Family courts and the media - new openness raises concerns over privacy
30 April 2009
As part of the government’s drive to increase openness in the family courts new rules have come into effect this week which allow the press to attend private hearings from which they were previously excluded.
The press (including journalists working for foreign publications) will now be free to attend hearings dealing with issues such as:
- Financial disputes between divorcing couples where details of the parties’ (and third parties’) finances are discussed in court
- Disputes about where children should live following their parents’ separation
- Disputes about arrangements for child contact following their parents’ separation
- Allegations of domestic violence
Previously the press were not permitted to attend hearings dealing with these matters as the hearings took place in private with only the parties, their legal advisers and the judge present.
The new rules apply to existing cases and any new cases commenced in the future.
Unless the court orders otherwise the press continue to be prevented from:
- Seeing any documents used in the proceedings
- Reporting any information about the proceedings
However, members of the press will be able to apply to the court for permission to see documents used in the proceedings and report information about what they see and hear in court (provided it does not identify a child involved in children’s proceedings).
The court has the power to exclude the press – whether on its own initiative or at the request of a party to the proceedings, a witness or a child involved in the proceedings. But the court can only exclude the press if it is necessary to do so:
- in the interests of a child involved in the hearing
- for the safety of someone involved in the proceedings
- for the “orderly conduct” of the proceedings
- because justice requires it.
Judges in the family division have been directed that when considering whether it is necessary to exclude the press they must bear in mind the fact that the press are prevented from reporting any information about the proceedings without the court’s permission.
In practice therefore it seems unlikely that the court will often find it necessary to exclude the press and anyone wanting to exclude the press will face an uphill struggle.
As yet it is unclear how the courts will in practice interpret the new rules but any refusals to exclude the press are bound to be challenged by litigants understandably adverse to the idea of the press being present in court when private, sensitive and often intimate information is being discussed.
It is not clear whether journalists from foreign publications will be permitted to attend court given that foreign publications will be immune from any court sanctions for breaching reporting restrictions. It is equally unclear how in practice the courts will be able to police unlawful disclosures of information where they are unable to identify the source of the disclosure.
The media on the other hand have complained that the new rules do not go far enough. They have successfully lobbied the government to relax the current restrictions on what can be reported and a change in the law has been promised.
As the pre-eminent firm in the area of privacy law, Schillings will be monitoring the application of the new rules very closely. Anyone contemplating commencing proceedings in relation to finances or children following separation should seek detailed advice on the implications of the new rules before doing so.
For press enquiries please contact:
christopher.mills@schillings.co.uk
+ 44 (0)20 7034 9000