PART 2 OF THE CHILDREN, SCHOOLS & FAMILIES ACT 2010– THE LORD CHANCELLOR’S CONFIDENCE TRICK
by Dr Michael J.Pelling
0. INTRODUCTION This briefing note examines the newly enacted Part 2 of the Children, Schools & Families Act 2010 (c.26) [“CHSFA”] which originated from Lord Chancellor Mr Jack Straw and the Ministry of Justice and which purports to improve “transparency” or open justice in relation to the reporting of Family proceedings in the courts, particularly proceedings relating to children. It will be shown that it does the very opposite and that in a number of respects the position for open justice is now much worse than under the law the Act will replace. That law is still in force because the CHSFA although enacted is not yet in force: Part 2 comes into force when the Lord Chancellor makes the appropriate order by statutory instrument [s.29(4) of the Act].
1. THE CURRENT LAW For the purpose of the contempt law and reporting restrict-ions on Family proceedings heard in private (as most are) there is a sharp distinction between proceedings wholly or mainly about the upbringing or maintenance of children – principally Children Act 1989, Adoption and Children Act 2002, Child Abduction and Custody Act 1985, and Wardship – and other Family proceedings such as under the Matrimonial Causes Act 1973 (divorce, judicial separation, nullity, and ancillary relief), the Civil Partnership Act 2004, or Part IV Family Law Act 1996 (non-molestation orders & occupation/exclusion orders in relation to residential property as between “associated persons” such as spouses and cohabitants and relatives). The first class will be referred to simply as “child proceedings”.
2. Child Proceedings The current law is that it is a Common Law criminal contempt (declared in s.12(1)(a) Administration of Justice Act 1960) to publish information relating to child proceedings heard in private (i.e. general public not admitted, even if accredited press are). Information means substantive information about the content of the proceedings, such as submissions, evidence, expert reports, and judgment, but case law held that it did not, for contempt purposes, include the mere names of parties, witnesses, or children the subject of the proceedings, their photographs, the fact that a child was the subject of such proceedings, the nature of the dispute in such proceedings, nor the orders of the Court – see for example X v. Dempster  1FLR 894. These could all be published without contempt. “Publication” is in the wide sense of defamation – to any third party – and includes communications in purely oral form. In April 2009 the Family Proceedings Rules 1991 were amended by SI 2009/857 to generally allow accredited members of the press to attend any Family proceedings heard in private (new Rule 10.28), including child proceedings, but not affecting the law relating to reporting by the press. The same Statutory Instrument also added a new Part XI to the FPR 1991 entitled “Communication of Information: Proceedings Relating to Children”, which relaxed the contempt law for communication of such information at an individual and institutional level, but not in relation to communicat-ion to the general public. Indeed, r.11.2(2) states: “Nothing in this Part permits the communication to the public at large, or any section of the public, of any information relating to the proceedings”. Any relaxation of the contempt law in child proceedings heard in private to allow publication to the public at large would require, it was thought, as a matter of law, primary legislation. Hence the new Act.
3. Additional to the contempt law, s.97(2)-(6) Children Act 1989 created a summary criminal offence of publishing any material to the public or a section of the public intended or likely to identify a child as the subject of child proceedings in the High Court, County Courts, and Magistrates’ Courts [but not the Court of Appeal], and this actually applied whether the proceedings were in private or in open court. In Clayton v. Clayton  1FLR 11 CA the Court of Appeal held that the s.97 prohibition only applied while the proceedings were continuing – once the Court had reached its final decision and the case was concluded, it would be no offence to identify the child. In particular, in newspaper reports or on the Internet and to the public generally.
4. Other Family Proceedings Contested matrimonial causes are heard in open court and can be freely reported, subject to certain limitations on the content of the reports imposed by the Judicial Proceedings (Regulation of Reports) Act 1926. Proceedings for ancillary relief are normally heard in private and very little can be published because of the rule of law which makes it contempt to publish evidence obtained under compulsion until such evidence is read or referred to in open court. In ancillary relief there is a strict legal duty of full and frank disclosure. But there is no restriction on identification, including of any children of the parties. The same situation applies in civil partnership proceedings. In theory an ancillary relief case could fall within the category of child proceedings if the case happened to be wholly or mainly about child maintenance, but that is extremely rare as the proceedings will almost invariably be wholly or mainly about financial provision for the adult parties. As the CHSFA specifically excludes matrimonial and civil partnership causes and matters from its scope there is no change in the law here and these will not be considered further.
