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A principle approach to media access after Re Child X
18 September 2009
This article considers the judgment of Sir Mark Potter, President of the Family Division in Re Child X (Residence and Contact: Rights of the Media Attendance: FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam), [2009] 2 FLR (forthcoming). Child X, with the support of the mother, applied for an order that representatives of the media be excluded from future hearings in relation to the applicant’s application for contact and residence in respect of their child.
BACKGROUND
Residence and contact proceedings began in 2007. Throughout the proceedings the court had been concerned with the effects of publicity on X. The parties had been the subject of considerable press attention by both the domestic and foreign press. A Cafcass officer, Miss E, was assigned in early 2008. In late 2008, Dr C, a consultant child and adolescent psychiatrist was jointly instructed. In December 2008 Dr C expressed concerns regarding X’s welfare and directions were made concerning his involvement and for the progression of contact. At the hearing in March 2009 the court heard further evidence from Dr C together with evidence from Miss E, the Cafcass officer. An interim decision was made and judgment handed down in April 2009.
In light of the extremely sensitive nature of Dr C’s and Miss E’s evidence concerning X and in the context of manifest media interest outside court during the hearing the judge, in anticipation of her judgment which was reserved and on the urgent application of the parties, made a contra mundum injunction in relation to X until her 18th birthday or further order
prohibiting, inter alia, the publication of information which might lead to the identification of any arrangements relating to the child’s care, residence, education, treatment or upbringing. Directions were given for further hearings on 27 April 2009, July 2009 and November 2009 when a final decision was contemplated. At the time those directions were given the date for the change of rules in relation to media access was not known. The April 2009 judgment dealt with the detail of the evidence of Dr C and Miss E. The court then set out the basis for a 6 month adjournment during which Dr C would co-ordinate a
therapeutic process with X.
The matter came before the court on 27 April 2009, the very day on which, with the coming into force of The Family
Proceedings (Amendment No 2) Rules 2009, the media were permitted access to hearings held in private in accordance with the new FPR r 10.28. With representatives of two national and one foreign media organisation in attendance at the hearing, the judge made an order on the joint application of the parties transferring an application to exclude the media from future hearings to the High Court for consideration, pending which the hearing of the case was adjourned.
THE COMPETING ARGUMENTS
FPR Rule 10.28(4) provides that:
At any stage of the proceedings the court may direct that persons within para (3)(f) shall not attend the proceedings or any part of them, where satisfied that -
(a) this is necessary -
(i) in the interests of any child concerned in, or connected with, the proceedings;
(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
(iii) for the orderly conduct of the proceedings; or
(b) justice will otherwise be impeded or prejudiced.
The problem facing the applicant and his advisors at the hearing before the President was how to advance the parties’ case for excluding the media under r 10.28(4)(a)(i) and (b) in a manner which allowed the media to make effective representations without disclosing to the media the very information which he sought to protect by excluding them.
The applicant proposed, and the President so directed, that the hearing of the application should take place in two stages. At stage 1 the court would consider the principles to be applied in relation to media access and reporting in family law cases - specifically, at the President’s direction, in relation to the children of ‘celebrities’; at stage 2 the court would consider the application of those principles to the present case. It was directed that any media parties wishing to be heard could attend the stage 1 hearing and that consideration would be given at the conclusion of stage 1 as to whether or not, and on what basis, the media parties would be permitted to attend stage 2 of the hearing. The court also appointed counsel to be nominated by Cafcass Legal to act as advocate to the court (amicus curiae). The applicant submitted that:
- in family law cases involving the children of ‘celebrities’, the protection of the Art 8 rights of the parties and their children will generally require that the media be excluded from hearings altogether and that the procedure adopted by the court to determine whether or not they should be excluded should involve withholding from the media the information sought to be protected and/or upon which the application for exclusion is based;
- that this was not because ‘celebrities’ or their children were entitled to enjoy special treatment but merely a reflection of the reality that public curiosity about the details of their lives is such that the risks of publicity that they face are much greater than those faced by ‘ordinary’ people.
The applicant argued that in order to exercise the power in r 10.28 in a manner which was compliant with the European Convention on Human Rights the court must carry out the ‘parallel analysis’ confirmed by the House of Lords in Re S (A Child) [2005] 1 AC 593, [2005] 1 FLR 591 balancing the Art 8 privacy rights of the child and the parties against the Art 10 rights of the public and media to receive and impart information. When carrying out the ‘intense focus’ prescribed by Re S the court must have regard to factors including the following:
- the more intimate the aspect of the person’s private life the more serious must be the reasons for interference to be legitimate;
- the existence of contractual relations and duties of confidence (including in particular medical confidences)
between individuals must be given significant weight and will affect whether there is a public interest in disclosure; - that, in line with Strasbourg jurisprudence such as Von Hannover v Germany [2005] 40 EHRR 1 and subsequent cases, the decisive factor in balancing the protection of privacy against the media’s right to freedom of expression will lie in the contribution that the information makes to a debate of general interest.
