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The Law Column: Are family courts leaning in favour of freedom of expression?


In the spring this year, we had a series of articles based on anonymity orders, the privacy of individuals and automatic reporting restricting. With winter just around the corner, it was about time to have another article on court reporting and automatic restrictions.

Sir Andrew McFarlane, the President of the Family Division, has recently published guidance on reporting in the Family Courts.

The Family Courts can often result in interesting and often unique news stories, but, as every journalist will know and respect, the topic must be treated with the greatest of sensitivity, due to the very nature of its content.

The President’s Guidance appears to be a step towards relaxing what was previously regarded as very strict rules, as all journalists will know, that effectively all cases involving minors or children, will have an automatic reporting restriction.

Historically, all Family Courts were held in private, but this changed with the introduction of the Family Procedure Rules 2010. However, the President’s New Guidance is a welcomed addition to the media world, as it looks to set out the way that journalists are able to report on Family Court Cases.

The Court has always had the ability to lift automatic reporting restrictions, but it has never been easy to understand the process and what lifting a restriction actually entails.

However, the fundamental exercise that a Judge will have to do is the balancing exercise between European Convention on Human Rights 6 (fair trial), 8 (privacy) and 10 (freedom of expression), but as the primary consideration, a Judge will need to assess the best interests of any child / minor.

And that’s what it fundamentally boils down to, the best interests of any child.

The process of applying to lift the automatic suspension in Family Courts within the President’s Guidance appears to be relatively straightforward and might be changing the media legal landscape in favour of the press.

Ordinarily, an application to vary or lift a reporting restriction is a time consuming and expensive process, with specific Court forms needing to be used. However, the President has made specific reference that this should not be necessary in many cases, and in particular:

  • No formal application is required for the Court to publish its judgment;
  • If a reporter attends the hearing, the application can be made orally, whether or not notice is given in advance of the hearing (although it is courteous to email the Judge’s clerk beforehand);
  • Once the hearing is over, a formal application is not required, and it can be made by simply emailing the Judge’s Clerk or Court and cc’ing the parties if possible (the Court will allow the parties to respond before lifting or varying a restriction);
  • Judges are now encouraged to assist reporters seeking to attend a hearing or to relax reporting restrictions and should provide contact details of the court office, clerk and the parties where requested;
  • The Judge should, at the beginning of a hearing, attended by a reporter, enquire whether the reporter wants to make an application to lift / vary a restriction and if at that stage, there is none, invite the reporter to alert the Court at a later stage if that position changes.

An interesting section of the President’s Guidance is that the Court will adjourn the hearing for a short period of time where a reporter has indicated s/he intends to request a varying / lifting of a reporting restriction.

If the parties don’t agree, the reporter is able to make oral submissions there and then and the Court is even obliged to assist that individual in terms of relevant law and procedures!

The parties will be given the chance to respond and the reporter is then given a final chance to reply.

In the more complex cases, the Court recognises that if further evidence or submissions are required, the hearing should be adjourned for a further period. The Court will then make a decision by balancing Articles 6, 8 and 10, along with the best interests of any child.

An important feature of the President’s Guidance is that the Court is required to provide a reasoned judgment on the application to vary / lift the reporting restriction, although not a ‘detailed and compendious judgment’.

For those who report on Family Cases, it would be prudent to review some of these in advance of making future applications.

Last but not least (and probably one of the more important points for the press), reporters who make these applications will not be at a costs risk unless that individual has ‘engaged in reprehensible behaviour or has taken an unreasonable stance’.

This means that the reporter won’t be on the hook for any costs if the application fails, unless they really annoy the Judge!

The President’s Guidance is a welcomed addition to the media world and should make it easier for reporters to (1) attend hearings and (2) to lift / vary restrictions and therefore, it should hopefully result in more reporting of Family Cases!

Happy Court Reporting!