Strand, London WC2A 2LL
B e f o r e :
|E (by her litigation friend the Official
|- and -
|(1) CHANNEL FOUR
(2) NEWS INTERNATIONAL LIMITED
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|ST HELENS BOROUGH
Crown Copyright ©
Mr Justice Munby :
i) Dr Roger Banks is a Consultant Psychiatrist in Learning Disability employed by Conwy & Denbighshire NHS Trust Adult Learning Disability Service. In October 1999 he produced a psychiatric report on E and thereafter provided periodic support for E, Judy and the care team for the next two years. The last time he made a formal clinical assessment of E and her mental state was in May 2002, but he has since kept in touch with her care team informally.
ii) Dr Valerie Sinason (she. is a Doctor ·of Philosophy, not a medical doctor) is a Consultant Psychotherapist and Psychoanalyst. As a Consultant Psychotherapist at the Tavistock Clinic she convened the Learning Disability Workshop for twenty years. She is Consultant Psychotherapist in Learning Disability at St Georges Hospital Medical School Psychiatry of Disability Department and Director of the Clinic for Dissociative Studies. Since September 2000 she has been treating E for intensive weekly psychotherapy.
iii) Graeme Farquharson is a social worker and group-analytic psychotherapist. At one time he was Director of Peper Harow, the well-known residential therapeutic community. Since January 2001 he has attended what he calls the 'Project' (the carefully designed therapeutic environment which facilitates day-to-day life for E) one day a week as a consultant, the focus of his work being with the team rather than with E directly.
"The involvement of the Official Solicitor did not strike me as being significant, because I was reassured that their role in E's life was limited solely to matters associated with the care dispute. I was not surprised that E had a litigation friend, as. she clearly needed assistance in dealing with complicated legal matters."
"if carried out responsibly the kind of film I was proposing could be extremely helpful for E and for others. She told me that E had the intellectual ability to give informed consent. "
"By March 2003 I was satisfied that there was potentially an important and powerful film to be made about E which could be both helpful to her and contribute to public understanding of the condition from which she suffers and issues around mental health generally. E struck me as an extremely impressive woman, who was carrying with her a legacy of abuse and failings in the care system.
I believed that by telling her story in an honest and sensitive way, the public would see a person who, although damaged by awful experiences in childhood, was determinedly attempting to come to terms with her past and move forward in her life in an inspiring way. I also felt that by communicating to the viewer that her condition and the extreme behaviour which accompanies it, is linked to past experiences I could make it understandable and help enlighten the public about those within our society who might frequently be seen as simply 'mad'.
I was well aware by this stage that Judy was in constant dispute with the local authority and held strident views about their perceived inadequacies. It was clear that she hoped the intended programme would reflect her views. I explained that it would not be my intention to focus on this in the proposed programme, and that she must understand that I had to have editorial independence to determine the direction and content of the documentary."
"She reassured me that the film, as described, would not, as far as she could tell, be harmful or exploitative of E. She said that, as far as she could tell from material she had watched, the process of filming was not harmful to E. She also helped me to understand E's condition and the nature of her relationship with Judy."
"E's carers and advisers have been fully involved in and consulted on the filming process and have been supportive of the making of a documentary about E. We are referring to Valerie Sinason the Psychiatrist specialising in multiple personality disorders who has treated E, I understand, at a weekly double session for around 4 years and Judy ... ,. an occupational therapist who has been involved in E's care for 20 years, having fostered her in 1988, E's primary carer since 1999. They are both of the opinion that E is able to give informed consent to the filming and broadcast of the programme and that the filming and broadcast of such a documentary would be in her best interests. In addition, Graeme Farquharson, a Psychodynamic Psychotherapist, who regularly advises on issues relating to E's care, is also . fully aware of the filming. He has expressed no concern either about E's capacity to consent or her welfare."
Stating that there were in fact no immediate plans to resume filming with E in the next few days, Ms Tomalin said that she was prepared to provide an undertaking not to commence such filming without giving five days written notice, providing that, in return, there was an undertaking not to make any application to the court for an order to prevent filming or broadcasting without the same prior written notice. Those mutual undertakings were confirmed on 17 October 2003.
The legal framework
"A proper degree of privacy is essential for the well-being and development of an individual."
