President’s guidance on procedure
‘President’s guidance as to reporting in the family courts’ dated 3 October 2019 was issued late last month. (A draft of this ‘guidance’ had been circulated in May, which this final version follows.) It deals with how ‘reporters’ may apply to vary reporting restrictions orders (ie orders made by the court to restrict them, or publicity in general, in the reporting of proceedings in family proceedings courts: RROs); though non-parties other than ‘reporters’ (accredited media representatives and ‘legal bloggers’ in Family Procedure Rules 2010 (FPR 2010) r 27.11(2)(f) and (ff)) are affected by the proceedings to which the guidance relates.
The guidance nominally applies to all family cases ‘in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the [family courts]’ (para 1); though its references to eg Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) (contempt for reporting of children proceedings) suggest it is aimed mostly – entirely even? – at children proceedings.
The guidance follows case of R (A Child)  EWCA Civ 482 (15 February 2019) where a journalist appealed against a judge’s reporting restrictions order in care proceedings. That case was largely academic (as the judgement makes clear), in the sense that it decided nothing: terms had been agreed by the parties as to relaxation of the reporting restrictions originally ordered long before the appeal came on.
The aim of the guidance, it says, ‘to assist the court, the parties and the media in circumstances where a reporter attending court may wish to apply to vary reporting restrictions’ in family courts (para 1). It sets out the main rules (FPR 2010 rr 27.10 and 27.11(2)(f) and (3)) and statutory provisions (AJA 1960 s 12(1)(a) and Children Act 1989 s 97(2) which formally restrict journalists); though little is said of the stick judges have – criminal contempt proceedings against journalists and their newspapers – if the law is thought to have been breached.
A procedure for release or varying reporting restrictions orders
The guidance then goes on to tell the reader what should formally be done to vary or release a RRO propose; but then, in non-statutory terms (see comments on role of ‘guidance’ below), it tells journalists what they may get away with:
8 First, 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. However, such a procedure (which will usually need to be accompanied by payment of the requisite fee) should not be necessary in many cases. It is a time-consuming and expensive process and may generate additional unnecessary public expense or delay in a straightforward case.
Para 8 continues with informal guidance given by Sir Andrew:
- Where a reporter wishes to apply for reporting restrictions to be lifted after the hearing is over, this, too, may be done without a formal application being made, for example by way of an email to the court or the judge’s clerk (copied to the parties). In such cases the court must ensure that all parties are notified of the application and given an opportunity to respond (para 8(c)). (We are not told if it is anticipated that all non-parties can benefit from this to ask for restrictions to be raised.
- Courts should be ‘astute to assist reporters’ (but not other bona fide non-parties?) 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) (para 8(d)).
- At the start of a hearing attended by a reporter the judge should enquire if such an application is to be made and, if there is none at that stage, invite ‘the reporter’ to alert the court if the situation changes, either at a convenient stage during the hearing or at its conclusion (para 8(f)). It remains to be seen whether courts operate this injunction – it is more than ‘guidance’ – for media representatives or any other non-parties.
Criminal contempt and reporting restrictions
Para 8(e) caries the reminder – though it does not say so in terms – that any release of court material in children proceedings is covered by the contempt provisions of ‘AJA 1960 s 12 and CA 1989 s 97 and remain confidential’.
The guidance goes on to recommend a procedure for application for variation with the media representative preparing a draft order; a hearing being arranged if agreement cannot be agreed; and that a full judgment should be given on any application. At para 10 the guidance continues:
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.
Judges have often been quick to remind parties that it is not for them to give advice (especially in this area to publishers of information, such as the media). And, yes, so far as it is known, advocates will help the court with procedure and the law involved in a case.
Costs and President’s guidance
It will be recalled that this guidance applies ‘in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the’ court; though it is likely that it will be applied for any non-party (eg researcher or ‘legal blogger’; parties’ friends or relations etc) who wishes to attend court. It applies to all forms of family proceedings (not just to children proceedings). Sir Andrew’s guidance on costs is therefore surprising (some might even say ‘bold’):
16 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.
Three of the more celebrated recent cases on reporting restrictions orders and attendance at court by media representatives since the new scheme came in, are Spencer v Spencer  EWHC 1529 (Fam),  2 FLR 1416, Munby J (brother of Lady Diana), Cooper-Hohn v Hohn  EWHC 2314 (Fam),  1 FLR 19, Roberts J and Appleton & Gallagher v News Group Newspapers Ltd & PA  EWHC 2689 (Fam),  2 FLR 1, Mostyn J (Liam Gallagher). They were not ‘children cases’ at all. I do not know what any order for costs was, but I doubt there was a ‘standard’ approach. In Appleton the press was formally a party.
Orders for costs are very rare, as between private parties (eg parents) or if a local authority applies for a care order; but I am by no means sure that most judges would say the same ‘standard’ rules apply for media representatives and their employers (the journalist n Re R was a free-lance). The general rule is that costs are in the discretion of the court, save where statute or a rule says otherwise (Senior Courts Act 1981 s 51(1)). ‘President’s guidance’ is neither rule nor statute. It can bind no party nor any judge; though that is a subject for another day.
Given that the applicant for the variation is generally a commercial body – not a parent or local authority caring for children – it seems likely, save where a variation is agreed, that a issues of costs may often arise in contested RRO cases.