9 Media and public access to the family
273. Under the Children Act 1989
it is a criminal offence punishable by a fine of up to £2,500
to publish material which would identify, or which would be likely
to identify, a child involved in family court proceedings, unless
the court has exercised its power to make an order to the contrary.
Until April 2009, reporting on cases in the family courts was
extremely limited; proceedings in the county court were invariably
held in private. Following mounting media attention, widespread
consultation and a critical report by our predecessor Committee,
the then Government introduced changes to the Family Proceedings
Rules 1991, allowing the accredited members of the media to attend
family court proceedings. The rules on media reporting, however,
were not relaxed,
meaning that two of the main criticisms, the limited amount of
information the press can report and the privacy conferred on
all participants in a case, remained unaddressed.
The Children, Schools and Families
274. In 2009, the then Government introduced
a legislative scheme to increase media access to and openness
in the family courts. The Children Schools and Families Act 2010
(CSFA 2010) contains two stages. The first extends the range of
proceedings that the media can attend to include adoption cases,
and provides exceptions to the general rule that publication of
information of proceedings is a contempt of court.
The second stage extends the type of information, defined as
"sensitive personal information", that can be published.
Neither stage is in force.
275. We did not hear from any witness who was
in favour of the scheme for media access in the CSFA 2010, although
their reasons for disliking the measures varied. Representatives
of the media told us that the approach in the 2010 Act actually
reduced the amount that could be published, rather than increasing
it. The Press Association told us:
The reforms in the Act will, if brought into effect,
impose even greater restrictions than those which exist at present,
and can be expected to lead to further undermining of public confidence
in the family courts and the family justice system.
The Newspaper Society, in a submission with which
the Society of Editors agreed, took a similar view:
the intention of increased transparency has been
lost in the Act's drafting...the aim of achieving privacy for
the families has been conflated into a renewed regime of secrecy
whichif the relevant provisions in the Act are brought
into force unamendedwill not only fail to deliver the desired
public accountability but will represent a major reduction in
what can now be lawfully published, and will actually further
reduce public debate and discussion of the family justice system.
It will have a detrimental impact in terms of freedom of expression
and will infringe Article 10 rights.
276. The process by which the legislation was
developed was similarly condemned. Several witnesses pointed out
that the impact of the changes to the Family Procedure Rules had
not been assessed before the new scheme had been drafted.
Dr Julia Brophy, who carried out research on behalf of the Children's
Commissioner on young people's attitudes to reporting proceedings
in the family courts, describing the Act as "rushed [and]
told us that the impact on the children involved in court cases
had not been assessed before the 2009 Rule change either.
Napo thought the legislative process was flawed. While Napo
do "not oppose more information being published about Family
Court decisions...we are concerned that these changes were rushed
through in the 'wash up' before the dissolution of the last parliament.
We are concerned that inadequate thought has been given to protecting
the identities of children."
277. A number of witnesses told us that the provisions
in the CSFA 2010 were simply "unworkable"
due to their conflict with a child's right to privacy
and right to have his or her voice heard before decisions that
affect his or her life are taken.
Dr Julia Brophy told us:
Children start talking to expertsclinicians,
social workers, guardiansright at the beginning of the
case. It's at that point they will have to be told that the media
will have access to the court. There is no option not to tell
them. Medical ethics, the GMC ethics, about trust, honesty, and
openness when they are dealing with consent with young people
are clear. Equally, the advocate for the child and the guardian
has to tell the child, and at that point, early on in the case,
if the child votes with its feet and says nothing, you are then
presented with a case where a judge is going to have to make very
serious decisions about the future care of a child without direct
information from the child. It's not surprising that children
will vote with their feet if they are told. My concern at the
moment is that they are probably, for the most part, not being
told, and that is a breach of their Article 12 rights.
The Medical Protection Society confirmed Dr Brophy's
evidence on the ethical obligations of doctors and other medical
professionals, and highlighted the confidential nature of the
information that could be published under the CSFA 2010:
The type of informationmedical, psychological
and healthcare treatmentis intensely personal. Even if
it is reported in an anonymous way, it is likely to have a significant
impact on the individuals involved and could inadvertently result
in the individuals being identified, particularly in their local
community. We cannot see how such a fundamental invasion of privacy
can ever be in the wider public interest nor, indeed, in the interests
of the administration of justice.
278. The Family Law Bar Association supported:
"greater transparency and accountability in the family courts...It
is vital that the public knows and understands what happens in
the Family Courts." However it was critical of the Act, calling
it another part of an "ill-fitting jigsaw of statutory pieces"
governing media reporting of family proceedings. Resolution expressed
concerns about the impact of the legislation on children, particularly
the broad power the CSFA 2010 gives the Lord Chancellor to remove
the statutory protection from "sensitive personal information".
