Excluding the media

In re X (a child) (Rights of media attendance) [2009] EWHC 1728 (fam) FD TLR 14 July

Sir Mark Porter, president of the Family Division, gave further guidance on the procedure and circumstances in which media attendance and family proceedings should take place under the new regime introduced by r10.28 of the Family Proceedings Rules. Rule 10.28 conferred upon the media an effective right to be present at private hearings of children’s proceedings, provided, by para 4(a) (i), that the court could direct at any stage of the proceedings that media representatives should not attend if that were necessary in the interest of the child concerned and by para (4)(b) if justice would otherwise be impeded or prejudiced. The proceedings remained however subject to the provisions of s12 of the Administration of Justice Act 1960 and s97(2) of the Children Act 1989 with the effect that, while the media were entitled to report on the nature of the dispute in proceedings and to identify the issues in the case and the identity of participating witnesses, save those whose published identity would reveal the identity of the child involved, they were not permitted to set out the content of the evidence or details of matters being investigated. Private family law cases concerning the children of celebrities (as in this case) were no different in principle from those involving the children of anyone else that it was almost axiomatic that media interest in such cases would be more intense as would the need for protection of the child. In deciding whether or not the grants advanced for exclusion were sufficient to override the presumptive right of the press to be present, it was relevant to have regard, inter alia, to the nature and sensitivities of the evidence and the degree to which the watch-dog function of the media might be engaged. This was not to place any burden of proof or justification on the media; the burden lay on the applicant to demonstrate that the matter could not be appropriately dealt with by allowing the press to attend. When apprising the media of the materials upon which an application to exclude was based, it was sufficient for the justifying statement, without revealing the detail of the sensitive or confidential matter, to outline and make clear the nature and issues involved sufficient to enable the media to make an informed decision on the response. Paragraph 6.4 of the Practice Direction (Family Proceedings: Media Representatives) [2009] 1 WLR 1111 issued on 20 April 2009 which did not require prior notification of media interest unless the court so directed, it was not adequate to protect the interest of the press and require to be reconsidered. Meanwhile, it was incumbent upon an applicant wishing to exclude the media from a substantive hearing ab initio to raise the matter with the court prior to the hearing for consideration of the need to notify the media via the Press Association CopyDirect service. Where temporary exclusion during proceedings were sought, it was for the hearing judge to balance the competing arts 8 and 10 rights, inviting media representation as necessary.