She points to the recognition by Dame Elizabeth Butler-Sloss P in X (A Woman Formerly known as Mary Bell) v O'Brien  EWHC 1101 (QB),  2 FCR 686, at paras -, relying on the decisions of the Strasbourg court in Botta v Italy (1998) 26 EHRR 241 and Bensaid v United Kingdom (2001) 33 EHRR 10, that private life includes the psychological integrity and mental health of the individual.
"The Court of Appeal in this case held that the information revealed here was not in the same category as clinical medical records. That may be so, in the sense that it was not the notes made by a doctor when consulted by a patient. But the information was of exactly the same kind as that which would be recorded by a doctor on those notes: the presenting problem was addiction to illegal drugs, the diagnosis was no doubt the same, and the prescription was therapy, including the self-help group therapy offered by regular attendance at Narcotics Anonymous."
She submits that the same principles apply to an individual's social services records and to their social care and treatment, particularly where the two are closely connected in a community setting.
"Where the person is suffering from a condition that is in need of treatment one has to try, in order to assess whether the disclosure would be objectionable, to put oneself into the shoes of a reasonable person who is in need of that treatment. Otherwise the exercise is divorced from its context ... The context was that of a drug addict who was receiving treatment. It is her sensibilities that needed to be taken into account. Critical to this exercise was an assessment of whether disclosure of the details would be liable to disrupt her treatment."
In similar vein she points to Lord Steyn' s observation in Re S (Identification: Restrictions on Publication)  UKHL 47,  1 FLR 591, at para , that "it is necessary to measure the nature of the impact" on the claimant.
" ... They have had considerable and distressing disruption of their lives and are, as set out in the report, vulnerable. A period of peace, stability and a chance to settle down again after the very real upset of their lives is threatened by the likely intense media cover if this report is published. They are all under some disability but not such, as far as I know, as to prevent possibly all of them, but certainly at least 4 of them, from understanding the impact of press and other media intrusion. That intrusion would affect their daily lives and would be very likely to be disruptive, distressing and contrary to the need for them to settle back in the home. They clearly have rights under article 8 which are engaged and would be breached if the report is published. I am satisfied that publication of the report would be deeply damaging and detrimental to their welfare.
 The factors supporting the rights of the vulnerable adults under article 8 have to be balanced against the right of the local authority to publish under article 10. I have found that it would be lawful on their behalf to interfere with the article 10 right of freedom of expression. I have considered very carefully whether to exercise the court's discretion in favour of the vulnerable adults would be a disproportionate response to the contents of the report, having regard to the importance attached to article 10 by section 12 of the Human Rights Act 1998. I am also fully aware of the factors in favour of not restraining publication of volume 1. I am satisfied, however, that the balancing exercise comes down in favour of recognising the importance of the protection of the vulnerable adults by the granting of a declaration to that effect."
" ... The famous and even the not so famous who go out in public must accept that they may be photographed without their consent, just as they may be observed by others without their consent ...
 . But the fact that we cannot avoid being photographed does not mean that anyone who takes or obtains such photographs can publish them to the world at large. In the recent case of Peck v United Kingdom (2003) 36 EHRR 719 Mr Peck was filmed on a public street in an embarrassing moment by a CCTV camera. Subsequently, the film was broadcast several times on the television. The Strasbourg court said, at p 739, that this was an invasion of his privacy contrary to article 8: "the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation and to a degree surpassing that which the applicant could possibly have foreseen when he walked in Brentwood on 20 August 1995."
 In my opinion, therefore, the widespread publication of a photograph of someone which reveals him to be in a situation of humiliation or severe embarrassment, even if taken in a public place, may be an infringement of the privacy of his personal information."
Lord Hope of Craighead said much the same at paras -.
"whilst preserving the principle of the freedom of the Press in a democratic society, it is nevertheless in the public interest that there should be discouragement and prevention of interference with, and exploitation of, vulnerable children by the media and that there should be support for the vital role of caring professionals working in the difficult field of delinquent children who are 'at risk'."
" Article 8 thus protects two very different kinds of private life: both the private life lived privately and kept hidden from the outside world and also the private· life lived in company with other human beings and shared with the outside world. For, as the Strasbourg jurisprudence recognises, the ability to lead one's own personal life as one chooses, the ability to develop one's personality, indeed one's very psychological and moral integrity, are dependent upon being able to interact and develop relationships with other human beings· and with the world at large. And central to one's psychological and moral integrity, to one's feelings of self-worth, is the knowledge of one's childhood, development and history. So amongst the rights protected by Art 8, as it seems to me, is the right, as a human being, to share with others - and, if one so chooses, with the world at large - one's own story, the story of one's childhood, development and history ...