The Law Society told us implementation of the Act would have
a "detrimental impact on family proceedings" and would
lead to further delays as "the proposed framework may increase
preliminary hearings where the court will be asked to prevent
media representatives attending, and/or reporting on the case."
The Society agreed with Dr Brophy that there were concerns about
the inhibition of children and parties, and highlighted the delays
that would be caused by preliminary hearings to determine the
level of access the media should be allowed.
Craig Pickering of Families Need Fathers, who campaign for greater
transparency in the courts, effectively summed up the evidence
from all our witnesses, when he said:"We would like [the
MoJ] to go back to the drawing board and think again".
279. Tim Loughton MP, the Children's Minister,
told us that the Government would not implement Part 2 of the
2010 Act "at least" until the Family Justice Panel had
completed its review. He acknowledged the opposition to the measures,
and the impact the way the legislation had been passed had on
I think it was a piece of legislation in haste, which
managed, remarkably, to unite just about everybody in opposition
to itfrom the judiciary, who thought it could be too intrusive,
to the children's charities, who thought it would compromise the
welfare and confidentiality of children, to the editors of newspapers,
who felt that it did not go far enough and was a fudge. I remember
having all of them in front of a Bill Committee giving evidence
and united from completely different angles on why this was a
wholly unsatisfactory fudge. It was always going to have to be
returned to. It was legislation which was put through in haste.
280. We recognise the need for
transparency in the administration of family justice, and the
equally important need to protect the interest of children and
their privacy. However, our witnesses were united in opposing
implementation of the scheme to increase media access to the family
courts contained in Part 2 of the Children, Schools and Families
Act 2010. While their reasons for doing so differed, and were
sometimes contradictory, such universal condemnation compels us
to recommend that the measures should not be implemented, and
the Ministry of Justice begin afresh. We welcome the Government's
acknowledgement that the way the legislation was passed was flawed,
and urge Ministers to learn lessons from this outcome for the
Openness in the family courtsthe
281. The Constitutional Affairs Committee found
in 2005 that there was a broad consensus across all groups that
greater openness and transparency in the family courts was required.
While united against the scheme set out in the CSFA 2010, our
witnesses disagreed as to the way forward. We consider this issue
is best considered through two questions: firstly, what is the
aim of greater openness in the family courts; and, secondly, how
is that objective best achieved?
282. Our evidence suggests that the primary aim
of greater openness in the family courts is increased public confidence.
Tim Loughton MP, the Children's Minister, summarised the concerns
he had heard as follows:
Whether or not it is true, there is a perception
that there is a bias in the courts. Various fathers' groups will
tell you that it is a bias in favour of the resident parent, usually
the mother. There are others who will tell you that there are
incompetent or perhaps even malign social workers and other local
authority people who have got it in for certain families and will
therefore use whatever methods to extract a child from his or
her family, with all that being brushed under the carpet, or that
the judges are complicit in trying to conceal where justice is
not really being done.
283. Families Need Fathers told us:
The point of openness is to ensure that decisions
are taken in the right way. By opening decisions to public scrutiny
we don't want to identify children, vulnerable adults or their
family. We do want the information to be available on how the
decisions are decided [...]. The rules that prevent this in criminal
cases involving children provide relevant experience on how to
284. The Newspaper Society told us: "The
initiative towards greater openness arose from a background of
increasing public lack of confidence in the operation of the family
courts, particularly in public law cases."
The Press Association agreed "the culture of secrecy which
has developed in the family courts over the years is counter-productive,
particularly in relation to public confidence in family justice."
It suggested "the principle of open justice [should be]
placed on a par with the idea that children involved in proceedings
need to be protected from publicity."
285. While these witnesses emphasised a lack
of public confidence in the family courts, other witnesses highlighted
the child's right to privacy over their personal information,
safety concerns arising from the publication of information that
could identify the child involved and the need for children to
be able to speak freely to all those with a role in presenting
their experiences and views to the court. The Royal College of
Paediatricians and Child Health said: "our paramount principle
is that a child's welfare must be maintained ... openness and
transparency is a secondary priority. "Consent from parents
or older children may be difficult to obtain if families are informed,
as they should be, that health records/reports may be made available
to the media. If this was so, then the quality of the report
itself may be compromised."
The British Association for Adoption and Fostering, for example,
told us: "Children must feel confident that they will not
be identified as the subject of any proceedings and that the details
of their family's private life and personal difficulties will
not be publicised. Children must not be inhibited in disclosing
their difficulties and participating in assessments by a fear
that their friends and neighbours or the wider community will
be able to read reports of the resulting court proceedings."
