Memorandum submitted by Sir Mark Potter (CS 24)
Preliminary statement of the President of the Family Division.
1. These comments are made in the context of the underlying rationale of the Bill, i.e. to enhance the Article 10 rights of the media to report the substance and progress of family proceedings attended by them, whilst maintaining in cases concerning the welfare of children a balance between (a) the prima facie right of the media to report details of the evidence and submissions in the proceedings and (b) the need to take account of the welfare and privacy considerations expressed across the board by Professional and Children's Organisations on behalf of children as the involuntary subjects of the proceedings. Those concerns are primarily protected in law by Section 1 of the Children Act 1989, which provides for the child's welfare to be the "paramount" consideration governing the decisions of the Courts on any question with respect to the upbringing of a child; and by the Article 8 privacy rights of children in relation to medical and expert reports and other "sensitive information", as it is categorised in the Bill. Those privacy rights are fully and instructively articulated in a recent article "Media Access to Family Courts and Article 8 Compliance" in Family Law, January 2010 at pp 75-83.
2. Because the resolution of this balance has become "political" in the sense that it is now a matter for policy decision and legislation by Government; because the Bill lays down rules/guidelines for the application of judicial discretion in relation to individual cases; and because, as a Judge, I will be concerned in giving individual decisions in accordance with those guidelines, I do not seek to comment on the extent to which the Government's proposals "get the balance right" as between the rights and interests of the press on the one hand and the welfare of children on the other. I propose to restrict myself to short comments upon the practical effects of the Bill's provisions upon the work of the judiciary (save for the technical drafting points set out in the next paragraph).
3. There are three technical but important drafting points which produce what I assume to be unintended consequences and will need correction:
(i) Clause 32(2) makes it a contempt of court to publish information relating to the proceedings unless the publication comes within the three categories set out. These categories do not include (as they should) a category in respect of the Court's power and practice of authorising limited disclosure of documents/information at the request of the parties or upon the Court's own motion in particular circumstances not covered by the Family Proceedings Rules (FPR) part XI. I understand it is the Government's intention not to bring the new Act into force until the FPR have been further revised/and or expanded. However, it is not satisfactory to leave this particular and fundamental point, upon which liability for contempt depends, to be picked up in Rules rather than the Act itself.
(ii) Clause 32(2) (a), read in conjunction with clause 33(1) (b), has the effect that, except in cases falling within clause 43(1) (a), it is not a contempt of court to publish the whole text of an order in proceedings albeit such an order will invariably contain the names of the children unless the Court imposes a specific restriction (which could easily be overlooked).
(iii) The effect of clause 32(2) ("publication of information relating to proceedings") read in conjunction with the definition in Article 41(1), is to render it a contempt of court if a newspaper publishes a fact about a child which is "contained in documents filed with the Court in relation to the proceedings", even if what is published makes no reference to the proceedings, concerns an activity independent of the proceedings, and is harmless in the context of the article or comment concerned. This difficulty arises because the definition in Clause 41(1) of what is included in the key phrase does not accord with the common law and statutory jurisprudence expounded in Re F (A Minor) (Publication of Information)  Fam 58 ("... what is protected from publication is the proceedings of the Court; in all other respects the [child] enjoys no greater protection against unwelcome publicity than other children. If the information published relates to the [child], but not to the proceedings, there is no contempt"). See most recently Re William Ward, Doctor A and Others v Ward  EWHC (Fam) at -.
4. The Bill is very complex. The technical and interlocking nature of its provisions places the judges, the parties and the media in an unsatisfactory position likely to lead to a number of practical difficulties concerning Judges' decisions to impose, or refuse to lift, restrictions in individual cases. In cases of high interest, parties and the media are likely to raise substantial queries and argue individual points in relation to the reporting of evidence which will necessitate the expenditure of precious judicial time in resolving them rather than getting on with the case. This is of particular concern at a time when there is a continuing upsurge in family work (both public and private law) with insufficient court days and consequent high pressure on the crowded family lists.
5. I wish to put down a marker that the media will not be entitled to proceed on the basis that the words "permitted by the Court" in Clause 34 (5), Condition 4, entitles them to have the content of any proposed report or publication "vetted" by the Court. There must be proper recognition of the responsibility of the media to ensure that the detail of what is published falls within the limitations imposed by the Act and/or the ambit of any permission expressly granted by the Court The Court's resources will be intolerably stretched in cases where a hearing is prolonged, or even an ancillary hearing required, in order to determine what can and cannot be published.
6. In relation to
problems of identification of children and parties, particularly in local and
celebrity cases, the position could and should be considerably alleviated by
provisions similar to those in
7. In this connection Clause 41 (1) of the Bill, which defines identification information as information "likely to lead one of more persons to identify the individual" requires alteration. The words underlined should be replaced by the words "the public or a section of the public". This is because there are always likely to be several persons not involved in the proceedings (such as neighbours, fellow pupils or school teachers) who will be able to identify an individual or family known to them, as a result of reading the general circumstances of the case.
8. Because, except in cases of unusually high interest, the press attend for the first day only, in order to obtain the flavour of the case and report what they hear, and because, in any event, in such cases judgment is usually reserved, there is real concern that a case will be opened "high" or in detail by the applicant's advocate and the substance of such opening duly reported by the media, but that no corrective will be published thereafter if and when the Judge gives a judgment stating that the allegations are unsubstantiated. There will be no obligation, and frequently no interest, of the media to report it, whatever damage may have been done by the earlier report.
9. An obvious solution would be to introduce a requirement that the reporting of a family case should only be permitted once the judgment is available. A 12 month pilot programme, started on 2 November 2009, is currently in progress in three family court centres pursuant to the earlier conclusions of the Government that transparency would be best be served by requiring publication of (anonymised) judgments in all family cases of any substance, so as to improve the information available to the press and public as to the work of the Family Courts.