 The personal autonomy protected by Art 8 embraces the right to decide who is to be within the 'inner circle', the right to decide whether that which is private should remain private or whether it should be shared with others. Art 8 thus embraces both the right to maintain one's privacy and, if this is what one prefers, not merely the right to waive that privacy but also the right to share what would otherwise be private with others or, indeed, with the world at large. So the right to communicate one's story to one's fellow beings is protected not merely by Art 10 but also by Art 8."
"there may well be cases where a child wishes to go to the media - wishes, in other words, to avail himself of what he asserts are his Art 10 and Art 8 rights to make public that which would otherwise be private - whilst his parents, or the court, may think that his interests are better served by asserting his right under Art 8 to keep such matters private."
It was for this reason that at para  I distinguished between (a) Angela's rights under Articles 8 and 1 0, as she wished to assert them, to tell her story to the world through the medium of The Mail on Sunday, (b) Angela's rights under Article 8, as Angela's parents or the court might wish to assert them on her behalf, to keep her private life private and to preserve and protect the family life she enjoyed with her parents and other members of her family and (c) the newspaper's rights under Article 10 to obtain the story that Angela wished to tell them and to publish her story in The Mail on Sunday
"A child is, of course, as much entitled to the protection of the European Convention - and specifically of Arts 8 and 10 - as anyone else. But ... the personal autonomy guaranteed by Art 8 (and, I would add, by Art 10) is necessarily somewhat qualified in the case of a child. For, depending on the circumstances, decision-making power may rest not with the child but with the child's parents or even with the court."
The same approach, it seems to me, is in principle appropriate in the case of a vulnerable adult who, although lacking capacity, nevertheless has wishes and feelings which she is anxious to articulate.
"Angela, in my judgment, is of an age, and has sufficient understanding and maturity, to decide for herself whether that which is private, personal and intimate should remain private or whether it should be shared with the whole world ... The decision ... is for Angela: it is not for her parents, the local authority or the court."
"I am satisfied, therefore, despite the absence of any previously decided cases, that I can properly exercise the inherent jurisdiction of the High Court in order to consider whether I should restrain publication of volume 1 of the report. In the previous cases about adults under a disability, the issues have been the lawfulness of the proposed course of action and considerations as to their best interests. That cannot be the correct approach in the present case. The application of the inherent jurisdiction would seem more appropriately to be treated as the exercise of a "protective jurisdiction" rather than a "custodial jurisdiction". In considering whether the publication of the report would be contrary to the welfare of the vulnerable adults, I propose to approach the issue by balancing their rights under article 8 against the rights given under article 10 and the emphasis given by section 12 of the Human Rights Act 1998. In my judgment I have to balance those competing rights in the same way as I did with regard to the children."
Restrictions on Publication)  Fam 1.
"An adult either has capacity [in relation to a particular matter] or he does not. If he does, then, at least in relation to that issue, the Family Division cannot exercise its inherent declaratory jurisdiction, because it is fundamental that this jurisdiction can be exercised only in relation to those who lack the relevant capacity. "
If E has capacity then, just as in the case of a 'Gillick competent' child, her wishes are determinative. The court cannot exercise the inherent jurisdiction and, unless E herself wishes to apply for an injunction (and she does not), it follows that the court equally cannot grant any injunction. As Mr Nicol correctly submits, the court in a case such as this only has jurisdiction to make an order if it has first decided that E lacks capacity to take a definitive decision on her own behalf. So Ms Morris has, in principle, to establish that E lacks the relevant capacity.
i) Does E lack capacity? If yes, then
ii) Is it in E's best interests that the film not be broadcast? If yes, then
iii) Do E's interests under Article 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Article 10.
As Ms Morris puts it, the court, if satisfied that E lacks capacity, must first ask what is in her best interests. If the court is satisfied that the broadcast is not in her best interests then it should identify the extent to which her Article 8 rights are engaged and/or breached by the broadcast and then go on to balance those considerations against those invoked under Article 10 by the defendants.
"The interplay between Articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd  UKHL 22,  2 AC 457. For present purposes the decision of the House on the facts of Campbell v MGN Ltd and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither Article has as such precedence over the other. Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case."