Gavin Millar QC for the media argued that the proper configuration of the Convention rights in play required the court to focus not on the balance between Arts 8 and 10 but solely on whether exclusion could be justified under Art 10(2), specifically in interest of ‘maintaining the authority and impartiality of the judiciary’. The wording of r 10.28(4) was such that Parliament had made it clear that the only privacy interest that can justify exclusion of the press is of a child, not of adult parties or witnesses. Central to the case of the media in seeking access to future hearings of the case was the argument that X’s interests would be sufficiently protected by the existing statutory reporting restrictions in s 97(2) the Children Act 1989 (CA 1989) and s 12 the Administration of Justice Act 1960 ( 1960) an argument supported by the advocate to the court.
The applicant argued that the statutory regime of reporting restrictions was insufficient to protect the privacy interests of a child in which there was media interest. It would be impossible to police compliance with the reporting restrictions. The sanction of committal or a criminal prosecution for a breach of s 97(2) of CA 1989 is of no practical benefit. In relation to a foreign publication without any presence in the jurisdiction the sanction would not be available at all.
THE PROCEDURE ADOPTED
At stage 1 the applicant suggested that there were two options available to the court to reconcile, on the one hand, the need to avoid revealing to the media the very information which it is sought to protect by seeking their exclusion whilst, on the other hand, permitting the media to make effective representations:
(1) either the judge must be trusted to make a decision on the basis of materials put before him with the media accepting a summary of his reasons; or
(2) the court could appoint a ‘special advocate’ such as Cafcass Legal who could provide an independent appraisal of the material.
The applicant advocated the first option as the most practical route and the most likely to achieve consistency of approach. Adam Wolanski as advocate to the court instructed by Cafcass Legal proposed that the media should be given notice of any applications to exclude in accordance with the President’s Practice Direction and accompanying Practice Note of 18 March 2005. At the conclusion of stage 1 the President indicated that he was not minded to exclude the media from stage 2 of the hearing. The hearing of stage 2 of the application therefore took place with the media present. The applicant therefore provided documents indicating the nature of the matters which he sought to keep private to the judge alone on a confidential basis and on the basis that they would not be disclosed to the media.
THE EVIDENCE OF DR C AND MISS E
Miss E stated that X was upset by the reporting of her circumstances in the media and expressed concern that if the media were to be present it would not be possible to maintain the level of anonymity required to safeguard X from emotional harm. Dr C expressed concern about the damaging effect upon progress and outcome of the work being undertaken with X should the media be permitted to attend notwithstanding the statutory reporting restrictions. If X were to be informed, as she must, that the media were to be present when information about her is discussed she would: (a) be highly likely to assume, regardless of explanations to the contrary, that the media were present at the instigation of one of her parents; and (b) would not have sufficient trust in the ongoing process to be able to participate in it with the result that the work being undertaken with her would be unable to continue.
It was Dr C’s view, and the clear view of the Medical Protection Society, that for him to disclose to the court in the presence of the media the information he possessed concerning X would constitute a clear breach of confidentiality as X had not been warned that this was a possibility. At the direction of the President, and with the permission of Dr C and Miss E, their statements were disclosed during the course of the hearing to the media’s legal representatives only on the basis that their
content would not be further disclosed.
THE TEST TO BE APPLIED
The President noted that r 10.28 had been introduced without any amendment to the existing statutory reporting restrictions in s 97(2) CA 1989, s 12 AJA 1960 or s 39 of the Children and Young Persons Act 1933. Apparently not entirely persuaded of the media’s earnest desire to scrutinise the workings of family justice and enlighten the public the President observed that it was in the context of disputes over children between ‘celebrities’ that the media found the current statutory reporting restrictions most ‘irksome’ (para [39]). Categorically rejecting the formulation advanced by the media he found that the current status quo legitimately balanced the competing Arts 8 and 10 rights of individuals and the press and that the government had recognised the Von Hannover distinction between information capable of contributing to a debate of general interest and merely private information concerning individuals, the reporting of which plays no part in the media’s watchdog role.
The test to be applied when considering the question of exclusion of the press is therefore the balancing exercise and process of parallel analysis in Re S. Where questions of confidentiality are also at play the question is not whether the information is a matter for public interest but whether it is in the public interest that the duty of confidence should be breached. While noting that nothing in r 10.28 provided for the exclusion of the press where the Art 8 interests of the parties (as opposed to those of the child) required the President observed (at para [45]) that:
‘[O]ne can envisage a situation where a ground for exclusion, at least for part of the proceedings, might be required to
protect the Art 8 interests of the parties which could properly justify exclusion of the media under ground (b) to prevent the press from hearing and/or reporting allegations of an outrageous or intimate nature before the court’s decision as to whether or not they were established.’
It is strongly arguable, given that the privacy interests of the parties are not specifically referred to in r 10.28, that r 10.28 (4) (b) or perhaps 10.28(4) (a)(ii) must be construed in such a way as permit exclusion on the grounds of the privacy rights of the parties if the Rule is to be Convention compliant and avoid the new regime becoming a ‘blackmailer’s charter’.
