Jeremy Bentham, the Eighteenth Century jurist, philosopher and social reformer, believed that “…in the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice … Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial …”. These opinions have lain at the heart of the debate, conducted inside and outside of the family courts for many years, about the extent to which its processes should be exposed to public scrutiny.

In the last three years, the debate was stoked by two full public consultations which canvassed views about media access to the family courts; opinion was strongly divided. Unsurprisingly, 100% of media representatives who responded to these consultations agreed with the proposition that they should be admitted as of right; 72% of members of the public and 54% of voluntary sector (charities for children, adults or others) organisations who replied also apparently agreed. A significant percentage (up to 72%) of the judiciary responding expressed views against media access, as did 77% of the responses from local and devolved government and Non-Departmental Public Bodies (NDPBs), and 78% of responses from legal practitioners or bodies representing them.

The first consultation (2006) advocated media access as of right; the proposals there set out were reversed in the second (2007) consultation; the reversal had been particularly informed (it was reported by Government) by the nature and strength of the concerns raised by the children who had been consulted as part of its process. Accordingly, the 2007 Consultation Paper argued that improving confidence should be achieved by increasing the information emanating from family courts. The 2007 Consultation paper predicated that allowing the media in to the family courts as of right would not be consistent with the principle that children must come first.

Apparently, on receipt of a number of letters (200 or so in number, so it is reported) from “individuals, MPs and constituents around the country who believe that the family courts are not being run with the child’s best interests at heart”, the Government reversed its position again. In December 2008, the Lord Chancellor and Secretary of State announced the reforms in his paper ‘Family Justice in View’. In the foreword to the document, Rt Hon Jack Straw MP said “It is critical that not only do the family courts get the decisions right, but also that the public has confidence that they are doing so. In order to have trust in the system, people need to understand how it works. The challenge we face is to raise public understanding of how decisions are made, and awareness of the daily duties of those working within the family courts to deliver the best solution to difficult problems. At the same time, we must protect the privacy of children and families involved in family court cases so they are not identified or stigmatised by their community or friends”.

The 2008 proposals became law on 27th April 2009, when the Family Courts (at all tiers) opened their doors to the media; for the High Court and County Court this has been – to a large extent – to harmonise its practice with the Family Proceedings (Magistrates) Court. The reform was achieved by amendments made to the Family Proceedings Rules 1991 by the Family Proceedings (Amendment)(No.2) Rules 2009 (SI 2009 No 857) (and for the FPC in the Family Proceedings Courts (Children Act 1989) Rules 1991 (‘FPC(CA)R 1991’) by the Family Proceedings Courts (Miscellaneous Amendments) Rules 2009, SI 2009 No 858).

The new legislative scheme can be simply summarised. The new rules (rule 10.28(3)) allow a “duly accredited representative of news gathering and reporting organisation” to attend hearings heard in private (the accreditation is achieved by membership of the UK Press Card Authority); the rules also permit “any other person” (which can of course in include a non-accredited member of the media) to be present. The duly accredited media representative can however be excluded on the basis of one of four grounds contained in rule 10.28(4): that is to say, (i) where it is necessary in the interests of the child concerned in or connected with the proceedings, (ii) for the safety or protection of a party, a witness, or person connected with such a party or witness, (iii) for the orderly conduct of the proceedings, or (iv) where justice will otherwise be impeded or prejudiced. Any member of the media must be given an opportunity to make representations before the decision is made and brief reasons should be given summarily for the court’s decision.

The new rules do not allow the media to be present for all types of family hearing. Those hearings from which the media are excluded include hearings at which judicially assisted conciliation or negotiation takes place (particularly conciliation appointments in children’s cases and/or financial dispute resolution (FDR) appointments), nor are the media allowed into hearings under the Adoption and Children Act 2002 (these proceedings are not governed by the FPR or FPC(CA)R, but by the Family Procedure (Adoption) Rules 2005 which have not been amended).

