As part of the decision made by the President of the Family Division in the appeal by TP member, Louise Tickle in February, Sir Andrew McFarlane stated that guidance to courts would need to be issued to address the uncertainty that existed if a journalist or legal blogger entitled to attend court asked for leave to publish information from the hearing. Draft guidance was published in March, and following a consultation period the final version has now been issued. The Transparency Project responded to the consultation (See here). The new guidance was published on the Judiciary website on 29th October, although it is dated 3rd October.
As anticipated, the new guidance clearly sets out the procedure by which an application by a reporter (an accredited journalist or a legal blogger under the PD36J pilot) can apply to have the very restrictive provisions of section 12 Administration of Justice Act 1960 varied or lifted to allow them to write about a particular case. It is in very similar terms to the draft.
The six-page guidance outlines the current law then makes nine points which we summarise as follows:
A formal application to the High Court is not often necessary. This would be time consuming and expensive. Where a reporter is in attendance, they can make the application verbally. Giving notice beforehand is encouraged but not essential. If they want to apply after the hearing, they can apply by email, although of course all parties would have to be notified. We’re pleased to see para 8(d):
Courts should be astute to assist reporters seeking to attend a hearing, or to relax reporting restrictions,and should provide them with relevant contact details of the court office, the judge’s clerk and the parties where requested (unless there is good reason not to do so).
We think this might be where the Law Society Gazette got the idea that courts should ‘go out of their way to help’ reporters – although that’s perhaps rather exaggerating the term ‘be astute’.
Having followed Louise Tickle’s appeal, we know that part of the reason that Louise’s team proposed this guidance was to assist and give confidence to judges, lawyers and litigants – not just journalists – to deal with these unfamiliar scenarios more appropriately, efficiently, and with the minimum disruption and stress possible.
Another very helpful point is that the judge should ask the reporter at beginning of the hearing if they are going to ask for a variation or lifting of section 12 and if not, at that stage, add that they can ask later on. This is a new point not featured in the original draft, and from our experience of attending hearings as legal bloggers we think it would be very helpful, although in most cases we’ve attended we have done so ‘on spec’ and therefore don’t know whether we are likely to make such an application until the hearing is underway.
Points 2 and 3 set out the procedure where an order about publication has to be agreed between the partes or decided by the judge. Point 4 reiterates that the judgment may be sent to BAILII. Point 5 explains that lifting section 12 in part may mean that additional restrictions will need to be put in place to ensure non-identification of the child and family. The balancing exercise (see below) and the way this should be briefly explained in the court judgment are in points 7 and 8. Much of this reflects the explanations given in the book published last year by our trustees, Doughty, Reed and Magrath: Transparency in the Family Courts ; Publicity and Privacy in Practice Bloomsbury 2018. Relevant passages in the book were cited by barristers in Louise’s case. The final point in the guidance clarifies that reporters would not expose themselves to a risk of any costs being awarded against them unless they behave reprehensibly.
The balancing exercise is expressed in the guidance as balancing privacy and transparency by way of Articles 6, 8 and 10 of the European Convention on Human Rights, with the child’s best interests a primary consideration. In other words, rights to a fair trial, respect for private life, and freedom of expression are given equal weight at the outset, with the child’s welfare being a major factor but not one that might override all others. The ‘welfare principle’ in the Children Act 1989 does not apply to a decision about section 12. This is a welcome clarification.
In our consultation response we had suggested that the draft should make the balancing exercise clearer, that it should adopt the collective term ‘reporter’ to cover both journalists and legal bloggers, and that it should make reference to the possibility of disclosure of documents. All of those suggestions were adopted.
The new guidance has been featured in the Times and Press Gazette, and by media law experts such as Mark Hanna on twitter
and the INFORRM blog. We hope that it encourages more reporters to take up responsible direct reporting from family courts.
Image: Louise Tickle and Sanchia Berg at the Royal Courts of Justice.
Since you’re here…
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page. You can find our page, and further information here.
Thanks for reading!
Guidance is not law. It is ‘guidance’ – exactly that, and – unlike the law – it can be ignored by judges. At least a practice direction would have had a little more force; or better still an amendment to the rules under the statutory impress of the Family Procedure Rules Committee.
No guidance is given here as to what a reporter should do if a judge chooses to ignore the guidance, as they are perfectly entitled to do. After all, how many judges follow the 2014 ‘Transparency’ guidance? If I was risking committal to prison as a ‘reporter’ (eg journalist or legal blogger) for what is criminal contempt under Administration of Justice Act 1960 s 12(1) I’d want my position in law to rest on firmer legal rock than ‘President’s Guidance’.
And on costs (not mentioned in your post): if I were a reporter I would be wary of having to pay the costs of an unsuccessful application under this guidance. The guidance says:
‘16 Finally, in seeking to vary/lift reporting restrictions, the standard approach as to costs in children cases will apply and a reporter, media organisation or their lawyers should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or has taken an unreasonable stance.’
These will not all be children cases (as recent case law shows); so why should any ‘standard approach’ apply? And even in those case, where the applicant is a commercial news organisation, why should not they pay for an unsuccessful hearing; or might not a pushy freelance journo or legal blogger have irritated a judge who makes a perfectly permissible order. In legal aid cases a legally aided advocate is obliged to seek costs against an unsuccessful party. In law costs are governed by Senior Courts Act 1981 s 51, rules and case law which say the usual rule is that costs are paid by an unsuccessful party. With the greatest respect to Sir Andrew McFarlane P if I were a reporter I’d want to be on more secure ground on costs as well.
To any reporter interested I am preparing a guide to what I think the law is, with a short procedural guide to show how it works.
While the guidance is helpful, it applies only to members of the press making applications. Do the same rules apply to birth families making an application to lift reporting restrictions?
I recently made an email application to the family courts for the lifting of reporting restrictions on a completed case and the guidance has been ignored. The judge’s response being that BECAUSE it was a completed case I need to make an application to the high court.
I have to say, court staff have been most obstructive, and initially suggested they could not give a date for when a response would be received from a circuit judge as ‘ we are really busy’. I informed the court staff that they had already had a month to furnish a response, and should I not receive a response from a judge within the week I would take that as the courts permission to discuss the case with journalists and documentary makers, and fully intended to name the children services involved, individual social workers , cafcass staff, recorders and judges.
The aforementioned direction that I needed to apply to the high court was received the next day.
We don’t give legal advice on this blog but yes the same rules apply to birth families as to journalists.
Generally if proceedings are concluded it is necessary to apply to the court for permission to publish, and that may need to be commenced in the High Court even if it is subsequently dealt with by the trial judge.