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Press and Media Requests

It is now possible for accredited journalists to obtain entry into family courts in England and Wales, If you are a journalist you should read the 2 documents below before setting off for court…

PRESIDENT’S GUIDANCE IN RELATION TO APPLICATIONS CONSEQUENT UPON THE ATTENDANCE OF THE MEDIA IN FAMILY PROCEEDINGS

1. The Government’s announcement about the attendance of the media at hearings in family proceedings (see Family Justice in View Cm 7502, December 2008) has been implemented by a change to the Family Proceedings Rules made by The Family Proceedings (Amendment)(No 2) Rules 2009 SI 2009 No 857 (county court and High Court ) and The Family Proceedings Courts (Miscellaneous Amendments) Rules 2009 SI 2009 No 858 (magistrates’ courts) and two Practice Directions on Attendance of Media Representatives at Hearings in Family Proceedings ( county court and High Court and magistrates’ court dated 20th April 2009 made by the President to support the rule changes in the respective courts.
2. Change regarding media attendance in the family proceedings courts is introduced through amendment to the Family Proceedings Courts (Children Act 1989) Rules 1991 with the insertion of Rule 16A.
3. In broad terms the changes for the county court and the High Court relating to media attendance permit duly accredited representatives of news gathering and reporting organisations, and any other unaccredited person whom the court permits, to be present at hearings of all family proceedings (defined by s. 32 Matrimonial and Family Proceedings Act 1984) except hearings conducted for the purposes of judicially assisted conciliation or negotiation. They also provide that the court can exclude media representatives
4. For the county court and the High Court, the change relates to most of the proceedings which are for the time being heard in private. It therefore covers a wide range of proceedings including for example public and private law proceedings under the Children Act 1989 and claims for ancillary relief under the Matrimonial Causes Act 1973 .
5. Representatives of newspapers or news agencies are admitted to the family proceedings courts under section 69 (2) Magistrates’ Courts Act 1980 . Media attendance will now be regulated by the insertion of rule “16A Restrictions on presence of persons at directions appointment and hearing”. Duly accredited representatives of news gathering and reporting organisations are not entitled to be present at hearings conducted for the purposes of judicially assisted conciliation or negotiation. In respect of the family proceedings court the new Part 11C of the Family Proceedings Courts (Children Act 1989) Rules 1991 as amended, regarding communication of information only apply to proceedings concerning children. In particular, they do not apply to proceedings for ancillary relief. Nor do they expressly cover communication of information to representatives of the media.
6. As appears from the Practice Direction governing the county court and High Court, it is a premise of the change for these courts that the proceedings remain proceedings held in private and that therefore the existing position relating to the publication of matters relating to proceedings which are so heard continues to apply, both whilst the proceedings continue and when they have ended (see the Practice Direction paras 2.4 and 2.5
7. Useful summaries of the position relating to the publication of matters relating to proceedings heard in private can be found in: Clayton v Clayton [2006] EWCA Civ 878 [2007] 1 FLR 11 (in particular at paragraphs 23 to 60, 82 to 85, 92 to 104 and 118 to 136 and Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142 (in particular at paragraphs 62 to 82 (on s. 12 AJA 1960) and 83 to 107 (on the jurisdiction to relax or increase the statutory restrictions on publication). Other useful cases are listed in the footnote to this paragraph. ( 1 )
8. It is to be noted that the above decisions all concern the interests and welfare of children and that the approach in ancillary relief proceedings (which are also likely to be productive of media applications) has not been the subject of similar judicial consideration and guidance.
9. The new Rules and the Practice Directions include provisions relating to the exclusion of media representatives but are silent on the approach to be taken by the courts to the exercise of their discretion in respect of other issues which may well arise as a consequence of the attendance of media representatives at hearings in family proceedings. In this respect the Government declined to adopt the recommendation of the High Court judges to address the detail of such issues when introducing the change. It is therefore left to the courts to determine how such issues are to be approached and decided. It is clear that a principled approach to such issues should be applied by the courts and that this can only properly be developed by the courts with the benefit of full argument from the interested parties.
10. The change to admit media representatives to hearings in family proceedings in county courts and the High Court is likely to give rise to a number of issues relating to the exercise of discretion by all levels of court. In particular it is likely that courts will quickly be faced with applications for the provision of documents to media representatives present in court to enable them the better to follow the substance of the proceedings. If minded to grant such application, the court will need to consider the terms of any restriction relating to the use (and in particular the publication) of information contained in any such documents provided to media representatives as a condition of their being so provided.
11. In cases involving children, applications, whether by the media or the parties, are also likely to raise issues as to
(i)