Other amendments to the 1991 Rules include a new regime (Part XI) under which there can be more extensive communication of information from proceedings relating to children to third parties. Simultaneous with these reforms, the MoJ is launching a pilot scheme in three court centres in which anonymised judgments from a range of contested family cases will routinely be made available on line. The purpose of this initiative is to allow a more free flow of information from the Family Courts in the overall endeavour to promote confidence in and awareness of the work of the family courts.

If these proposals are designed to achieve the ‘confidence’ of the public, how is the ‘confidentiality’ of the process achieved? The rules relating to the publication and reporting of information relating to proceedings concerning children has not (yet) changed. The enthusiasm of the media for the new rules has been significantly restrained by the continuing, and extensive, prohibition on reporting of family cases. The legislative scheme which contains the reporting prohibitions is not a neatly fitting jigsaw of matching statutory pieces, creating a well-defined picture. Far from it. It is a hotchpotch of ten free-standing, and in some respects overlapping, statutory provisions crafted over the best part of the last 100 years. The protections provided by these statutes are cumbersome to identify, and when found, the protections are neither “comprehensive or particularly comprehensible” admits the Government. Accordingly, the MoJ proposes to simplify the legislation “so that it is readily accessible and easily understood” (‘Family Justice in view’). It is believed that the Secretary of State will look for legislative opportunity in the next Parliament to introduce a consolidating statute. This would be welcomed by all practitioners in the field of family law, aswell as those outside (and who wish to report on) it, who need the clearest guidance about operating within the law.

Will the new rules achieve the combined objectives of promoting confidence and maintaining confidentiality? The Family Justice Council (FJC) has long endorsed the principle of greater transparency and accountability in the family courts and specifically supports judicially controlled access to the courts by family members, persons requested to attend by the parties, and the media. The new rules go further in allowing media access than the FJC had recommended, but the continued widespread reporting restrictions provide a proper balance to ensuring appropriate confidentiality. The concerns of the FJC about confidentiality were informed by its own consultation with a panel of children and young people as part of its response to the Government’s first consultation on transparency in 2006. The children were clear that they did not want personal information which could identify them in their communities and schools placed in the public domain. This needs to be actively monitored, and protected by future legislation.

The FJC has promoted the proposal for publication of judgments in family cases, appropriately anonymised, to improve public understanding of how, and why, the family courts make the difficult decisions that the law requires of them; it has championed the provision of age-appropriate summaries of judicial decisions to children who have been the subject of decisions in family courts as soon as possible after the conclusion of their case; and the availability of full transcripts of judgments to them on reaching adulthood. The FJC is anxious to see the launch of the scheme in the three pilot courts; it is vital that financial and human resources are invested in order to allow the scheme to be properly tested in the pilot.

But the FJC continues to have concerns about media access to the family courts, and a weather eye needs to be kept on the scheme in practice.

First research needs to be undertaken to monitor the extent to which the presence of the media in the family courts may deter potential applicants from engaging with the process. Respondents to earlier consultations on this issue highlighted the difficulties of potential litigants from some BME communities, particularly South Asian, some African and/or communities with evangelical or fundamentalist religious beliefs (Association of Lawyers for Children response, 2006), in seeking access to the courts. In their response to earlier consultation, Women’s Aid argued that, ‘in cases where domestic violence is identified as an issue such an eventuality creates a further opportunity for a perpetrator to threaten talking to the media to maintain control of a victim and will in some cases deter a victim from accessing the family courts’. Litigants may feel inhibited by the social stigmas and shame about the breakdown of the family or abuse they have suffered, especially victims of domestic violence, and in particular those from Black and Asian ethnic minority communities where shame and ‘honour’ are strong deterrents’. The potential presence of the media in the courts may dissuade those from accessing justice.