5. Proceedings under Part IV Family Law Act 1996 are usually heard in private but even if children are involved they are not about the upbringing or maintenance of children and there is no application of s.12(1)(a) Administration of Justice Act 1960. However, it would seem possible that if a welfare question about a child arose in such proceedings then s.97(2) Children Act 1989 could apply, because by s.10(1) of that Act the Court could then exercise its Children Act powers even on its own motion, and s.97(2) is worded to include any proceedings in which powers under the Children Act 1989 may be exercised. In general though, in non-molestation order and occupation order disputes between adult parties there is no overlap with child proceedings and s.97 will not apply. In any event, following Clayton v.Clayton supra, s.97 does not apply once the proceedings are concluded. There is therefore generally no legal restriction on publishing information with identification about Part IV Family Law Act 1996 proceedings, and certainly none once the proceedings are concluded. This is confirmed by case law: see Clibbery v. Allan  1FLR 565 CA where the Court of Appeal held that an aggrieved Ms Clibbery could publish the evidence in the case. The same conclusion applies to any other non-child proceedings.
6. THE NEW LAW The CHSFA repeals s.12(1)(a) Administration of Justice Act 1960 and s.97(2)-(6) Children Act 1989, and ss.11-21 create general restrictions on publication of information relating to Family proceedings, whether child related or not (e.g. proceedings under Part IV Family Law Act 1996 are covered, but matrimonial or civil partnership causes and matters are excluded from the Act – s.11(4)(6)). They apply only to proceedings heard in private and to both ongoing and concluded proceedings [s.11(1)]. A new statutory contempt is created by s.11(2) covering the “publication of information relating to the proceedings” unless (and only if, apart from specific leave granted by a court) any of 3 exceptions applies, in which case there is no contempt. These are [s.11(2)]:-
(a) an authorised publication of the text, or a summary, of the whole or part of an order
made or judgment given by the court in the proceedings (see section 12);
(b) an authorised news publication (see section 13);
(c) authorised by rules of court.
It is important to realise that “information relating to the proceedings” now does include identification information – see the interpretation section 21 and ss.12,13. Information identifying or likely to identify parties, witnesses, or those (typically children) the “subject of the proceedings”, is now included in the statutory contempt, unless of course falling within (a), (b) or (c). It makes no difference whether the proceedings are ongoing or concluded [s.11(1)]. As regards (c) there are no rules of court authorising publication to the public at large, but as seen above, FPR 1991 Part XI authorises various categories of disclosure in child proceedings to individuals or institutions. It would seem likely that similar rules of court for non-child proceedings would be made when Part 2 of the Act comes into force to allow similar disclosure other than to the public at large – but the fact that such rules would be necessary at all demonstrates already that in relation to non-child Family proceedings such as under Part IV Family Law Act 1996 the new Act removes the general freedom to publish which exists under the current law.
7. Orders of the Court CHSFA s.12(1) provides that, in the case of adoption proceedings, and in the case of other Family proceedings where publication of the text or summary of an order contains identification information relating to an individual involved in the proceedings, publication of an order of the Court is only an authorised publication under s.11(2)(a) to the extent that the publication of the text or summary is permitted by the Court. This is much more restrictive than the current law where there is no restriction on publication of orders in non-child proceedings, and none in child proceedings once the proceedings are concluded (Clayton supra).
8. CHSFA s.13(4)(5) imposes the same restrictions on authorised news publications under s.11(2)(b) in relation to orders of the Court, except that professional witnesses may be identified. The net result is that neither the press nor anyone else can publish adoption orders, or orders in any other Family proceedings containing identifying information (except the press if present in court, but not anyone else, can identify professional witnesses), without leave of the Court, and whether the proceedings are ongoing or concluded. Thus far from increasing transparency the very opposite is achieved and Clayton v. Clayton is statutorily reversed. In a TV broadcast on 27 April 2009 Mr Straw stated he would not reverse Clayton v. Clayton – see link to recording at http://www.parents4protest.co.uk/media/itvthismorning270409.wmv.
9. Judgments of the Court By s.12(2) publication of the text, or a summary, of the whole or part of a judgment given by a Court in Family proceedings, child or non-child, is an authorised publication only to the extent that the publication of the text or summary is permitted by the Court. Similarly by s.13(5) such publication is an authorised news publication only if permitted by the Court. For child proceedings this is exactly the same position as under the current law. For non-child proceedings the opposite of increased transparency is achieved because judgments which currently can be freely published are now made subject to publication by leave of the Court.
