Family courts across England and Wales open up to the media today, but many of the cases with which they will be dealing will remain unreportable.
Although rules have been changed to allow reporters to attend many more family court hearings, reporting restrictions mean that in many cases journalists who do attend will not be able to write about what they see and hear.
In addition, the new rules contain a number of provisions which will allow courts to exclude journalists.
Justice secretary Jack Straw said: “Family courts play a crucial role in our society. It is vital that these courts command the confidence of the public. If justice in these courts is seen to be done, they will be trusted by the public.
“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.”
In December last year, when he announced that the family courts were being opened to journalists, Straw told the House of Commons that “the media will be subject to reporting restrictions similar to those that apply in the youth courts”.
But changes introduced by the Ministry of Justice and Statutory Instruments implementing the reform have failed to address the issue of reporting restrictions
It is, however, understood that Straw is committed to pushing ahead with further changes, to ensure that courts dealing with cases involving children can be reported on the same basis as criminal cases in the Youth Courts.
This would mean it would unlawful to publish anything which would identify any juvenile involved in the case. But it would be possible to identify adults such as social workers and doctors, and to report details of the case such as the allegations involved.
The new rules allowing journalists to attend family proceedings hearings in County Courts and the Family Division of the High Court also provide for their exclusion on a number of grounds.
These are that exclusion is necessary:
- In the interest of any child concerned in, or connected with the proceedings,
- For the safety and protection of parties, witnesses, or a person connected to a party or witness,
- For the orderly conduct of proceedings – which is apparently intended to cover situations where more journalists wish to attend than a court can accommodate.
But under the current legal regime, even if journalists are allowed into hearings involving a child which are held in private – as they invariably are – they will unable to report anything about that case unless the court gives specific consent.
This is because section 12 of the Administration of Justice act 1960 makes it a contempt of court to publish any information about a hearing in a court which is sitting in private in a number of circumstances.
These include when the case relates the exercise of the High Court’s inherent jurisdiction with respect to minors, when it is brought under the Children Act 1989 – which would cover applications to take a child into care, and disputes between estranged parents about where a child should live – and when a case relates wholly or mainly to a child’s maintenance or upbringing.
Section 12 also applies in the case of hearings in private for national security reasons, as well as for hearings involving the Mental Health Act 1959, when the information relates to a secret process, discovery or invention which is in issue in the proceedings, and when the court expressly prohibits the publication of all information.
Officials at the Ministry of Justice who have been involved in discussion with media groups over admitting journalists to family courts insist that private hearings will remain private even if journalists are allowed to attend – and that the section 12 ban on reporting cases involving children will therefore remain in place.
The Newspaper Society and the Society of Editors, supported by the BBC, ITN and the Press Association, have written to Straw expressing their alarm over the Ministry’s approach.
“We cannot emphasise too highly that if this interpretation is correct, then its effect will be to nullify the entire purpose of the past several years’ discussions and the Government’s stated aim of openness and accountability,” they said in the letter.
The MoJ responded by saying: “The bottom line is that we are transforming the way the family courts can be reported.
“We announced that media could attend – from April if possible. That is what we have done.
“We did not announce that reporting restrictions could or would be lifted in April. To do so we need to change the law through Parliament. We said we would legislate to revise reporting restrictions as soon as parliamentary time allows. We are actively seeking opportunities to do so
“The Justice Secretary is clear that while there must be a balance between the need to protect children in family court cases, the aim of the revised reporting restrictions will be to open up the family courts to a greater degree of transparency. This is in line with his overall aim of opening up the justice system.
“We said the media would be able to discuss in a more informed way how the system works.
“We said that until legislation revising reporting restrictions is in place, reporters will be able to report sufficient outlines of cases that will allow their readers to understand the gist of proceedings without identifying those involved.”