Secondly, there is a lack of clarity about the extent to which the names of professionals and experts contributing to family cases can or should be reported in the media. These are issues left unresolved by Munby J.’s decisions in Re B [2004] and Re Webster [2006]. It is not on the face of it a contempt of court to identify a witness in children proceedings and there is a powerful public interest in knowing who the experts are whose theories and evidence underpin judicial decisions which are increasingly coming under critical and sceptical scrutiny but it is not an exaggeration to observe that some medical experts and social workers who have been identified in the media have been disproportionately pilloried there (re B para.129). Fear of unfair ‘naming and shaming’ of experts is only going adversely to affect the supply of experts and professionals on whom the court depends to reach its difficult decisions: the already inadequate number of experts willing to assist the courts in vitally important child protection cases might well be even further reduced.

Thirdly there is a risk that witnesses will not willingly come forward to give evidence in family cases if they feel intimidated by the media presence; this was a point recognized by the European Court in B v United Kingdom; P v United Kingdom (Cases 36337/97 and 35974/97) [2001] in which it was said at para.38: “The proceedings which the present applicants wished to take place in public concerned the residence of each man’s son following the parents’ divorce or separation. The Court considers that such proceedings are prime examples of cases where the exclusion of the media and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment.” This needs to be monitored.

Fourthly, there is a risk that delays in the resolution of family cases will be made worse by arguments over media access to the hearings. The Practice Direction (20th April 2009) exhorts the judiciary to deal with the applications “as they arise and by way of oral representations”; the PD goes on “where exclusion is proposed any media representatives who are present are entitled to make representations about that proposal”; “brief reasons” should be stated for the decision to exclude the media. The risks of the best-laid plans for the efficient case management of complex family hearings being cast into disarray by contested ‘media access’ arguments are all too clear to see. While it is desirable that in many public law (care and similar) cases (consistent with the ambition of the Public Law Outline) contested issues of media access could be determined at the Case Management Conference, in reality this is unlikely to occur. It remains to be seen what actually happens. But it would be far from desirable for the efficient management of a case to be derailed by arguments over media access when witnesses are in attendance at the start of a contested final hearing.

There remains some uncertainty about the Government’s intentions in relation to adoption proceedings. Only a hastily generated Practice Direction (30th April 2009) cured a hiatus over media access to ‘placement order’ proceedings. There is also uncertainty over the extent to which the media will in due course be entitled to see documents generated for the proceedings. At the moment, they will necessarily receive only a partial picture by attending family hearings, where much of the evidence is produced in the written word. Both of these aspects of future media access require careful review.

It is vital that the operation of the new rules is effectively and conscientiously monitored before any legislative change in relation to reporting is introduced. The MoJ is encouraged to state its commitment to effective monitoring of the rules before any change to primary legislation, so that the confidence of all participants in the family justice can be developed.

The family justice system is far from perfect; the media will see a system under pressure. It will be able to witness the failures of child protection such as those graphically and tragically exposed by the death of Baby Peter; it will be able to survey the diminishing capacity of the Courts to deal with an ever increasing volume of the most serious and complex cases in a timely fashion - stretched now to breaking point. It may assess for itself the spiraling costs of private ancillary relief proceedings; it will be able to gauge whether the courts are succeeding in truly gaining access to the voice of the children who are the subjects of the proceedings.

The media will be able to observe a family justice system driven by a dedicated and hard-working cohort of legal practitioners, experts and specialist judges. At a time when the Government appears committed to unpopular reform of the public funding regime for legal representation in family cases (“Family Legal Aid Funding From 2010: A Consultation: Representation, Advocacy and Experts’ Fees”) the media may, ironically, be able to assess the adverse impact of those proposals on the ready supply of experienced lawyers on both sides of the profession to commit to this difficult work, and the knock-on effect of the reduction of that supply.

It is to be hoped that grossly tendentious (and often plainly inaccurate) media reports of alleged miscarriages of justice in the family courts will become a thing of the past, when the media see for themselves the painful processes involved in decision-making over children of vulnerable &/or broken families, and how the often exquisitely difficult judicial decisions in the family courts are reached.

Stephen Cobb QC, family law specialist