10. Other Information The Act does not define “information”, but as that includes identification information it seems clear that the term is to be construed in the widest sense. In particular, the information in child proceedings that can be published without contempt under the current law, such as the nature of the dispute and the identities of parties, child and witnesses, and information generally of any kind in non-child proceedings, now falls within the term and publication will be a contempt under the Act unless falling within one of the exceptions of s.11(2)(a)(b)(c). Concentrating now on publication to the public or a section of the public, where currently (c) is vacuous, it follows that the only publications authorised to be made by someone other than an accredited member of the press present in court, under s.11(2)(a), will be, absent leave of the Court, non-identifying orders of the Court (excluding adoption altogether). In particular that applies to any party in the case.
11. So a party could publish anonymised orders or summaries of orders like, “Mother A obtained a Residence order under the Children Act 1989 in respect of child B at Bow County Court on 1 April 2011”, or “A woman was ousted from her house in Forest Gate E7 by a man in proceedings under Part IV Family Law Act 1996 at Bow County Court on 1 April 2011” – but absolutely nothing more and they would be in contempt if they identified themselves as a party in the case. Thus for individuals who do not have the privilege of being accredited members of the press, the only information they can publish is worthless triviality. This contrasts with the limited but useful information that can currently be published with identification in child cases, and the freedom to publish any information in the non-child cases. Thus the Act totally destroys the existing publicity available to parties in Family proceedings. The Lord Chancellor has not only statutorily reversed Clayton v. Clayton but also Clibbery v. Allan. It remains to consider what the press and media can publish under s.11(2)(b).
12. Authorised News Publication This is defined in s.13 of the Act and publication is allowed subject to a series of Conditions. Condition 1 [s.13(2)] is: “the information was obtained by an accredited news representative by observing or listening to the proceedings when attending them in exercise of a right conferred on accredited news representatives by rules of court”. It has already been seen that other Conditions in s.13 prohibit publication of adoption orders, identifying orders, and judgments, without leave of the Court. In fact, Condition 3 [s.13(4)] prohibits the publication of any identification information and any sensitive personal information (even without identification) relating to the proceedings, and certain other adoption information, without leave of the Court. “Sensitive personal information” is defined in Schedule 2 to the Act and includes any information provided by a child to a party, witness, or other person, and information relating to anyone’s medical psychological or psychiatric condition or treatment or evaluation, or to health care, treatment or therapy for any person. It should be noted that the accredited news representative cannot obtain the publishable information from a party, only by being present in court.
13. Authorised News Publication – Non-Child Proceedings Here transparency has been grossly decreased since under the current law the press can freely publish any information they can obtain from any source and do not have to be present in court. They do not need leave of the Court to publish anything, for example, about Part IV Family Law Act 1996 proceedings and a party can freely communicate the whole content of the proceedings to the press without the news representative having to sit in court. The press were not in court in Ms Gloria Clibbery’s 1996 Act case but they were at liberty to publish, and did, whatever she chose to communicate to them about the proceedings. Under the new Act Ms Clibbery could not even talk to the press about her case, let alone publish anything herself or through the media. She would not be able to publicise any injustice suffered or any information about the way the 1996 Act and the Court had operated in her case. If the press were in court they could not identify the parties or publish pictures, nor publish the judgment; anonymised orders and evidence would be publishable if no sensitive personal information was included.
14. Authorised News Publication – Child Proceedings Here there has been a very modest increase in transparency in that if present in court the press could publish anonymised oral evidence and advocates’ submissions, provided that no sensitive personal information was included. In practice it is likely that a great deal of important evidence in the case would fall within the scope of sensitive personal information since anything the child had said to anyone would fall in that category. Much, if not all, of any expert reports would fall in the same category, the all-important Cafcass report included. The judgment could not be published, leave of the Court apart. This is bizarre in that the judiciary have historically been much more sympathetic to the idea of publishing anonymised judgments than the evidence in child cases. At the same time there has been a significant decrease in transparency in that Clayton v.Clayton has been reversed and information that could be published without breach of s.12(1)(a) Administration of Justice Act 1960 can now no longer be published.
15. In practice any slight gain in transparency is virtually worthless since the press will not be able or wish to meet the onerous requirement of having to be present in court save in a very few select cases and the media are not generally interested in reporting anonymised cases devoid of human interest. The lack of a right to publish the Court’s reasoned judgment would also be seriously inhibiting.