The proper application of the existing statutory provisions restricting the publication of the identity of children and information relating to proceedings heard in private;

(ii)

the adequacy of the protection afforded in children cases by Section 12 of the Administration of Justice Act 1960 (‘AJA 1960’) which, inter alia, does not extend to the identity of the parties or witnesses;

(iii)

the effect of the publication of any anonymised judgment;

1 Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, at [17],

Pelling v Bruce-Williams (Secretary of State for Constitutional Affairs Intervening) [2004] EWCA Civ 845, [2004] Fam 155, [2004] 2 FLR 823,

Re Webster; Norfolk County Council v Webster and Others (No 1) [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, at [72] and [121],

Re Webster; Norfolk County Council v Webster and Others (No 2) [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, at [41] to [43] and [72],

Re B; X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, at para [11]

Re B; X Council v B (No 2) [[2008] EWHC 270 (Fam) 1 FLR 1460, at para [12]):

BBC v Cafcass [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at paras [38]-[46]:

Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, at [102]

and whether or not injunctive relief may be required upon a wider basis.

13. In relation to the need for injunctive relief in cases affecting children, particularly in local courts, it may be necessary to consider how far it is appropriate to protect from identification not only the children and the parties, but also witnesses and others whose identities will be known locally as associated with the child or his family.

14. Finally, there will be issues over the need on child welfare grounds for protection to extend beyond the end of the hearing (see paragraph 2.5 of the respective Practice Directions – county court and High Court and magistrates’ court)

15. No doubt the basic opposing arguments in relation to the question of access to documents will be, on the one hand, that the Government has sought to retain the basic structure and rationale of the long standing policy of privacy in relation to children proceedings, while at the same time admitting the press, to avoid charges of “secret justice” and to promote better understanding of the working of the family courts. For these purposes, however, access to court documents is not generally necessary or desirable having regard to their confidential nature.

16. On the other hand, the media may argue that, particularly in those cases where there is not a formal oral opening, they should be enabled to see statements and documents filed in order fully to understand the nature and progress of the proceedings, and so as to be able to publish articles, within appropriate reporting constraints, about the cases which they attend. In this connection, it is likely, if not inevitable, that in individual cases of high interest to the media, courts at all levels and all over the country will be faced with detailed legal argument relating to rival Convention Rights, public and private interests, the welfare of children, and the construction and application of the primary and secondary legislation.

17. Inconsistency of approach in children cases as to the principles to be applied to the determination of such issues on the part of the courts, parties, witnesses, other persons involved in the relevant events (e.g. social workers and doctors) and the media could well give rise to justified criticism on grounds of uncertainty. It would not promote the public interest in the proper administration of justice and could be damaging to children.

18. So far as ancillary relief proceedings are concerned, policy, privacy and Convention issues may also arise for decision, albeit the interests of children may not be engaged.

19. The purpose of this guidance is therefore to try to avoid, or at least to minimise, inconsistency by providing that decisions are made by the High Court (and the Appellate Courts) as soon as possible as to the principled approach to be taken. Its purpose is also to provide that, until that is done, delay in decision making in individual cases, (particularly those concerning children) should be avoided. It is to be hoped that the media will co-operate in these aims.

