Press may be excluded from "open" family hearings

Divorcing couples will be able to ask for the press to be excluded from family court hearings under new rules that take effect today.

Even though reporters will be allowed to attend some hearings that have previously taken place in private, they will not be allowed to identify children who may be involved in family proceedings.

That was pointed out by a High Court judge last month in a speech I reported here.

“Whilst accredited journalists can now expect to be permitted to sit in on a private court hearing relating to children,” Sir Andrew McFarlane said, “they will face tough sanctions if they report any detail of the particular case that they are observing. Reporting will be limited to the process and the gist of proceedings, rather than the detail of any particular case.”

It is now clear that the new rules may apply even in cases of childless couples. Reporters may be excluded if the court is satisfied that justice will be “impeded or prejudiced”.

A practice direction from Sir Mark Potter, president of the High Court Family Division, says this rule could apply “where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives”.

That could be used by a wife who believes her husband would not speak frankly if his evidence was going to be reported.

The media could also be excluded if witnesses who are not parties refuse to give evidence with reporters present. That rule might be invoked by experts, including paediatricians.

A party could also ask for the media to be excluded from a financial hearing if price-sensitive information might be disclosed. The practice directions assume that couples who are wealthy enough to control public companies would not be litigating before magistrates in the Family Proceedings Courts.

Two sets of practice directions were rushed out at the last possible moment on Friday afternoon, together with rules for the Family Proceedings Courts and the higher courts.

Different rules were necessary because the rules for Family Proceedings Courts exclude journalists from hearings that they had previously been allowed to attend — not that many did. Similar principles now apply at all levels.

The practice directions were issued in such a hurry that eight lines are apparently missing from paragraph 6.1 of the magistrates’ directions. The section tells reporters when they can challenge moves to throw them out of court.

Fortunately, one can guess at the missing lines by comparing the truncated paragraph with the directions that apply to the higher courts.

The press may also be excluded where necessary “for the orderly conduct of proceedings. Sir Mark says “it may be difficult or even impossible physically to accommodate all (or indeed any) media representatives who wish to attend a particular hearing on the grounds of the restricted size or layout of the court room in which it is being heard”.

He adds: “court staff will use their best efforts to identify more suitable accommodation in advance of any hearing which appears likely to attract particular media attention, and to move hearings to larger court rooms where possible. However, the court should not be required to adjourn a hearing in order for larger accommodation to be sought where this will involve significant disruption or delay in the proceedings.”

In a separate guidance note, the president of the Family Division points out that the government has left the judges in the lurch when it comes to operating the new rules.

He points out that reporters will immediately ask to see court papers in individual cases, without which they would not be able to understand and report what is going on.

That may be opposed by the parties, who could argue that the government’s reforms were designed simply to avoid charges of “secret justice”. There are no changes to the long-standing rule that proceedings involving children must remain private.

Jack Straw, the Lord Chancellor, said yesterday: "Existing reporting restrictions for the newly-attending media will of course still apply to protect children and families. But I want to ensure a change in the culture and practice of all courts towards greater openness and this is an important step towards that goal."

It may also be necessary for the courts to decide how far to protect the identities of people who would be known locally as family friends.

Sir Mark says, with justifiable irritation, that “the government declined to adopt the recommendation of the High Court judges to address the detail of such issues when introducing the change”.

So the courts will have to provide the necessary guidance themselves. To avoid -- or, at least, minimise -- inconsistency, arrangements will be made to whizz potential test cases up to the High Court for authoritative decisions. Some applications will have to be put on hold in the meantime.

Individual reporters will have to get used to making instant applications in court, since parties seeking to have them excluded will not normally be required to give notice. And that will not be the only occasion on which reporters will have to use their advocacy skills.

A statement from the Ministry of Justice yesterday said that "media representatives who attend family courts must be holders of the UK Press Card". Fortunately, as paragraph 4.3 of each practice direction makes clear, this is not true.

Bloggers and other commentators who cannot produce a valid press card should remember that they can ask the judge for permission to attend a private hearing under rule 10.28(1)(g) of the Family Proceedings Rules 1991 as inserted by the Family Proceedings (Amendment) (No.2) Rules 2009 or, as appropriate, rule 16A(1)(g) of the Family Proceedings Courts (Children Act 1989) Rules 1991 as inserted by the Family Proceedings Courts (Miscellaneous Amendments) Rules 2009. Doesn't sound too difficult!

Posted at April 27, 2009 12:01 AM