The President of the Family Division, Sir Andrew McFarlane, has issued new Guidance as to “Reporting in the Family Courts” [pdf]. The guidance has been issued 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 points out that family proceedings are normally held in private but that duly accredited journalists and legal bloggers (“reporters”) can attend hearing under rule 27.11 of the Family Procedure Rules. This does not grant a right to report but the Court may lift or extend reporting restrictions and in so doing must balance the Convention rights in play, in particular Articles 6, 8 and 10 (see Re J (A Child)  EWHC 2694 (Fam)) ).
The Guidance lays down a number of relevant principles in relation to applications by reporters apply to vary or lift automatic reporting restrictions:
- Although an application can be made by an application notice, reporters do not need to make a formal application if they have attended the hearing or the hearing is over.
- Where such an application is indicated the court should adjourn for a short period to allow the parties to discuss the proposed order. In most cases agreement will be possible without a formal order.
- If agreement can’t be reached the reporter should be invited to make oral submissions.
- The Judge should consider publishing any judgment when such an application is made.
- The Judge should consider, whether if an application is allowed additional reporting restrictions are needed
- Consideration should be given to adjourning to allow further evidence or submissions
- The Judge should conduct the balancing exercise between privacy and transparency, Articles 8, 6 and 10, having regard to the best interest of any child.
- The Judge should give a reasoned judgment on any such application.
- On such applications, 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”.