20. Pending the availability of formal judicial guidance from the High Court or Court of Appeal as to the principled approach to be adopted, all county courts and magistrates’ courts hearing family proceedings should carefully consider adopting the following course:

i) The court should deal in accordance with the Rules and Practice Directions with any application made for exclusion of the media from the proceedings or any part of them on any of the grounds set out in the Practice Directions.

ii) Where a representative of the media in attendance at the proceedings applies to be shown court documents, the court should seek the consent of the parties to such representative being permitted (subject to appropriate conditions as to anonymity and restrictions upon onward disclosure) to see such summaries, position statements and other documents as appear reasonably necessary to a broad understanding of the issues in the case.

iii)

If the objection of any of the parties is maintained, then in any case where the objecting party demonstrates reasonably arguable grounds for resisting disclosure of the document or documents sought, no order for disclosure should be made, but the following course of action should be considered.

iv)

If considered necessary or appropriate the court should transfer (or, in the case of a family proceedings court, take the first step to bring about an urgent transfer of) the proceedings to the High Court for the determination of any disclosure and/or reporting issues.

v)

Alternatively, in order to avoid delay in decision making on the substantive issues in the case, the court should adjourn determination of any disclosure and/or reporting issues pending a decision by the High Court (or the Appellate Courts) on the principled approach to be taken to them and should make any necessary interim orders in accordance with the argument mentioned in paragraph 15 above in order to secure the position meanwhile.

vi)

Similarly, if a representative of the media applies for reporting restrictions to be lifted during the currency of a case, in the absence of agreement between the parties the court should consider following one or the other of the alternative steps set out in sub-paragraphs iv) – v) above.

vii)

If injunctive relief is sought restraining publication based on Convention rights rather than statutory provisions, the matter should in any event be transferred to the High Court to be dealt with under the President’s Practice Direction ( Applications for Reporting Restriction Orders ) 18 March 2005 and the Practice Note ( Official Solicitor: Deputy Director of Legal Services CAFCASS: Applications for Reporting Restriction Orders [2005] 2 FLR 111) and, if interim injunctive relief appears necessary under threat of publication before such application can be dealt with by a High Court judge, the county court should comply with section 12(2) of the Human Rights Act 1998 .

21 The underlying aim of this guidance is to seek to ensure that the principled approach to be taken is determined by the High Court (and the Appellate Courts) as soon as possible and that in the interim changes of practice do not take place which may not accord with that principled approach. Though this may result in delayed rulings on some early contested applications involving arguments such as those mentioned in paragraphs 15 and 16 above, it may be considered desirable, in the absence of legislative guidance, that such rulings should only be made on the basis of authoritative judicial guidance following proper determination, with the benefit of full argument, of the relevant principled approach for the longer term.

22 To assist in the early determination of the principled approach:

i)

Arrangements will be made in the High Court to identify appropriate test cases and for their early determination, and

ii)

Arrangements will be made to seek to ensure that directions are given as soon as is practicable in any proceedings that are transferred to the High Court because they raise substantial issues arising from the attendance of media representatives

iii)

Proceedings which are transferred to the High Court other than in the PRFD should be put before a family High Court Judge on circuit or, failing the presence on circuit of a High Court Judge, before the Family Division Liaison Judge as an urgent application for directions.

Sir Mark Potter

22nd April 2009. President of the Family Division

Practice Direction 20 April 2009

Attendance of Media Representatives at Hearings in Family Proceedings

This Practice Direction below is made by the President of the Family Division under the powers delegated to him by the Lord Chief Justice under Schedule 2, Part 1, paragraph 2(2) of the Constitutional Reform Act 2005, and is approved by Bridget Prentice, Parliamentary Under Secretary of State, by the authority of the Lord Chancellor.

