Media and the Family Courts: Punishing the Innocent and Protecting the Guilty

This is the talk I gave at Staffordshire University’s Annual Family Law Seminar last week, about media and the family courts within the context of Human Rights legislation. I would like to thank Dr Sue Jenkinson, of Staffordshire University’s Law School, for inviting me to take part. I would also like to thank the academically-minded Andrea Essen of Stowe Family Law, for her tremendous contributions to this talk. I am grateful to both.

On 29^th April 2009 the Family Courts were opened to the press.  Ostensibly this was to redress the imbalance between Magistrates and County or High Courts.  The rules allowed registered members of the UK Press Card Authority  to attend any family court hearing which is not for the purposes of judicially assisted negotiation.

The impact of this is that they can attend a first appointment, interim or finding of fact hearings as well as a final hearing but not a Finance Dispute Resolution Hearing or a Conciliation Appointment in Children Law proceedings.  If at any point during a hearing it becomes a judicially assisted negotiation or conciliation hearing the judge must ask the press to leave.  The press are not entitled to be present for any negotiations between parties which are not judicially assisted.

The rules allow the Judge to exclude the Press in order to protect a party, a child subject to the proceedings, for the sake of justice or to ensure the orderly conduct of proceedings.  However it is a tough hurdle to jump as in most cases, anonymising the parties and children would protect them as much as excluding the press. In the case of Spencer v Spencer [2009] EWHC 1529 (fam) the court determined that they did not have sufficient grounds to exclude the press and as this was an ancillary relief case, the judgment to the hearing would not need to be anonymised.  Ultimately the parties reached a financial agreement to avoid the publicity of the press dissecting the intimate testimony of the parties.

The second case testing the current rules was Re X [2009] EWHC 1728 (fam) regarding a contact and residence hearing for the child of a celebrity.  It was determined that allowing press to attend would be harmful to the relationship established between the CAFCASS officer and the child, and secondly that justice was likely to be impeded by the presence of journalists and it was in the interests of the child concerned with the proceedings to exclude the press.  Perhaps significant in this case was that there was already a contra mundum order in place preventing information being solicited regarding the child or publication of any information naming or identifying the parties or the child.  The court reflected in this case that there is no special provision within the legislation for the protection of celebrities but that additional consideration should be given in such cases to the additional media interest and likely impact of this on the child. (This decision appears to have been given weight in the interim findings of the report by Sir Al Aynsley-Green the Children’s Commissioner for England, who found that children were less willing or able to discuss abuse if they were aware the press were present.)

The press can provide details of financial hearings where they do not identify children.  As yet they cannot have sight of any documents referred to, such as asset schedules, trial bundles or client statements.  They can, however, provide the names and addresses of the parties, the basis of the application, the legal arguments and the judgment.  They can’t directly recount the evidence or the background of the proceedings.

At this stage I raise the question as to whether access to the press in divorce, financial or private act proceedings is necessary, desirable or even helpful.  Divorce and separation are one of the most traumatic events that a person can experience.  Few people do things that reflect well on them during this emotionally devastating time.  Evidence at court hearings may include deeply personal accounts of events and will inevitably include every last detail of the parties’ financial situation.

The current rules mean that the press is entitled to report the judgment which will summarise all of the evidence before the judge as well as the names and addresses of parties in ancillary relief proceedings.  This simply adds to the personal trauma of the parties including a very public invasion of their family structure and personal finances.

How does this improve fairness and accountability or even add to a person’s understanding of the English justice system?  How will it be helpful for Beatrice to read the very brutal details of her parent’s conduct in court and the judge’s damning findings against her mother in his judgment of the Mills v McCartney case?

Divorce Services Find your local office

Provision is being made through a trial project in Leeds for the publication of anonymised judgments in all family cases.  Perhaps this is a more sensitive way to approach matters.  There can be very little gained by the names of individuals being published along with their personal details and finances.  Essentially the parties are being named and shamed in a paper as if convicted of a crime for a personal civil dispute.  Is this simply legalised voyeurism?

Although currently the press are not entitled to sight of any documents referred to within the proceedings, the Children, Schools and Families Act 2010 (passed 8 April 2010) means that the press could be entitled to sight of and to publish documents referred to during proceedings.  Again the question arises over what benefits this could produce for the public and to balance this against the rights of the parties to privacy and family life.

In contrast to the permission to publish for financial and divorce matters, there are strict restrictions on identifying children involved in proceedings, whether public or private law cases.  The Children, Schools and Families Act means that in cases involving children, the press cannot identify any of the parties or name the schools of the children involved even following the conclusion of the case.  They cannot give any details from the case and instead can only report on the generalities of the matter.

This is designed to provide additional privacy and protection to the children and yet the question is raised as to whether protection is provided for the children.  The family court matters cannot be referred to outside of the family court.  They cannot be used in criminal proceedings and a parent of a child taken into care through neglect or abuse is not named to the public.  The risk remains that the parent can continue their behaviour.

We are left with the odd dichotomy that private law cases for finances can be made public, despite there being no real public interest in naming individuals in a divorce or publishing details of their finances or “conduct” but public law care proceedings are private despite there being a real risk to children in the future.  Is this in the children’s best interests and does it protect children?

I am not arguing that the child’s anonymity should be removed but instead that the law designed to protect children is unfortunately a foil which protects adults who have failed to care for children adequately and are subject to care proceedings as well as failing to vindicate those who are found not to have been “guilty” of such behaviour or where placing a child in care was not deemed necessary.

