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Divorced father cannot use daughter's pictures in film

28 June 2006

A divorced father cannot use pictures of his seven-year-old daughter (C) in a film intended to publicise his battle to gain access to her and his difficulties in securing legal aid, the Court of Appeal has ruled (Clayton v Clayton [2006] EWCA Civ 878).

Balancing the child’s right to privacy and the father’s freedom of expression, the judge, Sir Mark Potter, said he was “satisfied that the prospective making of any such film and the taking of [the daughter] to Portugal for that purpose is a matter relating to the upbringing of [the daughter], engages her welfare interests and infringes her Art 8 rights.”

The judgment comes as a reminder to parents whose children’s identity are protected by a court order that such orders may extend to a period long after the proceedings have come to an end and should be complied with.

In addition to compliance with court injunctions, it was a matter of law that children should be entitled to their privacy under Art 8 and that parents should not abuse their right to freedom of expression to further personal objectives that would infringe their child’s rights.

The Claytons divorced in 2000 and shared the care of their daughter. In 2002, Mrs Clayton applied for contact and residence orders. Shortly after the proceedings commenced, Mr Clayton abducted the couple’s daughter to Portugal. He was found five and a half weeks later and given prison sentences both in Portugal and in the UK.

The case started when, after his release from prison, Mr Clayton launched various initiatives to share his experience of being involved in care proceedings, dealing with CAFCASS, and getting funding with other fathers in similar situations. He set up a website and started writing about it, and contacted the BBC about making a documentary .

The Court of Appeal found Mr Clayton’s use of pictures of his daughter taken in the course of ordinary family happenings were not a breach of the injunction, but that taking her to Portugal for the purposes of the film would be.

In a decision critical of the father, Sir Mark said: “If the father thinks that an exculpatory account to the world of his discreditable behaviour in abducting C will serve any purpose, he must be free to write it. What he is not free to do is to involve C in that process.”

“However, if the father continues to fail to recognise his former parental shortcomings and persists in his attempts to involve [his daughter] in his attempts at self-exculpation, I fear that further proceedings will ensue. I hope that he will take heed of that warning,” the judge concluded.

Sir Mark Potter also defended the restrictions surrounding family court proceedings, saying they were intended for the protection of the children involved. “It is, in my judgment, unacceptable that conscientious judges and magistrates up and down the country, doing their best, with inadequate resources and under heavy pressure of work to make difficult decisions in the best interests of children, should be accused of administering ‘secret’ justice,” said the judge .

The Department of Constitutional Affairs has announced that it will shortly undertake a consultation on whether there should be greater transparency in family proceedings.

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Divorce Children Charities Wills, Trusts & Probate