1. Introduction

  1. This Practice Direction supplements rule 10.28 of the Family Proceedings Rules 1991(“FPR 1991”) and deals with the right of representatives of news gathering and reporting organisations (“media representatives”) to attend at hearings of family proceedings which take place in private subject to the discretion of the court to exclude such representatives from the whole or part of any hearing on specified grounds.1 It takes effect on 27 April 2009.
  2. Matters unchanged by the rule

2.1 Rule 10.28(1) contains an express exception in respect of hearings which are conducted for the purpose of judicially assisted conciliation or negotiation and media representatives do not have a right to attend these hearings. Financial Dispute Resolution hearings will come within this exception. First Hearing Dispute Resolution appointments in private law Children Act cases will also come within this exception to the extent that the judge plays an active part in the conciliation process. Where the judge plays no part in the conciliation process or where the conciliation element of a hearing is complete and the judge is adjudicating upon the issues between the parties, media representatives should be permitted to attend, subject to the discretion of the court to exclude them on the specified grounds. Conciliation meetings or negotiation conducted between the parties with the assistance of an officer of the service or a Welsh Family Proceedings officer, and without the presence of the judge, are not “hearings” within the meaning of this rule and media representatives have no right to attend such appointments.

The exception in rule 10.28(1) does not operate to exclude media representatives from:

  • Hearings to consider applications brought under Parts IV and V of the Children Act 1989, including Case Management Conferences and Issues Resolution Hearings
  • Hearings relating to findings of fact
  • Interim hearings
  • Final hearings.

1 It does not, accordingly, apply where hearings are held in open court where the general public including media representatives may attend as of right, such as committal hearings or the hearing of matrimonial or civil partnership causes.

The rights of media representatives to attend such hearings are limited only by the powers of the court to exclude such attendance on the limited grounds and subject to the procedures set out in paragraphs (4)-(6) of rule 10.28.

2.2 During any hearing, courts should consider whether the exception in rule 10.28(1) becomes applicable so that media representatives should be directed to withdraw.

2.3 The provisions of the rules permitting the attendance of media representatives and the disclosure to third parties of information relating to the proceedings do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court or otherwise in accordance with Part 11 of the FPR 1991 (rules relating to disclosure to third parties). (This is in contrast to the position in civil proceedings, where the court sits in public and where members of the public are entitled to seek copies of certain documents2)

2.4 The question of attendance of media representatives at hearings in family proceedings to which rule 10.28 and this guidance apply must be distinguished from statutory restrictions on publication and disclosure of information relating to proceedings, which continue to apply and are unaffected by the rule and this guidance.

2.5 The prohibition in section 97(2) of the Children Act 1989, on publishing material intended to or likely to identify a child as being involved in proceedings or the address or school of any such child, is limited to the duration of the proceedings3. However, the limitations imposed by section 12 of the Administration of Justice Act 1960 on publication of information relating to certain proceedings in private4 apply during and after the proceedings. In addition, in proceedings to which s.97(2) of the Children Act 1989 applies the court should continue to consider at the conclusion of the proceedings whether there are any outstanding welfare issues which require a continuation of the protection afforded during the course of the proceedings by that provision.

3 Aims of the guidance

3.1 This Practice Direction is intended to provide guidance regarding:

  • the handling of applications to exclude media representatives from the whole or part of a hearing: and
  • the exercise of the court’s discretion to exclude media representatives whether upon the court’s own motion or any such application

2 See GIO Services Ltd v Liverpool and London Ltd [1999] 1 WLR 984 3 See Clayton v Clayton [2006] EWCA Civ 878 4 In particular proceedings which

(a)
relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(b)
are brought under the Children Act 1989; or
(c)
otherwise relate wholly or mainly to the maintenance or upbringing of a minor

3.2 While the guidance does not aim to cover all possible eventualities, it should be complied with so far as consistent in all the circumstances with the just determination of the proceedings.

