Family Law

Dr Julia Brophy, Principal Researcher – Family Justice

Proposals to extend further the rights of media access in children and family cases remain problematic. Further evidence from young people (2014) arrived on the agenda at the same time as Trinity Mirror has paid damages averaging just under £21,000 each to settle six phone-hacking claims from well-known individuals. Nearly 50 more compensation cases are outstanding, and Trinity Mirror is understood to have set aside just under £10m to cover the costs of these claims. It is the first significant admission of phone hacking by a newspaper group outside the Murdoch group; and it is described as significant because it is said to confirm that the practice of phone hacking was widespread in parts of the British newspaper industry. The lawyer representing the successful claimants is quoted as saying: 'There are many more people who will now be able to make claims against the Mirror Group titles in respect of their unlawful activities'.

That news will not be lost on young people who engaged in the NYAS ALC consultation (J Brophy, forthcoming in December [2014] Family Law): they referred directly to the Leveson Inquiry and to personal experiences of press behaviour during discussions about the media and the ‘Next Steps’ proposals. But their views about media access to family courts are not simply predicated on a lack of trust in the media - important though that was. They have fundamental concerns about children’s privacy and long term health and well-being.

Young people are not naive about this area: they understand the complexities and the political dilemmas to be addressed; they also know judges and other professionals are not beyond making mistakes, but they do not agree that the press could or should be arbiters of justice, fair play or children’s best interests. They understand the issues for some parents who may feel aggrieved by judges’ decisions; but they argue that children’s need for protection of their privacy and long term welfare must come first. Like other research findings they say that parents in proceedings are not necessarily best placed to represent children’s views and interests on media coverage of cases: they give examples of poor judgment by parents and lasting problems for children. They look to family judges to protect them and consider how this can be better achieved.

Despite this, the Government failed to honour a commitment it gave to ascertaining the views of young people when announcing it would not implement Part 2 of the Children Schools and Families Act 2010 (Government Response to the Justice Committee sixth Report of Session 2010-12; Operation of the Family Court, (Cm 8189, 2011), paras 73 – 75). The ‘Next Steps’ proposals thus sit uncomfortably against Ministerial statements that children are at the heart of the new family justice system, that they are the experts, that their views matter and they are taken seriously (eg  S Hughes, Family Justice Board Young People’s Conference, July 2014).

It is however not simply that trust in the British press is at an all time low: the proposals are likely to be unworkable – if young people are told the truth about media access during their ‘journey’ through state intervention and legal proceedings, there is a real risk that they will decide not to engage in that process. As young people point out, that is an indefensible position for family and child friendly justice in the twenty-first century: it is unethical, it breaches their Art 12 Rights under the UNCRC and it is potentially dangerous. They also say the media is unlikely to meet the objectives of public education or become an informed reliable ‘watchdog’ over the work of courts.

Those in favour of, or at least hopeful that the proposals in the President’s ‘Next Steps ’ will resolve the issues, might be assisted by the views and proposals of children and young people – they are also part of ‘the public’. Young people argue that it is naïve to think that democracy ‘as we know it’ is dependent on media access to family courts: they say there are other ways to inform the public about family courts and where necessary improve accountability and transparency of decisions. They argue that it is necessary to scrutinise this issue in more detail. Parliamentary scrutiny is required, with time for the issues to be explained, and to enable young people to contribute on the basis of their knowledge and experience – as Government promised on repeal of Part 2 of the CSF Act 2010. Young people are caught between paternalistic and condescending attitudes regarding the information they should or should not have, and a policy agenda where they have no effective voice or means of discussing the issues with other young people who would be affected by the ‘Next Steps’ proposals.

Some may find their views challenging – given the direction of travel and the powerful groups involved in this field. Young people nevertheless are prepared to ‘stand up and be counted’ on this issue; they argue that family judges and other professionals – and Government and the President – must listen. Along with others, they argue that there is a ‘third way’ to address public information and confidence in family courts.

Young people regard as short sighted, at best, any denial of the ethical problems associated with large sections of the twenty-first century British press. Moreover, they do not think wider media access will end criticisms of courts as ‘secret’. Research evidence in other jurisdictions tends to support that view: for example, the Federal Family Court of Australia has been open to the press and public since 1975 but accusations of ‘secrecy’ and judicial incompetence continue.

With regard to media access to certain court records, it is naive to think that the press will be content with limited access to documents, or that it will accept any continued reporting restrictions. Journalists in