Categories
Law

Media Reporting in the Family Court: A Primer

Introduction

  1. One of the perennial complaints about family law is its lack of transparency; hearings are generally heard in private, first instance decisions are rarely reported, and what the press can report is often strictly restricted. The popular perception is that the family court operates ‘behind closed doors’.
  2. To some extent, this is unfair. Since April 2009, steps have been taken towards open justice in family law, thanks in large part to initiatives taken by Sir James Munby and Sir Andrew McFarlane, respectively Presidents of the Family Division, from January 2013 to July 2018 and from July 2018 to date. However, as Sir James Munby as set out in a recent damning submission to the President’s Transparency Review (17 May 2021), the practical impact of these changes have been minimal because the access to proceedings has not been accompanied by any relaxation of the rules restricting reporting, as set out at S.12 of the Administration of Justice Act 1960. Sir James proposes radical reform including the repeal of S.12.
  3. But the question of when press or legal bloggers can attend court, and/or report what has taken place, is a complicated one. It involves a consideration of several statutory provisions and differing procedural rules, depending on whether the case involves children, a prospective adoption or financial remedies. At the highest level (see Re Al M (Publication) [2020] EWHC 122 (Fam), concerning the ruler of Dubai), the court hears argument from the finest legal minds in the country, and conducts a complex balancing exercise between competing Article 6, 8 and 10 rights.
  4. This paper does not purport to set out the final word on these complicated legal issues. Rather, it is a primer, which hopefully will provide some useful background when, very occasionally, your clerk tells you a member of the press wants to attend a hearing. The paper is divided into five sections:

[A]      Sitting in private or in open court

[B]       Media attendance at private hearings

[C]      Legal blogging, communication of information and reported judgments

[D]      Excluding the media from attending

[E]       Reporting restrictions: Statutory and High Court/ inherent jurisdiction

[A]      Sitting in private or in open court

[5] FPR Pt 27 contains several important rules about hearings and directions appointments, including, at r.27.10 that family proceedings[1]are held in private, and that “…the general public have no right to be present”[2].

[6] This general rule is subject to two main exceptions (r.27.10(1)(a) and (b)):

  • where specific rules make provision for this, e.g., applications in relation to contempt of court which must be heard in open court (FPR 37.8(3)); and
  • where the court directs the hearing should be in open court.

Discretion to sit in open court

[7] For the avoidance of doubt, the following section relates primarily to financial remedy hearings and not to children cases, which are invariably heard in private.

[8] The first reported family case when the above power was exercised[3] was Spencer v Spencer [2009] EWHC 1529 (Fam), a decision of Munby J (as he then was), which was met with some surprise by the parties and their advisors. The decision to hear that financial remedy claim in open court led in short order to settlement (the Earl reputedly significantly upping his offer), and in the fullness of time to a claim for professional negligence (ultimately discontinued) against his advisers for not warning him of this possibility.

[9] The power has been rarely exercised in the past ten years, apart from financial remedy claims heard by Mr Justice Holman, whose views about open justice are well known. Holman J invariably hears all such cases in open court and takes the view that “…the principle that courts normally sit in public underpins the rule of law in a free and democratic society” and that “…mere publication of a judgment does not achieve [true transparency, open justice and public accountability” (Luckwell v Limata, [2014] EWHC 502 (Fam) at [4]. None of the other Family Division High Court Judges share this view, and Mr Justice Mostyn draws the opposite conclusion:  “…it is my opinion that the rule [r.27.10] does incorporate a strong starting point or presumption which should not be derogated from unless there is a compelling reason to do so (DL v SL [2015] EWHC 2621 at [13])

[10] It is a matter of some frustration that this divergence of view, which effectively creates  a lottery (or Russian roulette) as to whether a financial remedies hearing takes place in private or in open court, has not yet been resolved by the Court of Appeal:

“…To say that the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess would be a serious understatement. The chaotic state of the law has been fully set out by me in W v M (TOLATA Proceedings)…” Appleton v Gallagher [2015] EWHC 2689 (Fam) per Mostyn J at [6]

[B]       Attendance at private hearings

[11] It is important to separate out the question of who can attend a hearing from what can be reported in relation to what takes place in court. The question of attendance at a private hearing depends on the nature of the hearing. The question of reporting is still governed by S.12 of the 1960 Act (see below).

