Private family hearings: a way through the ‘mess’

In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J said that to describe the law about the ability of the press to attend family proceedings as ‘a mess would be a serious understatement’. It that is a mess, then so too is the law about attendance of anyone else or for release of any documents from family proceedings; and by extension as to when a hearing is in open court or not.

 

This note is intended to try to make brief sense of the ‘mess’ (for more detail see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis, http://www.jordanpublishing.co.uk/practice-areas/family/publications/evidence-in-family-proceedings#.WA53jI9OLIU) Chs 2 (privacy or not in family proceedings); 13 (release of court documents):

 

(1)               Proceedings in private – All family proceedings are in private (Family Procedure Rules 2010 (FPR 2010) r 27.10) save where specific rules otherwise dictate, or the court orders.

 

(2)               Children proceedings and contempt of court – All children proceedings are in private; and it is a contempt of court to breach that privacy eg by telling the press names of children or parties (Administration of Justice Act 1960 s 12(1)). Social workers or expert witnesses can probably be named (Re J (A Child) [2013] EWHC 2694 (Fam) sub nom Re J (Reporting Restriction: Internet: Video) [2014] 1 FLR 523, Sir James Munby P) save where the court orders otherwise eg because it might enable a child to be identified.

 

(3)               Privacy and financial relief – In financial relief proceedings the court can order that the hearing be in public (FPR 2010 r 27.10(2); Luckwell v Limata [2014] EWHC 502 (Fam), [2014] 2 FLR 168 Holman J). It is more likely that the hearing will be in private (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J; and see Appleton (above)).

 

(4)               Press attendance at court – A narrow range of non-parties – such as accredited press representatives – can attend court (FPR 2010 r 27.11(2)); but they must still recognise the anonymity and confidentiality rules which apply under AJA 1960 s 12(1).

 

(5)               Making sense of the proceedings – Release of papers to the press to understand proceedings (per Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338; and see R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618) is limited. It has been tried in children proceedings by Munby J in Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415.

 

(6)               Release of hearing documents – At present the law allows release of some hearing documents (eg skeleton arguments, position statements: per Guardian v Westminster above) (a) in open court proceedings and (b) in family proceedings if the court so orders (FPR 2010 r 29.12). Mostyn J (Appleton (above)) and practice direction PD29A para 2.3 say otherwise; though they are contrary to the spirit and the law (so far as it can be applied to private hearings) referred to in para (5) (above).

 

(7)               Transparency – Transparency thus far: suitably anonymised judgements at the appropriate level of court should be published (Transparency in the family courts: publication of judgments:  practice guidance issued on 16 January 2014 (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf); but beware jig-saw identification.

 

(8)               Release of hearing documents in children proceedings – Documents from children proceedings may be released to the police, to CPS and the security services with appropriate conditions on any orders to protect confidentiality (Re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam), [2015] 1 FLR 1218, Baker J; X, Y and Z (Disclosure to the Security Service) [2016] EWHC 2400 (Fam), McDonald J; and see 2013 protocol for release of children proceedings papers to CPS: http://www.cps.gov.uk/publications/docs/third_party_protocol_2013.pdf).

 

(9)               Documents under compulsion of disclosure – Documents produced under compulsion of disclosure rules may not be released to non-parties or otherwise ‘used’ outside court (the ‘implied undertaking’, now in CPR 1998 r 31.22(1); and see Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261 sub nom Clibbery v Allan [2002] 1 FLR 565) save with permission from the court.

 

(10)           Open court hearings – All hearings in civil proceedings (save where excepted by CPR 1998 r 39.2(1)) are in open court (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; European Convention 1950 Art 6(1)). This rule applies to some family proceedings (Scott was a divorce case) such as divorce hearings and committal applications (and see r 27.10).

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