There are two main statutory restrictions which limit what can be reported from the family courts.
Section 12 of the Administration of Justice Act 1960 makes it a contempt of court to publish information about proceedings concerning the maintenance and upbringing of children. This includes cases where social services departments seek orders taking children into care, as well as adoption cases, and custody disputes between parents.
The section applies to all courts from which the public are excluded. This includes family courts in the High Court and County Courts, though not generally in the Magistrates’ Court.
It does not however apply to the Administrative Court, where the case reported by Press Gazette on 7 February was heard. As the judge pointed out in that case, had it been heard in the family courts, it probably would never have come to public attention.
The section not only prohibits reporting of what takes place in family courts but also prohibits the publication of information from the case documents, such as witness statements and expert reports. Anyone who provides these documents to anyone not involved in the case (including journalists) can find themselves in contempt of court, as solicitor Sarah Harman discovered in 2004 when she passed documents about a client of hers in a family case to a number of MPs, including her sister the then-solicitor general Harriet.
Section 12 does not prevent reporting the fact there is a dispute concerning children, or of certain details about the hearing such as where and when it took place and the identity of the witnesses.
If witnesses in a family case want anonymity, they must apply to the court. There have been a number of such applications made on the part of expert witnesses who fear intimidation if their identities are widely publicised.
Section 97 of the Children Act 1989 prohibits the publication of anything which is likely to identify a child as being involved in cases where powers under the Children Act may be exercised. This includes adoption cases and applications by local authorities to take children into care.
It has the effect of preventing reporting of any identifying details of the child concerned in such cases or of their relatives, as well as of their address or school.
The Court of Appeal decided in the summer of 2006 that the s.97 restrictions cease to apply after proceedings have come to an end. So, unless the court has granted an injunction, the press can identify parents and children involved in, for example, an adoption case once that case has come to an end.
The combined effect of section 97 and section 12 is to prevent reporting of all but the barest details of court disputes involving children in the family courts. However, on rare occasions the media have successfully applied to the court for permission to report the details of contested child cases in which local authorities have applied to take children into care on the basis of disputed evidence of parental abuse.
Judges also occasionally decide that they will make certain facts about cases they have heard public. This generally happens when a judge considers that the conduct of the local authority which has brought a case against parents has been particularly unfair. Only very rarely will a judge permit identification of the child involved in the dispute.
While the media welcomed proposals made in a consultation paper issued by the Government in 2006, there was widespread opposition from several quarters. The Government now appears to have abandoned proposals to open the family courts to the media or the general public, although it has said it intends to introduce measures to make more information about the work of the family courts publicly available.
Adam Wolanski is a barrister at 5rb specialising in media law. He has acted on behalf of media organisations in several cases involving reporting restrictions in the family courts