I was involved with the tragic case of Sally Clark.  Her criminal proceedings were well publicised and the press portrayed her as an unfit mother, a heartless killer and a cold, ruthless career woman who resented the existence of children in her life.  Nothing could have been further from the truth.

There were, of course, public law care proceedings ongoing alongside the criminal prosecution but none of the expert witnesses relied upon in the care proceedings could be referred to at the criminal trial.  It was argued by Mr and Mrs Clark that the findings of the family court in relation to their youngest child would have assisted.  In those proceedings it was made clear that Sally Clark was a loving and capable mother far removed from the image of a heartless career woman who resented the time and energy her children took as she was presented in the criminal trial.  Ultimately the child was permitted to remain with Mr Stephen Clark as it was determined there was no risk to the child. Under the Children, Schools and Families Act Sally Clark could never discuss the details of the care proceedings regarding her youngest son.

Under current restrictions the press are not able to report on the specific details of any Children Act hearings including identifying experts, the parties or the information contained in documents to the proceedings and although the proposed amendments will open up the family courts further they retain the privacy of Children Act proceedings.

The Children, Schools and Families Act was passed on 8 April 2010 despite heavy criticism by both solicitors, children groups, and human rights campaigners.  As drafted the second stage of the Act will allow the press to request access to documents referred to, as well as to name experts who provide evidence if the experts are paid to produce the report (ie. not GP or A&E staff records).  Prior to the second part of the Act coming into force, there must be a full independent review of the impact of the current access provision.

The legislation will be implemented in two stages. The first stage will allow journalists to report most details of individual cases they see, unless a judge restricts publication, but excludes reporting the identities of the parties involved and ‘sensitive personal information’ could not be reported unless a judge agrees.  Journalists will also be allowed to name expert witnesses if they have been paid to give evidence. These rules will not cover the final stage of adoption proceedings, which will be closed to the press in their entirety.

Implementation of the second stage would enable journalists to report ‘sensitive personal information’ about the parties involved in a case. The criteria used by judges to decide whether to apply reporting restrictions will be relaxed, making it more difficult to restrict reporting in the interests of the child. The Government also plans to amend the law so that journalists can name all expert witnesses rather than only those who have been paid.

The main objections to the Act are cost, reduced protection for children and the impact on professional experts who may decline to give evidence if their evidence can be reported upon.  The Joint Committee on Human Rights also reported that the proposed legislation may be contrary to the UN Convention on the Rights of the Child.  As Article 16 of the Convention on the Rights of the Child states:

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.’

There is a careful need to balance the rights of the public against the rights of the parties and significant time has been dedicated to that balancing act by legislators and practitioners alike.

When establishing whether the naming of parties is a legitimate action we need to consider the European Convention of Human Rights as enshrined in the Human Rights Act 1998.

Article 8 of the Convention gives a right to respect for private life to the individual.

A public authority such as the court which interferes with or proposes interfering with a person’s right to respect for private life through the collection, retention and dissemination of information about the parties or children of the parties must be able to demonstrate that what they are doing is in the course of one of six legitimate aims set out in Art 8(2). No other aims can be used to justify an interference.

Those aims are:

• National security;
• Public safety;
• The economic well-being of the country;
• The prevention of disorder or crime;
• The protection of health or morals;
• The protection of the rights and freedoms of others.

It is difficult to see which of these permitted aims is served by disclosing data about parties to private family law cases, collected in the context of private law proceedings, to the press.  Only the last point could feasibly be argued and in that case we must balance Article 8 with other Articles.

Article 10(1) provides the right to freedom of expression. The rights of journalists and the media include the right ‘to receive information’. However, this does not award the press a general right to access any information which it wishes to receive but only to receive information that others wish to impart it to them. This was affirmed in Guerra v Italy (Grand Chamber) (1998) 26 EHRR 357.

Art 6 will only retain relevance if disputes relating to access by the media to documents on the file cause delays to the substantive decision in the case.  In that case the state may be held responsible for having introduced legislation which creates additional unacceptable delays to occur in proceedings, this will clearly have greater relevance in Children Act proceedings than in purely financial cases.

In order to justify Press access to private proceedings and in particular the right to publish that information, the Court must be satisfied that the public interest in this disclosure must outweigh the individual’s right to privacy.  It is difficult to see how this can be the case in a private law financial case which raises no conduct issues or personal or public welfare considerations.

In Children Act private law proceedings the need for privacy is ever greater where no welfare issue arises.  The Convention on the Rights of the Child (CRC), Art 3(1) (see below under Art 53) puts great emphasis on the ‘best interests of the child’ in reaching decisions about him and on protecting the child’s privacy. A particularly strong case would have to be made to permit the media access to information which had been collected and retained for the exclusive purpose of enabling the court to make appropriate decisions over contact and residence.

The question of whether the legislation authorising the proposed interferences could be considered ‘necessary in a democratic society’ depends upon its proportionality. Any legislation adopted or measures taken must not constitute a greater interference with individual rights than is necessary for the attainment of the identified permitted objective.

The second phase of the Children, Schools and Families Act, would allow media representatives who attend proceedings to have a right of access to view documents, which they will then be able to use in their reports, thereby enabling full reporting of the ‘substance’ of family proceedings. It is difficult to see how these proposals are compatible with Art 8 ECHR.