Hearings for conciliation/ negotiation

[12] If the hearing is conducted for the ‘purpose of judicially assisted conciliation or negotiation’, or it arises in exempted proceedings such as placement for adoption proceedings etc. (see FPR 27.11(1)(b)), no-one may be present in court except for the judge, the parties and their advisers.

[13] Accordingly, no member of the press[4] or legal blogger may attend a First Hearing Dispute Resolution appointments (FHDRA) or, in financial proceedings, an FDR (PD 27B, § 2.1). The caveat to the above is that this exception only applies to such part of the hearing where the judge is engaged in conciliation:

“…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”[5]

Attendance at other hearings

[14] For other hearings, including findings of fact hearings, interim hearings, final hearings[6], the rule as to who can attend court is set out at FPR 27.11(2).

 i.e. ‘…no person… other than-

“(a) an officer of the court;

(b) a party to the proceedings;

(c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf;

(d) an officer of the service or Welsh family proceedings officer;

(e) a witness[7];

(f) duly accredited representatives of news gathering and reporting organisations; and

(g) any other person whom the court permits to be present.”[15] Specific guidance on this rule is set out at PD 27B § 4, including how media representatives can identify themselves as accredited.

[C]      Legal blogging, communication of information and reported judgments

Legal blogging

[16] By virtue of the PD 36J, which gave effect to a pilot scheme from 1 October 2018 until (presently) 31 December 2021, the class of permitted attendees at r.27.11(2) was extended to include legal bloggers, i.e.

“(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes”

Specific guidance as to the meaning of these terms is set out at PD 36J (including a very precise definition of ‘lawyer’) and includes modifications to PD 27C relating to how lawyers can be identified.

[17] The main organisation who has taken up this opportunity is the Transparency Project (http://www.transparencyproject.org.uk), who are a responsible and professionally- run organisation, well worth following, e.g. on Twitter.

Micro-blogging/ Twitter

[18] Where a legal blogger attends, should they be allowed to ‘live tweet’? Since 2011, this has generally been permitted in the criminal and civil courts, where the court sits in open court[8]. Within the family courts, some specialist legal bloggers have now begun to live tweet hearings, having obtained the court’s permission, e.g. the recent Court of Appeal hearing in the conjoined appeals concerning domestic violence: Re HN [2021] EWCA Civ 448. 

Court documents and communication of information

[19] Attendance by the press does not mean that that members of the press or legal bloggers are entitled to ‘…receive or peruse court documents referred to in the course of evidence, submissions or judgment without permission of the court’ (PD 27B § 2.3). Accordingly, where the press wish to read such documents, an application should be made the court, who should conduct a balancing exercise taking into account the Convention rights (articles 6, 8, 10).

[20] The communication of information is covered by the following rules in the FPR:

  • In children proceedings (except placement for adoption etc), at FPR r.12.73 and PD12G, which limits the communication to a party, McKenzie friend, advisors, CAFCASS officers etc. and those to whom “the court gives permission” (r. 12.73(1)(b));
  • In adoption proceedings, by FPR r.14.14 and PD 14E, which sets out a more extensive table of what may be disclosed, and to whom; and
  • In financial remedy proceedings, by FPR r.9.46 and PD 9B.

[21] Accordingly, the position is almost the polar opposite of civil procedure, where under the CPR the hearing is in open court (CPR 39.2(1)) and statements of case (excluding attachments) and court orders are public documents (CPR 5.4C). This presents difficult case management challenges where a civil claim (e.g. under TLATA) is heard alongside a family claim (e.g. financial relief for a child pursuant to Sch. 1 of the Children Act 1989).

