Media involvement in the Family Court
Breifing Note from Hodge Jones & Allen LLP Family Team
Since Monday 27th April 2009, the
media has gained the right to attend and report on family
proceedings in county courts and the High Court.
New rules[1] and a practice
direction by the President of the Family Division set out how the
media’s right of access to family courts is to be exercised. A
crucial feature of the new framework is that it is only accredited
members of the media who are permitted to attend, and they can only
attend in certain circumstances.
The new rules are an attempt to balance the right of the media
(and thereby the public at large) to know what is happening in
family courts against the need to restrict information relating to
children[2] and the wider importance of the right to a
private life. The government felt that the blanket exclusion
of the media did not give enough weight to the legitimate public
interest in the workings and decisions of the family court.
This new approach fits squarely with human rights jurisprudence; in
which blanket exclusions to the exercise of individual rights are
replaced with graduated, flexible and case-specific rules which
ensure that conflicts between rights are resolved as
proportionately as possible. It is also clearly a response to
the activities of special interest groups such as Fathers 4 Justice
who have in the past few years made a number of assertions about
the workings of the family justice system to which those within the
system have been unable to reply because of the rules then in
place.
In this light, the rules have been redesigned
to create a general right of access to the media, and to ensure
that journalists can only be excluded where limited criteria permit
it. The right of access does not extend to the right to see
court documents, unless the court gives express permission.
It is important to note, however, that the right to report court
proceedings does not extend to the right to identify the people
involved.
The media are allowed to attend any hearing
except
1) Where the
hearing is for the purposes of negotiation/conciliation – for
example first hearings in private law Children Act cases including
contact and residence which are set up to try to resolve the
dispute through negotiation.
2) Where the
court directs that they are not permitted to attend.
The court can direct that the media will be
excluded in 4 situations:
1) where it is
necessary in the interests of any child concerned in or connected
with the proceedings,
2) where it is
necessary for the safety or protection of a party, a witness in the
proceedings, or a person connected with such a party or
witness,
3) where it is
necessary for the orderly conduct of the proceedings (for example
where the court room is not large enough to contain the media),
or
4) where justice
will otherwise be impeded or prejudiced (for example where the
media presence may prevent a witness from giving evidence or may
undermine their evidence).
When considering any of these exclusions, the
court must consider whether the risk could be dealt with by
excluding the media from only a part of the hearing. The
court should also consider whether restrictions on the reporting of
proceedings (either restrictions specifically applied by the judge
in the case or general restrictions, like, for example, not
revealing the children involved) will be sufficient.
The safety of the parties where there are
particular physical or health risks and those risks might not be
met solely be restricting reporting should be considered, and also
where an individual (including a child) is unrepresented, the court
should consider whether exclusion is needed to protect the welfare
of that person.
Toby Hales, partner and head of the Family Team at Hodge Jones
and Allen, noted that in the first week of the rules an application
to exclude a reporter in a case of his was successful. It was
argued that because of previous publicity in this case and also
because of the particular issues in the case, it would be possible
to construct a ‘jigsaw identification’ of the children involved. He
commented:
“The approach of the courts to media
observation is not yet settled. Everyone attending family courts
should be aware of these new rules and should be prepared for
possible press involvement in their case. However the rules on what
the press can report are restrictive and will not result in
detailed press reports on every case. In cases where there are
particular issues, it will be up to the parties in the case to
argue that the press should be excluded. We have been encouraged
not to ask the Judge to exclude the media on a regular or habitual
basis, as this will undermine the accommodation that has been
reached. However, our experience so far is that judges will
be sympathetic to arguments to stop reporters from sitting in the
courtroom where real concerns can be identified. It remains to be
seen whether the press will treat their rights as a “seven day
wonder” or whether this will give rise to a genuine and balanced
exposure to the workings of the family justice system, which we all
feel would be helpful”
Edward Kirton-Darling
Hodge Jones & Allen LLP
May 2009