Memorandum submitted by the Newspaper Society (CS 35)

 

FAMILY COURTS REPORTING

 

This paper is in 3 sections:

Background relevant to the principle of allowing media access/reporting of family courts;

The media's concerns in relation to the Bill, and our proposals

Amendments

 

 

1. BACKGROUND

 

1.1. The decision to open family courts to the media was made by the Government, following several public consultations, as a means of addressing concerns and criticisms made by families who had experienced the family court process. It was not a process instigated by the media.

 

Announcing the decision to allow the media to attend all tiers of family courts, the Justice Secretary said that the objective was "to build a transparent, accountable family justice system which inspires the confidence of the people it serves, while continuing to protect the privacy of the parties and children involved

 

" "It is vital that these courts - like any others - command the confidence of the public, if the public - including the parties involved - are to accept their decisions. This can best be achieved if justice in these courts is seen to be done."

 

1.2. The media (but not the public at large) already had a right of attendance at family proceedings in magistrates courts ( subject to reporting restrictions).

 

In April 2009 new legislation gave the media a right to attend all tiers of family courts. However, in the majority of family public law cases (involving for example care/custody proceedings) the existing law in effect prevents any reporting of the proceedings.

 

Thus the rights of attendance accorded to the media will not alone suffice to enable proper accountability, greater public awareness of and scrutiny of the judicial process. New legislation to enable limited and controlled reporting of family proceedings, are vital. The main reason the media have not availed themselves of the new attendance rights is simply that there is no point in having a journalist sitting in court if they cannot report the proceedings.

 

1.3. The main area of media interest is likely to be in cases where an issue of public interest is engaged - generally, in "public law" cases involving local authorities involved in care/custody proceedings.

As with any court, the media want and need to be able to produce a report which comprises a fair and accurate report of the proceedings. This is the required standard in order for a report to have privilege for libel purposes.

The presumption is that we report any evidence given in open court, unless specific reporting restrictions apply.

 

1.4. What should be the starting point for reporting restrictions in family court proceedings?

The Justice Secretary said that the Government's aim was that the family courts should have a system enabling limited reporting of proceedings "similar to the youth courts these rules have worked effectively, and their spirit has been well respected by the media". The Children & Young Persons Act l933, have for over 75 years protected the privacy of children appearing in youth courts whilst enabling the media to report the proceedings. The CYPA provisions are short, simple and serve the purpose. Unfortunately, the provisions of the Bill are none of these things.

 

When considering the proposed reporting restriction regime for family courts, it is perhaps appropriate to keep in mind:

The objective is to provide proper accountability of the justice system and those involved in delivering it

There is no agenda on the part of the media to be able to identify children, or immediate parties to the proceedings (i.e. the families concerned) The 2009 Rules already empower the court to exclude the media from all or part of the proceedings if the court deems this necessary in the interests of any child involved, or for the safety/protection of any party or witness, or the orderly conduct or proceedings, of if justice would otherwise be impeded or prejudiced. This seems to have been overlooked by many of those expressing concern about the media's presence and/or their ability to report the proceedings.

The court's paramount concern is to deliver justice to those before it. It is wrong to suggest that the interests of the families are best met by a system of secret justice. In no other court is there considered to be an inherent tension between the proper administration of justice and open justice - in fact, quite the reverse.

Privacy Vs Secrecy There is no dispute over the need to maintain the privacy of the families who are the subject of the proceedings. Others involved, though, have no claim to a right of "privacy" - the anonymity of non-parties is one of the foremost characteristics of the enshrined nature of secrecy in the family courts which led to the failing of public confidence in the family courts and to criticism of some of the professionals involved in the system. Family courts, like any others, would retain the power to make appropriate orders to withhold particular witnesses' names or to order their non-identification where this was necessary in the interests of justice.

Sensitive/medical/psychiatric information etc. In addition to the power to direct that the media be excluded from the court whilst such evidence was being given, there is no reason why a reporting regime could not also include provision (as an alternative measure) for the court to direct that certain evidence could not be reported. There is no need for a 2-stage process.