"The House unanimously takes the view that since the Human Rights Act 1998 came into force in October 2000, the earlier case-law about the existence and scope of inherent jurisdiction need not be considered in this case or in similar cases. The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from convention rights under the European Convention. This is the simple and direct way to approach such cases. In this case the jurisdiction is not in doubt. This is not to say that the case-law on the inherent jurisdiction of the High Court is wholly irrelevant. On the contrary, it may remain of some interest in regard to the ultimate balancing exercise to be carried out under the European Convention provisions."
"so as to restrain publication before trial unless .,. satisfied that the applicant is likely to establish that publication should not be allowed. "
" ... "likely" in section 12(3) cannot have been intended to mean "more likely than not" in all situations. That,· as a test of universal application, would set the degree of likelihood too high. In some cases application of that test would achieve the antithesis of a fair trial. Some flexibility is essential. The intention of Parliament must be taken to be that "likely" should have an extended meaning which sets as a normal prerequisite to the grant of an injunction before trial a likelihood of success at the trial higher than the commonplace American Cyanamid standard of "real prospect" but permits the court to dispense with this higher standard where particular circumstances make this necessary.
 '" Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant'$ prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success "sufficiently favourable", the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ("more likely than not") succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."
i) Fear as to how E will react to the broadcast.
ii) Fear that there will be adverse reaction from the public to E and/or Judy, which may impact adversely on E and on her ability to live as "normal" a life as possible.
iii) Concern that the broadcast may have a detrimental effect on the ability to recruit staff to work as part of E's care team:
"Potential staff may have a legitimate concern over working with E if they feel they are going to be subject to media and public scrutiny."
iv) Concern that it may have a detrimental impact on the ongoing vulnerable adult abuse investigation:
"the effect the programme or article may have on staff and their willingness to engage in the ,investigation process."
I should mention that the local authority has not in fact seen the film.
"The filming approach I use is largely observational. I work entirely on my own with a small camera, in a way that does not seek to influence events. The intention is to develop a relationship with the subject and become a part of their environment and to 'tell the story' of the subject through watching how they interact with the world, and where appropriate, some interview. For this kind of approach to be successful, filming has to take place over some considerable time and record important events in the subject's life. It could be said that the intention is to develop, through the filmmaking process, a relationship between the viewer and the subject."
"I am entirely satisfied that we have made a powerful and important film. One which achieves the objectives of being helpful to E and contributing to society's understanding of issues around mental health generally, and specifically the much misunderstood condition from which E suffers.
I am aware that E's views often reflect those of Judy and that she is influenced by Judy. With this in mind I have consistently sought to verify with Valerie that it is truly E's wish to have the film made and broadcast. Valerie has assured me this is the case and E is consistently clear about it. I have been further reassured in this because during the later stages of filming and particularly the editing and viewing stages our relationship with Judy became very fraught. Over the months between November 2004 to March 2005 Judy regularly threatened to withdraw from the film, concerned about how she might be portrayed. This intention was never mirrored by E, who throughout this period, and, indeed, from the start of the production was forthright and unambiguous in her desire for the film to be made and broadcast.
The film has been made over an exceptionally long period of time, because there has been such extensive thought given to issues relating to E's welfare. The consultation process, which followed, was utterly unprecedented in my experience, and is testament to our desire to produce a programme which E and those around her feel respects her dignity and does justice to her and her story.
I simply would not have embarked on this project if I felt that it would be harmful to E, and I have, at all times, sought to maintain her best interests - relying on advice from independent experts and from the professionals involved in her care.
I believe E is proud of the programme, which she refers to as 'my film'."
The expert evidence
The expert evidence - capacity
"I am not satisfied that she fully appreciates ... that it is possible that, when shown, she could be perceived by those who watch it in a negative light. I am not fully satisfied that she appreciates that she will have only limited influence about exactly when and how often the documentary is shown or who will watch it ... I concluded that on the balance of probabilities on the occasion I saw her, whilst she did have capacity to decide about whether the filming should continue, it was less certain she had the capacity to decide about the larger issue that of the resultant documentary."
"However, complex analytic tools were not needed to gauge her final reaction, as she was so openly and deeply moved and integrated. She was profoundly pleased at being accurately perceived and shown. All her personalities also felt acknowledged.
She was able to think about what the public response might be as well as her own response. She said if people did not like the programme they could turn it off and if they spoke to her in the street and did not like her she could walk away with her team. She knows perfectly well the way she is perceived in public whenever she goes out and for her the television programme is not breaking a secret. Indeed, it is opening her life up in a way she considers helpful."
