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New threat to open family justice provisions

The media wanted more open family justice but instead new legislation is set to increase secrecy with a mesh of new reporting restrictions.

After a glimmer of hope last April when accredited media representatives were allowed access to certain family hearings, Parliament recently enacted the Children, Schools and Families Act 2010, which will frustrate the reporting of family cases when its provisions are eventually brought into force.

The media’s concern was always that courts in which the State wields the power to take children away from parents should be disinfected by the sunlight of public scrutiny.

Last April’s rules on courtroom access were a step in the right direction although certain reporting restrictions remained in place under Section 97 of the Children Act 1989 (C.A.) and Section 12 of the Administration of Justice Act 1960 (A.J.A.).

But it soon became clear that reporters’ access to family courts remained subject to burgeoning privacy law. In July, the President of the Family Division said people’s privacy must be considered when deciding whether journalists should be allowed in to hear “intimate, emotional and sensitive” proceedings.

In the autumn, former Justice Secretary Jack Straw said he still wanted greater openness, but following opposition from judges and family law groups the key provisions of the Children, Schools and Families Act have actually created a thick briar of barely comprehensible restrictions.

It’s important to appreciate the opaque intricacy of the Act’s new secrecy rules, so forgive the detail of the following non-exhaustive summary.

Once in force, the Act will prohibit publication of information relating to various types of family proceedings heard in private, except for “authorised publication” of judgments or certain orders as authorised by the court, “authorised news publication” as defined in the Act, and other publications specifically permitted by the court.

A report will be an “authorised news publication” only if the following five conditions are met.

First, the information was obtained by an accredited news representative in person by observing or listening to the proceedings.

Second, the publisher of the information is the accredited news representative or a person who publishes the information with the consent of, or pursuant to, a contract with that accredited representative, or who has obtained the information from a publication of information which is itself an “authorised news publication”.

Third, the information is not “identification information” relating to an individual involved in the proceedings, or “sensitive personal information relating to the proceedings”, or restricted adoption or parental order information. (“Identification information” and “sensitive personal information” have lengthy definitions with which I won’t bore you.)

Fourth, the publication is permitted by the court where it consists of the text or summary of an order in adoption or parental order proceedings, or of a judgment in other family proceedings.

The fifth condition is that the publication is not otherwise prohibited by any restriction imposed by the court.

You still there? Clear as mud?

When deciding whether to permit certain publications, the Act requires the court to have regard to any risk which publication would pose to the safety or welfare of any individual involved in, referred to in, or otherwise connected with the proceedings.

In relation to “identification information” or “sensitive personal information”, the court may not permit publication unless it is in the public interest, publication is appropriate to avoid injustice to a person, it is necessary in the interests of the welfare of a child or vulnerable adult, or the request is made by a party to the proceedings and granting permission is appropriate in the circumstances.

Further conditions dictate the way the court may restrict reporting, for example in relation to expert witnesses.

The Act also contains “amending provisions” intended to overhaul this reporting regime in future, but it states these cannot not be brought into effect until at least 18 months after the initial regime has been in force and until an independent review of the Act’s operation has been laid before Parliament following public consultation.

Remarkably, the Act is set to repeal most of S.97 C.A. which, in the light of the case of Clayton v Clayton (2006), had enabled children in family cases to be identified in media reports once the relevant proceedings had concluded –giving parties freedom of expression to discuss their case in the press at that stage.

The Act will also repeal parts of S.12 A.J.A. which, in the light of case law had allowed certain information to be published about ‘in private’ hearings regarding children, including the nature of the dispute and the identity of the parties and witnesses, so long as other restrictions such as S.97 C.A. were not breached.

All in all, far from creating greater transparency and a user-friendly reporting regime, the new Act is likely merely to increase secrecy and provide a field day for any lawyers whose clients have sufficient money, time and determination to struggle through the legal labyrinth.

  • Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact him telephone 0800 0731 411 or e-mail nigel.hanson@footanstey.com or visit www.footanstey.com.