Publishing information about family proceedings

Many moons ago in June 2009 I wrote a post entitled Writing about family proceedings – a blogger’s guide. A lot has changed since then. Although, oddly, the law has not. What has changed are judicial attitudes to free speech. Some would say what has changed is the balance between free speech and privacy.

So I thought I ought to take a look at that post and see how accurate it now is, in light of a wealth of judicial guidance.

Actually, it’s not as bad as you might think. The references to the Family Proceedings Rules 1991 are now out of date, but the substance of those rules survives untouched in Part 12 of the Family Procedure Rules 2010 and Practice Direction 12G. And pretty much everything else is still governed by the same law (the changes I anticipated at the time through the Children Schools & Families Act 2010 were never brought into force and were ultimately repealed in April this year).

My eleven points are still good, because what I set out there is the framework and the starting point, rather than where the balance is likely to fall in an individual case.

But I do think its worth noting that since 2009 there have been examples in published judgments of individuals being sent to prison for contempt of court after publishing information in breach of a court order, and that there have been judgments where the court has permitted far broader publication of information than many would have anticipated in 2009. For example in the case of Re J (A Child) [2013] EWHC 2694 (Fam) a father was retrospectively permitted to publish videos of the removal of his newborn baby under an EPO – but he was not to name himself or the child. It is now far more likely that the naming of social workers and professionals will be expressly permitted by the court – if asked – and that parents will be permitted to tell their story, albeit usually on an anonymous basis.

Overall, the judiciary are more alive I think to the need to permit parties to proceedings to tell their stories and air their views about the process and outcomes of family proceedings, as long as that is compatible with the safety and welfare of the children. Although the media still refer to the family courts as secret there is ever more clear water between the privacy that is justified and necessary in individual cases and the blanket secrecy that critics suggest continues to apply. That is to say, the default position as set out in my 1-10 points is still in favour of privacy, but where justified on application the court will modify the applicable restrictions. Some would say no application should be necessary and the default should be openness but that is a fundamental shift that only Parliament can achieve.

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7 thoughts on “Publishing information about family proceedings

  1. robert whiston

    It’s not just ‘the media’ which still refers to the family courts as a secretive creature. We all do – all of those millions that have passed through its doors and know its incompetence. No wonder no one in authority wants to open a skylight and let the light shine in on the truth.

    The chattering classes are forever whittering on about the need for transparency but when it comes to courts or Leveson it’s strictly a ‘not in my back yard’ reaction.

    ‘A plague on both your houses’’ and ‘Twas ever thus’ spring rapidly to mind.

  2. I think it is also in Re J where Munby says that the distinction between ‘secret’ and ‘private’ is only of interest to lawyers.

    • It is that case, and on one level he’s right.
      But it IS a distinction that is really important to parties and to children. I’ve had to have the conversation with a number of clients recently about how the judgment in their case might be reported and the look on their faces has been the same every time – until I am able to explain the anonymity provisions, when most of them reluctantly accept it. Those are private law cases, but in public law cases the difference between privacy and secrecy can be a placement breakdown, schoolyard taunting etc.

  3. Will you be placing your own reported recent track record of using the provisions of court secrecy / privacy in county court proceedings within the context of your opinion piece on family court secrecy?

  4. Freedom of Speech and Freedom of asociation should mean what they say.No gagging orders should be allowed unless national security is threatened;No “non molestation” or “no contact” orders should be allowed unless the person named has a criminal record for violence.Family courts should like criminal courts be open to the public.Present restrictions preventing the naming of children concerned in proceedings are quite sufficient,and as Sir James Munby himself observed in effect,”Remedies for defamation already exist in the courts without the need for recourse to gagging orders !

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