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'Will My Divorce and Children be in the Papers? Family Courts Open to the Media' by Ash Hussain.
14 May 2009

“Will my divorce go public?” This is the question family law solicitors are being asked. After decades of holding family hearings behind closed doors, the age of secrecy has come to an end.   New regulations, introduced by the government, came into force on 27 April 2009 opening family courts to media scrutiny.  The new rules are designed to create more openness, transparency, increase the public’s awareness of how English and Welsh family justice works and attempt to restore the public’s faith in the system.  

Journalists will now be able to attend all family courts, whether dealing with divorce or, indeed, private or public children law hearings.  Private children matters involve parents’ disputes over the upbringing of their children, for example, contact or residence.  Public children law includes applications for care orders.

Media representatives will be able to sit in on family law cases and report on the process.  The media will not be entitled be present at hearings for the purpose of conciliation (to the extent that the judge plays an active part in the conciliation process) or negotiation. In particular this exception will apply, for example, in relation to divorce financial matters, to the second stage hearing (known as the Financial Dispute Resolution hearing). 

The change in the law has attracted strong criticism from some members of the legal profession.  Stephen Cobb QC, a leading family law practitioner, has voiced a number of concerns on media access.  He says the children themselves do not want it; it will cause further delay in family cases which will not be in the child’s best interests. It will, he says, leave vulnerable children exposed to the press and witnesses will be reluctant to come forward if their statements became public information.

Despite media access, stringent reporting restrictions will remain in force. No details can be reported unless a judge gives his specific permission.  Journalists will face tough sanctions if they report any detail of the particular case they are observing.  They will not have automatic access to evidence before the court. They cannot identify the parties involved nor can they identify addresses of the homes of the children or people connected with the children.  For the moment at least, it appears the media may attend some hearings but not report on the specifics of what takes place without risk of  being in contempt of court.  In other words, the reporting will be about the system rather than substance.

Recent reports in The Times suggest there is still confusion in the courts as to how this reform should operate.  One judge in the Principal Registry of the Family Division, dealing with a high profile celebrity divorce already subject to a series of strict reporting restrictions, apparently transferred the matter to the High Court to establish exactly what journalists can report, if anything.  She commented, “I think this is a new field and none of us has any proper guidelines. It has come at a speed that none of us anticipated.   And a case of this nature has issues very specific to it . . . It could either be a case making bad law or an error which if it happened could not be rectified.” 

In another case in the Principal Registry, a woman was trying to ascertain how much her husband was worth. According to The Times, District Judge Reid was asked what could actually be reported and politely replied, “Speak to the Ministry of Justice press office.”

Further concerns have also been raised in relation to media access.  One commentator has argued that the possession of sensitive information by one spouse may amount to “blackmailer’s charter”. 

Under the new rules, the court can exercise its discretion to exclude media representatives from all or part of the proceedings.   This may be necessary to protect the interests of a child connected to a case or for the safety of a party or witness or person connected to them.  Another circumstance which may necessitate the exclusion of the media is the disclosure of sensitive information at a hearing.  The publication of such information  might endanger a party or person connected with the proceedings or even enrich a third party, e.g. the whereabouts of a wife seeking shelter from an abusive relationship or information about a company that is about to float. 

Should such steps need to be taken, legal representatives should discuss with the client the advisability of making an application to the court to exclude the media from all or part of the hearing.  If appropriate, they may consider making a joint application with the other party.  It has been suggested that a joint application to exclude the media will carry greater weight with the court.  Equally, legal representatives and parties should ensure that witnesses are aware of the right of media representatives to attend court and should notify the court at an early stage of the intention of any witness to request the exclusion of media representatives.

It appears that the new rules do not have as far reaching an impact as the media had hoped.  Having said that, the Family Proceedings Courts have been open to the media for years but one rarely sees journalists in attendance.

Disputes are likely to arise in the future over whether the court should permit journalists to see documents referred to in the court, without which the proceedings make little sense.   Whether the government opens up the family courts further remains to be seen.

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