Access All Areas: Media and the Family Courts

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From the 27th April 2009, the media have had the right to attend most family law hearings that have previously been held in private. They are able to attend all levels of family courts, removing the current inconsistency of access between magistrates' courts and the county and High Courts.

The Government's stated reason was to make family court proceedings more transparent and accountable so that justice could be seen to be done.

Jack Straw, Secretary of State for Justice, said: "Public confidence in the justice system is a necessary and vital part of a democratic society. I want to ensure that reforms to the family courts system increase their accountability to the public.

"People need to trust the justice system. One important way is by creating a more open, transparent and accountable system while protecting children and families during a difficult and traumatic time in their lives."

The New Rules
What does this mean in practice? Accredited media (holders of UK Press Card authorisation) will be given access to private family law hearings (except those hearings conducted for the purpose of negotiations). Those not allowed access include bloggers, occasional newsletter writers or foreign media not based in the UK.

What the Media can Report
Despite the hype surrounding these changes, the media remains subject to existing reporting restrictions. The Rules also specifically prohibit the communication to the public at large or any section of it of any information relating to proceedings. Nor will the media have the automatic right to receive or peruse the court documents relied on or referred to in the proceedings.

Where proceedings relate to children, nothing can be published during the course of proceedings which may identify any child as being involved in the proceedings without special permission.

In theory, this should mean that although the media can attend hearings, they can only report on the process and procedure, rather than the specifics of any particular case.

This may be of little comfort to high-profile clients seeking to protect the intimate details of their private lives and financial affairs. There is a real risk that the presence of the media and the threat of what might subsequently be exposed, may be used as a bargaining tool by one party against the other in an attempt to draw out a better financial settlement.

Whilst there is uncertainty over what may and may not be reported (according to the Times, even the judiciary aren't really sure) there is every possibility that deeply private matters will make their way into the public domain, either through direct reporting, or through jigsaw identification.

There is also the risk that cases may be misreported. The fact that the press are not able to see the documents lodged with the Court and or may not follow a case through to its conclusion are both factors that could lead to inaccurate accounts being published. The very reason behind the changes may be undermined if journalists are not able to paint a complete picture.

Excluding the Media
The practice direction made by the President of the Family Division states that the media 'should' be allowed to attend unless the court exercises its discretion to exclude them. This can be done on the court's own motion or on the application by one or both of the parties. The court can exercise its discretion on the basis of the welfare of a child, or a vulnerable adult, or for the 'orderly conduct of proceedings' i.e. it is physically impossible to accommodate the media in the courtroom.

The media may also be excluded on the ground that a witness will not give evidence (for credible reasons) in front of media representatives and/or because justice will be impeded or prejudiced.

Practitioners need to be alive to the potential risks at an early stage. It is important that clients are advised at the outset of cases that should their case go to court the media may be present. Just because the client wants to keep his or her personal life private may not be sufficient on an application to exclude.

It seems likely that, at least in the beginning, cases will be subject to delay whilst applications are passed higher up the food chain for a decision on whether the media should be excluded, or whether an application by the media to consider the court papers should be granted.

Protecting the Clients' Privacy
It is not yet clear how significantly the changes will affect the reporting of financial proceedings connected with divorce. Only time and test cases will tell. In the meantime practical measures that might be taken include:

1. Using mediation early. Confidentiality terms can be imposed at the beginning of the mediation and then carried through in nay open negotiations until a consent order is achieved.
   
2. If proceedings are issued, consider issuing a separate application to exclude the media at the same time.
   
3. Secure the Court file. When issuing a divorce petition request that the court keeps the file under lock and key.
   
4. Apply for an injunction. By this stage you may be too late but if you have become aware of threatened publication of private information then it is imperative to act very fast to avoid being left with nothing but a damages claim that nobody wants to bring.

Harbottle & Lewis' reputation for handling high profile work is unrivalled. Frequently lawyers from the family law team will work hand in hand with specialists from our privacy/reputation management group where possible exposure or intrusion is likely to be an issue.