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Hayley Trim's Analysis: Misconceptions, mistrust and missed opportunities

Date:9 JUL 2010

Misconceptions, mistrust and missed opportunities

Hayley Trim, Family Law PSLIn Independent News & Media v A [2010] EWCA Civ 343 the Court of Appeal (consisting of the Lord Chief Justice, Master of the Rolls and the President) gave permission for the media to attend Court of Protection (CoP) proceedings relating to a talented disabled musician, whose biography was already in the public domain. Their Lordships noted that many of the matters before the court are "intensely personal and none of them would be in the public domain if A were capable of making his own decisions about his life." As such, CoP hearings are generally in private. And yet "it would be difficult to find a more appropriate hearing before the CoP for media understanding of its processes. It is valuable for the public to be fully informed of precisely what happens in a court in which the overwhelming majority of hearings are conducted in private".

In the family justice system this difficult balancing act has so far resulted in a presumption of media access to the courts (see changes to the Family Proceedings Rules in April 2009), and the entry into the statute books in April 2010, pre change of government, of the Children Schools and Families Act 2010 (CSFA) (albeit not yet in force). But there remains considerable dissatisfaction in many quarters.

The current position in terms of press reporting (and indeed reporting by any other person) remains, as it has for some years, governed by s12 Administration of Justice Act 1960 (AJA) and s97 Children Act 1989 as interpreted in the case law.  There is a sense that it is safe, established and straightforward, and the suggestion that there should be change tends to provoke a negative reaction from a profession motivated largely by the desire to protect their clients.

But this is an area of considerable complexity where quite understandably even experienced family practitioners may find they have been labouring under certain misapprehensions. One only need consider the case of A v Ward [2010] 1 FLR 1497 in which Munby LJ pointed out that the current law does not protect the identities of any of the professionals involved in care proceedings. Indeed there is protection for the identity of the child (but not any other parties) only for so long as the proceedings endure (Clayton v Clayton [2007] 1 FLR 11).  AJA prohibits publication of information relating to child-centred proceedings (see the case law for interpretation), but does not apply to ancillary relief or Part IV Family Law Act 1996 proceedings.   

Despite the backlash against the CSFA, the lack of consultation and its apparent complexity, the overall effect (if it is ever brought into force) would probably be to reduce what the press can report. Not perhaps what its proponents intended, and not so disturbingly ground breaking as some practitioners may have feared (assuming Schedule 1 is not activated). Anonymity would be afforded to everyone involved in children proceedings, indefinitely, save for expert witnesses. The press could report only information from media representatives who had been present at court. Given the general absence of the media so far, this is a significant limiting factor. But the restrictions reach even further - parents for example would not be permitted to tell their story to a reporter or internet forum (contrast A v Ward). For a more in depth analysis of the Act see Lucy Reed's article at 2010 Fam Law 708.

For the present time, query whether s 12 AJA still applies to hearings that the press attend - are they still hearings "in private"? So asked Lord Justice Munby in the Hershman-Levy Memorial Lecture on 1 July 2010. If no longer in private, the s 12 protection would fall away enabling, in the absence of injunction, publication of information relating to the proceedings. Such uncertainty is concerning, and Munby LJ laments a missed opportunity for comprehensive and coherent reform of an area where the "statute law is a mosaic of ill-fitting pieces without any discernible objective" and the "judge-made law is complex".

Finally, on a related topic, did you know that in proceedings involving incapacitated adults an order requiring parties to be referred to by their initials does not act as an injunction, or require the court's process and orders to be anonymised? It seems many people did not. If in doubt, cast the order clearly as an injunction and read Re HM (An Adult): PM v KH (No 3) [2010] EWHC 1579 (Fam).

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.