Operation of the Family Courts - Justice Committee Contents

Written evidence from the Press Association (FC 06)


This submission is from the Press Association, the national news agency for Great Britain and Ireland.

Reforms to the rules governing media attendance at family courts have not led to an increase in reporting of family justice cases because the reporting restrictions which covered such hearings have not been changed.

Reforms intended to widen reporting of family justice cases were introduced in Part II of the Children, Schools and Families Act 2010, which has not yet been brought into force.

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 Press Association believes that the reforms in the 2010 Act should not be brought into force but that instead there should be a radical new approach and an acceptance of the necessity of a complete and thorough overhaul of the entire network of reporting restrictions covering family proceedings, with the principle of open justice placed on a par with the idea that children involved in proceedings need to be protected from publicity.


Inquiry by the House of Commons Justice Select Committee

1.    This submission to the inquiry by the Justice Select Committee is made on behalf of the Press Association, the national news agency for Great Britain and Ireland, which supplies national and regional newspapers and broadcasters and website operators with a 24-hour-a-day, 265-day-a-year news service.

2.    The Press Association is restricting its submissions to the final of the four issues highlighted by the Committee, which is: "Confidentiality and openness in family courts, including the impact of the recent changes in the Children, Schools and Families Act 2010."

3.    Changes to the way in which the media may report on proceedings in Family Courts involving children are introduced in Part II of the Children, Schools and Families Act 2010, which received the Royal Assent in April after being rushed through its final Parliamentary stages during the so-called "wash-up" period immediately before Parliament closed for the General Election held in May this year. At the time of writing, Part II has not been implemented, and there is no indication of when or whether this will be done. The Press Association's view is that this piece of legislation should not be implemented.

4.    The stated policy of the previous Justice Secretary, Jack Straw, was that the Family Courts should be opened to a much greater degree of media reporting than is the case at present. The Family Procedure Rules were changed in April 2009, giving the media a presumptive right of attendance at family proceedings. However, reporting restrictions, particularly those in Section 12 of the Administration of Justice Act 1960, which make it a contempt to report on proceedings held in private—as almost all family cases are—in certain circumstances, including cases involving children, meant that although journalists may attend hearings, they are able to report virtually nothing unless given specific permission by the court.

5.    Mr Straw declared in a written Parliamentary statement on April 27, 2009, that he intended to introduce legislation which would bring transparency and openness to the family courts, and allow the media to report a great deal more. The result was Part II of the Children, Schools and Families Act 2010. Unfortunately, the legislation is certain to achieve the exact opposite of Mr Straw's intended result.

6.    The Act has been criticised by Lord Justice Munby, who sat in the Family Division of the High Court before his elevation to the Court of Appeal, and who also now chairs the Law Commission. He delivered the Hershman-Levy Memorial Lecture in Birmingham on July 1, under the title "Lost opportunities: law reform and transparency in the family courts"[18]. There was a need for a great deal more transparency in family courts and proceedings, he said, and the Act was a missed opportunity to introduce much-needed reform. He added:

"The new "scheme", if that is what one can call it, is far from comprehensive. Divorce and ancillary relief are scarcely affected; the adult inherent jurisdiction not at all. A greater degree of consistency has been achieved—the different treatment of the County Court and the Family Proceedings Court will now be a thing of the past—but at the heavy price of an increase in the areas covered, for the first time, by reporting restrictions. And at the same time it is far from obvious that the supposed relaxation of the reporting restrictions in children cases—surely the crux of the problem—will actually have the desired effects, if, indeed, any effect at all.

"What the overall impact will be of the Act, assuming that it is ever brought into force, and more generally of the recent reforms, is difficult to predict, not least given the complexity and technicality of the new statutory provisions. One view voiced by various commentators, and a view I am inclined to share, is that if anything the Act is likely to reduce, rather than increase, the amount of information about children and other family proceedings which finds its way into the public domain."

7.    A similar view was expressed by barrister Lucy Reed, of St John's Chambers Bristol, who analysed the provisions of Part II of the Act in an article in the July 2010 issue of Family Law[19]. She wrote:

"It will be seen from the length of this "summary" that the new provisions are complex and one might anticipate a considerable degree of confusion particularly on the part of the media as regards the meaning and operation of the new provisions. In the context of the current national crisis in the newspaper industry it will be interesting to see how many nationa—let alone local—papers are able to satisfy the requirement to attend court in order to source information for the purposes of publication. It may be that in the current economic climate the journalistic resources are simply not deployed for these purposes except in a very few cases. This is particularly so where there is still no change to the arrangements relating to access to documents, although as ever it is still open to an individual journalist to make an application to the court for sight of documents.

"Whilst the Act appears to relax the regime for the reporting of family cases by the media, it appears to be designed to prevent any publication of information by families themselves or by campaigning groups such as fathers rights groups, whether that be by way of blog or the offering up of their version of events to the media: unless the court orders otherwise information that a journalist would be entitled to publish cannot be published by a parent or other party, a parent cannot pass even anonymised and non-sensitive information to a journalist to publish, and the views or comment of parents cannot be published at all. Whilst there are valid arguments in support of measures which promote the balanced and accurate reporting of the goings on in the family courts by the media, for the furtherance of public confidence in the system (and a quite separate argument about whether or not these provisions will achieve that), the author questions the wisdom of the approach taken by the legislators to the enormous quantity of very private information arising from family proceedings that is published by individuals on the internet— which appears to be simply to ban it without providing any mechanism for enforcement."

8.    Without attempting a detailed analysis of Part II of the Act, it is possible to say that the anonymity provisions it includes go far further than anything currently in force. Virtually anybody involved in a case, with the exception of paid professional witnesses, will be given lifelong anonymity. The Act will also have the effect of reversing the Court of Appeal decision in Clayton v Clayton[20].

