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PUBLICITY/FAMILY PROCEEDINGS: Re Child X (Residence and Contact; Rights of Media Attendance; FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam)

Date:22 JUL 2009

(Family Division; Sir Mark Potter P, 14 July 2009)

There was media interest in residence and contact proceedings because the father was a celebrity; the proceedings concerned a child who was old enough to read about and follow references to her parents or herself. The case had hitherto been heard in private; the county court judge had required both parents to give undertakings that nothing should be disclosed concerning the proceedings, save to legal advisers. A Cafcass officer had interviewed the father, mother and child, and a consultant child and adolescent psychiatrist had been jointly instructed to report on questions relating to the child's welfare. The judge had made certain findings of fact at the conclusion of a 4 day hearing, and in response to the urgent application of the parties had also made an order contra mundum prohibiting publication of the child's name, address or school, or any information likely to identify the child, including the names and addresses of the parents. There was no application to discharge or vary the terms of this injunction.

However, some time later, on the day on which changes to the Family Proceedings Rules 1991 came into force, opening private family hearings to accredited representatives of the media, the media applied to the judge for admission to the next hearing, which was to involve questioning the psychiatrist on the contents of his latest report, and evidence from the Cafcass officer.

In the course of the hearing detailed reference was bound to be made to the judge's earlier fact-finding judgment, and to previous evidence given by both the expert and the Cafcass officer. Under the new r 10.28, duly accredited media representatives were permitted to be present during 'private' hearings, subject to the court's power to direct their exclusion during all or part of the proceedings, for one of a number of reasons specified in para 4 of the new rule.

In accordance with the President's Guidance issued on 22 April 2009, the judge referred the question of press access and reporting restrictions to the High Court. Both the expert and the Cafcass officer supplied statements to the High Court, and both were concerned about the child's welfare if the media were admitted; in addition, the expert raised a variety of concerns about revealing to the media information given to him in confidence by a child who had understood that the information would be shared only with the court and the parents.

The combined effect of Administration of Justice Act 1960, s 12(1) and Children Act 1989, s 97 was that, while the press were entitled to report on the nature of the dispute in proceedings involving children, and to identify the issues in the case and the identity of participating witnesses (save those whose published identity would reveal the identity of the child in the case), they were not entitled to set out the content of the evidence or the details of matters investigated by the court. Whereas the media were now able to exercise the role of 'watchdog' on the part of the public at large and to observe family justice at work for the purpose of an informed comment on its workings and the behaviour of its judges, they were unable to report the identity of the parties or the details of the evidence that were likely to catch the eye and engage the interest of the average reader or viewer. This distinction was recognised as a valid one when balancing Art 8 and Art 10 considerations under the European Convention on Human Rights.

In this case, despite procedural deficiencies, the contra mundum order should remain in place, including the provision that information should not be solicited. Further, the media should be excluded from the proceedings, in the interests of the child concerned in the proceedings, and also upon the basis that justice would otherwise be impeded.

Reporting restrictions were not sufficient to protect the child in the instant case because: (a) press presence would be a betrayal of the trust built up between the child and the expert and Cafcass officer; and (b) foreign media representatives were present, and if they published information they were beyond the reach of the court so far as contempt proceedings were concerned.

While there were no transitional provisions, the fact was that matters had to date proceeded in the case on the basis of the privacy of the proceedings and the confidentiality of the exchanges between the child and the expert and the Cafcass officer. In deciding whether or not to exclude the press in the welfare or privacy interests of a party or third party, the court had to conduct a balancing exercise between Art 8 and Art 10, and to decide whether exclusion was 'necessary'.

The grounds for excluding the media under r 10.28(4) were, in broad terms Art 6 compliant. Although nothing was included in r 10.28 to provide for exclusion of the press where the Art 8 interests of the parties (as opposed to those of the child) so required, Art 8 interests of the parties 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 decided whether or not they were established, as it might well constitute a serious and irredeemable invasion of the privacy and/or family life of an adult party if the press were not excluded.

No special rules applied to the children of celebrities, but the need for protection of a child of a celebrity from intrusion or publicity, and the danger of leaking of information to the public, would, like the interest of the press in such children, be more intense. In deciding whether or not the grounds advanced for exclusion were sufficient to override the presumptive right of the press to be present and in particular whether or not an order for total exclusion was proportionate, it would be relevant to have regard to the nature and sensitivities of the evidence, and the degree to which the watchdog function of the media might be engaged, or whether its apparent interest lay in observing and reporting on matters relating to the child that might well be the object of interest, in the sense of curiosity, on the part of the public, but which were confidential and private and did not themselves involve matters of public interest properly so called.

However, the burden remained on the applicant to demonstrate that the matter could not be appropriately dealt with by allowing the press to attend. The comment in Spencer v Spencer that, if a proper case for excluding the media was demonstrated on the basis that there was a significant risk that a witness would not give full or frank evidence in the presence of media representatives, the order requiring the media to remove themselves should apply only to the evidence of that witness, was not of universal application, and did not apply in this case because the evidence of the relevant witnesses was likely to be the only 'live' evidence before the court, and the matters to be dealt with were all matters of high sensitivity and importance to the welfare of the child. In making the original contra mundum order the judge had been in breach of the relevant President's Direction (18 March 2005 [2005] 2 FLR 120). The terms of the order had gone beyond the scope of Administration of Justice Act 1960, s 12(1) and Children Act 1989, s 97, in particular in prohibiting any person from soliciting any information relating to the child from key individuals. Such orders could only be made by the High Court.

Further, the order should not have been made without the person against whom the application was made being present or represented, unless satisfied that the applicant had taken all reasonable steps to notify the respondent or that there were compelling reasons why the respondent should not be notified. The press had been deprived of their opportunity to argue against the grant of the injunction, and any opportunity to see informative material upon which to base any decision. This must not happen again.

When injunctions founded upon Convention rights were contemplated, applicants must bear in mind the provisions of s 12(2). If it was not possible to draft explanatory documentation in the time available before the hearing, the court should require the applicant to file it at the earliest opportunity, and to make it available on request to any person affected by the order. If the need for an order arose in existing proceedings in the County Court, judges should either transfer the application to the High Court or consult their Family Division Liaison Judge. Where the matter was urgent, it could be heard by the Urgent Applications Judge of the Family Division.

The President's Direction of April 2009 also contained provisions for service of the application on the National News Media. Although the Practice Direction did not expressly so provide, it was incumbent upon an applicant who wished to exclude the media from a substantive hearing ab initio to 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 and, if that was done, the court should require the applicant to notify the media via the CopyDirect service.

The Press Association was willing for its CopyDirect service to be used for the purposes of notification to the media on the basis that such notification was supported by the same documentation as was provided for in the Practice Note of 18 March 2005. In cases in which the justification needed to refer to confidential and sensitive information, it would be sufficient for the justifying statement, without revealing the detail of the matter, to outline and make clear 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 wished to attend the hearing. Where the reports or other documents containing sensitive matters were already in the possession of the applicant's solicitors, these should be brought to the hearing of the application in a convenient bundle to enable the judge to refer to such documents as seemed to him necessary for the purposes of his decision. It was not practical or necessary for such a procedure to be adopted in cases in which an application was made for temporary exclusion of the media during the course of the proceedings.