37. Mr Browne submits that the interests of the appellant’s children were not given the primacy or importance which they deserved. The Court of Appeal in granting injunctive relief in January 2016 identified as relevant consequences of the proposed article both that “the children would become the subject of increased press attention, with all that that entails” and that, “even if they do not suffer harassment in the short-term, they are [ie if the proposed article is published] bound to learn about these matters from school friends and the internet in due course”. The Court of Appeal in deciding to discharge the injunction in April 2016 addressed only the latter consequence, saying that it was “now a less material consideration” as “whether or not the court grants an injunction, it is inevitable that the two children will in due course learn about these matters”. The Court of Appeal did not expressly advert to the short term risks involved in media attention and communication of the information to young children, and still less did it advert to the qualitative difference between, on the one hand, unrestricted exposure in the hard copy media as well as on internet sites and, on the other hand, internet exposure which the appellant and those advising him have made and intend to continue to make every effort to restrict, so far as lies within their power. I prefer simply to agree with what Lady Hale says in this area in the open part of her judgment, without finding it necessary to refer to or rely on what is said in the redacted part. (iv) An effective remedy 38. Mr Browne makes a fourth criticism of the Court of Appeal’s approach to the exercise of its discretion. The Court, having concluded that the appellant was likely at trial to establish that publication was a tortious invasion of privacy, nonetheless left the appellant to a claim for damages. It is therefore a criticism of the Court of Appeal’s exercise of the discretion which, as Lord Nicholls recognised in Cream Holdings, exists under HRA section 12 once a court has decided that a proposed publication is likely to be tortious and goes on to consider whether the applicant is also likely to establish at trial that publication should not be allowed. 39. By exercising its discretion so as to discharge the injunction, Mr Browne submits, the Court of Appeal failed to ensure that the appellant’s privacy rights were “practical and effective”: Von Hannover v Germany, para 40, Armonienė v Lithuania, para 38. The submission must, however, be approached with caution at a European level, because in Mosley v United Kingdom [2012] 2012] EMLR 1, para 120, the ECtHR (when considering whether the Convention required the media, before publishing potentially private material, to inform the subject of such material) observed that “in its examination to date of the measures in place at domestic level to protect article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto Page 23