[22] In his submission to the President’s Transparency Review, Sir James Munby observes that this restriction on the production of court documents is critical in undermining transparency:

“…Once upon a time, in the days of my legal youth, proceedings in court were entirely oral: there was no judicial pre-reading; there was no written advocacy – no position statements or skeleton arguments; in an oral ‘opening’ the advocate took the judge, often at some length, through the facts, the documents and the law; and evidence in chief was oral. The journalist and the intelligent observer in the public gallery were thus able to follow what the case was about and what was going on. That is still, in essence, the procedure in criminal cases; in civil and family cases it has long since been consigned to history. The judge will have pre-read the bundle, there are written chronologies, position statements and skeleton arguments, and the evidence in chief is set out in written witness statements. The opening, if there is one, is attenuated. Much of the time, the hearing proceeds with such Delphic observations as “in relation to what the applicant says in paragraphs 23, 25 and 49 of her witness statement …” or “I need not elaborate what is set out in my skeleton argument except to note that …” Even the most astute and experienced journalist or observer is hard put to understand or follow what is going on”

Judgments

[23] On 16 January 2014, Sir James Munby handed down Practice Guidance (“Transparency in the Family Courts: Publication of Judgments”) which encouraged more family law judgments to be published:

“…there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name”

[24] Within the guidance, Munby P reviewed the existing practice that the court ‘[9] …normally gives permission for the judgment to be published on condition that the published version protects the anonymity of the children and members of the family’. Compare the situation in the Court of Appeal where a judgement will only be anonymised where ‘it is satisfied that it is necessary for the proper administration of justice’ (see Pink Floyd v EMI [2010] EWCA Civ 1429). Where a party seeks that the judgment should not be anonymised, e.g. where they had been exonerated in care proceedings, or wanted to discuss their experiences in public, an application could be made to the court (cf Re RB (Adult) (No. 4) [2011] EWHC 3017).

[25] The 2014 guidance applies to judgments of circuit judges and above sitting in the Family Court, and distinguishes two classes of cases:

Cases which the just must ordinarily allow to be published: where publication is in the public interest, and cases coming within Schedule 1 or 2 of the guidance (which includes substantial contested fact-finding hearings, making of a care order, placemen order etc); in which case the judgment must be published on the BAILII website;

and

  • Cases which the judge may allow publication, where a party or accredited member of the media applies for it; in which case the court may publish the judgment on BAILII, having had…

‘…regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.’

[26] As many will know, the problems of effectively maintaining anonymity is increasingly difficult with the internet, where ‘jigsaw’ identification is possible from other reported details, particularly in the context of sensitive public law cases. See, e.g.  Practice Guidance: Anonymisation and Avoidance of the Identification of Children and the Treatment of Explicit Descriptions of the Sexual Abuse of Children in Judgments Intended for the Public Arena.

  • The impact of this guidance has been patchy, according to recent analysis (Doughty, Twaite and Magrath, 2017):

“… during that five-year period 82 family Circuit Judges did not publish any judgments at all. When the figures are analysed in detail it can be seen that only 20 judges published more than ten judgments, the rest were all in single figures. 11 judges published more than 20 judgments. There is also regional variation. In Wales only two judges published judgments. 96% of those judgments were published by just one judge. In one major court centre (Birmingham) a total of five judgments were published by three judges. In some courts – Wolverhampton, Telford and Worcester, for example – no judgments were published at all. … There are 42 Designated Family Judges in England and Wales … 18 DFJs in post when I undertook the survey have never published a judgment on Bailii.”

[D]      Excluding the press from attending court

[28] The right of the press to attend most hearings is subject to r.27.11(3), which provides that the court may direct, either of its own motion or pursuant to representations by the parties, any witness, any children’s guardian etc (see r. 27.11(5)) that members of the press shall not attend where it 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.

[29] PD 27B § 5 provides the following further guidance on the circumstances in which the press might be excluded:

“[5.1] …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 (3) of the rule.

[5.2] When considering the question of exclusion on any of the grounds set out in paragraph (3) 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 (3)(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.

  • The impact of PD 27B § 5.2 can be seen in Appleton v Gallagher [2015] EWHC 2689 (Fam), where the parties presented the trial judge (HHJ O’Dwyer) with an agreed order, excluding the press. Pursuant to § 5.2, the court is obliged to consider lesser measures such as a reporting restriction order before making an exclusion order. However, PD12I states that only the High Court can make such an order restricting the publication of information about children or incapacitated children. Per Mostyn J at [4]

“…It is my clear opinion that the court of trial has full power to make a reporting restriction order in proceedings which are not “children proceedings” within the terms of FPR25.2(1). The only financial remedy proceedings which qualify as children proceedings are those which relate “wholly or mainly to the maintenance or upbringing of a minor”. Children proceedings fall squarely within PD12I and so any reporting restriction order in such proceedings can only be made by the High Court. Otherwise, so it seems to me, the court of trial is fully vested with the power to control the reporting of the proceedings before it. It would be strange, to say the least, if the court of trial could exercise the power to exclude the press, and to decide whether to anonymise or redact its judgment, but not to control what could be reported about the case as it proceeded.” 

