Written evidence from the Press Association
(FC 06)
EXECUTIVE SUMMARY
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.
THE OPERATION
OF THE
FAMILY COURTS
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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