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Draft guidance on reporting in the Family Courts

1st July 2019

Kate Strange, Pupil, 1 Hare Court

Earlier this month, the President of the Family Division, Sir Andrew McFarlane, released draft guidance on reporting in the Family Courts. Practitioners now have until 30 June 2019 to submit their responses to the draft guidance and make suggestions to the Consultation on Reporting. The draft guidance comes after the appeal in Re R (A Child) (Reporting Restrictions) [2019] EWCA 482 Civ, a case before the President and Lady Justice King which concerned a reporting restriction order made at the conclusion of care proceedings. Although the substantive issues in the appeal were eventually agreed by the parties, the President considered that the case nevertheless shone a spotlight on the need for greater clarity and guidance in relation to applications by journalists to vary or lift statutory reporting restrictions.

The guidance begins by setting out the general legal position on reporting in the Family Court. While Family Proceedings are generally held in private, under FPR 2010 27.11 (2), accredited news reporters may attend hearings, although FPR 2010 27.11 (3) lists certain circumstances in which the court may direct that the press shall not attend. The provisions of FPR 2010 27.11 also apply to legal bloggers, following the pilot scheme under Practice Direction 36J (begun in October 2018.) Section 12(1) of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989 are the other relevant statutes. Both establish automatic restrictions on reporting and publication in family cases involving children. The court may extend any reporting restrictions (under its inherent jurisdiction) or lift them (according to the statutes.) In any case in which the court considers lifting or extending a reporting restriction, it must conduct a balancing exercise of ECHR Articles 6, 8 and 10 (rights to a fair trial, to family and private life, and to freedom of expression, respectively.) An application to lift or extend a statutory reporting restriction may lead to the making of a reporting restriction order, or RRO.

Anyone considering an application for a RRO should consult Practice Direction 12I and the CAFCASS Practice Note: ‘Applications for Reporting Restrictions Orders’ [2005] 2 FLR 111. Applications are to be made in the High Court, with notice given to the press through the Copy Direct service, per section 12(2) of the Human Rights Act 1998.

The draft guidance goes on to consider the publication of judgments, and refers to the guidance issued in 2014 by the former President, Sir James Munby: Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230. There has been further recent guidance on anonymisation, which was intended to supplement the Practice Guidance.

Next, the draft guidance turns to the approach that members of the press should take when seeking to vary or lift automatic reporting restrictions, and sets out some important principles. While an application can be made to the High Court using Form C66 and according to the procedure for a RRO, the draft guidance suggests that this will not be necessary in many cases, being both time-consuming and expensive. The draft guidance reminds reporters that no formal application is required for the court to consider whether or not to publish its judgement, and that when a journalist or legal blogger has attended the hearing pursuant to FPR 2010 27.11, they may make their application orally and with or without notice. Similarly, it will not be necessary to make a formal application in order to apply for reporting restrictions to be lifted after the conclusion of a hearing – an email to the judge’s clerk with the parties copied in will usually suffice. The court has a duty to ensure that all parties are notified of the application and given an opportunity to respond.

The guidance sets out that when a journalist or legal blogger indicates that they wish to make an application to vary the automatic reporting restrictions, a brief adjournment can be helpful to allow the parties to discuss the terms of a proposed order. Such discussions are likely to result in agreement, removing the need for a formal application. Best practice is to produce a draft order, so that the parties are able to highlight aspects of the order on which they cannot agree and upon which a ruling from the court is required.

If agreement cannot be reached, the blogger or journalist will be invited to make oral submissions, and the court and counsel for the parties should assist as to the correct law to apply and procedure to follow. Any parties who oppose the application should be offered the opportunity to make oral submissions, with the journalist or blogger afforded the right of reply. In particular cases of significant importance, the judge may also consider whether to adjourn in order to allow for further evidence or submissions, and to afford other media organisations the opportunity to make submissions.

In considering any application to lift reporting restrictions, the judge should also consider whether a copy of any judgment should be published. They may also need to consider whether, in order to allow such reporting, additional reporting restrictions need to be imposed under court’s inherent jurisdiction. The guidance gives the example of anonymising the names of children and their parents after the conclusion of the proceedings, when CA 1989, s 97(2) no longer applies. Such consideration requires the judge to look at whether the case should be transferred to a judge with High Court jurisdiction.

The court should give a reasoned judgment – albeit not a fully detailed or compendious judgment, unless the complexity of the facts and issues warrant it – on the application to vary reporting restrictions and the questions of publishing its judgment. The guidance draws attention to the principles outlined in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881 and Re W [2014] EWCA Civ 1303, and advises that the judgment should sufficiently explain what the judge has found and what he has concluded, as well as how he has reached his findings and his conclusions.

The guidance concludes with a note on costs in applications to vary or lift reporting restrictions: the standard approach as to costs in children cases will apply. The guidance emphasises that a journalist should not be at risk of a costs order in the ordinary course of events, but reprehensible behaviour on their part or adopting an unreasonable stance may alter this position.