4 Identification of media representatives as “accredited”

4.1 Media representatives will be expected to carry with them identification sufficient to enable court staff, or if necessary the court itself, to verify that they are “accredited” representatives of news gathering or reporting organisations within the meaning of the rule.

4.2 By virtue of paragraph (8) of the rule, it is for the Lord Chancellor to approve a scheme which will provide for accreditation. The Lord Chancellor has decided that the scheme operated by the UK Press Card Authority provides sufficient accreditation; a card issued under that scheme will be the expected form of identification, and production of the Card will be both necessary and sufficient to demonstrate accreditation.

4.3 A media representative unable to demonstrate accreditation in accordance with the UK Press Card Authority scheme, so as to be able to attend by virtue of paragraph (3)(f) of the rule, may nevertheless be permitted to attend at the court’s discretion under paragraph (3)(g).

5 Exercise of the discretion to exclude media representatives from all or part of the proceedings.

5.1 The rule anticipates and should be applied on the basis that media representatives have a right to attend family proceedings throughout save and to the extent that the court exercises its discretion to exclude them from the whole or part of any proceedings on one or more of the grounds set out in paragraph (4) of the rule.

5.2 When considering the question of exclusion on any of the grounds set out in paragraph (4) of the rule the court should

  • specifically identify whether the risk to which such ground is directed arises from the mere fact of media presence at the particular hearing or hearings the subject of the application or whether the risk identified can be adequately addressed by exclusion of media representatives from a part only of such hearing or hearings;
  • consider whether the reporting or disclosure restrictions which apply by operation of law, or which the court otherwise has power to order will provide sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph (4)(a) of the rule;
  • consider the safety of the parties in cases in which the court considers there are particular physical or health risks against which reporting restrictions may be inadequate to afford protection;
  • in the case of any vulnerable adult or child who is unrepresented before the court, consider the extent to which the court should of its own motion take steps to protect the welfare of that adult or child.

5.3 Paragraph (4)(a)(iii) of the rule permits exclusion where necessary “for the orderly conduct of proceedings”. This enables the court to address practical problems presented by media attendance. In particular, it may be difficult or even impossible physically to accommodate all (or indeed any) media representatives who wish to attend a particular hearing on the grounds of the restricted size or layout of the court room in which it is being heard. Court staff will use their best efforts to identify more suitable accommodation in advance of any hearing which appears likely to attract particular media attention, and to move hearings to larger court rooms where possible. However, the court should not be required to adjourn a hearing in order for larger accommodation to be sought where this will involve significant disruption or delay in the proceedings.

5.4 Paragraph (4)(b) of the rule permits exclusion where, unless the media are excluded, justice will be impeded or prejudiced for some reason other than those set out in sub-paragraph (a). Reasons of administrative inconvenience are not sufficient. Examples of circumstances where the impact on justice of continued attendance might be sufficient to necessitate exclusion may include:

  • a hearing relating to the parties’ finances where the information being considered includes price sensitive information (such as confidential information which could affect the share price of a publicly quoted company); or
  • any hearing at which a witness (other than a party) states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives.

5.5 In the event of a decision to exclude media representatives, the court should state brief reasons for the decision.

6 Applications to exclude media representatives from all or part of proceedings

6.1 The court may exclude media representatives on the permitted grounds of its own motion or after hearing representations from the interested persons listed at paragraph (6) of the rule. Where exclusion is proposed, any media representatives who are present are entitled to make representations about that proposal. There is, however, no requirement to adjourn proceedings to enable media representatives who are not present to attend in order to make such representations, and in such a case the court should not adjourn unless satisfied of the necessity to do so having regard to the additional cost and delay which would thereby be caused.

6.2 Applications to exclude media representatives should normally be dealt with as they arise and by way of oral representations, unless the court directs otherwise.

