Media access to the family courts has been available since the changes introduces in 2009 by The Family Proceedings (Amendment) (No.2) Rules 2009. The introduction of these amendments have allegedly had little to no impact on the vast majority of families although some parties have opted to settle out of court rather than ‘air their dirty laundry’ in public. The main concern of media being entertained in private hearings is the contradiction of Article 8 of the European Convention on Human Rights, right to respect for private and family life, and for that matter Article 6 of the United Nations Convention on the Rights of the Child, no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
In 2009 there was a landmark case between Earl and Countess Spencer who requested that their financial affairs be discussed in private during their divorce settlement, in what was presumably an attempt to set an example, the now, Sir James Munby refused their request stating that it “is dangerous territory because it potentially gives privilege to one group in the community over and above others.” Although he also pointed out that there would otherwise be one law for celebrities and “another law for those who live their lives in tranquillity and anonymity.” To circumvent the media access which was now afforded they decided to adjourn and settle out of court, Sir Munby declared himself “slightly puzzled” before admitting that it was “an attempt to circumvent the procedure laid down in the new rules”. Although these rules were intended to make the courts transparent Lewis Marks QC’s comments have to be observed that “there is no public interest in the outcome of this case” but rather a “prurient interest”.
Minors are somewhat protected within the courts by s12 Administration of Justice Act 1989 which prevents the reporting of information relating to proceedings before any court sitting in private where a minor is concerned. The publication of any information which may lead to the identification of any child as being involved in any proceedings before the High Court, a county court or a magistrates’ court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child. This prohibition also extends to an address or school as being that of a child involved in any such proceedings.
Anonymity is not an automatic right in many cases and where it is granted the poor skills of a reporter may lead to jigsaw identification. Resent unpublished research has been undertaken into the ability to identify anonymity judgements from the British and Irish Legal Information Institute through jigsaw identification or blatant omissions by the writer, as this is a publicly accessible database it highlights one of the main concerns of privacy around media in the family courts where the courts themselves may not be capable of anonymised judgements. Although the research is not definitive it was undertaken in a single afternoon so any identification will be significant evidence of those concerns.
Whilst presiding over Re J (a child)  EWHC 2694 (Fam) Sir James Munby concluded that “the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.”
When consulted young people felt that publication of pictures should be forbidden except where they themselves give permission, parents may not be entirely conscious of the long term consequences for a child or young person when they give permission. With digital media the possible for identification of a child or young person in later life, and the link with a court case, is exponentially increased for what could possibly be the rest of their lives. Clearly there is a contradiction between the views of the courts and those that use their services.
The 2009 reforms have been well documented in the media including the Times with articles such as “Family courts: now we can judge parents’ stories for ourselves: The opening up of family courts to the media is a step in the right direction, argues a senior family lawyer” which in itself raises concern of trial by media at a vulnerable point for a family. McNae’s Essential Law for Journalists provides a good overview of the systems currently in place.
The concerns from these reforms have been echoed by rights activists whilst the courts themselves continue to argue for greater transparency. New Fathers 4 Justice have also called for greater transparency, terming the current system as draconian and condemning super injunctions which they believe would otherwise provide clarity of the court system and cases in general. Due to the call for greater transparency there is currently a review into the possibility of granting the media greater access to the courts, including the ability to view confidential court documents which are not available to the public.
This dissertation is to discusses and evaluates the development of media within the family courts and the impact it has currently on the individuals who use the system, this includes a more in depth discussion of the information above and academic research and commentary from the likes of McNae’s, Barbara Hewson , Adam Wolanski , FamilyLaw.co.uk and others. In addition to the current system this dissertation also discusses and evaluates the proposed reforms and widening of access to the family courts and its potential pitfalls with the help of consultations being considered an published by privacy activists, transparency activists and general organisations involved in the family court system.
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