CRUCIAL OBSERVATIONS BY THE PRESIDENT
Having established the nature of the test to be applied, the President made six important observations (at paras [51]-[58]):
(1) Private law family cases involving the children of celebrities are in principle no different from those involving the children of anyone else and there is no assumption of privacy more favourable to a celebrity;
(2) In order to exclude the media under r 10.28 the court must be satisfied that it is necessary to do so;
(3) Rule 10.28 is Convention compliant in relation to the media’s Art 10 rights but exclusion must be necessary per Lord Bingham’s formulation in R v Shayler [2003] 1 AC 247 (at para [23]), must correspond to a pressing social need, be proportionate to the legitimate aim pursued and be for reasons that are relevant and sufficient under Art 10(2);
(4) The reference in the Practice Direction of 20 April 2009 to the exercise of the court’s discretion is a misnomer; in applying the tests of necessity, legitimacy and proportionality the court is making a value judgment based on the facts of the particular case;
(5) The burden of satisfying the court of the grounds for exclusion in r 10.28(4) rests with those who seek exclusion and will be easier to satisfy where what is sought is a temporary exclusion for the evidence of a particular witness;
(6) In addressing the considerations of necessity and proportionality, in particular in relation to an order for total exclusion the court should consider the degree to which the media watchdog role is engaged by the case or whether reporting will merely satisfy public curiosity.
OUTCOME AND SUMMARY
Applying the balancing exercise to the circumstances of the case the judge granted the application to exclude the media from the imminent hearing on the basis that: (a) it was necessary in the interests of X (r 10.28(4)(a)(i) and (b)) on the basis that justice would otherwise be impeded (r 10.28(4)(b)) for the following reasons:
(1) The course of proceedings which had led to the grant of the contra mundum injunction in March 2009 (essentially
the sensitivity of the issues being ventilated concerning X against the background of manifest media interest);
(2) The nature, context and purpose of the judgment given in April 2009 following the March fact finding hearing;
(3) The nature of the matters which it was clear would be dealt with at the imminent hearing, specifically: the evidence of Dr C, Miss E and two further experts in disciplines relating to children in relation to X
(4) The reports of Dr C and Miss E concerning the effect on X, and their ability to perform their roles, if the media were not excluded;
Taken together the President determined that the four reasons ‘all relate the interests and welfare of X and constitute a strong case of necessity for the press to be excluded in protection of X’s article 8 rights.’ (para [61]). His Lordship did not agree that the existing regime of statutory reporting restrictions provided sufficient protection. Given the level of press attention there was a danger of the details of the case ‘leading to a wider audience and . . . being published in a country beyond the reach of this court so far as proceedings for contempt of court are concerned’ (para [67]). He noted (at para [65]) that:
‘While it is true that an exclusion order will deprive the media of their strong prima facie right to attend the
proceedings, they will not thereby be deprived of attending a case in which the issues raised matters of public interest or of particular importance from the point of view of the watchdog role of the press.’
GUIDANCE ON PROCEDURE
- Where an order is sought excluding the media from a hearing altogether, although the Practice Direction of 20 April 2009 does not provide, the applicant should raise the matter with the court prior to the hearing for consideration of the need to notify the media in advance of the proposed application;
- If this is done, the court should: (a) require the applicant to notify the media via the Press Association’s CopyDirect service in accordance with the procedure provided for in the Practice Note of 18 March 2005; and (b) make directions for the hearing of the application whether by way of special appointment or consideration at the outset of the next substantive hearing;
- It is not necessary for applications to be dealt with by a High Court judge; applications should wherever possible be dealt with by the trial judge;
- Where the grounds for exclusion are based upon the sensitivity of material contained in experts’ reports it will not be necessary for those to be disclosed to the media; a statement setting out ‘the nature of the matters and issues covered in such reports in a manner sufficient to enable the media to make an informed decision as to whether they wish to attend the hearing of the application and/or proceedings to which it relates’ (para [84]) will suffice;
- Copies of reports or other documents containing sensitive matters should be provided to the judge only;
- There is no general mandatory requirement to follow this procedure but in the light of the anticipated interest in cases involving the children of ‘celebrities’ the provisions of para 6.4 of the Practice Direction of 20 April 2009 offer inadequate protection to the interests of the media and will need to
be reconsidered; - Contrary to the proposal of the media it is not necessary for parties to follow this procedure where they merely seek during the course of proceedings the temporary exclusion of the media in relation to the evidence of a particular witness. In such circumstances any application should be dealt with by the trial judge as it arises.
CONCLUSION
While at the behest of the court the hearing of the application addressed the principles to be applied to cases involving the children of ‘celebrities’ the guidance which emerged is certainly not confined to those who grace the front pages of the glossy magazines but extends to anyone whom he media are likely to find newsworthy including senior executives of public companies, high net worth individuals, senior public servants and others. Confirmation that the privacy interests of the parties in addition to those of any children involved in the proceedings may provide the basis for an exclusion order is likely to receive further consideration both in children proceedings and other family
proceedings. But if, as seems likely, existing reporting restrictions are to be relaxed, whether as a result of the considerations of the Family Procedure Rules Committee or the forthcoming Improving Schools and Safeguarding Children Bill, the currency of the President’s guidance may be short lived.
First published in Family Law Journal as part of Schillings' regular contribution to their publication.
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