48.
I turn next to the position of YMA and the children. As
explained in para 39 of my previous judgment, the interests of
other family members, in particular children, are a significant
consideration, but they cannot be a trump card. Paragraph 61 of
the redacted judgment (para 63 of the full judgment) referred to
the likelihood that, in the absence of an injunction, the children
would in the future learn about these matters from school
friends or the Internet. That is now a less material
consideration. In my view, whether or not the court grants an
injunction, it is inevitable that the two children will in due
course learn about these matters.”
Analysis of the Court of Appeal’s judgment of 18 April 2016
(i) HRA section 12
19.
There is, as all members of the Supreme Court conclude, a clear error of law
in the Court of Appeal’s reasoning in relation to section 12. For reasons given in
para 20 below, it consists in the self-direction that section 12 “enhances the weight
which article 10 rights carry in the balancing exercise” (para 40). The Court of
Appeal’s further self-direction, that section 12 “raises the hurdle which the claimant
must overcome in order to obtain an interim injunction” is unexceptionable, in so
far as section 12 replaces the general American Cyanamid test, focused on the
balance of convenience, with a test of whether the appellant is “likely to establish
that publication should not be allowed” at trial. The position was stated more
particularly by Lord Nicholls said in Cream Holdings Ltd v Banerjee [2004] UKHL
44; [2005] 1 AC 253, para 22, in a speech with which the other members of the
House agreed:
“Section 12(3) makes the likelihood of success at trial an
essential element in the court’s consideration of whether to
make an interim order. 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’s 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
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