April 27, 2009
Frances Gibb, Legal Editor
Thousands of family courts are opened to the media for the first time today, amid fears that stringent reporting restrictions will make a mockery of the reform.
Britain’s most senior family judge, Sir Mark Potter, has warned that courts will face a deluge of media applications to report cases and see documents, which could lead to a “damaging” inconsistency of approach by courts.
Ministers had failed to issue guidance on how judges should deal with media requests, despite being urged to do so by High Court judges, Sir Mark, President of the Family Division, said. He issued his own briefing to courts to avoid inconsistent decisions up and down the country.
Where issues cannot be resolved, they will have to be referred urgently to the High Court for a test ruling, he said.
He predicted that courts would face detailed legal argument on human rights, public and private interests, the welfare of children and the meaning and application of the law.
There are increasing concerns that the landmark opening of the family courts may prove a damp squib pending legislation to remove reporting restrictions. Jack Straw, the Justice Secretary, has indicated that he intends to legislate to deal with reporting restrictions, but there is no imminent slot in the timetable.
Under the changes, judges will have wide discretion to exclude the media or to restrict reporting. There is also no media right to see documents relied on in court.
The Society of Editors, the Newspaper Society and individual media organistions have protested to Mr Straw, saying that if reporting restrictions are not lifted the effect will be to nullify the entire purpose of the change and the Government’s stated aim of openness and accountability.
The media’s role as the public’s eyes and ears would be completely subverted because the cases where there was most acute public concern — those involving taking children into care — would remain unreportable.
Nigel Hanson, media lawyer with the solicitor Foot Anstey, said: “The rules still give courts wide powers to exclude the press and even, where access to the courtroom is allowed, very little of genuine interest to readers is likely to be actually reportable.”
He said that although accredited media representatives would be entitled to attend hitherto private family proceedings in the county court and High Court, there was no right to attend adoption or “placement” proceedings or judge-assisted conciliation or negotiation hearings.
Courts will have the power to exclude journalists if it is felt to be in the interests of the child; for the safety or protection of a party, witness or person connected with a party or witness; for the orderly conduct of proceedings; or because justice would otherwise be impeded or prejudiced.
Judges can exclude the media of their own volition or in response to a request by the parties or a witness.
Although journalists must be given the opportunity to make representations against exclusion, there is no right of appeal. They can challenge exclusion only by way of a judicial review, which could take months. In the meantime, the family hearing will not be delayed.
Even where journalists are admitted, they are bound by strict reporting restrictions to protect any identification of children, without special permission.
Mr Hanson said: “In short, the new rules may facilitate a novel experience for reporters to see what goes on in family hearings but they are unlikely to produce much usable copy.”