6.3 When media representatives are expected to attend a particular hearing (for example, where a party is encouraging media interest and attendance) and a party intends to apply to the court for the exclusion of the media, that party should, if practicable, give advance notice to the court, to the other parties and (where appointed) any children’s guardian, officer of the service or Welsh Family Proceedings officer, NYAS or other representative of the child of any intention to seek the exclusion of media representatives from all or part of the proceedings. Equally, legal representatives and parties should ensure that witnesses are aware of the right of media representatives to attend and should notify the court at an early stage of the intention of any witness to request the exclusion of media representatives

6.4 Prior notification by the court of a pending application for exclusion will not be given to media interests unless the court so directs. However, where such an application has been made, the applicant must where possible, notify the relevant media organisations.

Sir Mark Potter President of the Family Division

PRESIDENT’S GUIDANCE IN RELATION TO APPLICATIONS CONSEQUENT UPON THE ATTENDANCE OF THE MEDIA IN FAMILY PROCEEDINGS
1.
The Government’s announcement about the attendance of the media at hearings in family proceedings (see Family Justice in View Cm 7502, December 2008) has been implemented by a change to the Family Proceedings Rules made by The Family Proceedings (Amendment)(No 2) Rules 2009 SI 2009 No 857 (county court and High Court ) and The Family Proceedings Courts (Miscellaneous Amendments) Rules 2009 SI 2009 No 858 (magistrates’ courts) and two Practice Directions on Attendance of Media Representatives at Hearings in Family Proceedings (county court and High Court and magistrates’ court dated 20th April 2009 made by the President to support the rule changes in the respective courts.
2.
Change regarding media attendance in the family proceedings courts is introduced through amendment to the Family Proceedings Courts (Children Act 1989) Rules 1991 with the insertion of Rule 16A.
3.
In broad terms the changes for the county court and the High Court relating to media attendance permit duly accredited representatives of news gathering and reporting organisations, and any other unaccredited person whom the court permits, to be present at hearings of all family proceedings (defined by s. 32 Matrimonial and Family Proceedings Act 1984) except hearings conducted for the purposes of judicially assisted conciliation or negotiation. They also provide that the court can exclude media representatives
4.
For the county court and the High Court, the change relates to most of the proceedings which are for the time being heard in private. It therefore covers a wide range of proceedings including for example public and private law proceedings under the Children Act 1989 and claims for ancillary relief under the Matrimonial Causes Act 1973.
5.
Representatives of newspapers or news agencies are admitted to the family proceedings courts under section 69 (2) Magistrates’ Courts Act 1980. Media attendance will now be regulated by the insertion of rule “16A Restrictions on presence of persons at directions appointment and hearing”. Duly accredited representatives of news gathering and
Page 1
reporting organisations are not entitled to be present at hearings conducted for the purposes of judicially assisted conciliation or negotiation. In respect of the family proceedings court the new Part 11C of the Family Proceedings Courts (Children Act 1989) Rules 1991 as amended, regarding communication of information only apply to proceedings concerning children. In particular, they do not apply to proceedings for ancillary relief. Nor do they expressly cover communication of information to representatives of the media.
6.
As appears from the Practice Direction governing the county court and High Court, it is a premise of the change for these courts that the proceedings remain proceedings held in private and that therefore the existing position relating to the publication of matters relating to proceedings which are so heard continues to apply, both whilst the proceedings continue and when they have ended (see the Practice Direction paras 2.4 and 2.5
7.
Useful summaries of the position relating to the publication of matters relating to proceedings heard in private can be found in: Clayton v Clayton [2006] EWCA Civ 878 [2007] 1 FLR 11 (in particular at paragraphs 23 to 60, 82 to 85, 92 to 104 and 118 to 136 and Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142 (in particular at paragraphs 62 to 82 (on s. 12 AJA 1960) and 83 to 107 (on the jurisdiction to relax or increase the statutory restrictions on publication). Other useful cases are listed in the footnote to this paragraph. (1)
1 Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, at [17],
Pelling v Bruce-Williams (Secretary of State for Constitutional Affairs Intervening) [2004] EWCA Civ 845, [2004] Fam 155, [2004] 2 FLR 823,
Re Webster; Norfolk County Council v Webster and Others (No 1) [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, at [72] and [121],
