In family proceedings, some appeals go to the Court of Appeal, some (mostly) to a High Court judge in the Family Division of the High Court or the Family Court.
Routinely Court of Appeal appeals are heard in open court and the parties, other than children, are named (with only very rare exceptions). In the High Court the position was unclear until a new rule was made, last year, which came into force on 1 October 2019.
Appeals: hearings in open court
The new rule (Family Procedure Rules 2010 r 30.12A) states that the family court hearing an appeal can order that the hearing be in open court, or partly in private; and that the court could exclude anyone from the hearing or part of it. Publication of the names of certain individuals (including any child involved in the case) and other information about the case could be restricted. A practice direction, said the new rule, could provide further details. (Unusually for a formal rule, this rule confuses its own numbering, cross-referring to the wrong sub-rule; but I understand that this is to be corrected.)
So what does the practice direction – namely, Practice Direction 30B: Appeals: Transparency – deal with? It says that ‘ordinarily’ High Court judges (the practice direction only applies to High Court judge appeals) will order that appeal hearings be in public; and it makes detailed arrangements for documents about a case to be passed on to media representative (though not, in the practice direction, to legal bloggers).
It continues: for appeals in financial relief hearings ‘where no minor children are involved’ there will normally be no restrictions of the type mention in r 30.12A (eg as to the identity of a party or of witnesses). If restriction orders are to be made the court is expected to take into account a number of factors. These would include the need to protect a child or others involved in the proceedings; whether the hearing below was dealt with in private; and whether any disruption from the public is expected if the appeal is heard in public.
Appeals: release of court material
PD30B specifically sets out what court material must – subject to court direction – be released to law reporters and accredited media representatives (ie who can attend under FPR 2010 r 27.11(2)(f)). The court usher, or other court official, must be provided with two documents. On the day of the hearing they are to be given:
- By court, ‘two copies’ of the judgment under appeal
- By each party’s legal representative, two additional copies of their skeleton argument for the hearing
The usher must provide one copy of each to ‘an accredited law reporter’ and one to ‘an accredited media reporter’ if this is asked for. These can be taken away, but are only to be used for reporting the proceedings. Reporting will always be subject to limitations on publication for children and other proceedings in Administration of Justice Act 1960 s 12(1) and for ‘indecent matter’ under Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(a)).
A party to the case can apply to lift or vary ‘obligations’ imposed by any order (and this is likely to be an application on the opposite side of the coin for press variation of restrictions set out in President’s guidance as to reporting in the family courts, 3 October 2019). The practice direction says a party can apply ‘orally… at the commencement of the hearing’; though if it is left to the start of the hearing the information which a party may want to restrict from being read will be out, if the practice direction procedures are followed.
The practice direction says the court can order that a skeleton argument can be anonymised or provided in redacted form. In other respects PD30B does not deal with anonymisation. If a party wants their name not to be published they would be best advised to apply formally in advance of the appeal, as they must already under case law in the Court of Appeal. There are no clear rules in family cases (except children) for anonymisation (eg finance cases or in relation to domestic abuse: of the financial relief cases reported this year, a majority – 11 out of 15 – have named the parties.)
PD30B provides an important move – already available in the Court of Appeal – towards providing limited court material to help those allowed to attend court to understand the case. However, the practice direction does not apply to legal bloggers. An appeal judge may be perfectly happy for one of the ‘two additional copies’ provided to the usher to be considered also by a legal blogger. But supposing a party – say a parent or his or her adviser in care proceedings – objects? Such a party would be entitled to insist that a legal blogger apply to the judge for an order for release of the court material provided for in PD30B.
There is no obvious logic for having one rule for the media representative entitled to attend court, but a different rule for the legal blogger whilst the pilot scheme for bloggers (PD36J) remains in operation; but that appears to be the position as PD30B stands.
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