9.    Current practice in the family courts also militates against regular and well-informed media coverage. Judges seem to be unwilling to publish judgments, and, in certain circumstances, to allow the media to identify authorities and others involved in cases, even though this can properly be done without running the risk that members of families involved in such proceedings will be identified against their wishes.

10.  One case in which a judge could validly have allowed an authority and other involved to be identified was Re X, Y and Z (children). A judgment was handed down in February but the Press Association did not become aware of it until June. The High Court staff did a story about the case, but as far as we know it was not used by any national or regional news outlets. One reason was that although the story concerned a local authority which had behaved in a manner which fell outside the "band of what is reasonable", the judge refused to allow the authority to be named. He also insisted that any such request would have to be made as a formal application to the court, which would have meant considerable cost, including the cost of briefing counsel, as well as the risk that a failed application would expose the Press Association to liability for the costs of any parties which objected to the application.

11.  The judge involved later explained, in a statement issued through the Judicial Communications Office, why he wanted the authority to remain anonymous, saying: "In a recent family case in which I was involved, within hours of a hearing in the Court of Appeal a journalist from a national newspaper had tracked down the father and went to his home seeking an interview. Although the next day the father obtained a Reporting Restrictions Order the following week a journalist from a different national newspaper went to both the father's home and the mother's home seeking an interview. In light of that experience, my concern in this case has been that to identify the local authority would enhance the risk that the Press would seek out this family."

12.  This, however, fails to recognise that the Court of Appeal invariably hears such cases in open court - in a recent case[21], the Court of Appeal put the following at the top of its judgment:

"This is the judgment of the court, to which each of its members has contributed. Although we heard the appeal in open court on 16 June 2010, we hereby impose reporting restrictions, and this judgment is written anonymously. In particular, nothing must be published which in any way identifies any of the parties to the proceedings, whom we propose to identify only by initials or function. Any application to lift the restrictions imposed by this judgment should be made on notice to the full court: otherwise it will be a matter for the judge to decide at the July hearing whether or not, and if so to what extent, the anonymity hitherto imposed should be relaxed."

13.  This example is typical of many others in which stories which are of public interest fail to get the publicity they merit because there is no way in which those responsible for mis-handling or misconducting a case can he identified and held to account for their activities. Lord Justice Munby made the same point in his July 1 speech, saying that public law cases involved the State intruding into families' private lives, often intending to remove children from their families. He added:

"Indeed, where the State is seeking to exercise such drastic powers as are engaged when it seeks a full care order or a placement order, it might be thought that the arguments in favour of publicity—in favour of openness, public scrutiny and public accountability—are particularly compelling. I have previously said in public that, viewed from this perspective, our present system is indefensible. I do not shrink from repeating that."

That view is surely so much the stronger in cases in which the authorities involved have got things wrong, have mishandled a case, been negligent, or even have subjected a family to a serious ordeal for no good reason.

14.  There is also the issue of the cost of applications if the media wishes to be able to identify parties—particularly public bodies and public servants—involved in cases. As Lord Steyn pointed out in Re S (FC) (A Child)[22] applications relating to injunctions and reporting restrictions are costly in terms of money and time. He was referring to injunctions made by Family Division judges which were intended to affect reporting of criminal trials, but his comments are equally applicable to cases in the family courts.

15.  The same applies to cases heard in the Court of Protection, which is part of the Family Division. This court deals with cases involving individuals who were a variety of reasons are incapable of making decisions about their own best interests for themselves. The Court of Protection Rules state that the court normally sits in private, but that the media may be allowed to attend and report. However, the default position is secrecy, even for those cases in which public bodies such as local authorities seek to intervene in the private and family lives of individual citizens. See, for example, A Local Authority v Mrs A, by Her Litigation Friend, the Official Solicitor, and Mr A[23], in which the local authority sought an order that the defendant married woman should be ordered to take contraceptives, and also wished to argue that these should, if necessary, be administered by the use of force, restraint, and anaesthesia. Mr Justice Bodey rejected the application, saying: "It is obvious on the facts of this case, that any step towards long-term court imposed contraception by way of physical coercion, with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life." However, the local authority involved in this remarkable application remained unidentified in the judgment, and has not had to answer, in public, any questions about its activities or approach to the issue. The Press Association reported the decision in this case but its report was not, so far as is known, published or broadcast by any major news outlet, quite possibly because the authority concerned remained unidentified.

16.  The Press Association submits that the current rules militate against proper media coverage of the Family Courts and the Court of Protection, and that 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 also submits that this situation will only be worsened if the Government implements Part II of the Children Schools and Families Act. What is required is a radical new approach and an acceptance of the necessity of a complete and thorough overhaul of the entire network of reporting restrictions covering family proceedings, with the principle of open justice placed on a par with the idea that children involved in proceedings need to be protected from publicity. During talks which preceded the Children Schools and Families Bill, media representatives suggested that what was needed was legislation such as that which already protects juveniles appearing in Youth Courts. What emerged in the legislation was complex and cumbersome, and will mean the imposition of more restrictions rather than achieve the declared policy objective of making family courts easier to report.

November 2010

18   Available at: http://www.alc.org.uk/docs/ALC_HERSHMAN_LEVY_MEMORIAL_LECTURE_2010.doc  Back

19   Reed, 'Publication of Information: Children, Schools and Families Act 2010'. [2010] Fam Law 708. Back

20   [2006] EWCA Civ 878, [2006] 3 WLR 599, Back

21   G v E (by his Litigation Friend the Official Solicitor), A Local Authority, and F ([2010] EWCA Civ 822) Back

22   [2004] UKHL 47 Back

23   [2010] EWHC 1549 (Fam) Back

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Prepared 14 July 2011