Re Webster; Norfolk County Council v Webster and Others (No 2) [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, at [41] to [43] and [72],
Re B; X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, at para [11]
Re B; X Council v B (No 2) [[2008] EWHC 270 (Fam) 1 FLR 1460, at para [12]):
BBC v Cafcass [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at paras [38]-[46]:
Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, at [102]
Page 2
8.
It is to be noted that the above decisions all concern the interests and welfare of children and that the approach in ancillary relief proceedings (which are also likely to be productive of media applications) has not been the subject of similar judicial consideration and guidance.
9.
The new Rules and the Practice Directions include provisions relating to the exclusion of media representatives but are silent on the approach to be taken by the courts to the exercise of their discretion in respect of other issues which may well arise as a consequence of the attendance of media representatives at hearings in family proceedings. In this respect the Government declined to adopt the recommendation of the High Court judges to address the detail of such issues when introducing the change. It is therefore left to the courts to determine how such issues are to be approached and decided. It is clear that a principled approach to such issues should be applied by the courts and that this can only properly be developed by the courts with the benefit of full argument from the interested parties.
10.
The change to admit media representatives to hearings in family proceedings in county courts and the High Court is likely to give rise to a number of issues relating to the exercise of discretion by all levels of court. In particular it is likely that courts will quickly be faced with applications for the provision of documents to media representatives present in court to enable them the better to follow the substance of the proceedings. If minded to grant such application, the court will need to consider the terms of any restriction relating to the use (and in particular the publication) of information contained in any such documents provided to media representatives as a condition of their being so provided.
11.
In cases involving children, applications, whether by the media or the parties, are also likely to raise issues as to
(i)
The proper application of the existing statutory provisions restricting the publication of the identity of children and information relating to proceedings heard in private;
(ii)
the adequacy of the protection afforded in children cases by Section 12 of the Administration of Justice Act 1960 (‘AJA 1960’) which, inter alia, does not extend to the identity of the parties or witnesses;
(iii)
the effect of the publication of any anonymised judgment;
and whether or not injunctive relief may be required upon a wider basis.
13. In relation to the need for injunctive relief in cases affecting children, particularly in local courts, it may be necessary to consider how far it is appropriate to protect from identification not only the children and the parties, but also witnesses and others whose identities will be known locally as associated with the child or his family.
Page 3
14. Finally, there will be issues over the need on child welfare grounds for protection to extend beyond the end of the hearing (see paragraph 2.5 of the respective Practice Directions – county court and High Court and magistrates’ court)
15. No doubt the basic opposing arguments in relation to the question of access to documents will be, on the one hand, that the Government has sought to retain the basic structure and rationale of the long standing policy of privacy in relation to children proceedings, while at the same time admitting the press, to avoid charges of “secret justice” and to promote better understanding of the working of the family courts. For these purposes, however, access to court documents is not generally necessary or desirable having regard to their confidential nature.
16. On the other hand, the media may argue that, particularly in those cases where there is not a formal oral opening, they should be enabled to see statements and documents filed in order fully to understand the nature and progress of the proceedings, and so as to be able to publish articles, within appropriate reporting constraints, about the cases which they attend. In this connection, it is likely, if not inevitable, that in individual cases of high interest to the media, courts at all levels and all over the country will be faced with detailed legal argument relating to rival Convention Rights, public and private interests, the welfare of children, and the construction and application of the primary and secondary legislation.
17. Inconsistency of approach in children cases as to the principles to be applied to the determination of such issues on the part of the courts, parties, witnesses, other persons involved in the relevant events (e.g. social workers and doctors) and the media could well give rise to justified criticism on grounds of uncertainty. It would not promote the public interest in the proper administration of justice and could be damaging to children.