[E]       Restrictions on reporting

[31] he right to attend hearing does not grant the right to report on proceedings or publish details of proceedings. Reporting restrictions fall into two main categories: (1) statutory restrictions and (2) orders made by the High Court, pursuant to its inherent jurisdiction.

Statutory restrictions

[32] S.12(1) of the Administration of Justice Act 1960 provides that:

“The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings—

(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor…”

  1. [33] The meaning of Section 12 was considered by Munby J in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) at [82]

i) Section 12(1)(a) of the Administration of Justice Act 1960 has the effect of prohibiting the publication of:

“information relating to proceedings before any court sitting in private … where the proceedings (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the … upbringing of a minor.”

ii) Subject only to proof of knowledge that the proceedings in question are of the type referred to in section 12(1)(a), the publication of such information is a contempt of court.

iii) There is a “publication” for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children.

iv) Specifically, there is a “publication” for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, a Minister of the Crown, a Law Officer, the Director of Public Prosecutions, the Crown Prosecution Service, the police (except when exercising child protection functions), the General Medical Council, or any other public body or public official. The Minister of State for Children is not a child protection professional. Disclosure to the Minister of State cannot therefore be justified on the footing of the exception to the general principle.

v) Section 12 does not of itself prohibit the publication of:

a) the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing;

b) the name, address or photograph of such a child;

c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings;

d) the date, time or place of a past or future hearing of such proceedings;

e) the nature of the dispute in such proceedings;

f) anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place;

g) the name, address or photograph of the witnesses who have given evidence in such proceedings;

h) the party on whose behalf such a witness has given evidence; and

i) the text or summary of the whole or part of any order made in such proceedings.

vi) Section 12 prohibits the publication of:

a) accounts of what has gone on in front of the judge sitting in private;

b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);

c) extracts or quotations from such documents;

d) summaries of such documents.

These prohibitions apply whether or not the information or the document being published has been anonymised.

vii) (By way of example of how the principles in (v) and (vi) inter-relate) in a case such as the present case section 12 does not of itself prohibit the publication of:

a) the issues in the case as being whether the mother suffered from Munchausen’s Syndrome by Proxy and whether she had killed (or attempted to kill) her child(ren) by, for instance, smothering or poisoning;

b) the identity of the various medical experts who have given evidence in relation to those issues; and

c) which of the parties each expert has given evidence for or against.

viii) Irrespective of the ambit of section 12 of the 1960 Act, section 97(2) of the 1989 Act makes it a criminal offence to

“publish any material which is intended, or likely, to identify … any child as being involved in any proceedings before [a family court] in which any power under [the 1989] Act may be exercised by the court with respect to that or any other child”.

ix) This is all subject to any specific injunction or other order that a court of competent jurisdiction may have made in any particular case.

  • [34] As to the difference between ‘the nature of the dispute’ (which can be reported) and ‘the substance of the matters’ (which cannot) see, e.g. X v Dempster [1999] 1 FLR 894.
  • [35] Following Re B, S.12 was amended with the introduction of S.12(4) which in effect allows for the disapplication of S.12 by rules of court (“…Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section  (and in particular where the publication is not so punishable by reason of being authorised by rules of court)”.
  • [36] The prohibition established by S.12 remains in force after the conclusion of proceedings (see Clayton v Clayton [2006] EWCA Civ 878).
  • [37] S.97(2) of the Children Act 1989 provides that:

“(2) 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 or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

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

  • [38] Finally, S.39 of the Children and Young Persons Act 1933 provides that:
  • In relation to any proceedings in any court… the court may direct that

(a) No newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom proceedings are taken, or being a witness therein;

(b) No picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court.”