"This is clearly not straightforward (both in regard to P and generally to those with learning disabilities). I am not a specialist in this field, but I understand that modem practice considers capacity on a "decision-specific" basis. It would be true to say that P does not have unfailingly evident capacity to consent, but it is equally true that it is not evident that that capacity is entirely absent. It is the working style of the project to be as open as possible with P to ensure that she is fully appraised regarding matters which concern her, including the politics surrounding the project. In a context of safety and trust, this is done sensitively, offering (in "bite-size chunks") as much complexity as can be managed, and in regularly revisiting key matters at moments of stability and engagement. This approach derives from three sources - 1) a belief that it is right and proper that P be apprised of everything which affects her life; 2) the knowledge that historically the approach of institutional care has often been one of benign paternalism, making decisions on behalf of individuals without involving them or seeking their view, frequently with disastrous results; and 3) by this means, facilitating the emergence of personal agency and encouraging it where it exists. It is in this spirit of openness that the subject of a film has been approached with P and it is my view that, with regard to this decision, she had (and has) sufficient understanding for it to be meaningful."
"As someone with a Dissociative Identity Disorder in the context of a Learning Disability, E's self-presentation can be disconcerting to some (at least initially) - now lucid, now dissociated, now 'distracted', now lucid ... To those who know E well, this kind of rhythm is familiar and it is entirely possible to get far beyond a surface impression of incompetence: her· capacity for reflection and judgment is far greater than imagined or perceived by many professionals who pass through E's life, usually with one or two brief meetings. Such workers, usually concerned with assessment! review/ comment - and there have been very many of these over the years - will usually encounter a E who is quite reasonably guarded. Given circumstances where she .feels safe (psychologically and physically), with people whom she trusts, and where complex ideas can be approached at a manageable pace in appropriate language, E can be relied upon to express her thoughts clearly on what is best for her. With regard to the filming, she was enthusiastic from the earliest explorations of the idea. She quickly established a good rapport with the film-maker. (This is significant. In her early life, E had much experience of neglectful and abusive adults and she has well developed antennae for discerning those who might 'do her harm' .) Thus she engaged with the process, asked questions about it, received answers and explanations and was well able to 'tell off the director if she felt something or other was not right. Thus, haste was made extremely slowly; in an openly collaborative style. It was clear that if there was disquiet about the film-making, any sense of exploitation or misrepresentation, then she would withdraw from it."
"At no point did she appear distressed or disturbed by the programme and from her comments spoken aloud appeared to comprehend both the images and the narrative as being a realistic portrayal of herself and her relationship with her carers."
The expert evidence - best interests
i) E will be identified as a person suffering from DID. This' is a controversial diagnosis and is likely to lead to comment on the veracity of her symptoms which is in turn likely to distress her, particularly if it results in criticism of those to whom she is attached such as Judy and Dr Sinason.
ii) E is likely to be identified as "mad" or mentally ill.
iii) Judy also is likely to be identified as "mad". If so, this is likely to be distressing to E because of the nature of their relationship.
iv) What Dr Milne calls the breach of E's confidentiality concerning her condition, her history of abuse and her present care and treatment:
a) may cause E to be distressed in future at realising that information about her history of abuse is in the public domain;
b) may cause E to be adversely affected by any negative reaction of those identified as her abusers (for example her mother); and
c) will make it more difficult for those arranging her care to recruit staff and manage her care in the future;
v) Publication of details of the very extensive and expensive package of community care provided for E is likely to bring negative pressure to bear on the local health and social services authorities to reduce the package arid expenditure.
vi) Broadcast of a film about E's relationship with Judy will hamper or compromise the vulnerable adult abuse investigation which, as I have said, is currently investigating certain aspects of Judy's behaviour to E. It is said that one complainant has already indicated that he is unwilling to give further evidence in this context.
"Given my view that such a course of action is unlikely to be harmful and is in her best interests, there is also the broader issue relating to how the public can be helped to understand more about the consequences of childhood abuse and the complexity of mental health problems. The recent Government White Paper on Learning Disabilities (Valuing People) made specific reference to the inclusion of people with learning disabilities in wider society." .
"The film not being shown would have a major detrimental impact on her as she sees it as part of her human rights to have her story told - even though the programme does not detail the institutional abuse she alleges which she would have liked in it. Today was her usual Wednesday session and she made the following comment, which I asked her permission to send to you.
"If the Judge does not understand the film is important the people won't have a chance to understand about E's life and DID and then I will be sad and it will be awful and they won't understand my human rights and I will blink my tears" .
