncting those individuals having regard to the principles set out in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100.

Both Mr Murdoch and Mr Kirk rely, however, on a further ground of justification for this injunction, namely that some at least of the persons named in paragraph (1)(b) of the draft are, as they assert, in contempt of court, refusing to hand Bobby over to the Tipstaff and regulating the access to him not merely of the media but also of the court and its officers, and indeed also of Bobby's family and friends. Mr Kirk puts the point very eloquently when he submits that some at least of these people are aware that the court has made orders that require Bobby to be removed from their care; that they are in contempt of court; that their appropriate course of action would be to comply with the orders of the court and to seek to purge their contempt; that their proper recourse is to the court, and not to the media, if they disagree with the orders which the court has made; that they have gone out of their way to regulate Bobby's contact to the media and to his family in a way which is, says Mr Kirk, inimical to his welfare; that they have secreted him in a place where he cannot be located; that they know where he is; that they have refused to allow him access to independent representation in the proceedings through his guardian ad litem; and that so long as this state of affairs continues they should not be permitted to see or hear their views and opinions on Bobby's situation stated in the public domain.

Let all this be accepted, though as Mr Tugendhat urges no findings of contempt or other criminal behaviour have in fact yet been made against anyone. Yet, he says, none of this is any reason to deprive these persons of their rights under article 10, nor, more importantly from his point of view, to deprive the media of their right under article 10 to receive these persons' information and ideas. Mr Tugendhat does not, of course, represent any of these people but plainly the BBC has its own legitimate interest in arguing that none of them should be injuncted. It is not, Mr Tugendhat says, a question of not permitting these people to hear their views and opinions on the subject stated in the public domain, for they are not seeking any leave or other indulgence of the court. It is a question of whether Mr Murdoch and Mr Kirk can establish some proper ground for preventing them speaking. I agree.

There may, of course, be circumstances in which the court will decline to hear a contemnor until he purges his contempt: see X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1. But these persons are not seeking to be heard by the court -- indeed, that is one of Mr Kirk's complaints. They are seeking no indulgence from the court. On the contrary they defy the court and threaten what they call civil disobedience. That is utterly deplorable, and the longer their defiance lasts, and the more contumelious it becomes, the more condign may be the punishment to which, if duly convicted, they will expose themselves. But the punishment for contempt is a fine or imprisonment or both; deprivation of fundamental human rights, and that is what is in issue here, is not. Even a convicted contemnor is not an outlaw. It would, in my judgment, be the beginning of a very slippery and dangerous slope indeed to hold that persons in the position of those named in paragraph (1)(b) of the draft could properly be restrained by the court from expressing their views in the manner contemplated here simply on the ground that they are -- if indeed they are -- guilty of very grave contempts of court. A convicted contemnor may find himself imprisoned for purposes both of punishment and coercion, his release being delayed until he has purged his contempt by complying with the court's orders. What Mr Murdoch and Mr Kirk are here arguing for comes very close to seeking to deprive these people of their civil rights as a means of coercing them to comply with the court's orders. I confess that the temptation to accede to their submission is very great. Viewed from one perspective the spectacle of those who publicly and loudly defy the court and preach the alleged virtues of civil disobedience is deplorable. The temptation to silence them is great, if only to deny them the oxygen of publicity for their lawless behaviour. But the temptation must be sternly resisted, for that way lies great peril. If these people are to be injuncted it can only be, in my judgment, if proper grounds for doing so are established by reference to the criteria in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100.

It follows that this is not a case for injunctive relief. Mr Tugendhat is entitled to have the injunction granted by Singer J set aside. I am not persuaded by Mr Murdoch and Mr Kirk that any other form of injunction can be justified.

(ii) The public domain proviso

A question was raised as to whether, if I granted an injunction in the terms of either limb of paragraph (1) of the draft, it should be qualified by a proviso making it clear that the injunction does not of itself prevent the further publication of material already in the public domain.

In the light of my conclusions this question does not arise for decision, but it is, I think, appropriate that I should indicate my views on it.

In Re C (1990) 15th March Sir Stephen Brown, the President, was concerned with an application for an injunction contra mundum the purpose of which was in part to prevent the re-publication in the media of material which had been the subject of extensive media coverage some 18 months previously. In his judgment the President said:

"Points out that a restriction on the publication of information already in the public domain directly raises the conflict between the interests of the person whom it is sought to protect and the interests of what is termed 'freedom of speech'. He has submitted that in carrying out a balancing exercise between these two competing interests, the court has to be very careful not to restrict too severely the publication of information which is already available.