  • [39] The relationship between these statutes and the right, post April 2009, of the Press to attend hearings was considered in Re Child X (Residence and Contact: Rights of Media Attendance) [2009] EWHC 1728 by Sir Mark Potter P at [97]

“The net result of all this is that, while the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of the participating witnesses (save those whose published identity would reveal the identity of the child in the case), they are not entitled to set out the content of the evidence or the details of matters investigated by the Court. Thus the position has been created that, whereas the media are now enabled to exercise a role of “watchdog” on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.” (emphasis added)

Reporting Restrictions Order

[40] In a children case, a reporting restriction order can only be made in the High Court. If the need for an order arises, the case should be transferred to the High Court, or the Family Division Liaison Judge should be consulted (PD 12I).

[41] The High Court may lift reporting restrictions, pursuant to s.12(4) of the 1960 Act, and s.97(4) of the 1989 Act, in which case the court must undertake a balancing exercise, taking into account ECHR Articles 6 (right to a fair trial), 8 (respect for private and family life) and 10 (freedom of expression).  See Re J (A Child) [2013] EWHC 2694 (Fam), and Re Al-M [2020] EWHC 122 (Fam) at [25]. The High Court may also use its inherent jurisdiction to extend reporting restrictions: see PD 12I[9]

[42] Where an application is making affecting rights of free expression, s. 12(4) of the Human Rights   Act requires the court to have particular regard to the importance of the Convention right to freedom of expression and, where the material in question is journalistic in nature, to the extent to which that information is already in the public domain or the extent to which it is, or would be, in the public interest for the material to be published.

[43] Any restriction upon the media’s right to report court proceedings, and the public’s right to receive such reports, engages their right to freedom of expression under Article 10. However Art 10(2) recognises that restrictions on the right to freedom of expression may be necessary “…for preventing disclosure of information received in confidence.”

[43] The relationship between articles 8 and 10 was considered by Lord Steyn in Re S (A child) [2004] UKHL 47 at [17]

“…The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions.          

First, neither article has as such precedence over the other.

Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.

Thirdly, the justifications for interfering with or restricting each right must be taken into account.

Finally, the proportionality test must be applied to each.

For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”

  1. [46] In Appleton v Gallagher (cited above), Mostyn J reflected that, albeit in the context of financial proceedings:

“…the privacy side of the scales starts with heavy weights on it. But there are at least two situations where the balancing exercise will lead to a judgment being fully public. One is where there has been proof of iniquity, as happened in Lykiardopulo. In such a case the delinquent party will lose the benefit of his “pact with the court” (as Stanley Burnton LJ put it). The other is the McCartney situation. That was best explained by Ryder J in Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005]1 FLR 648, at para 22:

“In considering the competing rights [under Articles 6, 8 and 10], I have come to the clear conclusion that having regard to the quantity of material that is in the public domain, some of it even in the most responsible commentaries wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court’s silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself.”

In such a case higher interests justify the overreaching of the confidentiality assured by the implied undertaking.”

President’s Guidance

[47] An application to lift reporting restrictions is generally made by a member of the press. Such an application can be made informally (i.e. without the issue of an application) and the recent President’s Guidance on Reporting in the Family Courts, dated 3 October 2019, sets out nine points of guidance, which is set out in full below:

[8]        First, an application to vary or lift reporting restrictions can be made by way of an application to the High Court in Form C66, accompanied by a draft Order and served in accordance with the procedure for a RRO. However, such a procedure (which will usually need to be accompanied by payment of the requisite fee) should not be necessary in many cases. It is a time-consuming and expensive process and may generate additional unnecessary public expense or delay in a straightforward case. In particular:

(a) No formal application is required for the court to consider whether to publish its judgment which it must consider in every case, whether a request is made or not (Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230, para 16).

Where a reporter has attended a hearing pursuant to FPR, r. 27.11, an application to vary the automatic statutory reporting restrictions can be made orally, whether or not notice has been given in advance to the court that is hearing the case. Although such notice is encouraged it can, for example, be given by way of an email to the court office or the judge’s clerk, which has been copied to the parties.

Where a reporter wishes to apply for reporting restrictions to be lifted after the hearing is over, this, too, may be done without a formal application being made, for example by way of an email to the court or the judge’s clerk (copied to the parties). In such cases the court must ensure that all parties are notified of the application and given an opportunity to respond.

Courts should be astute to assist reporters seeking to attend a hearing, or to relax reporting restrictions, and should provide them with relevant contact details of the court office, the judge’s clerk and the parties where requested (unless there is good reason not to do so).

Any documents disclosed to reporters are covered by the provisions of AJA 1960, s 12 and CA 1989, s 97 and remain confidential.

