Family Court: New Guidance on Reporting Restrictions
On 29 October 2019, The President of the Family Division, Sir Andrew McFarlane, issued new guidance for reporting in the Family Courts to ‘assist the court, the parties and the media in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the Family Court or the Family Division of the High Court’.
Our Complaints and Investigations Manager, Lexie Kirkconnell-Kawana, spoke with Lucy Reed of the Transparency Project about their work, the main challenges of family court reporting and what this new guidance means for journalists.
- What is the Transparency Project?
- What are the differences between wearing the journalist’s hat and being a legal blogger, as opposed to acting in the family courts?
- Many reporters might come to court reporting quite green. How is this reflected in the state of court reporting? What are journalists getting right and what are they getting wrong?
- What is the process and experience like for a typical journalist trying to get access to a family court room?
- Why might families or lawyers oppose a journalist recording or reciting information in their court reports?
- What changes emerge from these new guidelines?
- Should all journalists be trained to understand these issues of accessibility?
- What kind of resources are there for journalists on family court reporting restrictions?
- What is your wish list for the future on matters of transparency?
- About Lucy Reed
- About the Transparency Project
Initially the Transparency project emerged from the frustrations of a group of legal bloggers. We spent a lot of our time collecting not very excellent coverage of family court cases and judgements and then explaining why the headline wasn’t quite right or the explanation was so selective that it was distorting, or why a particular report was really contentious. Eventually, we came together to try and effectively pool our resources and formed the project, and our Family Court Reporting Watch (FCRW) has become one of the main strands of our work.
Through FCRW we explain family court reports when they hit the news or when they have just been published, we correct reports when we think they are not very good by contacting journalists, or in some circumstances we make a formal complaint or take the matter to the regulator. But more importantly, we write our own substantive blog posts, we signpost people to the full judgment and other source materials, and to a other coverage of the case explaining which reports seem to be reasonably accurate and which ones might be less so.
Alongside that we’ve been doing much broader work with all sorts of people within the family justice system – judges, lawyers, the families themselves – and trying to raise the issue of transparency. We also publish a series of guidance notes to help the public understand family law and family courts.
More recently, we have been working really hard on the Legal Bloggers Pilot, which enables us as lawyers to go into family court hearings on the same basis as journalists – this gives us the same rights which journalists have held since 2009 (to attend, subject to the usual reporting restrictions). So we’ve been going as legal bloggers to sit in family court hearings and see what that is like, wearing a reporter’s hat and to try and write informative blog posts as a result of those attendances which might or might not be something that you would ever see in a newspaper.
What are the differences between wearing the journalist’s hat and being a legal blogger, as opposed to acting in the family courts?
It’s surprisingly different as an experience. One of the first things that I wrote about after I attended as a legal blogger was about practicality and the experience – it’s not just that you I am in a different place in the court room to where I’m used to – the location has huge symbolic significance as well as practical significance. If you’re sat at the back of the court, you can’t hear as well as at the front of the court, which I am used to. You aren’t in a position to hold the attention of the court and expect everybody to stop and listen when you stand up, as lawyers have learnt to expect in court.
Being at the back of the court is very much more like the experience that a parent will have sitting behind their lawyer watching everyone else talking about their family, and also a good insight into the experience of being a journalist – being in a situation where you know not everybody wants you to be there, or maybe would rather you disappeared, not really feeling that you have any status and not really knowing when it’s appropriate to interrupt and check things. Until I had this experience, I’d not fully appreciate there was probably mutual anxiety on the part of lawyers and journalists. I think you have to first see and understand that before you can begin to tackle it.
Many reporters might come to court reporting quite green. How is this reflected in the state of court reporting? What are journalists getting right and what are they getting wrong?
The problem is a structural one. Most of the reporting on family court cases is not based upon attendance at court hearings at all. Typically, cases where you see reporting based on a journalist having sat in court will be things like big money cases between divorcing celebrities – in those cases you might find that journalists will show up at the Royal Courts of Justice and will invest their time in because they reckon they’ve got a reasonably good chance of getting something newsworthy that they can report at the end of the day. Similarly, cases conducted in open court where there is a dispute around a sick or dying child’s medical treatment are also likely to be worth deploying to. In most cases though the investment of time is highly likely to result in no publishable end product.
What we’ve seen with newspapers is that they frequently use Press Association (PA) syndicated copy written by individual PA journalists who go onto the BAILII (www.bailii.org) website where most of the judgments are published, and produce copy drawn from those judgments. If the PA find a judgment that has got an element that they think they can make into good copy or into a good headline, then that is usually compressed into 200 words or so and then appears in one or more guises across mainstream media publications. But that report doesn’t come from people sitting in court because newspapers can’t afford to send people.
There is this general rule that a reporter can go down to their local magistrate court or a high court or the Bailey and sit in on cases. But with family matters there is a sort of automatic reporting restriction which can feel quite intimidating to a fresh reporter. What is the process and experience like for a typical journalist trying to get access to a family court room?
Journalists have a right to attend most family court hearings. They might be subject to some opposition if they arrive because, more likely than not, neither the judge not the lawyers will have had a journalist in their court hearings before at all. The rules do actually give journalists the right to attend, but the parties have the right to object. That’s not the problem. The problem is that there are restrictions on what part of the documents a journalist is permitted to read or what dialogue they can actually put in a published report.
Effectively, unless the judge relaxes the standard reporting restrictions, journalists can’t report what’s in the documents, what’s said in the hearing, and they can’t identify those people involved by name or by photograph or by address - but they can report an outline of the nature of the case. That makes it really difficult for a journalist to report anything about a case unless they have asked the judge for permission to report more than the standard restrictions allow. And that requires a journalist in court to be brave enough to intervene during the hearing and make an application to relax reporting restrictions.
