Knock knock knockin’ on hearing’s door – what happens when the press come to the family court?

Due to the nature of family law disputes, hearings in the family court often contain information which is “private”, intimate, personal, and/or sensitive. While press attendance of family court hearings has been a possibility for many years, in reality the press have tended not to take up this opportunity given the restrictive rules around publication (unless, of course, it is a high-profile person or something particularly salacious). However, the recent drive for greater transparency in the family court is likely soon to mean more press attendance and more reporting, which is undoubtedly a concern for those who unfortunately find themselves in court proceedings.

If you are concerned about protecting your privacy when dealing with a family, relationship or children dispute, it is important that the advice you obtain addresses the issues from all angles. At Kingsley Napley we are fortunate that our Family team operates alongside a leading Reputation Management team, which together are perfectly placed to assist. In this blog, we consider some of the key questions you may be asking around the attendance of the press in the family court and what steps can be taken.

1. Can the press attend family court hearings?

Accredited members of the press or media are generally allowed to attend family court hearings. They neither have to give notice that they plan to attend, nor do they have to explain how they came to know about the hearing. Press attendance can therefore take you by surprise and be an unsettling additional stressor in what is already an emotional experience. Generally we can predict the hearings the press may be interested in and will prepare clients thoroughly in the lead up to the hearings.

There are however some exceptions to this rule:

  1. There are certain limited categories of hearings which the press are not allowed to attend – for example, hearings in adoption proceedings, and any financial hearings which involve a judge assisting the parties to negotiate or reach a resolution.
  2. The individuals attending must be accredited media representatives, and they should be asked to provide the relevant documentation.
  3. Currently, journalists are not entitled to view any court documents as of right, even if they do attend a hearing.
  4. The court may in some circumstances exclude the press from all or part of the hearing where it is necessary in the interests of any children concerned, to protect a party or their safety, or to ensure justice is not impeded in some way.

2. Can the press report on my case?

The information which the press can report on or publish will depend on the nature of the hearing. If you have a real concern about what publication could mean for you, your family, or your career, it is important to take advice from experienced professionals regarding how to mitigate exposure and the risk of harm.

In proceedings concerning children, it has long been understood that the publication of information is prohibited without the permission of the court. The rules are complex and unclear however, which has likely been a significant factor in the press steering clear of including specific details when reporting. As a result of the recent transparency review, pilot schemes are running in Carlisle, Leeds and Cardiff where the press will be allowed as a matter of course to publish information, subject to it being anonymised. We wait to hear the results of this pilot and whether the rules will be changed in consequence.

In financial proceedings on divorce, the position has been that “private” information from hearings could not be published. However, in recent years there has been disagreement between judges on this point. The uncertainty created by different opinions in the judiciary is a challenge for individuals coming to court, as how much freedom the press will have to report may depend on the judge you are allocated.

If privacy is a concern, it will be important to raise arguments about this as a priority, particularly if the hearing is running over a number of days and press reports could be released before its conclusion.

3. Can the court control what the press publish?

It still remains the starting point that any publication or reporting of court hearings will be anonymous, therefore the press should not identify the parties. Assuming that the information or material is obtained lawfully, the court cannot control or limit what the press include in their reports. It is not the court’s role to be an editor, or to approve or criticise proposed reports or publications.

However, applications can be made by the press to lift the standard reporting restrictions. In these cases, it may be necessary for parties to apply for a specific reporting restriction order or an anonymity order to protect their identities or certain private or (possibly commercially) sensitive information. The court will then conduct a balancing exercise between the party’s right to privacy under Article 8 of the European Convention on Human Rights and the principle of open justice in Article 6, together with the general article 10 rights of the public at large. The final recommendations in the transparency review in respect of financial cases on divorce are that anonymity should remain the starting point, but there are differing opinions amongst judges and this point is yet to be settled.

4. Can I control what the press publish?

It is usually not possible to see a press report prior to publication or make any comment, unless this is offered to you by the press themselves. Moreover, once published, you may feel that a news report includes false or misleading content. In these circumstances there may be steps which can be taken to prevent the further publication of private information, or to request the take-down or correction of the offending material.

5. What should I do if the press are interested in my case?

The approach to be taken with the press will depend on many factors, including the nature of the hearing, the parties involved and the “private” details which may be revealed during the hearing. Some cases may contain more personal or intimate information than others, and the individuals involved may have very different motivations with regards the information being made public (for example, a wounded party may be keen to hurt or embarrass the other, or the publicity may be used as leverage). It is therefore always important to understand the background, the personalities involved, and your priorities.

In certain circumstances, it may be appropriate to engage with the reporter, and we can advise on this alongside our Reputation Management team. For example, if it is unlikely that an application to exclude the press will succeed, or there are good arguments for the standard reporting restrictions to be lifted, you may benefit from us discussing the key concerns or priorities with the press to enable matters to move forwards on an agreed basis. While the press are not entitled to any court documents, if there is a concern around one-sidedness or a need to balance the narrative, you may wish to consider with us what (limited) documents could be made available by consent, subject to conditions around distribution and anonymisation. In the recent transparency review, it has been recommended that the press should have access to position statements (or skeleton arguments) to allow them to understand the issues and the stances of the parties fully when reporting, which may ease this issue, but we wait to see whether this recommendation is implemented.

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