 

2. PROBLEMS WITH THE BILL AS DRAFTED AND PROPOSED SOLUTIONS

 

The media have major concerns in relation to the reporting provisions of the Bill which as drafted will prevent the publication of material wholly unconnected with the proceedings, including material which at present could be lawfully published. The Bill will thus not only not achieve any increase in openness and confidence in the family courts but will have a highly detrimental impact in terms of freedom of expression and will infringe Article 10 rights.

 

 

2.1 .Freedom of expression - impact upon public domain information

 

The structure of the reporting restrictions clauses, including the definition of "information relating to the proceedings" and "identification information" and notion of "authorised news publications" means that the Bill's restrictions on publication will impact upon the dissemination of information which is already in the public domain and/or whose publication would not otherwise have constituted a contempt of court. It is not restricted to impacting upon reports of the proceedings but will prevent the publication of ANY information which falls within its ambit.

 

The definition of " identification information" includes any information which would identify any person connected with/referred to in the proceedings. or any information contained in court documents (even if such information was already in the public domain). The definition of "information" even includes opinion.

The definition also includes persons who have been parties to proceedings. Thus the blanket ban upon publication will continue indefinitely and for all purposes - reversing the important House of Lords judgment in Clayton V Clayton, and despite the Government's statement that it would not do so.

 

Published information in the form of "authorised news" must either be published by or derived from a report produced by accredited media attending the proceedings. This means that to publish any article referring to family proceedings, even if derived entirely from material already in the public domain and even if the parties were not identified, would be a contempt...

 

Our proposed amendments ensure that the restrictions on publication relate to particulars of the proceedings. They then prohibit to the publication of any details which would identify those involved rather than attempting to define and delineate the concept of "identification" information. They remove the artificial and unnecessary provisions (Clause 34(3) regarding the origin of the publication.

 

2.2. Automatic anonymity should be limited to parties, not to anyone connected with the case, however tangentially.

 

It was the Government's stated aim to ensure that parties to the proceedings (children and adults) were not identified. The Bill confers anonymity on anyone, apart from "professional witnesses" (ie paid experts) who is "involved in", "connected with" or even just "referred to" in the proceedings. Thus, all witnesses - social services officials, local authority officers, police, teachers, will all have automatic anonymity, even in cases where disclosure of their identity would not identify the child or other parties to the proceedings. Anyone "referred to~" could lead to absurd results such as press being unable to report, the name of the Judge to report evidence a witness saying that Child X was a great fan of Robbie Williams. As someone "referred to" in the proceedings, Williams would have to be accorded anonymity

 

Our proposed amendments limit anonymity to the parties to the proceedings (adults and children) but retain discretion for the court to impose further reporting restrictions (which could be to accord anonymity to other parties, or to restrain the publication of other information such as sensitive medical reports) where this is necessary to avoid a substantial risk to the safety of any person, the welfare of a child or vulnerable adult, or the interests of justice in the proceedings.

 

Adoption and Parental Placement proceedings: we preserve the restrictions of the Bill in respect of these proceedings.

 

2.3. Publication of orders and judgments should both be allowed unless court decides to restrict

 

The Bill provides for a default position enabling publication of orders unless the court prohibits or restricts it. By contrast, it provides for a default position of non-publication of judgments, unless permitted

 

Our amendments allow publication of both orders and judgments but retains full power for the court to prohibit or restrict such publication if it considers this necessary to avoid a substantial risk to the safety of any person, the welfare of a child or vulnerable adult, or the interests of justice in the proceedings

 

 

2.4. Scope of the Bill - which proceedings are covered.

 

The intention of the Bill (Cl 32(5) ) is to preserve the existing reporting regime which applies to certain proceedings pursuant to the Judicial Proceedings (Regulation of Reports) Act 1926, the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968, or the Magistrates Courts Act 1980. However the list of such proceedings set out at 32(5) is unclear (what are "matrimonial causes and matters" for this purpose, for instance) and we believe it is clearer to refer directly to the 3 Acts themselves and to simply state that they continue to apply to the proceedings which they regulate at present

 

3. AMENDMENTS

 