E's whole life has been a struggle to be heard and have her feelings and needs acknowledged. For her, this film has paid non-exploitative attention to her and has been a very healing part of her last year in contrast to her fearfulness and lack of trust of social services and the official solicitor's office. Sadly, any injunction against this film will not just hurt her for the wiping away of her wishes, but also for the feeling that she can not gain justice either for the past, or for the present and maybe, most damagingly of all, for the future."
"1) one might infer from this that P does not actively live in the world, where she might already have to manage difficult people and difficult responses to her. Of course in reality she does. She is out and about in her local community - in parks, in shops, in cafes and in bars. She travels to London every week negotiating a flight and her way through two major airports. This year alone she has travelled to Italy and to Greece. All of these outings are carefully considered and managed - from a risk perspective - and that includes managing awkward or hostile responses
2) the film will bear witness to her daily struggle to overcome earlier adversity; and this idea of "bearing witness" is of fundamental importance to people who have endured trauma, usually in private away from the protection of public gaze. (I might add that a consequence of her experience of abuse and trauma is that P has nothing to learn about ridicule and hostility. It has been her life's experience. Being seen to function in a variety of settings, amidst people whom she trusts, affords at least the possibility of asserting personal dignity and pride.)
3) related to the above, a sensitive portrayal of P and her 'otherness', locating her in the context of her history and her life experience, could be an important explanatory and educational document, bringing a marginal individual to life in a humane and respectful manner."
"On both occasions, she was relaxed, attentive and wholly engaged with the portrayal of herself and her life. At no time was she distressed by what she was watching. Rather, she took a certain (appropriate) pride in this representation of her. (Remember that in recent months there have been TV films about women with DID - one dramatisation, one documentary - so there was/is a wider context for her television appearance. It is not freakish, abusive or disabling.) Moreover, there was a quality of her having a chance to 'put her side of (her) story'. Very often, when people have endured severe abuse or trauma, they speak of their lives having been stolen and much of their later efforts is to re-claim their lives. One of the functions of the film is to sweep away the cloak of secrecy which has surrounded E's life. She is already 'out in the world' in very significant ways and she knows the range of responses she can expect to encounter there - a television film has nothing new to put to her in that regard. These responses simply need to be managed (and are managed) as part of her external reality.
For the above reasons, if the film were not to be shown, it would have an acutely distressing effect on E. It would underline that she is to be a passive recipient of what others deem to be 'good' for her. It would serve to tell her that, whatever she might think, she has to be protected from herself. It would tell her that her story is unfit for portrayal; and it would lock her forever into this secretive 'bubble' where she can never bear witness to what has happened to her. All of these would be significant contributors to constraining and undermining the very real psychological, emotional and social development which she has achieved in recent years."
"I believe it is important for E's ongoing development and working her way through past traumas that she can have the opportunity to make her personal story heard by others and not for it to be hidden and suppressed and thus invalidated.
At present I do not believe that the showing of this documentary would be in itself harmful to E or against her best interests. The potential support and understanding that it may bring from a public that has a curiosity for such public telling of personal stories of tragedy or suffering may be to her benefit. I believe it is unlikely that E would be subjected to any greater public disapproval or adverse interaction than she is likely to receive at present when she is taking part in everyday activities and sometimes displaying emotional and behavioural difficulties in the same."
Discussion - capacity
Discussion - best interests
Discussion - the balancing exercise
"In this case it is apparent from the correspondence, in particular the solicitors' letters, that the film company and Channel 4 are at pains to assert their democratic right to interview and film children provided that they obtain their individual consent. There appears to be a complete lack of understanding on their part of the position of the director of social services who has a responsible statutory duty to protect young people in his area. It appears to me that the problems in this case have principally arisen from the fact that the film company took the deliberate decision not to alert or to inform the social services of their proposed operations. They approached these children without parental consent or knowledge and indeed without the knowledge of anybody whose duty it was to seek to afford a degree of supervisory assistance to the children. Undoubtedly misunderstandings occurred as a result."
Note 1 I agree with Mr Nicol that those parts of my decision in Re Roddy (A Child) (Identification: Restriction on Publication)  EWHC 2927 (Fam),  2 FLR 949 relevant here are not affected by the subsequent decisions of the House of Lords in Cream Holdings Ltd v Banerjee  UKHL 44,  1 AC 253, and Re S (Identification: Restrictions on Publication)  UKHL 47,  1 FLR 591. Nor did Ms Morris suggest otherwise.