A reporter may be unsure at what stage to indicate an intention to make an application to vary reporting restrictions. At the start of a hearing attended by a reporter the judge should enquire if such an application is to be made and, if there is none at that stage, invite the reporter to alert the court if the situation changes, either at a convenient stage during the hearing or at its conclusion.

[9]  Second, where a reporter has given an indication that they wish to make an application to vary the automatic reporting restrictions, in all cases the court should adjourn for a short period to allow the parties to discuss the terms of a proposed order. In many, if not most, cases agreement will be possible without the need for any formal application at all: see Bodey J’s remarks in Tickle v North Tyneside BC [2015] EWHC 2991 at [7]. In all cases it will be helpful for a written copy of the order that is sought to be prepared by the parties, highlighting any wording that is contentious and upon which a ruling is required.

[10] Third, where agreement cannot be reached, the reporter should be invited to make oral submissions. The court, and any advocate appearing for parties to the proceedings, should provide assistance in terms of the relevant law and procedure to be followed. Any party opposing the application may then make submissions. The reporter should then be given an opportunity to reply.

[11] Fourth, whenever an application to lift reporting restrictions is made the judge should also consider whether a copy of any judgment should be published, applying the Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230 and the guide to anonymisation set out in the Practice Guidance of December 2018.

[12] Fifth, in deciding whether to lift automatic reporting restrictions and/or to publish the judgment, the court may need to consider whether, in order to allow such reporting, additional reporting restrictions need to be imposed under the inherent jurisdiction (for example, anonymising any children and their parents after the conclusion of the proceedings, when CA 1989, s 97(2) no longer applies). In such cases, consideration should be given to transferring the issue for determination by a judge with High Court jurisdiction.

[13] Sixth, consideration should be given to the need to adjourn the application to allow further evidence and/or submissions and to provide other media organisations with an opportunity to make representations.

[14] Seventh, having considered the relevant evidence and submissions the court should conduct the balancing exercise between privacy and transparency by balancing ECHR, Article 8 and Articles 6 and 10 and by having regard to the best interests of any child as a primary consideration.

[15] Eighth, the court should give a reasoned judgment on the application to vary reporting restrictions and on the question of publication of its judgment(s). While this need not be a ‘full detailed and compendious judgment’ (Re C (A Child) [2015] EWCA Civ 500 at para [23]; H v A (No. 2) [2015] EWHC 2630 (Fam) at para [22]), a fuller judgment may be called for where the complexity of the facts and issues warrant it and, in any event, the reasons must be sufficient to meet the requirements of natural justice, namely (Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, per Thorpe LJ at para [11] and see also Re W [2014] EWCA Civ 1303 at para [49]):  ‘… does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions.’

[16] Finally, in seeking to vary/lift reporting restrictions, the standard approach as to costs in children cases will apply and a reporter, media organisation or their lawyers should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or has taken an unreasonable stance.

Further Reading

  • The following will hopefully be of assistance by way of further reading:
President’s Guidance on Transparency in the Family Courts: Publication of Judgments: 16 January 2014https://www.judiciary.uk/wp-content/uploads/2014/01/transparency-in-the-family-courts-jan-2014-1.pdf
CAFCASS Practice Note on Reporting Restriction Orders, 18 March 2005 (amended 25 March 2015)https://www.cafcass.gov.uk/about-cafcass/policies/  
Transparency Project Guide for the Media: March 2017http://www.transparencyproject.org.uk/press/wp-content/uploads/Media-Guide-Mar-17.pdf
Practice Guidance: Anonymisation and Avoidance of the Identification of Children and the Treatment of Explicit Descriptions of the Sexual Abuse of Children in Judgments Intended for the Public Arena: December 2018https://www.judiciary.uk/wp-content/uploads/2018/12/anonymisation-guidance-1-1.pdf
President’s Guidance on Reporting in the Family Courts: 3 October 2019https://www.judiciary.uk/announcements/president-of-the-family-division-guidance-as-to-reporting-in-the-family-courts/  
Sir James Munby Submission to the President’s Transparency Review, 14 May 2021https://www.transparencyproject.org.uk/munby-2-0-revised-version-of-sir-james-submissions-to-the-transparency-review/

Alexander Chandler

30 May 2021

 

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s