Reporting on the Family Courts: Key considerations
The President of the Family Division, Sir Andrew McFarlane, has released draft guidance, for consultation, on reporting in the Family Courts. The consultation closes on 30 June 2019.
The publication of this guidance follows an appeal in Re R (A Child) (Reporting Restrictions)  EWCA 482 Civ heard on 15 February 2019.
Sir Andrew McFarlane, who is also Head of Family Justice, said he welcomes people’s views and suggestions to the consultation.
This blog post addresses:
- Family Court Reporting: The basics
- The proposed guidance: A summary
- Two further considerations on court reporting
- Participating in the consultation
As a journalist, what are the main issues you face when it comes to family court reporting?
Journalists may wish to report on Family Court proceedings but there are rules and restrictions that mean this is not straightforward.
Family Court proceedings are normally held in private. The public are not allowed to attend these proceedings. However, journalists can attend (unless the Court has specifically said otherwise). While journalists can attend, they do not have an automatic right to report on or publish details about the proceedings, particularly about the children involved.
>> These restrictions can be “automatic” or come into place because of an order of the Court.
The statutes that set out these restrictions include:
- Children Act 1989
- Administration of Justice Act 1960
- Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968
- Sexual Offences Act 2003
A Court can also lift or extend the restrictions on reporting – and may issue a Reporting Restrictions Order to that effect.
The below is a summary of the draft guidance proposed by the President of the Family Division, Sir Andrew McFarlane.
- If a judgment is published by the Court:
A Court is required, in every case, to consider whether to publish judgments. As a journalist, you don’t have to make a formal application for the Court to make this decision. If a judgment is published, you may report on it.
- If there are reporting restrictions:
A journalist can apply to change or lift them. There is a formal process for doing this, but it may not be necessary in all cases for journalists to follow the formal approach, as Sir Andrew McFarlane says: ‘It is a time-consuming and expensive process and may generate additional unnecessary public expense or delay in a straightforward case.’
Instead, a journalist can give notice by emailing their request to the court office or the judge’s clerk; they must make sure it has been copied to the parties.
The journalist can also attend the hearing and in person ask the Court to change the reporting restrictions.
- What to expect from the Court:
The Court should break for a short time to discuss the terms of the request and make sure everyone understands what can and cannot be reported on.
Everyone should usually be able to agree what should happen without the need for formal applications.
>> It’s always helpful to have written copies of what information the journalist is requesting and for those involved to highlight any contentious wording.
- If the parties cannot agree:
If the parties cannot agree amongst themselves, a journalist should be invited to make oral submissions. The Court and the lawyers should help the journalist with any formal processes they need to follow.
Anyone who disagrees with the journalist’s request should be able to make counter points and the journalist should be given the opportunity to reply.
- If the hearing is already over:
If the hearing is already over, the journalist can email the court office or the judge’s clerk and make their request. This request must be sent to the parties, the Court must let the parties know and provide them with an opportunity to respond to the request before deciding on it.
The Court may also need to allow time and opportunity for other media organisations to comment on the request.
The Court will then need to provide a reasoned judgment on all requests. When making its decision, the Court will need to balance privacy, transparency and human rights.
At this point, the Judge should also reconsider whether to publish their judgment – the Judge may decide to adopt other reporting restrictions and, if so, refer it to a High Court judge.
- Staff at the Courts should make the effort to help journalists with these sorts of requests and provide journalists with relevant contact details of the court office, the judge’s clerk and the parties where requested, unless there is good reason not to do so.
- Standard approach to costs will be followed and a journalist should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or has taken an unreasonable stance.
If you wish to participate in the consultation on the draft guidance for Reporting in the Family Courts for, keep in mind that the deadline is 30 June 2019.