Open season: reporting restrictions in family law

On 27 April 2009, the family justice system in England and Wales opened its doors to accredited media representatives who now have a right to attend and observe the family courts at work if they choose to do so. This right of attendance is largely unfettered, and the circumstances in which the media will be excluded will generally be very limited to the protection of children or the physical safety of the parties or witnesses.

However, what the media can report from their observations remains limited under the current law. In some cases the media have been allowed into the hearing but prevented from reporting any of the information disclosed, including the parties’ identities, despite arguments about public interest in the issues in the case.

Rising tension

The family courts have become accustomed to contending with the conflict between article 10 of the European Convention on Human Rights (ECHR) – the right to freedom of expression – incorporated into domestic law by the Human Rights Act 1998, and the right to a private and family life under article 8 of the ECHR. The tension between these two rights is particularly apparent in family court proceedings and requires the court to undertake the “ultimate balancing exercise” mandated by the House of Lords (now the Supreme Court) in 2004 in Re S (a child).

There is an existing and complex web of statutory powers and injunction orders which restricts reporting to the following:

• In divorce proceedings, the names of the parties and only concise information including the fact that a decree of divorce has been pronounced.

• In proceedings relating wholly or mainly to children, the information which may be published is strictly limited and the publication of the identity of, or information likely to identify, the child is prohibited.

• In financial proceedings related to divorce, the information is generally, if not always, provided under compulsion. The parties are compelled to make full and frank disclosure of their private financial arrangements to enable the court to have all the information it needs to decide the case. As a matter of principle, such information will remain confidential to the proceedings unless it is already in, or passes into, the public domain by other means, or the court releases its judgment for publication and public scrutiny (particularly where one party is guilty of falsifying disclosure and the cloak of confidentiality is lost).

Imminent change

The rules on publication of family court proceedings will change upon the commencement of the relevant sections of the Children, Schools and Families Act 2010 (CSFA 2010), which received royal assent on 8 April 2010 but continues to await a commencement order.

The CSFA 2010 will be implemented in two stages. Stage one will permit reporting of family proceedings in authorised news publications by accredited media representatives, and provided the parties or children concerned are indentified. The publication must also not contain “sensitive personal information” (such as medical information).

The presumption will therefore be to permit reporting of information, provided it is on a strictly anonymous basis, and unless the court issues restriction orders. When making such orders to restrict reporting, the CSFA 2010 requires the court to give careful consideration to whether this is strictly necessary, and whether there is a real risk to the safety if the parties, welfare of any children or interests of justice.

Stage two can be implemented a minimum of 18 months thereafter, following a review of stage one by the Lord Chancellor. Stage two would change the rules on publication of sensitive personal information so that the presumption is that it may be published unless the court orders otherwise.

The court’s powers to restrict reporting will be extended so that, in addition to safety, welfare and the interests of justice, the court will be required to consider whether there would be “an unreasonable infringement of privacy” if the sensitive personal information were published.

In applications to prohibit or restrict reporting of family proceedings on grounds of an unreasonable infringement of privacy the court will have regard to the existing law on privacy rights, developed in domestic law through the medium of a claim in breach of confidence, and enhanced by the values of articles 8 and 10 of the ECHR.

The decisions of the courts in this country have made clear that the publication of private information in which there is no real public interest will be restrained, including in relation to public figures. In November 2006, in CC v AB, Mr Justice Eady found that even an adulterous relationship can attract a reasonable expectation of privacy and granted an interlocutory injunction preventing a “wronged” husband from publicising his wife’s sexual relationship with a married man in the public eye.

However, in contrast, in 2010, John Terry’s application for a super injunction (an injunction the very existence of which cannot be reported as well as the reasons for the injunction) to block reporting of his alleged affair with the girlfriend of fellow team mate, Wayne Bridge, failed because Mr Justice Tugendhat took the view that Terry was motivated more by commercial concerns than a desire for privacy and that “the freedom to live as one chooses is one of the most valuable freedoms but so is the freedom to criticise, within the limits of the law, the conduct of other members of society as being socially harmful or wrong”.

Justice system

The principle of open justice, of justice being seen to be done, and the opportunity for the media to scrutinise the justice system is clearly of fundamental importance to a free and democratic society. However, family proceedings are by their nature quasi-inquisitorial.

The information the parties are required to disclose is often of a deeply personal nature and they would prefer to keep it private. Anonymity should not be confused with privacy, and it is important the press publishes information about family proceedings because it contributes to a debate in a democratic society, and not simply to report salacious details about the private life of an individual.

Miranda Fisher is a partner at Charles Russell LLP