Media scrum

The decision to open the family courts up to the media was hugely controversial. Valerie Sterling sets out the legal background to the new regime and highlights the most important cases so far.

In April of this year, the family courts became open to the media after a history of the press highlighting public concerns about a perceived lack of transparency in their proceedings.

The government decided to allow media representatives to attend family hearings and this has been implemented by the creation of new rules and by the issue of two Practice Directions by the President of the Family Division dated 20 April 2009, which took effect on 27 April 2009. The President has also issued guidance dated 22 April 2009 in relation to applications consequent upon the attendance of media in family proceedings.

The new regime

A duly accredited media representative is entitled to be present during the hearing of family proceedings covered by the Family Proceedings Rules 1991 or the Family Proceedings Court (Children Act 1989) Rules 1991, save for hearings conducted for the purpose of judicially assisted conciliation or negotiation.

Only duly accredited representatives of the media are entitled to attend family proceedings. The production of a card issued by the UK Press Card Authority provides sufficient evidence of accreditation but an unaccredited representative may be permitted to attend the hearing at the court’s discretion.

Discretion to exclude

The court has discretion to exclude an accredited press representative at any stage of the proceedings where the court is satisfied that:

(a) this is necessary:

(i) in the interests of any child concerned in or connected with the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii) for the orderly conduct of the proceedings; or

(b) justice will otherwise be impeded or prejudiced. See Rule 10.28 (4) FPR 1991 and Rule 16 A (3) of the FPC (CA) R 1991.

The court may exercise the power to exclude a media representative of its own motion or pursuant to representations made by any of the following persons:

(a) a party to the proceedings;

(b) any witness in the proceedings;

(c) where appointed, any children’s guardian;

(d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings;

(e) the child, if of sufficient age and understanding.

Before exercising the power of exclusion, the court must give any media representative who is in attendance an opportunity to make representations: See Rule 10.28 (5) & (6) of the FPR 1991 and Rule 16A (4) & (5) of the FPC (CA) R 1991.

Privacy, confidentiality and contempt

Representatives of the media may now attend family proceedings as of right under the rules. However, the general laws of confidentiality and contempt still apply.

Section 97 of the Children Act 1989 protects the privacy of children. S97 (2) of the Children Act 1989 provides that ‘No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify:

(a) any child as being involved in any proceedings before the High Court, a county court or a  magistrates’ court, in which any power under this Act or the Adoption and Children Act 2002 may be exercised with respect to that or any other child; or

(b) an address or school as being that of a child involved in any proceedings.’

Any person who contravenes this section ‘shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale’: s 97 (6) CA89.

‘In any proceedings for an offence under this section it shall be a defence for the accused to prove that he did not know and had no reason to suspect that the published material was intended or likely to identify the child’: s 97 (3) CA89.

The prohibition imposed by the Children Act 1989 s 97 (2) ends when the relevant proceedings end but section 12 of the Administration of Justice Act 1960, which imposes a restriction upon the reporting of information relating to the proceedings, remains in force despite the conclusion of the proceedings: Clayton v Clayton (2007) 1 FLR 11.

Where it is necessary to do so, the High Court or a county court may make a long-term injunction or order restricting reporting and publication of proceedings relating to a child for welfare concerns or to protect the child’s privacy.

Where a court releases a judgment into the public domain, it may be necessary for it to be anonymised.

Case Law

There have been three important cases in this area:

Re S (Identification: Restrictions on Publication) (2005) 1 FLR 591 House of Lords: it was held that (see headnote) “the foundation of the jurisdiction to restrain publicity now derived from rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (the European Convention).”

British Broadcasting Company v Rochdale MBC and X and Y (2007) 1 FLR 101, Ryder J (‘the Rochdale satanic abuse case’ – p 103): the case arose out of wardship proceedings regarding the alleged child abuse of 20 children from six families. Sixteen of the children were returned to, or remained in, the care of their families and the allegations of satanic and ritual abuse were found not to have been made out. Injunctions were made to protect the identities of the children concerned.

The BBC wanted to make a documentary about the case and wanted to identify two social workers, X and Y, involved in the case.

It was held that “publication of the identities of X and Y would be an interference with their Art 8 rights, but one which was proportionate and in pursuit of a legitimate aim, namely informed and open discussion in the media of the public interest issues relating to the proceedings and family proceedings generally. The Art 10 rights of the BBC, and the public interest, reinforced by Art 6, in enabling public scrutiny of court proceedings and family justice should on the facts of this case prevail over the Art 8 rights of the applicants.”

D v D (Divorce: Media Presence) (2009) 2 FLR 325: This is the first reported case after the family courts became open to the media. Mr Justice Charles declined to exclude the media from an ancillary relief hearing.

Valerie Sterling is a family law barrister at Park Court Chambers in Leeds.