Re X (A Child) (Residence and Contact: Rights of Media Attendance)
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Date | 2009 |
| Year | 2009 |
| Court | Family Division |
Practice – Proceedings in private – Media attendance – Application to exclude media – Contact and residence proceedings taking place in relation to child of celebrity father – County court judge adjourning proceedings pending High Court’s consideration of press access – Parties applying to exclude media from High Court and subsequent hearings – Whether different principles to be applied in private law family cases concerning children of celebrities – Whether procedure prescribed by Practice Direction adequately protecting interests of press – Whether necessary to exclude media – Family Proceedings Rules 1991, SI 1991/1247, r 10.28(4).
The father was a ‘celebrity’ in that he had been the subject of a high level of press attention for many years. The child, X, lived with the mother, who was less well-known in her own right but was the subject of considerable media interest by reason of her relationship with the father. In 2007, contact and residence proceedings in relation to X began in the county court. At a fact-finding hearing, the judge heard evidence from both parties, as well as a CAFCASS officer and Dr C, a consultant child and adolescent psychiatrist who had been instructed to report on, inter alia, whether X was suffering from emotional harm as a result of her circumstances. In the light of the sensitive nature of the information reported by the professionals, as well as the manifest media interest outside the court, the judge made a contra mundum order until the child’s 18th birthday or further order, prohibiting the publication and broadcast of various matters which could lead to the identification of X. The judgment in the fact-finding hearing was handed down in private early in April 2009. It contemplated a six-month adjournment of the final hearing in view of the parents’ consent to co-operate in the intervention of Dr C and made provision for further hearings to progress the matter in the interim. On 27 April, the day of the first further hearing, the Family Proceedings (Amendment No 2) Rules 2009, SI 2009/857, came into force with the effect that r 10.28 was inserted into the Family Proceedings Rules 1991, SI 1991/1247. The new rule provided that duly accredited media representatives were permitted to be present during proceedings held in private, subject to the power of the court to direct their exclusion during all or part of the proceedings for one of a number of reasons specified in para (4), which included where exclusion was necessary in the interests of any child concerned in, or connected with, the
proceedings (para (4)(a)(i)), and where justice would otherwise be impeded or prejudiced (para (4)(b)). Practice Direction: Attendance of Media Representatives at Hearings in Family Proceedings (No 2)[2009] 2 FCR 611, the Practice Direction approved by the Lord Chancellor in conjunction with the rule change, contemplated that applications to exclude media representatives would be dealt with by way of oral representations as and when the occasion arose during the course of proceedings and, according to para 6.4, prior notification to media interests was not required unless the court so directed. The media in the instant case again sought admission, which was opposed by the parties. The judge accordingly adjourned the hearing pending the consideration of press access by the High Court. The parties sought an order excluding media representatives from the High Court hearing and all subsequent hearings, relying, inter alia, on r 10.28(4)(a)(i) and (4)(b). Dr C indicated that to disclose the information he possessed concerning X in the presence of the media would undermine her trust in him and the ongoing process, rendering her unable to participate. Issues arose, inter alia, as to the principles to be applied in relation to media access in family cases concerning the children of ‘celebrities’ and whether exclusion was appropriate in the instant case. The court also considered whether the system for notification to media interests contemplated by para 6 of the Practice Direction was sufficient to protect the interests of the media. The media sought guidance on what machinery was to be used to apprise them, for the purposes of their submissions as to their proposed exclusion, of the materials upon which the application to exclude was based, when the protection of the confidentiality and/or sensitivity of the details contained within those materials constituted the very reason for the application to exclude. The Press Association Injunction Alert Service indicated to the court that the Press Association was willing for its CopyDirect service to be used for the purposes of notification to the media on the basis that such notification was supported by the documentation as provided for in Practice Note (Official Solicitor: Deputy Director of Legal Services: CAFCASS: Applications for Reporting Restriction Orders) [2005] 2 FLR 111.
Held– (1) Private law family cases concerning the children of celebrities were no different in principle from those involving the children of anyone else. An application by a celebrity who happened also to be a parent who was unable to agree with a former spouse or partner over the appropriate arrangements for their child was not governed by any principle or assumption more favourable to the privacy of the celebrity than that applied to any other parent caught up in the court process. However, in considering whether or not to exclude the press under r 10.28(4)(a)(i) of the 1991 Rules, the focus was upon the interests of the child and not the parents. It was almost axiomatic that the press interest in and surrounding the case would be more intense in the case of children of celebrities; and the need for
protection of the child from intrusion or publicity, and the danger of leakage of information to the public would similarly be the more intense.
(2) Rule 10.28 of the 1991 Rules provided that, in order to exclude the press on any of the grounds stated, the court had to be satisfied that it was necessary to do so. The burden of satisfying the court of the grounds set out in r 10.28(4) was upon the party or parties who sought exclusion, or the court itself in a case where it took steps of its own motion to exclude the press. That would be an easier burden to satisfy in the case of temporary exclusion in the course of the proceedings in order to meet concerns arising from the evidence of a particular witness or witnesses. In deciding whether or not the grounds advanced for exclusion were sufficient to override the presumptive right of the press to be present and, in particular, whether an order for total exclusion was proportionate, it would be relevant to have regard to the nature and sensitivities of the evidence and the degree to which the watchdog function of the media might be engaged, or whether its apparent interests lay in observing and reporting on matters which might well be the object of interest, in the sense of curiosity, on the part of the public, but which were confidential and private and did not themselves involve matters of public interest properly so called. In all the circumstances, it was necessary to exclude the media from the imminent hearing in the instant case on the grounds set out in paras (4)(a)(i) and (4)(b) of r 10.28. Although X had received considerable attention from the press in the past, there was no suggestion that any of the matters involved in the next hearing regarding her present progress and state of mind were in the public domain or known to anyone other than the parents, the CAFCASS officer and Dr C. Her welfare interests dictated that there should be no derailing of the processes which were crucial to the protection and development of her family life. A further matter of concern was that matters had to date proceeded on the basis of the privacy of the proceedings and the confidentiality of X’s exchanges and interactions with the professionals, as to which X had received assurances too late to be qualified or withdrawn if she was to remain engaged in Dr C’s work. The order would not extend to the final hearing since it was possible, though unlikely, that circumstances could change so as to bring into play wider issues which might call for a reconsideration of the question of press attendance.
Per curiam. In the light of the media interest to be anticipated in cases involving the children of ‘celebrities’, the provisions of para 6.4 of the Practice Direction are not adequate to protect the interests of the press and require reconsideration. Meanwhile, although the Practice Direction does not expressly so provide, it is incumbent upon an applicant who wishes 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 in advance of the proposed application and, if that is done, the court should require the applicant to notify the media via the CopyDirect service in accordance with the procedure provided for in the Practice Note. It is neither practical nor necessary, however, for a similar procedure to be
adopted in respect of cases where, although the parties do not challenge the right of the media to attend the proceedings from the outset, they seek during the course of the proceedings the temporary exclusion of the media in relation to the evidence of a particular witness or witnesses. There are likely to be frequent occasions when the court considers it necessary, on one of the grounds set out in r 10.28(4) of the 1991 Rules, to direct that accredited media representatives temporarily withdraw while certain evidence is given. To require the parties or the court to institute the processes provided for in the Practice Note would create undesirable interruptions and produce unacceptable delays in the administration of justice.
Cases referred to in judgmentA Local Authority v W[2005] EWHC 1564 (Fam), [2007] 3 FCR 69, [2006] 1 FLR 1.
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