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Practice Direction: Attendance of Media Representatives at Hearings in Family Proceedings - FPC

20th April 2009

This Practice Direction below is made by the President of the Family Division under the powers delegated to him by the Lord Chief Justice under Schedule 2, Part 1, paragraph 2(2) of the Constitutional Reform Act 2005, and is approved by Bridget Prentice, Parliamentary Under Secretary of State, by the authority of the Lord Chancellor.

1. Introduction

1.1 This Practice Direction supplements rule 16A of the Family Proceedings Courts (Children Act 1989) Rules 1991 (“the Rules”) and deals with the right of representatives of news gathering and reporting organisations (“media representatives”) to attend at hearings of relevant proceedings 1 subject to the discretion of the court to exclude such representatives from the whole or part of any hearing on specified grounds.2 It takes effect on 27th April 2009. References to a “hearing” within this Practice Direction include reference to a directions appointment, whether conducted by the justices, a district judge or a justices’ clerk.

2 Matters unchanged by the rule

2.1 Rule 16A(2) contains an express exception in respect of hearings which are conducted for the purpose of judicially assisted conciliation or negotiation and media representatives do not have a right to attend these hearings. First Hearing Dispute Resolution appointments in private law Children Act cases will come within this exception to the extent that the justices, a district judge or a justices’ clerk play an active part in the conciliation process. Where the justices, a district judge or a justices’ clerk play no part in the conciliation process or where the conciliation element of a hearing is complete and the court is adjudicating upon the issues between the parties, media representatives should be permitted to attend subject to the discretion of the court to exclude them on the specified grounds. Conciliation meetings or negotiation conducted between the parties with the assistance of an officer of the service or a Welsh Family Proceedings officer, and without the presence of the justices, a district judge or a justices’ clerk, are not “hearings” within the meaning of this rule and media representatives have no right to attend such appointments.

The exception in rule 16A(2) does not operate to exclude media representatives from:

The rights of media representatives to attend such hearings are limited only by the powers of the court to exclude such attendance on the limited grounds and subject to the procedures set out in paragraphs (3) to (5) of rule 16A.

2.2 During any hearing, the court should consider whether the exception in rule 16A(2) becomes applicable so that media representatives should be directed to withdraw.

2.3 The provisions of the rules permitting the attendance of media representatives and the disclosure to third parties of information relating to the proceedings do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or decisions of the court (in particular, written reasons) without the permission of the court or otherwise in accordance with Part IIC (rules relating to disclosure to third parties).

2.4 The question of attendance of media representatives at hearings in family proceedings to which rule 16A and this guidance apply must be distinguished from statutory restrictions on publication and disclosure of information relating to proceedings, which continue to apply and are unaffected by the rule and this guidance.

2.5 The prohibition in section 97(2) of the Children Act 1989, on publishing material intended to or likely to identify a child as being involved in proceedings or the address or school of any such child, is limited to the duration of the proceedings.3 However, the limitations imposed by section 12 of the Administration of Justice Act 1960 on publication of information relating to certain proceedings in private4 apply during and after the proceedings. In addition, in the course of proceedings to which s.97(2) of the Children Act 1989 applies the court should consider whether at the conclusion of the proceedings there may be outstanding welfare issues which may require a continuation of the protection afforded during the course of the proceedings by s. 97 (2) of the Children Act 1989 and which are not fully met by a direction under section 39 Children and Young Persons Act 1933,5 so that any party seeking such protection has an opportunity to apply to the county court or High Court for the appropriate order before the proceedings are finally concluded.

3. Aims of the guidance
3.1 This Practice Direction is intended to provide guidance regarding:

3.2 While the guidance does not aim to cover all possible eventualities, it should be complied with so far as consistent in all the circumstances with the just determination of the proceedings.

4. Identification of media representatives as “accredited”
4.1 Media representatives will be expected to carry with them identification sufficient to enable court staff, or if necessary the court itself, to verify that they are “accredited” representatives of news gathering or reporting organisations within the meaning of the rule.

4.2 By virtue of paragraph (7) of the rule, it is for the Lord Chancellor to approve a scheme which will provide for accreditation. The Lord Chancellor has decided that the scheme operated by the UK Press Card Authority provides sufficient accreditation: a card issued under that scheme will be the expected form of identification, and production of the Card will be both necessary and sufficient to demonstrate accreditation.

4.3 A media representative unable to demonstrate accreditation in accordance with the UK Press Card Authority scheme so as to be able to attend by virtue of paragraph (1)(f) of the rule may nevertheless be permitted to attend at the court’s discretion under paragraph (1)(g).

5. Exercise of the discretion to exclude media representatives from all or part of the proceedings.
5.1 The rule anticipates and should be applied on the basis that media representatives have a right to attend family proceedings throughout save and to the extent that the court exercises its discretion to exclude them from the whole or part of any proceedings on one or more of the grounds set out in paragraph (3) of the rule.

5.2
When considering the question of exclusion on any of the grounds set out in paragraph (3) of the rule the court should -

5.3 Paragraph (3)(a)(iii) of the rule permits exclusion where necessary “for the orderly conduct of proceedings”. This enables the court to address practical problems presented by media attendance. In particular, it may be difficult or even impossible physically to accommodate all (or indeed any) media representatives who wish to attend a particular hearing on the grounds of the restricted size or layout of the court room in which it is being heard. Court staff will use their best efforts to identify more suitable accommodation in advance of any hearing which appears likely to attract particular media attention, and to move hearings to larger court rooms where possible. However, the court should not be required to adjourn a hearing in order for larger accommodation to be sought where this will involve significant disruption or delay in the proceedings.

5.4 Paragraph (3)(b) of the rule permits exclusion where, unless the media are excluded, justice will be impeded or prejudiced for some reason other than those set out in sub-paragraph (a). Reasons of administrative inconvenience are not sufficient. An example of circumstances where the impact on justice of continued attendance might be sufficient to necessitate exclusion would be any hearing at which a witness (other than a party) states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives.

5.5 In the event of a decision to exclude media representatives, the court should state brief reasons for the decision.

Applications to exclude media representatives from all or part of proceedings.
6.1 The court may exclude media representatives on the permitted grounds of its own motion or after hearing representations from the interested

6.2 Applications to exclude media representatives should normally be dealt with as they arise and by way of oral representations, unless the court directs otherwise.

6.3 When media representatives are expected to attend a particular hearing (for example, where a party is encouraging media interest and attendance) and a party intends to apply to the court for the exclusion of the media, such party should, if practicable, give advance notice to the court, to the other parties and (where appointed) any children’s guardian, officer of the service or Welsh Family Proceedings officer, NYAS or other representative of the child of any intention to seek the exclusion of media representatives from all or part of the proceedings. Equally, legal representatives and parties should ensure that witnesses are aware of the right of media representatives to attend and should notify the court at an early stage of the intention of any witness to request the exclusion of media representatives

6.4 Prior notification by the court of a pending application for exclusion will not be given to media interests unless the court so directs. However, where such an application has been made, the applicant must where possible, notify the relevant media organisations.

Sir Mark Potter
President of the family Division

1 “relevant proceedings” are defined in rule 1 of the Rules by reference to section 93(3) of the Children Act 1989.
2 It does not, accordingly, apply where hearings are held in open court where the general public including media representatives attend as of right.
3 See Clayton v Clayton [2006] EWCA Civ 878
4 In particular proceedings which
(a) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(b) are brought under the Children Act 1989; or
(c) otherwise relate wholly or mainly to the maintenance or upbringing of a minor
5 Power of court to prohibit publication of certain matters in newspapers