I have just spent a couple of hours listening to the interesting thoughts of Hedley J, Alison Russell QC & Professor Fortin on the opening up of the family courts.
I was rather shocked to learn that according to the MoJ, the statutory instrument containing the new rules is due to be published in Parliament on 6th April 2009 and will take effect from 27th April 2009. As yet there has been no publication of the draft rulesn so that the only people who have actually seen a copy are the Family Rules Committee members. There has been no wider consultation or discussion with the judiciary. It is not even yet clear whether the rules will be accompanied by any guidance for the judiciary and practitioners.
We were told that it is likely that the rules will apply to all cases, whatever stage they are at, with immediate effect on the commencement date. It is also likely that there will be a presumption that accredited journalists (yet to be defined) will be given access and judges should only exclude them in exceptional cases. It will now have to be one of the standard points on which we take instructions early in the case, since journalists will be able to come into the hearing at any point. It also seems likely that journalists will not be given access to any of the documents in the case although they are likely to be able to be given summaries of judgments or anonymised transcripts. There is to be a pilot study (in Leeds, Wolverhampton & Cardiff) in relation to judgments to trial the placement of anonymised judgements online from some family cases so that the public can see how decisions were reached, give parties involved a copy of the judgement at the conclusion of their case so that they have a record of what was decided and why and to look at the practicalities of retaining judgements so that children involved in proceedings can access them when they are older. See Jack Straw's oral statement to the House .
However, it was pointed out that there seem to be no plans to repeal any of the protection provisions restricting publications such as the Administration of Justice Act or section 97 of the Children Act 1989 . Indeed the Government plans to take steps to reverse the decision in Clayton v Clayton. In other words, although the media will have access, their rights to publish identifying information will remain heavily restricted.
Hedley J appeared to be the most willing to embrace the changes. His view is that the decision in principle has already been taken, underpinned by a policy desire to restore public confidence in the justice system. His own experience of dealing with cases where he has allowed press access has been positive and he has found that journalists have reported the case in a sympathetic way, acknowledging the difficulties of the task facing lawyers in the family justice system. His view is therefore that we need to turn our attention to ensuring that as access is extended, anonymity and privacy are protected.
Alison Russell QC was more cautious and clearly retained grave reservations about the principle of media access, fearing that children may be damaged if their rights to privacy are not vigorously protected. She asked a key question: in what way will publicity itself promote or produce justice? She lamented that lack of thought that seems to have been given to the impact on children and how they are going to be prepared for the fact of media scrutiny.
Jane Fortin, as Chair, did not declare a position, but towards the end made a few remarks which suggested to me at least that she was not convinced that this is a step in the right direction, whilst acknowledging that much may depend on how the press behave. Her key concern was that it might put children off attending court something she would like to see happening more often. She was also troubled by the prospect of the press naming and possibly vilifying experts with the effect that they may decline to undertake child protection reports.
None of the panel had any objection to the prospect of anonymised judgments being more widely available, so long as it did not impose too much of a burden on the judiciary. No doubt the transcripts will all have to be paid for by the public funding certificates of the parties. All agreed that in any event it was helpful to write judgments so that children who wanted to read them in later life could make some sense of what the court had decided.
One thought which was expressed was that although there seems to be a media appetite for covering human interest stories, their minimal attendance levels at the family proceedings court (where in theory, the court is not closed) may indicate that media access as an issue will end up being a storm in a teacup. On the other hand as Hedley J said it will be interesting to see how the press deal with the first celebrity case.
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