Delete present Clauses 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41 and Schedules 2 and 3, and replace with:

 

 

32 Restriction on publication of information relating to family proceedings

 

(1) This section applies in relation to family proceedings within the meaning of

(a) Section 65 of the Magistrates Courts Act 1980, or

(b) Section 32 of the Matrimonial and Family Proceedings Act 1984

Or any other family proceedings at which the public are not (or in the case of proceedings which have already taken place, were not) entitled to be present

 

(2) No person shall publish to the public at large or any section of the public any report of family proceedings

(a) Which identifies or is likely to identify any person as being a party to the proceedings;

Or

(b) which reveals or is likely to reveal restricted adoption information or restricted parental order information unless the court has permitted the publication of such information pursuant to Section 36 below;

 

(3) Nothing in subsection (2) above shall apply to reports of family proceedings which are subject to

(a) Section 1(1)(a) and (b) of the Judicial Proceedings (Regulation of Reports) Act 1926;

Or

(b) Section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968; or

(c) Section 71 of the Magistrates Courts Act 1980

 

and reports of such proceedings shall remain subject to the reporting restrictions as provided for in the Acts listed in (a) (b) or (c) above as appropriate.

 

(4) Where proceedings are family proceedings at the time they are commenced and, but for this subsection, would later cease to be family proceedings, for the purposes of this section they continue to be family proceedings.

 

(5) Without prejudice to Subsection (2) above, the court may on its own initiative or on the application of any party to the proceedings prohibit or restrict the publication of particular information relating to the proceedings if the court is satisfied that in the absence of such prohibition or restriction there is a serious risk that its publication would cause substantial prejudice to -

 

(a) the safety of any person,

(b) the welfare of a child or vulnerable adult, or

(c) the interests of justice in the proceedings in question.

 

33 Authorised publication of court orders and judgments

 

(1) Publication of the text, or a summary, of the whole or part of an order made or judgment given by a court in any family proceedings is an authorised publication and shall not constitute a contempt of court to the extent that the publication does not breach any restriction or prohibition imposed by the court pursuant to subsection (2) below and, in the case of adoption proceedings or parental order proceedings, to the extent that publication of the text or summary has been permitted by the court for the purposes of this section .

 

(2) The court may restrict or prohibit the publication of the whole or part of a particular order or judgment on its own initiative or on the application of any party to the proceedings if the court is satisfied that in the absence of such prohibition or restriction there is a serious risk that its publication would cause substantial prejudice -

 

(a) the safety of any person,

(b) the welfare of a child or vulnerable adult, or

(c) the interests of justice in the proceedings in question.

 

34 Permitting publication for purposes of Section 32: adoption etc

 

(1) This section applies where the court is determining whether to permit the publication of restricted adoption information or restricted parental order information.

(2) "Restricted adoption information" means information the publication of which

is likely to lead one or more persons-

(a) to identify a person as-

(i) a prospective adopter of a child,

(ii) a person who has adopted a child, or

(iii) a person who has been, or may be, adopted, or

(b) to identify the whereabouts of a person identified as a person within

sub-paragraph (i), (ii) or (iii) of paragraph (a).

(3) "Restricted parental order information" means information the publication of

which is likely to lead one or more persons-

(a) to identify a person as-

(i) a person who has applied for a parental order,

(ii) a person in respect of whom a parental order has been made, or

(iii) a child in relation to whom a parental order has been, or may be,

made, or

(b) to identify the whereabouts of a person identified as a person within

sub-paragraph (i), (ii) or (iii) of paragraph (a).

 

(4) If the person who has been or may be adopted or in relation to whom a parental

order has been or may be made ("the affected person")-

(a) is a child,

(b) lacks capacity to consent to the publication, or

(c) cannot be found,

the court may not permit the publication of the information unless it is satisfied

that publication of the information would not prejudice the safety or welfare of

the affected person.

(5) In any other case where the affected person is alive, the court may not permit

the publication except with the consent of the affected person.

(6) The court must have regard to whether consent to the publication has been

given by-

(a) in the case of restricted adoption information, any prospective adopter

of, or person who has adopted, the child in question, and

(b) in the case of restricted parental order information, any person who

applied for the parental order or in respect of whom the parental order

has been made.

