Victoria Jones, Family Department
On 27 April 2009 the law changed allowing the media access to family hearings for the first time. Other court rooms have long been open to the press but family courts have always been the exception preferring to protect the privacy of the parties.
Family cases, by their very nature, are personal and sensitive, and frequently there are also children involved. For this reason it has long been the tradition that family proceedings are conducted in private.
In an attempt to promote transparency and therefore confidence in the family justice system the decision was taken to open the courts to 'duly accredited representatives of news gathering and reporting organisations.' In practical terms this means that journalists with a UK press card are now able to attend court to observe family hearings.
The new rules are set out in The Family Proceedings (Amendment) (No. 2) Rules 2009 and the Family Proceedings Courts (Miscellaneous Amendments) Rules 2009. The changes potentially apply widely to almost all family cases including divorce, private children matters and also public children matters, which often involve social services.
There are some limits to the new general right of admittance for the media. The rules do not extend to adoption cases which will remain private. Nor can the press attend 'judicially assisted conciliation or negotiation.' This means they are unable to observe appointments such as Financial Dispute Resolution (FDR) hearings within ancillary relief proceedings. Such hearings are intended to encourage negotiation between the parties, under the direction of the judge, in the hope of reaching settlement. It was presumably feared that press attendance at such hearings could hinder the openness of the parties.
The media can also be excluded from a family hearing on the particular judge's say-so. The parties involved in the case can request the exclusion or a judge can make the decision of his own accord. The rules provide some guidance as to when judges can exclude the media in this way. Valid reasons for exclusion include the protection of a child, or to ensure the orderly conduct of proceedings, amongst others.
Once in the court room, the press can observe the oral hearing. However, they are not automatically entitled to view any of the documents in the case. There are also thought to be some limits as to what the media can report on. Current guidance suggest that reporting will have to be of a general nature (rather than specific details of the case) and that the press will have to keep articles anonymous, particularly where there are children involved. if the press print more than they are allowed to they could be liable for contempt of court, which may be punishable by a fine and/or imprisonment.
However, the new rules do not specifically set out the requirement that reporting be anonymous. There are other laws which help protect the anonymity of children in the media but it is thought, by some, that the same protection does not necessarily extend to adult parties in an ancillary relief matter. So far, the press appear to be proceeding on the basis that parties in the case are not be named but it is possible that this will be challenged in the future.
Allowing the media into family courts, albeit with some limitation, will certainly have an effect on the family courts as we know them. Many may believe that the only family cases which will attract media attention are those involving celebrities. Of course, the more sensational the better in terms of newspaper spread. However, a local journalist, for a local paper, taking an interest in hearings in a local court should not be discounted.
Many parties may be of the view that media interest in their case is desirable. Other courts have open doors to allow for public scrutiny and for justice to be observed. The press are well known for their regulating influence and it is often thought that their presence alone helps provide a check and balance system for the courts. They certainly have a part to play in helping the public understand the family court system and how it works. However, the press will need to ensure their reporting is responsible and accurate. Emotions are often running high after family court proceedings and it may not be the best time for parties involved to answer questions put to them by journalists.
The new rules are still in their very early days. For the moment, parties to family proceedings should be aware that there may be a media presence if their case goes to court. It is possible for either party to ask the judge to exclude the media but there is, of course, associated delays (and costs) in doing so and there is no guarantee that exclusion will be granted by the judge. The only way in which media-shy parties can completely guarantee that the press do not attend their hearing is by keeping themselves out of the court room and settling the dispute.
The long term impact of this change in the law remains to be seen. It is admirable to want the family courts to appear less secretive but it is equally important to ensure the privacy of vulnerable parties. Only time will tell whether a real balance can be struck between promoting the openness of the family courts and protecting the privacy of those involved in sensitive proceedings. For the time being the doors to the family courts are certainly ajar but they are, perhaps, not quite wide open.
For further information contact the family law team or call 020 7940 4000.