286. Women's Aid said that it "believes
that allowing media in the family courts could jeopardise the
safety and wellbeing of children and young people and place them
and their wider families, including children within the same family,
CHILDREN'S VIEW OF TRANSPARENCY
IN THE FAMILY COURTS
287. In 2010, research on behalf of the Children's
Commissioner found that children and young people involved in
cases in the family courts were unhappy at the suggestion details
of their cases could enter the public domain. Some 79% of children
and young people in the public law sample and 91% in the private
law group were opposed to any details of their cases being published
in the press. When the children in the public law sample who
thought some detail could be published in the media were asked
to identify information that was suitable for publication "without
exception these children selected statements vindicating children
of blame or responsibility for events leading to care proceedings:
they wanted it known that they were not 'bad' or 'naughty' children
and that they had done their best in awful circumstances."
They rejected the suggestion that details of the neglect suffered
or parental mental health problems should be published. When
asked why they did not want details of their cases published,
the children "said hearings address issues that are 'private';
they concern events that are painful, embarrassing and humiliating
for children and an overwhelming majority said this information
was not the business of newspapersor the general public."
Children feared being identified and the attention, and even
bullying, that would result.
288. The Children's Commissioner also found children
were mistrustful of the press: "a majority (63%) do not trust
newspapers to tell the truth (79% of the private law sample and
46% of the public law group said this). The remainder thought
they sometimes told the truth, "'they usually get the football
results right'", but that journalists sensationalised stories
or cherry-picked the information they published.
289. The work of the Office
of the Children's Commissioner on media reporting in the family
courts gives a voice to the most important, and least heard, group
of people in the family court system. The research makes plain
that children involved in family court cases fear identification
by their community to such an extent that knowing a case may be
reported in the media could inhibit them from giving vital information
to family justice service professionals.
INCREASING PUBLIC CONFIDENCE IN
THE FAMILY COURT SYSTEM
290. We heard evidence from a number of witnesses
that there are other ways to increase openness, and so public
confidence, in the family justice system. The Magistrates' Association
told us they supported the use of Family Court Open days "in
order that the public should better understand the legal process,
court procedure and why decisions are made."
Open days also allow litigants in person who have pending cases,
as well as represented parties, to familiarise themselves with
the court before the hearing. A year-long pilot to publish selected
anonymised judgments from family proceedings in the magistrates
and county courts ended in January 2011.
The evaluation of the pilot will be published in July 2011.
291. In this context, we note two things. First,
the Family Justice Panel found: "Our own work has not led
us to share concerns that arbitrary or ill-founded decisions are
taken. In fact the reverse is the case. We have been impressed
by the great care taken by the courts and all those involved in
these difficult decisions."
Second, parents are now able to discuss cases with their MP,
in our view, a necessary reassertion of a fundamental right.
292. Where the general public and the media do
not have access to clear information on proceedings, then no-onethe
judiciary, the Ministry of Justice or parents themselveshave
any resource with which they can refute unfounded allegations
of bias. Equally, where allegations may have foundation in fact,
those with concerns are also without the information they need
to tackle any injustice.
293. There is a tension between
allowing the media to publish even limited information about cases
in the interests of increasing public confidence and a child's
right to keep personal information about them and their experiences
private. There is a danger that justice in secret could allow
injustice to children, or a perception of injustice. We believe
the underpinning principle of the family court system, that all
decisions must be made in the best interests of the child, must
apply equally to formation of Government policy on media access
to the family courts.
330 Children Act 1989, s 97(2) Back
Constitutional Affairs Committee, Third Report of Session 2002-03,
Children and Family Court Advisory and Support Service (CAFCASS),
HC 614 Back
Administration of Justice Act 1960, s12, makes it a contempt of
court to report on proceedings conducted in private unless the
court gives permission to do so. Back
CFSA 2010, s15 Back
CFSA 2010, s17 Back
CFSA 2010, s19 Back
Ev w13 Back
Ev w108 Back
Ev 117 Back
Q 49 Back
Ev 141 Back
Ev 117 [Dr Julia Brophy] Back
Article 8 of the European Convention on Human Rights Back
Article 12 , United Nations Convention on the Rights of the Child Back
Q 49 Back
Ev w32 Back
CSFA 2010, s19 Back
Ev w73 Back
Q 36 Back
Q 332 Back
Q 336 Back
Ev 90 Back
Ev w108 Back
Ev w13 Back
Ev w52 Back
Ev w107 Back
Ev 92 Back
EV w70 Back
Ev 117 Back
Brody report, para 7.1 Back
Ev w53 Back
The judgments were published on www.bailii.org.uk Back
Interim Report, p 55 Back