Out in the open?

The Family Proceedings (Amendment) (No.2) Rules 2009 came into force on 27 April 2009. The clue is in the date. Following the government's much-heralded 'campaign' for transparency in the family courts, the Rules provide for media access to family proceedings and are supported by a practice direction dated 20 April 2009.

All hearings that would otherwise be held in private are covered, except for adoption cases (including placement orders) and those conducted for the purpose of judicially assisted conciliation or negotiation. The PD makes it clear that financial dispute resolution appointments in ancillary relief cases will come within this exception and it is suggested that so too will first directions appointments as the judge may, of course, convert these to FDRs. Likewise, first appointments in private law Children Act cases are exempted to the extent that the judge plays an active part in the conciliation process. However, once 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.

Who can attend

Duly accredited representatives of news gathering and reporting organisations may attend non-exempted hearings. The prescribed scheme is the UK Press Card Scheme and media representatives must show and wear the card issued by the UK Press Card Authority. There is no requirement to give advance notice of intention to attend any given proceedings.

However, at any stage of the proceedings the court may direct that media representatives shall not attend the proceedings, or any part of them, where satisfied that:

(a) this is not 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.

The court may exercise this power of its own motion or following representations from a party, witness, children's guardian, CAFCASS officer or the child, if of sufficient age and understanding. Any media representatives present are entitled to make representations about possible exclusion. Brief reasons should be stated by the judge. There is no explicit appeal provision. If a party or the media are unhappy with a decision the route for further objection will be judicial review, but the proceedings will not be held up in the meantime.

When is exclusion likely

The starting point is to allow them in. If thinking of exclusion, the court should consider: whether any risk identified could be adequately addressed by exclusion from only part of a hearing; whether reporting or disclosure restrictions will provide sufficient protection; the safety of the parties; and the extent to which the court should of its own motion take steps to protect the welfare of any unrepresented vulnerable adult or child. Justice may well be impeded or prejudiced if at a hearing relating to the parties' finances, the information being considered includes price sensitive information '“ for example confidential information which could affect the share price of a publicly quoted company '“ or if there is a significant risk that a witness will not give full or frank evidence in the presence of media representatives.

Limits on reporting

The provisions of the new Rules do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court.

In addition, the question of attendance of media representatives at family hearings must be distinguished from statutory restrictions on publication and disclosure of information relating to proceedings which continue to apply and are unaffected by the new Rules and PD. The prohibition in s.97(2) of the Children Act 1989, on publishing material intended to or likely to identify a child as being involved in proceedings or the address or school of any such child, is limited to the duration of the proceedings. However, the limitations imposed by s.12 of the Administration of Justice Act 1960 on publication of information relating to certain proceedings in private apply during and after the proceedings. So, where the proceedings: relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; are brought under the Children Act 1989; or otherwise wholly or mainly to the maintenance or upbringing of a minor; the publication of information relating to the proceedings will be a contempt of court.

The frustration of the media will be readily apparent. Unless and until the government sees fit to change the disclosure and reporting rules (and primary legislation is needed before any changes could come into effect), or judges exercise their discretion to relax disclosure or reporting restrictions, it appears that only final ancillary relief hearings can be reported. How will members of the press be accommodated? The briefing document to court staff talks of a 'ticketing system' for high profile cases!

Many no doubt will criticise this latest move towards alleged openness as rushed through and ill thought out, paying lip service only to so-say transparency. Although only time will tell, as yet the government's stated aim to improve scrutiny of and public confidence in the family court system seems not to have been achieved.