(7) The court must have regard to any risk which publication of the information

would pose to the safety or welfare of any party to the proceedings

in or otherwise connected with the proceedings.

(8) The court may permit the publication subject to conditions specified by the

court.

(9) For the purposes of this section-

"adoption" means adoption under the Adoption Act 1976 or the Adoption

and Children Act 2002 (and related terms are to be construed

accordingly);

"parental order" means a parental order under section 30 of the Human

Fertilisation and Embryology Act 1990 or section 54 of the Human

Fertilisation and Embryology Act 2008.

 

35 Defences to contempt of court

(1) Without prejudice to any other defence which may apply, a person is not guilty of a contempt of court by reason of the publication of information relating to family proceedings if subsection (2) or (3) applies.

(2) This subsection applies if at the time of the publication the person did not know and had no reason to suspect that the information published was information relating to a party to the proceedings which would was likely to identify them as being a party to the proceedings in question.

 

(2) This subsection applies if at the time of the publication the person did not know and had no reason to suspect that the information was restricted adoption information or restricted parental information.

 

36 Appeals against decisions under section 33 or 34

(1) Rules of court-

(a) may make provision about appeals against decisions within subsection

(2) (including provision which modifies provision made by or under

any Act as it applies to such appeals), and

(b) to the extent that provision is not made by or under any Act for appeals

against such decisions, must make such provision (including provision

about the route of such appeals).

(2) Those decisions are-

(a) decisions to permit, or refuse to permit, publication of information for

the purposes of section 33 or section 34,

(b) decisions to impose, or refuse to impose, conditions on permission

 

granted for those purposes, and

(c) decisions to prohibit or restrict, or refuse to prohibit or restrict,

publication of information for the purposes of section 33 or section 34

 

(2) Rules made under sub-paragraph (1)-

(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(3) Before laying a draft statutory instrument in accordance with sub-paragraph (2) the Secretary of State for Justice shall consult with a selection of persons representing the interests of the national and local print media and the broadcasting media.

 

37 Interpretation of Part 2 etc

 

"Court" includes a judge and any person exercising the functions of a court or judge;

 

"Family proceedings" for the purposes of Section 32 means family proceedings within the meaning of

(a) Section 65 of the Magistrates Courts Act 1980, or

(b) Section 32 of the Matrimonial and Family Proceedings Act 1984

Or any other family proceedings at which the public are not (or in the case of proceedings which have already taken place, were not) entitled to be present

 

"judgment" includes a record produced by the court of its reasons for a decision;

 

"party to the proceedings" means a person by, against or in respect of whom the proceedings are taken

 

In Schedule 4, add wording in bold below to the list of amendments

Administration of Justice Act 1960 (c. 65)

20 (1) Section 12 (publication of information relating to proceedings in private) is

amended as follows.

(2) In subsection (1), paragraph (a) is omitted.

 

(3) In subsection (2) after "of an order made" insert "or judgment given"

(4) After subsection (4) there is inserted-

"(5) Subsection (1) is subject to Part 2 of the Children, Schools and

Families Act 2010 (family proceedings), and nothing in subsection (2)

applies in relation to a contempt of court under section 32 of that Act

(restriction on publication of information relating to family

proceedings)."

21 In Schedule 2 (modifications of Act in relation to Northern Ireland), in Part

2, in sub-paragraph (1) of the modifications of section 12 for "For paragraph

(a) of subsection (1) there shall be substituted" there is substituted "Before

paragraph (b) of subsection (1) there is inserted".

 

Children Act 1989 (c.41)

26. Delete Section 97

 

Family Proceedings (Amendment)(No2) Rules 2009

In paragraph 5 Rule 11.2,(2) after "relating to the proceedings" insert "where to do so would constitute a contempt of court"

 

Family Proceedings Courts (Miscellaneous Amendments) Rules 2009

In paragraph 6, rule 21R (2) after "relating to the proceedings" insert "where to do so would constitute a contempt of court

 

January 2010