"There is a risk that the minor C may suffer harm if the press or other organs of the media revive the publication of information, and more particularly pictures, which have already been published. On the other hand it would be taking a very strong line indeed if a court were to seek to restrict the media from publishing information which they have lawfully published in the past and which remains on their files and is readily available to members of the public, for example in libraries."

And a little later he said:

"I do not find it possible to say that there should be a restriction on the publication of information or pictures already in the public domain. It has been urged upon me that certain passages in the speeches of their Lordships in the'Spycatcher' case The Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 relating to the publication of information generally are not.

Strictly relevant to this case, because the circumstances are very different.

The important matter in this case which has to be borne in mind is that information which has already been published is already lawfully available to persons in this country. I do not think that it would be appropriate for the court to attempt to prevent the re-publication of such information, although it may deprecate the way in which that may be done. Nevertheless there is an important principle to be borne in mind concerning the preservation of freedom of speech.

Following that judgment it became, as I understand it, a general, though by no means the invariable, practice to qualify injunctions contra mundum with a public domain proviso.

A similar point arose recently before Charles J in A v M (Family Proceedings: Publicity) [2000] 1 FLR 562. That, as I have already observed, was not a case of an injunction contra mundum but a case where an injunction in personam was granted at the suit of one parent of the child against the other. Having said at page 565D that:

"... the repetition of material that has been placed in the public domain can be damaging to a child,"

Charles J declined to qualify the injunction which he granted with a public domain proviso, explaining, at page 565D and again at page 570F, that the injunction he was granting was not based upon duties of confidentiality. It appears that Charles J was not referred to the President's earlier decision, where, it will be recalled, the President had in fact been addressed on the difference between the injunctions he was being invited to grant in that case and injunctions based on duties of confidentiality.

Mr Murdoch says I should follow Charles J. Mr Tugendhat, supported on this point by Mr Kirk, says that I should follow the President. Mr Kirk accepts that, if I am to grant an injunction, it should be qualified by a public domain proviso.

I am far from saying that there is necessarily any conflict between Re C and A v M. The one deals with injunctions contra mundum, the other with an injunction in personam, and it may be that in this respect there is this distinction between them. Be that as it may, it seems to me, as it seemed to the President in Re C, and for very much the same reasons, that an injunction in rem or contra mundum should normally be qualified with a public domain proviso. There is, after all, something rather odd about trying to restrain the world at large from publishing material which, being in the public domain, is already available to the world at large.

Accordingly, on this point I agree with Mr Tugendhat and Mr Kirk.

(iv) Injunctive relief against solicitation

Mr Murdoch submits, and I agree, that an order in this form is plainly within the court's jurisdiction. It is so often found in injunctions contra mundum that it can almost be considered as standard form. Its purpose is to protect the ward and those who care for him from harassment by the less considerate organs of the media and in particular from that form of harassment commonly referred to as "doorstepping". The limited effect of such an order is apparent when it is read in the light of proviso (ii), the purpose of which is to preserve both the source's right to approach the media and the media's right to exploit to the full information supplied by anyone who is willing to speak to the media. I agree with Mr Murdoch that an order in these terms should be made for Bobby's protection.

Procedural matters

Before concluding this judgment there are certain procedural matters to which I wish to refer.

Injunctions of the kind I have been considering are very frequently -- in the case of injunctions contra mundum invariably -- obtained ex parte or, as one should now say, without notice. The point is really very obvious but perhaps bears emphasis that, even if some organs of the media are represented when an injunction contra mundum is granted, the injunction will necessarily still have been granted ex parte, or without notice, to all the other organs of the media upon whom it may eventually be served. For the purposes of what follows every injunction contra mundum has to be treated as if were an ex parte injunction granted without notice.

I very recently had to consider in the case of W v H, in which I gave judgment in open court on 10th July 2000, the practice to be followed in this division when injunctions are granted ex parte and without notice against third parties in ancillary relief cases. In that case I had been pressed with Lightman J's observation in Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd (1999) Times 10th November. In relation to that submission I said this:

"I am not pursuaded that Lightman J.'s approach can simply be imposed without more ado in the Family Division. The circumstances in which ex parte relief is obtained in the Family Division vary very widely. Moreover, as cases such as Khreino v Khreino (No.2) (court's power to grant injunctions) [2000] 1 FCR 80 so vividly illustrate, such relief is often granted in the Family Division in circumstances very far removed indeed from any circumstances in which ex parte relief is ever normally granted in the Chancery Division.

