MENTAL CAPACITY/ADOPTION: T v BBC [2007] EWHC 1683 (QB)

11 JUL 2007

(Queen's Bench Division; Eady J; 11 July 2007)

The 18 year-old mother had a mental disorder within the meaning of the Mental Health Act 1983. Her two year old daughter was placed with foster/adoptive parents while an assessment of the relationship between the mother and daughter was carried out. The result was a decision that the child should be adopted.

This process, including the last contact session between the mother and daughter, was filmed by the BBC as part of a series on adoption. The Official Solicitor on the mother's behalf sought an injunction preventing the identification of the mother in the television programme on the basis that she did not have capacity to give informed consent to either the participation in the programme or its broadcast and that as such the broadcast would be an intrusion upon her privacy.

It was not necessary to determine first of all whether the broadcast would be in T's best interests, although this was relevant. Broadcast of the programme would constitute a massive invasion of T's privacy and autonomy, and would undermine her dignity as a human being. There was no advantage for T which would outweigh the violation of her privacy which the making of the programme and its broadcast would represent.

Notwithstanding the genuine public interest in the subject of adoption and childcare and the intention of the programme to present a serious and informative coverage of the subject, the value of the broadcaster's expression in terms of Art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) could not be proportionate to the exposure of T's feelings and of her treatment of and relationship with her child. In almost every case the public interest in favour of publication could be satisfied without identifying the child in question: there was no need to identify either the child or the vulnerable mother in this case. The fundamental invasion of T's Art 8 rights could not be justified and the injunction would be granted.

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