On 27 April 2009 the Family Proceedings (Amendment) (No 2) Rules 2009 SI857 (County Court and High Court) and the Family Proceedings Courts (Miscellaneous Amendments) Rules 2009 SI2009 No 858 (Magistrates Courts) and two Practice Directions, Attendance of Media Representatives at hearings in Family Proceedings dated 20 April 2009, made by the president to support the rule changes in the respective courts came into force in the county court and High Court. Media attendance was implemented by a change to Family Proceedings rule 10.28 and in the Family Proceedings Court by amendment to the Family Proceedings Courts (Children Act 1989) Rules 1991, with the insertion of rule 16A.

The changes will permit accredited representatives of newsgathering and reporting organisations, and any other unaccredited person whom the court permits, to be present at hearings in all family proceedings (defined by section 32 of the Matrimonial and Family Proceedings Act 1984) except hearings conducted for the purposes of judicially assisted conciliation or negotiation. The rules also provide that the court can exclude media representatives.

Public and private law proceedings under the Children Act 1989 and claims for ancillary relief under the Matrimonial Causes Act 1973 in the county court and High Court will be affected by the rule changes. Under section 69(2) of the Magistrates Court Act 1980 it states that the media will not be entitled to be present at hearings conducted for the purposes of judicially assisted conciliation or negotiation. Exclusion may take place for reasons set out in 16A(3).

Private, not secretIn December 2008 Jack Straw, lord chancellor and justice secretary, made an announcement in the document Family Justice in View in relation to family court openness. This governmental debate had commenced with Harriet Harman announcing at the president’s conference in May 2006 that the government proposed opening up all hearings to both the media and to the public in general. The first consultation paper came out in July 2006 entitled Confidence and Confidentiality: Improving Transparency and Privacy in Family Courts. Confidence equating to greater knowledge about the system and confidential in relation to individuals involved in each case, it seemed an impossibly tall order to create both transparency and privacy in one sweep of a law draughtsman’s pen.

In June 2007 the government produced a second consultation paper, Confidence and Confidentiality: Openness in Family Court: A New Approach. The emphasis had now switched from the traffic of people in and out of the family courts to the traffic of information being released from the court, with the use of anonymised judgments and/or summaries of decided cases. Straw’s announcement last December is a significant change of position with regard to media attendance. Lord Falconer’s proposals, however, for an increase in anonymous information being released from the family courts, does remain part of the overall proposed changes. These extended measures are to be taken forward through pilots in three areas over the next six months. If the requirements are adopted, one can only shudder at the thought of the substantial additional administrative burden upon the courts, and, in particular, judges, to comply with the requirement to produce summaries or fully anonymised versions of their judgments.

Jack Straw’s foreword in Family Justice in View, December 2008, reads: ‘The media will be allowed to attend family proceedings; but the court will have power to restrict both attendance and what can be reported. We will increase and improve the quantity and quality of information being made available. We will ensure a child cannot be identified, even after the conclusion of a case, and we will allow those involved in proceedings to share information to get the help and support they need.’

It has been openly acknowledged that the media has a role to play within family proceedings. Their reporting must be responsible, honest and provide information about the system without identifying a child or detrimentally affecting the welfare of a child. The emphasis on the rule change appears to be to ensure that family justice can be seen to be carried out and the family court system will be seen as private as opposed to secret. It is to be hoped overall that the media will provide information about the system in practice to increase the understanding of the work of the courts.

The rules do not bring about a new concept in reporting restrictions, as there are currently at least 10 different statutes which govern what the media may report upon in different types of proceedings. When parliamentary time allows, it is understood that legislation will be put into place that will simplify the current laws and will be consistent in all courts for all types of proceedings. Until this step is taken, the current law on reporting restrictions will remain in force and the new provisions will sit alongside the existing law.

Media accreditationMedia representatives will be expected to carry with them identification sufficient to enable court staff, or the court itself, to verify that they are ‘accredited representatives of news-gathering or reporting organisations’. This is a scheme of accreditation approved by the lord chancellor and it has been determined that a UK press card will be sufficient evidence of media accreditation. The court will retain its discretion to admit a member of the press who fails to demonstrate this particular type of accreditation.

Exercise of discretion to exclude media representativesIt is anticipated that exclusion of the media will be the exception and not the rule. Indeed, it is considered appropriate by resolution that it would be wrong to uniformly attempt to exclude the media as to do so is likely to encourage the view that the family court is a secret establishment, meting out a type of justice that should never be open to challenge. That permission to attend within the hallowed territory of the courtroom must remain restricted.

When considering the question of exclusion, on any of the grounds set out in the rules, the court should specifically identify whether it is simply the mere fact of media presence, or whether the risk identified can be adequately addressed by excluding the media from a part of the proceedings. The court must consider whether reporting or disclosure restrictions which apply in any event will provide sufficient protection to the party. Similarly, the court must 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.

The court must take into account, in the case of a vulnerable adult or child who is unrepresented before the court, the extent to which the court should of its own motion take steps to protect the welfare of that individual.

The rule also permits exclusion where necessary for the orderly conduct of proceedings. Exclusion will also be permitted where justice would be impeded or prejudiced for some reason. Reasons of administrative inconvenience will not be sufficient, but examples of circumstances where the impact on justice of continued attendance might be sufficient to necessitate exclusion include: In any event, the court will be required to provide brief reasons for any decision to exclude.

  • A hearing relating to the parties’ finances on price-sensitive information;
  • A hearing at which a witness states, for credible reasons, that they will not give evidence in front of the press;
  • Where it appears to the court that there is a significant risk that a witness would not give full or frank evidence in the presence of the press.

Applications to exclude media representativesIt is envisaged that applications of this sort will normally be dealt with as they arise and by way of oral representations. If it is known that the press are going to attend a particular hearing, then an objection can be raised in advance, although it is not entirely clear under the rules to whom the objection should be made.

In 62BC the name of Caesar’s second wife, Pompeia, was linked with Publius Clodius, a notoriously dissolute man of his time and, although Caesar did not believe the salacious rumours, he made it clear, when divorcing her, that even Caesar’s wife must be above suspicion.

Family practitioners have, over the years, heard astonishingly ill-formed descriptions of the procedure within a family case by, on occasions, emotionally raw litigants who may not have fully understood the operation of the system that is in place to assist them. The public will no longer rely on the presumption that justice is being done, but now the hue and cry is that the public want to see that justice is being done. The majority of family cases contain a vast amount of written material and it is difficult to determine how accurately media representatives will be able to report on justice in action on hearing only oral representations. The restrictions placed on the media will be a serious gag. They will be able to report on little more than the procedure. One wonders, however, how the sanctions against the press for less scrupulous adherence to the rules will be dealt with.

Gillian Rivers, Collyer Bristow, London