The new rules on media access to family courts come into force on 27 April 2009. Adam Wolanski, of 5RB, summarises the rules and their effect
On Monday 27 April 2009 new rules come into force governing, amongst other things, the attendance of media representatives at family proceedings.
The Family Proceedings (Amendment) (No.2) Rules (SI 2009 No 857) insert into the FPR 1991 a new rule 10.28 which allows for ‘duly accredited’ media representatives to be present during family proceedings. Accreditation is carried out under the UK Press Card Scheme. Representatives of the media without a valid Press Card may nonetheless be admitted at the court’s discretion.
The accompanying practice direction states that media representatives “should” be allowed to attend family proceedings subject to the court’s discretion to exclude them. This discretion can be exercised on a wide variety of grounds, including the welfare of a child or vulnerable adult, or for the ‘orderly conduct of the proceedings’ – i.e. because of the physical limitations of the court room.
The media may also be excluded if a witness states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives.
Where the court is considering excluding journalists, it should permit “any media representatives who are present” to makes representations. There is no requirement upon the court or any party to notify the media of an intention to exclude journalists (contrast the position of parties seeking injunctions against the media who are required under the President’s Practice Direction of 18 March 2005 to give notice to the media of such applications). It may therefore transpire that where exclusion orders are made this takes place without hearing from media representatives.
Importantly, the new rules do not change the ‘private’ nature of the proceedings. This means that s.12 of the Administration of Justice Act 1960 still applies to reports of the proceedings, making it a contempt to report almost any information from the proceedings if they concern minors. In effect, therefore, journalists will not be permitted to report cases they attend which concern children except with the permission of the court. Neither, in the majority of cases, will they be able to identify the parties to such proceedings given the restrictions in s.97 of the Children Act 1989 on identifying children involved in proceedings under that Act.
Furthermore, the provisions do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court or otherwise in accordance with Part 11 of the FPR 1991 (rules relating to disclosure to third parties).
The provisions do not apply to hearings which are conducted for the purpose of judicially assisted conciliation or negotiation and media representatives do not have a right to attend these hearings.
The rules therefore do not have the far reaching effect many, including most of the media, were hoping for. The government’s stated intention is to introduce legislation to permit the reporting of family proceedings, but it is uncertain when this is likely to happen.
The rules are likely to lead to disputes in some cases not merely about whether media representatives should be allowed to attend hearings, but also as to whether the court should permit media representatives to see documents referred to in court (without which the proceedings may make little sense) and to report part of least of what they have seen. The governing principles on such applications are as set out in cases such as Norfolk County Council v Brandon Webster  EWHC 2733 (Fam) and Kent CC v B  EWHC 411 (Fam).
See the Practice Directions and Guidance: