Faced with the competing claims of transparency and privacy, free speech and family life, family law will always incline towards the latter. Its first instincts are protective, guarding the intimacies and lives of its own subject families and, particularly, its children. First and foremost, family proceedings are and remain private matters. This fundamental principle holds fast. However, things are not simply as they were before. Successive Presidents of the Family Division have now expressly addressed the subject in the form of three separate occasions. At the very least, it is clear that the dynamic is being given careful thought. Whilst the guidances do not amount to a tilting of the scales, they are nevertheless guidances specifically designed to address acts of reporting. When President of the Family Division, Sir James Munby issued two guidances on transparency and anonymisation. Sir Andrew McFarlane, the current President, has now (as of October 2018) issued further guidance specifically dealing with applications to lift and vary reporting restrictions.
Translated into practice, the reality remains that on any given morning at the Family Court, it is a safe bet that few if any practitioners in the building have even applied their mind to the possibility that their case that day might be reported on. Were one to even apply one’s mind to the broader question of reporting, it might be said that only the very fabulous and very unlucky need ever worry about a reporter lying in wait. Or, worse still, reporters or, worse still, reporters and their counsel… Hindsight is a beautiful thing and experience what we call our mistakes. Anyhow, I digress. Previously, the shambling and hirsute caricature hack was not the problem. He was merely a symptom. He was a hunched symptom which overloaded the senses with an admixture of last night’s Mild and this morning’s Racing Post (the only paper they ever seemed to read themselves) but a symptom nonetheless. The problem, the disease, was the third-party application itself, the application to lift reporting restrictions with its weighted knot of various, and varyingly useful sources to hack through before any sense of clearing. And that was before the newspaperman, chastened by his deteriorating circulation, was overwhelmed by the age of information with its bloggers coming in over the gates…
The new guidance sets out its intention “to assist the court, the parties and the media in circumstances where a reporter attending court may wish to apply to vary reporting restrictions.”
The guidance continues to offer a brief survey of reporting in the Family Court. The starting point being that family proceedings normally held in private. At rule 27.11 of the FPR 2010, duly accredited representatives of reporting organisations are permitted to attend save where the Court has made an express direction that representatives shall not attend (rule 27.11 (3)). Under a pilot scheme under PD36J rule 27.11 was, in effect, broadened to allow “duly authorised lawyers attending for journalistic, research or public legal educational purposes”. Or, for impolite society, “legal bloggers.”
Of course, rule 27.11 only takes anyone part of the way. It permits attendance but makes no mention of the essence that defines the hack’s existence, his sine qua non: the ability for the attending journalist to actually report. This possibility can be found in the Administration of Justice Act 1960. Section 12 (1) reads,
“(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –
(a) where the proceedings –
- (i) relate to the exercise of the inherent jurisdiction of
the High Court with respect to minors;
- (ii) are brought under the Children Act 1989 or the
Adoption and Children 2002; or
- (iii) otherwise relate wholly or mainly to the
maintenance or upbringing of a minor…”
Further assistance takes the form of the Children Act 1989 and it puts it in noticeably different terms. Section 97 (2) reads,
“(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify –
- (a) any child as being involved in any proceedings before the High Court or the family 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; or
- (b) an address or school as being that of a child involved in such proceedings.”
As Paragraph 5 of the Guidance notes, these statutes create an exception to the “general principle in favour of open justice, establish automatic restrictions on reporting and publication in family cases involving children although it must be noted that, whilst s 12 prohibits publishing even after the conclusion of proceedings, restrictions under s 97(2) cease on the termination of proceedings.”
The guidance continues,
“In addition, the court has the power to extend reporting restrictions in appropriate cases using its inherent jurisdiction. Both sections also give the court the power to lift the reporting restrictions – see s 12(4) and s 97(4). Where the court is asked to lift/extend reporting restrictions, a balancing exercise is required between ECHR Articles 6, 8 and 10 (or, where applicable, other rights). The required balancing exercise is usefully summarised at paragraph 22 of Re J (A Child)  EWHC 2694 (Fam). It is to be noted that an application to lift or to extend the statutory reporting restrictions may lead to the making of a reporting restrictions order [‘RRO’].” (Paragraph 5)”
It is reiterated that procedure for applying for a RRO is found in the FPR 2010 rules, at PD12I. Assistance can be found in the relevant CAFCASS practice note. All applications should be made in the High Court. Significantly, notice must be given to the press. Such notice is given through the Press Association and their Injunction Alert Service. To which, a word of warning: one breeds many.
The previous guidances of Sir James Munby in respect of the publication of judgments are cited and thus affirmed (Practice Guidance (Family Courts: Transparency)  1 WLR 230 and the guidance to anonymisation).
Concerning applications to vary or lift reporting restrictions, specific guidance is set out, stage by stage. The approach is to be as follows:
- An application to vary or lift reporting restrictions can be made by way of an application to the High Court in Form C66, accompanied by a draft Order and served in accordance with the procedure for a RRO. Such a procedure is time-consuming and expensive however and cause delay and expense. The exceptions to the need for a formal application are set out. Of particular note (and warning) to practitioners is where a reporter has attended they can make an oral application. Further, an “e-mail to the Court Office” is given as an example of giving the Court advance warning.
- Where a reporter has given an indication that they wish to make an application to vary the automatic reporting restrictions, in all cases the court should adjourn for a short period to allow the parties to discuss the terms of a proposed order. In many, if not most, cases agreement will be possible without the need for any formal application at all: see Bodey J’s remarks in Tickle v North Tyneside BC  EWHC 2991 at . In all cases it will be helpful for a written copy of the order that is sought to be prepared by the parties, highlighting any wording that is contentious and upon which a ruling is required. At first blush, this offers some solace but note that the short adjournment of unspecified duration is “to allow the parties to discuss the terms of a proposed order.
- Where agreement cannot be reached, the reporter should be invited to make oral submissions. The court, and any advocate appearing for parties to the proceedings, should provide assistance in terms of the relevant law and procedure to be followed. Any party opposing the application may then make submissions. The reporter should then be given an opportunity to reply. For the advocate, this is the point of no return.
- Whenever an application to lift reporting restrictions is made the judge should also consider whether a copy of any judgment should be published, applying the Practice Guidance (Family Courts: Transparency)  1 WLR 230.
Perhaps curiously, this part of the guidance states, “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).” It is noted that the Court is to be “astute to assist reporters…(and) reporting restrictions”. This certainly seems to be at least a gesture towards a permissive approach.
- Upon deciding whether to lift automatic reporting restrictions and/or to publish the judgment, the court may need to consider whether, in order to allow such reporting, additional reporting restrictions need to be imposed under the inherent jurisdiction (for example, anonymising any children and their parents after the conclusion of the proceedings, when CA 1989, s 97(2) no longer applies). In such cases, consideration should be given to transferring the issue for determination by a judge with High Court jurisdiction.
- This seems to be saying that there will be occasions where an application is being considered and the Court may be required to order additional reporting restrictions so that the Court may grant the application to lift/vary restrictions. At the very least, this would seem to encourage flexible thinking on the part of the Court and the parties.
- The sixth point grants relief to the unprepared. Consideration should be given to the need to adjourn the application to allow further evidence and/or submissions and to provide other media organisations with an opportunity to make representations.
- Having considered the relevant evidence and submissions the court should conduct the balancing exercise between privacy and transparency by balancing ECHR, Article 8 and Articles 6 and 10 and by having regard to the best interests of any child as a primary consideration.
- The Court should give a reasoned judgment on the application to vary reporting restrictions and on the question of publication of its judgment(s). While this need not be a ‘full detailed and compendious judgment’ (Re C (A Child)  EWCA Civ 500 at para ; H v A (No. 2)  EWHC 2630 (Fam) at para ), a fuller judgment may be called for where the complexity of the facts and issues warrant it and, in any event, the reasons must be sufficient to meet the requirements of natural justice, namely (Re B (Appeal: Lack of Reasons)  EWCA Civ 881, per Thorpe LJ at para  and see also Re W  EWCA Civ 1303 at para ):
‘… does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions.’
- Ninthly and 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. It is noted that whilst this espouses the standard family principle (perhaps interestingly referred to as “children cases”), it is suggested that this is intended to ward off the inevitable. Namely, future grumblings from the press about “the chilling effect” as a libel lawyer may put it.
The family lawyer now has three distinct guides from two Presidents. There is greater clarity and a clearly signalled approach which is to be followed. And for the unlucky, some comfort too.
 Of course, the two are conjoined: protecting a child from publicity often has the practical effect of shoring up a parent’s own free-standing right to a family life. Publication of a parent’s details being an effective route to breaching the child’s anonymity.