New family courts access could be a let-down
Nigel Hanson
media lawyer at Foot Anstey
21 April 2009
Eagerly awaited rules for opening up family proceedings to the media are due to come into effect on Monday.
Their aim is to improve scrutiny of, and public confidence in, the family court system. But scrutiny of the rules themselves suggests they are unlikely to provide a rich vein of news reporting.
The rules still give courts wide powers to exclude the press, and even where access to the courtroom is allowed, very little of genuine interest to readers is likely to be actually reportable.
Reporters are already allowed into certain family proceedings in magistrates' courts but from Monday "duly accredited" media representatives will be entitled to attend otherwise-private family proceedings in the County Court and High Court as well.
"Duly accredited" means accredited under the UK Press Card Authority's scheme. However, there will still be no right to attend adoption or 'placement' proceedings, or judicially-assisted conciliation or negotiation hearings, including Financial Dispute Resolution hearings (FDRs).
The court will have power to exclude journalists if it is satisfied that that is necessary for any of the following reasons: in the interests of any child concerned in the proceedings; for the safety or protection of a party, a witness, or a person connected with a party or witness; for the orderly conduct of the proceedings; or because justice will otherwise be impeded or prejudiced.
The court may opt to exclude the media of its own volition, or may do so in response to a request by any of the parties or a witness, including children.
The rules say journalists in attendance must be afforded an opportunity to make representations against exclusion if they so wish. But there's no right of appeal.
Exclusion may only be challenged via judicial review, and the family hearing itself will not be delayed in the meantime. Assuming they gain access, reporters are unlikely to be able to publish anything if the case has anything to do with children.
The rules expressly state that they do not permit communication to the general public of any information relating to family proceedings involving children – unless the court gives special permission.
In this regard, the automatic statutory restrictions contained in Section 12 of the Administration of Justice Act 1960, Section 97 of the Children Act 1989 and Section 101 of the Children and Adoption Act 2002 remain firmly in place.
Section 12 of the 1960 Act provides that it is a contempt of court to publish information relating to proceedings brought under the Children Act or the Children and Adoption Act, proceedings regarding the exercise of the inherent jurisdiction of the High Court over minors, or proceedings that otherwise relate wholly or mainly to the maintenance or upbringing of a minor.
And Section 97 and Section 101 of the 1989 and 2002 Acts respectively prohibit the revelation of a child's identity, address, or school as being that of a child involved in proceedings brought under either the Children Act or the Children and Adoption Act.
The court has power to lift the automatic ban if satisfied that the child's welfare requires it but that rarely happens in practice.
Reporters attending family proceedings are also likely to be hampered by a lack of information in published court lists which will be anonymised to avoid publication of details that might reveal the identity of children subject to Children Act or Children and Adoption Act proceedings.
Further, there is no right for reporters to see documents that are relied on in court.
In short, the new rules may facilitate a novel experience for reporters to see what goes on in family hearings but they are unlikely to produce much useable copy.
Guidance issued by HM Court Service this month perhaps makes a valid, if disappointing, point: "Experience in the magistrates' family proceedings courts suggests that the media will very rarely attend family proceedings.
"Many local and regional news media do not find it cost effective to send reporters to the courts. Generally, therefore, we would expect numbers to be very low.
"The media are unlikely to simply wander in to a county court on the off chance that there may be interesting cases on."
The relevant rules are the Family Proceedings (Amendment) (No.2) Rules 2009, and the Family Proceedings Courts (Miscellaneous Amendments) Rules 2009.
# Solicitor Nigel Hanson is a member of Foot Anstey's media team.
To contact Nigel telephone 0800 0731 411 or e-mail nigel.hanson@footanstey.com or visit www.footanstey.com.