For these reasons I do not propose even to attempt to formulate any rule of practice applicable in all cases: It would be wholly inappropriate to do so. What I can I hope usefully do is to indicate that, generally speaking, I think that: (i) any ex parte order containing injunctions should set out on its face, either by way of recital or in a schedule, a list of all affidavits, witness statements and other evidential materials read by the judge; (ii) the applicant's legal representatives should whenever possible liaise with the associate with a view to ensuring that the order as drawn contains this information; (iii) on receipt of the order from the court the applicant's legal representatives should satisfy themselves that the order as drawn correctly sets out the relevant information and, if it does not, take urgent steps to have the order amended under the slip rule; and (iv) the applicant's legal representatives should respond forthwith to any reasonable request from the party injuncted or his legal representatives either for copies of the materials read by the judge or for information about what took place at the hearing. Persons injuncted ex parte are entitled to be given, if they ask, proper information as to what happened at the hearing. At the very least they are entitled to be told, if they ask, (a) exactly what documents, bundles or other evidential materials were lodged with the court either before or during the course of the hearing and (b) what legal authorities were cited to the judge. Given this, it would obviously be prudent for those acting for applicants in such cases to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by a proper request for information which they are unable to provide.

Having considered what I said in that case, the Official Solicitor has indicated that he can see no reason why exactly the same principles should not apply in cases relating to children, including cases where injunctive relief is sought against third parties or against the world at large. That is my view. Accordingly the principles which I set out in W v H should be treated as applying equally to cases relating to children, including cases where injunctive relief is sought against third parties or the world at large.

The present case has highlighted two further points which I think need to be considered.

First, there may of course be cases -- and the present was just such a case -- where the urgency is such that there is no time to prepare comprehensive evidence in proper form. In such a case the court must -- and will -- act upon the information provided by counsel. But in every such case there should, as it seems to me, be an undertaking to swear and file an affidavit as soon as possible: see In re M & N (Minors) (Wardship: Publication of Information) [1990] Fam 211 at 226E. Even if, for some reason no such undertaking is given, it will normally be appropriate for the appropriate affidavit to be sworn and filed as soon as possible. This is particularly important in cases where an injunction is granted contra mundum restraining freedom of speech.

The second point derives from the elementary principle of natural justice, that if one party wishes to place evidence or other persuasive material before the court the other parties must have an opportunity to see that material and to address the court about it. One party may not make secret communications to the court. It follows that it is wrong for a judge to be given material at an ex parte, or without notice, hearing which is not at a later stage revealed to the persons affected by the result of the application.

I recognise that, in the context of cases concerning children, that principle is qualified to an extent by the principle considered by the House of Lords in In re K (Infants) [1965] AC 201 and In re D (Adoption Reports: Confidentiality) [1996] AC 593, but I do not see how anything in those cases can be used as a justification for not making full disclosure to the media of the material on the basis of which an injunction contra mundum has been granted.

This may give rise to a practical problem, for very often the material relied upon in support of the application for such an injunction will be contained in affidavits or witness statements filed in the substantive children proceedings which contain a mass of other information which is of no relevance to the application for the injunction, which there is no need for the media or any other third party to see and which it is highly undesirable that they should be allowed to see.

That is, however, no reason for denying the media their right -- and in my judgment it is their unqualified right -- to see the material which has been relied upon against them. If, as will typically be the case, it is not appropriate for the media to see the material in the form in which it was originally filed with the court, the solution is not to deny them what they are plainly entitled to as a matter of natural justice -- and what, I might add, they will plainly be entitled to in accordance with article 6 of the Convention once the Human Rights Act 1998 comes into force -- but rather to set out the relevant material in a separate affidavit or affidavits which can be shown to the media. Such an affidavit should be prepared even if there appears to be no immediate likelihood of there being any application to discharge the injunction. Otherwise there may be uncertainty -- perhaps weeks or months later -- as to the basis upon which the injunction was granted.

MR JUSTICE MUNBY:

Mr Murdoch, it follows that I am prepared to make an order in the terms of -- I will set aside Singer J's order or discharge it. I discharge Singer J's order and I will make an order in terms of the draft...

MR MURDOCH:

My Lord, it is substantially in the terms of paragraph 1(2) of your draft.

MR JUSTICE MUNBY:

Yes. Although, of course, as a matter of drafting it will require to be redrafted.

MR MURDOCH:

Yes, there will not be a subdivision of paragraph 1.

MR JUSTICE MUNBY:

Indeed.

MR MURDOCH:

I do not think we will require proviso (1).

MR JUSTICE MUNBY:

Indeed. So that -- sub 1(2) will obviously have to be redrafted to take account of the fact that at present it is drafted referentially to material which is being excised.

MR MURDOCH:

Indeed, my Lord. That will be done.

MR JUSTICE MUNBY:

So it will be 1(2) and then provisos (ii) and (iii) but not (i).

MR MURDOCH:

My Lord, I am very grateful. ...