A High Court judge has ruled against a council’s attempts to use an injunction to force a mother and father to take down an online petition relating to their children’s care proceedings.
Southend council contended that the online petition risked causing emotional harm to the couple’s two elder children, who are in foster placements, and “disrupting efforts” to find adoptive homes for their two siblings. It also said that the material risked “ongoing embarrassment” to the children by remaining online, given that their identities could be inferred.
Justice MacDonald dismissed Southend’s application, saying that he was “not satisfied that the local authority has made out a case for an order”.
“It cannot be said in this case that compelling the parents to take down their petition, or compelling them to remove from [it] the mother’s name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children,” Justice MacDonald said.
The petition had been set up by the mother in order to protest against the adoption of her children. It had originally contained details about the court case, names, ages and disabilities of the children and criticisms of Southend’s ‘lying’ social workers.
At a hearing on 25 May 2017, the parents had agreed to cease publishing via social media any information about their children’s care and placement proceedings. They also agreed to remove from the petition’s main page their children’s pictures, names and ages, the presence of which foster carers had brought to the council’s attention.
But at the May hearing, no agreement could be reached over whether the petition should be taken down in its entirety, which the council argued was necessary to prevent commenters identifying the children. As a result, the decision was adjourned for a final hearing.
The judge was critical of a letter written in the interim by Southend council to family members, suggesting that they were prohibited from adding their names and comments to the online petition. “It is a matter of very grave concern that a local authority would seek to pass off an order of this court as something that it is not,” Justice MacDonald said. “There must be no repeat of this.” He added that while the letter had been drafted by a social worker, the council’s legal department was at fault for letting it go out.
Article 10 vs Article 8
In weighing the issue of the petition as a whole, Justice MacDonald assessed that it amounted to a straightforward balancing of the European Convention on Human Rights’ Article 10 (freedom of expression) and Article 8 (right to respect for private and family life).
“The importance of the Article 10 right in this context remains irrespective of the merits of the views expressed by the parent, even if their expressed views and opinions may be misconceived, ill-thought out or misguided,” the judge said.
He added that the right to freedom of expression also protects “the ability to make clear who is speaking out or seeking to petition for redress, it being self-evidently very difficult to effectively protest a contended-for injustice or petition for redress of a personal grievance if the protester or the petitioner must remain anonymous”.
‘No specific evidence’
Justice MacDonald noted that while the children were identifiable from the petition, the page contained no reference to evidence presented during court proceedings, nor details of the significant harm they were found to have suffered.
Southend council, he said, had provided “no specific evidence” to show that its contents would cause emotional harm to the older siblings, who at 15 and 14 were “fully aware” of the circumstances around their fostering. Nor, he added, could the local authority back up its claim – beyond a “common-sense proposition” – that potential adopters for the younger children would be discouraged by the petition’s existence.
The material still online, the judge said, was “relatively innocuous”. Given that the petition had only attracted 160 signatures, he said it was impossible to do more than speculate as to its potential to harm the children in future.
“I am satisfied that there is very little cogent evidence before the court that each of the children or any of them will suffer embarrassment, much less emotional harm if the petition…remains in place,” Justice MacDonald said.
He concluded that “in this case the Art 10 right to freedom of expression outweighs the Art 8 right to respect for private and family life when it comes to the question of the online petition being taken down”. The judgment should not, Justice MacDonald warned, be seen as applying to the merits or demerits of online petitions in general.
James Courtenay, executive councillor for children and learning at Southend council, stood by the decision to try and block the petition: “Throughout this case, the Council’s priority has been to protect vulnerable children in our care. We sought to prevent sensitive information about the children’s care/placement proceedings on social media sites and an online petition site, which clearly would not be in the children’s interests.
“The local authority are of the view that the injunction applied for on 23 May was the correct application to make to protect the identities of all the children and without this application the order made by agreement on 25 May would not have been made. This still remains in force and prohibits the parents from publishing information about the care proceedings and the placement proceedings on any social media sites, including Facebook.
“We acknowledge that the letters sent to family and friends could have been clearer as to who was bound by the injunction.”