That is what the new guidance is about – it gives a practical roadmap for how those applications can be dealt with without too much formality, delay and cost. Effectively, it says that in most cases, journalists can raise the issue at an appropriate point in the court hearing, and the judge can say ‘yes, what does everybody want to say about it?’. And after those in court have had a short time to give some instructions to their lawyers, the judge can then decide. The guidance is intended to make those processes run more smoothly and it’s meant to benefit journalists AND all those other players in the courtroom, who are just as unfamiliar with this sort of thing as the journalists will be.
Why might families or lawyers oppose a journalist recording or reciting information in their court reports?
The bread and butter of what we do with family courts - particularly in cases where the state has intervened, but also in other sorts of cases involving children - involves subject matter that is really intimate and sometimes gruesome. It’s very personal and private and often traumatic. There will be details of sexual abuse or physical assault on children, their most private accounts of what an adult has done to them, medical information - detailing how a child has suffered a brain injury for example, psychological or psychiatric assessments.
So, there’s real tension between the obvious public interest in the reporting of them - because the state is trying to intervene to take away people’s children – and the need for privacy. Sometimes the state is trying to intervene to take away the children of people who are the victims of horrible abuse. There is huge public interest but there is also a real need to protect the parties involved, as they need to be able to get up at the end of the day and get on with their lives without being door-stepped by journalists or being identified in their local communities. Kids should be able to play in the playground without being identified as a victim of sexual abuse.
For example, in the criminal context, the victims of sexual abuse have the right to lifetime anonymity, whereas in the family court we are often dealing with the exact same subject matter but under a different legal framework. So, there’s a real need to balance those competing interests and to make sure that placements of children who have been removed are not disrupted, that if there is a need for a placement to be confidential that it doesn’t become generally known.
New guidelines are supposed to make this process easier for everyone involved, especially the procedural aspects of applying to the court to have reporting restrictions relaxed. Is that the only core difference or are there other significant changes brought about by the family divisions consultation and this new guidance?
It doesn’t change the law. The guidance is just that – it’s guidance from the President of the Family Division. He is the most senior family judge, but it’s not a formal guidance that forms part of the rules of court. Moreover, it doesn’t change the primary legislation and the duty of the court to balance the competing human rights of privacy, the right to a fair trial and the right to freedom of expression. The duty is in every case and it has to be case specific.
Whilst in one case it might be perfectly possible to report everything that is said in a hearing if you don’t name people for example, in another case that just won’t be feasible and fair. So, it’s a balancing act. The reporting restrictions imposed on journalists are also a balancing act and will depend on the specific factors of each case. The guidance doesn’t give an answer for any particular case but it just suggests a practical way of helping the parties, judge and journalists work through those issues without causing too much disruption to the main event, which is the judge trying to decide what’s happened to this child, what the options are for this child and what order they should make in order to protect and promote their best interests in the long term. That had got to be the main priority for the court, alongside trying to make sure that there is also a degree of transparency so that the public can where possible see what’s being done in their name.
It’s not easy for journalists to interpret the automatic reporting restrictions or the procedures in the courtroom. In future, it would probably be really instructive for journalists and legal bloggers to pair up and attend hearings. I’m sure journalists have something to offer from their knowledge that could feed into the way that we do legal blogging, and legal bloggers could probably assist journalists in understanding the context of what they’re seeing, to make their reporting more accurate.
There’s a media page on the Transparency Project website with guidance for journalists. It gives a basic legal framework so that journalists can understand more about the rules and the law in relation to attendance and reporting restrictions.
We are very happy to receive queries from journalists who want quotes or want to check that the way they are describing some legal principle is accurate – though we are a team of volunteers with day jobs so can’t always make ourselves immediately available. We can’t give legal advice about whether a piece might breach reporting restrictions, but we can offer clarity about what the law is and on specific legal principles.
We are very happy to support journalists who are reporting things that are newsworthy but are doing so in a way that is accurate.
I would like to see the Legal Blogging pilot made into a permanent feature of the rules. I think the more we attend hearings as legal bloggers, the more we will understand what the potential is. I hope that over time there will be a greater body of people who are doing this. I think that will mean that there is more information out there for members of the public.
I’d like to think that if lawyers and judges become more familiar with someone sitting in the back of court, whether it’s a journalist or a blogger, that actually some of the anxiety that tends to emerge will fade away because people will realise it is not such a scary thing to have someone in the back of court. I think then journalists will realise that, although the reporting restrictions are quite onerous, they don’t stop you from reporting and that it is possible. And that if they you are sensible about what you ask to be able to report, you will be able to report more than just the bare bones. It can be done with a little bit of thought and care, and I think the more that becomes normal as opposed to an exception, the better.
Lucy Reed has been a family barrister working on cases concerning children for over 17 years. In recent years she has moved into the world of blogging, setting up her own blog about family law and family courts and her experience as a barrister. Through her legal work and via her blogging activity, Lucy met a likeminded group of legal bloggers, lawyers and others and over time from this group’s ongoing discussion and collaboration, the idea of establishing a charity to make family justice clearer was born. Lucy is the author of The Family Court without a Lawyer (2017, 3rd Edition, Bath Publishing) and co-author of Transparency in the Family Courts - Privacy and Publicity in Practice (2018, Bloomsbury Professional Press).
The Transparency Project is a registered charity created in 2014. They explain and discuss family law and family courts in England & Wales, and signpost to useful resources to help people understand the system and the law better. They work towards improving the quality, range and accessibility of information available to the public both in the press and elsewhere. They do not take on individual cases or provide legal services. Find out more about the Transparency Project and the resources they offer on www.transparencyproject.org.uk