18. So far as ancillary relief proceedings are concerned, policy, privacy and Convention issues may also arise for decision, albeit the interests of children may not be engaged.
19. The purpose of this guidance is therefore to try to avoid, or at least to minimise, inconsistency by providing that decisions are made by the High Court (and the Appellate Courts) as soon as possible as to the principled approach to be taken. Its purpose is also to provide that, until that is done, delay in decision making in individual cases, (particularly those concerning children) should be avoided. It is to be hoped that the media will co-operate in these aims.
20. Pending the availability of formal judicial guidance from the High Court or Court of Appeal as to the principled approach to be adopted, all county courts and magistrates’ courts hearing family proceedings should carefully consider adopting the following course:
Page 4
i) The court should deal in accordance with the Rules and Practice Directions with any application made for exclusion of the media from the proceedings or any part of them on any of the grounds set out in the Practice Directions.
ii) Where a representative of the media in attendance at the proceedings applies to be shown court documents, the court should seek the consent of the parties to such representative being permitted (subject to appropriate conditions as to anonymity and restrictions upon onward disclosure) to see such summaries, position statements and other documents as appear reasonably necessary to a broad understanding of the issues in the case.
iii)
If the objection of any of the parties is maintained, then in any case where the objecting party demonstrates reasonably arguable grounds for resisting disclosure of the document or documents sought, no order for disclosure should be made, but the following course of action should be considered.
iv)
If considered necessary or appropriate the court should transfer (or, in the case of a family proceedings court, take the first step to bring about an urgent transfer of) the proceedings to the High Court for the determination of any disclosure and/or reporting issues.
v)
Alternatively, in order to avoid delay in decision making on the substantive issues in the case, the court should adjourn determination of any disclosure and/or reporting issues pending a decision by the High Court (or the Appellate Courts) on the principled approach to be taken to them and should make any necessary interim orders in accordance with the argument mentioned in paragraph 15 above in order to secure the position meanwhile.
vi)
Similarly, if a representative of the media applies for reporting restrictions to be lifted during the currency of a case, in the absence of agreement between the parties the court should consider following one or the other of the alternative steps set out in sub-paragraphs iv) – v) above.
vii)
If injunctive relief is sought restraining publication based on Convention rights rather than statutory provisions, the matter should in any event be transferred to the High Court to be dealt with under the President’s Practice Direction (Applications for Reporting Restriction Orders) 18 March 2005 and the Practice Note (Official Solicitor: Deputy Director of Legal Services CAFCASS: Applications for Reporting Restriction Orders [2005] 2 FLR 111) and, if interim injunctive relief appears necessary under threat of publication before such application can be dealt with by a High Court judge, the county court should comply with section 12(2) of the Human Rights Act 1998. Page 5
21 The underlying aim of this guidance is to seek to ensure that the principled approach to be taken is determined by the High Court (and the Appellate Courts) as soon as possible and that in the interim changes of practice do not take place which may not accord with that principled approach. Though this may result in delayed rulings on some early contested applications involving arguments such as those mentioned in paragraphs 15 and 16 above, it may be considered desirable, in the absence of legislative guidance, that such rulings should only be made on the basis of authoritative judicial guidance following proper determination, with the benefit of full argument, of the relevant principled approach for the longer term.
22 To assist in the early determination of the principled approach:
i)
Arrangements will be made in the High Court to identify appropriate test cases and for their early determination, and
ii)
Arrangements will be made to seek to ensure that directions are given as soon as is practicable in any proceedings that are transferred to the High Court because they raise substantial issues arising from the attendance of media representatives
iii)
Proceedings which are transferred to the High Court other than in the PRFD should be put before a family High Court Judge on circuit or, failing the presence on circuit of a High Court Judge, before the Family Division Liaison Judge as an urgent application for directions.
Sir Mark Potter
22nd April 2009. President of the Family Division
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