Transparency rules, ok?
Date: 21 May 2009
Authors: Geraldine Morris
Issue: Vol 159, Issue 7370
Categories: Features, Media, Family, Procedure & practice
Few areas of law are as newsworthy to the media as family proceedings. Following a concerted campaign by pressure groups and various government consultations, the family courts were opened to the media from the 27 April 2009. The media have quickly realised however that that access is subject to stringent rules.
Family proceedings courts
The Family Proceedings Courts (Miscellaneous Amendments) Rules 2009 (SI 2009/858) came into effect from the 27 April 2009 amending the Family Proceedings Courts (Children Act 1989) Rules 1991 (SI 1991/1395) and the Family Proceedings Courts (Child Support Act 1991) Rules 1993 (SI 1993/627).
The amendments concern the attendance of persons, in particular representatives of the media, during proceedings in the family proceedings court relating to children, and the communication of information relating to such proceedings. The new rules insert into the Family Proceedings Courts (Children Act 1989) Rules 1991 a new r 16A, which provides for who may be present during a hearing in “relevant proceedings”. This in particular allows for duly accredited media representatives to be present, subject to a power for the court to direct their exclusion for all or a part of the proceedings for one of the reasons specified.
Communication of information
The Family Proceedings (Amendment) (No 2) Rules 2009, SI 2009/857 also came into effect on the 27 April 2009, amending the Family Proceedings Rules 1991, (SI 1991/1247) (FPR 1991) and include provisions relating to county court and High Court proceedings. The enabling power for the new rules is the Matrimonial and Family Proceedings Act 1984, s 40 (1), (4)(aa).
Rule 4 inserts into the FPR 1991 a new r 10.28, which makes provision governing who may be present during a hearing in proceedings which are held in private. This in particular allows for duly accredited media representatives to be present, subject to a power for the court to direct their exclusion for all or a part of the proceedings for one of the reasons specified in r 10.28(4) (see below).
Rule 5 inserts into the 1991 Rules a new Pt XI, which replaces r 10.20A, dealing with the communication of information relating to proceedings relating to children. New r 11.1 defines the proceedings in relation to which the new rules apply, new r 11.9 provides for interpretation of terms used in the new rules, and new rr 11.2 to 11.8 provide for communication of information. New r 11.2 lists when it is permissible for the purposes of the law relating to contempt of court to communicate information: communication is allowed.
Interpretation
The new rules apply to the following proceedings governed by the FPR 1991:
● All directions hearings and final hearings governed by the FPR 1991.
● All private law and public law children hearings governed by the Family Proceedings Courts (Children Act 1989) Rules.
The new rules do not cover however:
● non-Children Act proceedings in the magistrates' courts; or
● any hearing “conducted for the purpose of judicially assisted conciliation or negotiation”.
Contempt provisions
The law relating to contempt is not over-ridden by the new rules. The media may attend a hearing but that does not mean that they have a right to see private documents or automatically communicate information. The provisions of the Administration of Justice Act 1960, s 12 forbidding publication of information relating to certain private proceedings and the Children Act 1989, s 97(2) which protects the identity of children involved in proceedings remain in force. The rules relating to the communication of information and contempt are set out at Pts XI of the amended FPR 1991 and Pt II C of the amended Family Proceedings Courts (Children Act 1989) Rules 1991.
Exclusion
The new FPR 1991 r 10.28(4) provides that at any stage of the proceedings the court may direct that a media representative shall not attend the proceedings or any part of them, where the court is satisfied that exclusion:
● is necessary; or
● is in the interests of any child concerned in, or connected with, the proceedings; or
● is required for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
● is required for the orderly conduct of the proceedings; or
● is required if justice will otherwise be impeded or prejudiced.
The court may exercise the power to exclude of its own motion or pursuant to representations, having given the media representative in question an opportunity to make representations on the issue of exclusion.
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