16. CONCLUSION In relation to non-child Family proceedings the position for open justice is far worse than under the current law, with severe new restrictions imposed. In relation to child proceedings there are new restrictions but also a modest gain for the press only, which in practice will prove largely worthless as the press will rarely take it up. For other than accredited press, in particular parties, the position is much worse and the new law will reduce them to silence in both categories of Family proceedings. The Lord Chancellor’s Act is a massive confidence trick.
17. Example 1 A woman is ousted from the home she owns by her non-owning cohabitant, under an ex parte Court order founded on perjured evidence, leaving the children with him in the house. She fails to successfully set the order aside on the return date, due to lack of time to prepare and lack of resources as she is not eligible for legal aid. The judge is naive and biased and unable to distinguish fact from fiction. The case, under s.36 Family Law Act 1996, is heard in chambers and although the woman asks press reporters to attend, none do. She is very aggrieved at the injustice suffered and the way the legal system and court has worked against her. She wishes to publicise what she has suffered and write articles about reforming the law, based on her own experience. Under the current law she can write about and publish any material from the proceedings, including the evidence and judgment and orders, with full identification. She can set up a website for this. Or she can speak to the press and the media can use whatever information she gives them, and material from the proceedings, and publish in print or in a broadcast any of it with full identification. Under the new Act, however, she cannot publish anything at all to the public at large, except the bare anonymised ouster order in a way not referable to herself. She may be able to talk to individual members of the press (if rules of court were made permitting that) but they cannot publish anything in the media about her case because none of them were present in court. Thus so far as publicising injustice is concerned, she is reduced to silence.
18. Example 2 In care proceedings heard in private under the public law sections of the Children Act 1989 a child is wrongfully removed from his parents by the local authority on the flimsiest of evidence and in reality to meet adoption targets laid down by the government of the day. In due course the Court makes a care order, the child is put up for adoption, and the parents lose their child for ever. Under the current law the parents could at least identify themselves and children (once the care proceedings are concluded) and complain publicly of injustice suffered, within the limited scope of publication that does not occasion a s.12(1)(a) Administration of Justice Act 1960 contempt. Under the new Act however, the parents could not identify themselves or publish anything at all other than a pointless anonymised care order not referable to themselves. If they spoke to the press then the media would not be able to publish anything more either. If the press were in court then the anonymised order could be published but not the judgment; in the nature of things much in care proceedings hinges on expert reports and the child’s own account of events – but this will nearly all be sensitive personal information and as such not publishable; since much of the crucial evidence would not be publishable and since the judgment of the Court giving its verdict on the evidence would not be publishable (sans leave), it is hard to see that the media would have a publishable story or stamina to sit through the proceedings.
19. THE PRIVILEGED PRESS It used to be thought unwise to have legislation referring to or singling out or defining the press, the danger being that this would be the first step on the road to legislation regulating the press and limiting freedom of speech, so best avoided in a free and democratic society. S.21 of the Act defines:-
“accredited news representative”, in relation to any proceedings, means a representative of one or more news organisations who is a member of a class of representatives of news organisations on which rules of court confer a right to attend the proceedings;
– hence the State will now decide via a Rules Committee what news organisations will have the privilege of being able to send which class of representatives to observe and report on Family proceedings heard in private. Coupled with s.13 of the Act defining authorised news publications (Condition 1 being actual press attendance at court), this conveniently prevents media reporting by the time honoured method of gathering information from the parties and witnesses and lawyers themselves, and greatly limits the likelihood of anyone being present in court who has the right to report on a case.
20. Further, it puts the press in the invidious position of being a censor of what the public shall know about Family proceedings in the courts. It is said that the press are the eyes and ears of the public, but if they are privileged to be the only eyes and ears and no one else is allowed to observe and publish for themselves if they can find an audience, then the press become the arbiters of what the public shall be entitled to know, which is simply a form of censorship. I do not want the press deciding what I shall be allowed to know about court proceedings heard in private anymore than I want the government or the judiciary to decide that. If accredited press who happen to be in court can publish, then I fail to see the logic of denying the same right to the parties, who will have greater knowledge of the whole case and sharper motivation from what they have gone through at the hands of our laws and legal system.
21. Or rather I do see the logic and it is again the logic of the confidence trick – the Lord Chancellor can pretend he has opened up the courts in Family proceedings heard in private and show a form of transparency while denying any real substance to it, conveniently suppressing the voices of those with the greatest reason to speak out.
© Dr Michael J.Pelling 12 April 2010