Cases in the family courts which involve the children of celebrities should be treated in the same way as those involving anyone else’s children, the senior family courts judge said today.
There was no principle which was more favourable to the celebrity’s privacy in cases involving applications for the media to be excluded from such hearings, said Sir Mark Potter, President of the Family Division of the High Court.
He was giving judgment in a case involving a celebrity, a child and the child’s mother which has been used as an opportunity to give the family courts guidance on dealing with applications for the media to be excluded from hearings.
The celebrity, supported by the child’s mother, applied for the media to be excluded from all hearings in the proceedings following the coming into effect on April 27 of new rules giving journalists the right to attend family court hearings.
A new rule 10.28 in the Family Proceedings Rules gives the media the right to attend hearings – but also gives a court the power to exclude journalists for all or part of the proceedings under certain circumstances.
The hearings are held in private – and remain private, despite media attendance, which means that they are covered by statutory reporting restrictions.
The media may be excluded if exclusion is necessary, among other reasons, in the interests of any child concerned in or connected to the proceedings, or if justice will otherwise be impeded or prejudiced.
Sir Mark – who decided to exclude the media from attending the proceedings involving the celebrity because they would involve matters which were intensely sensitive and personal to the child – said there were six matters he wished to make clear.
“First, private law family cases concerning the children of celebrities are no different in principle from those involving the children of anyone else,” he said.
“An application by a celebrity who happens also to be a parent who is unable to agree with a former spouse or partner over the appropriate arrangements for their child(ren) is 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.”
The focus in considering whether to exclude the press under Rule 10.28 was on the interests of the child, not those of the parents – although press interest would be greater in the cases of children of celebrities, with a correspondingly greater intense need to protect the child.
The second point was that Rule 10.28 required that a court had to be satisfied that it was necessary to exclude the press for any of the grounds stated.
A court had to consider whether the interference with either the media’s rights to freedom of expression under Article 10 of the European Convention on Human Rights, or the child’s right the right to respect for privacy and family life under Article 8, corresponded to a pressing social need, was proportionate to the legitimate aim pursued, and whether the reasons given to justify it were relevant and sufficient under Article 10.
Third, the introduction of the provision giving the media a clear prima facie right to attend family proceedings, subject only to exclusion on limited grounds, plainly complied with the Human Rights Convention.
The issue of media exclusion had to be approached on the basis set out above, in the context of the particular facts of the case, and with an eye to the question whether any information received in confidence was involved and therefore at risk by reason of press attendance.
The court needed to consider whether, having regard to the nature of the information and all the relevant circumstances, it was legitimate for the owner of the information to seek to keep it confidential or whether it was in the public interest that the information should be made public.
Fourth, a Practice Direction issued on April 20 in advance of the family courts being opened to the media, was not “strictly speaking” accurate in referring to the exercise of a court’s discretion to exclude the media.
Where the court had a duty to apply a test of necessity in relation to a series of questions as to legitimacy and proportionality, it had to proceed though a balancing exercise making a value judgment as to the conflicts which arise rather than to regard the matter simply as an exercise of discretion as between two equally legitimate courses.
The balancing act involved in weighing the conflicting but interlocking rights and restraints embodied in Article 10 and Article 8 of the Convention were highly fact sensitive from case to case – and the judge dealing with the case was best placed to make the necessary decision.
The fifth point, Sir Mark said, was that “the burden of satisfying the court” that the grounds for excluding the media from all or part of a hearing or proceedings had been met was on the party or parties who wanted exclusion, or on the Court itself in a case where it took steps for exclusion of its own motion.
“This will 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 the particular witness or witnesses,” he said.
Sir Mark added: “Sixth, in deciding whether or not the grounds advanced for exclusion are sufficient to override the presumptive right of the press to be present and in particular whether or not an order for total exclusion is proportionate, it will be relevant to have regard to the nature and sensitivities of the evidence and the degree to which the watchdog function of the media may be engaged, or whether its apparent interests lie in observing, and reporting on matters relating to the child which may well be the object of interest, in the sense of curiosity, on the part of the public but which are confidential and private and do not themselves or involve matters of public interest properly so called.
“However, while this may be a relevant consideration, it in no sense creates or places any burden of proof or justification upon the media.”
It was for the applicant to demonstrate that the matter could not be appropriately dealt with if the media attended, as the media would be subject to statutory safeguards protecting the identities of the parties and to the provisions of section 12 of the Administration of Justice Act 1960.
Section 12 makes it a contempt of court to report, among other things, anything about what happens in private proceedings involving the care and upbringing of children or brought under the Children act 1989
Sir Mark said that in this case he had no doubt that the media should be excluded from coming hearings in the celebrity case, because of the need to protect the child, the sensitivity of the issues and information involved, and because of the considerable interest in the case demonstrated by foreign media.
There was also the danger that experts in the case would be unwilling to give evidence, or could be at risk of breaching the child’s confidence which could prompt the youngster to withdraw trust and confidence in them – if they had to discuss the issues they had examined with the child in court with journalists present.
“While it is true that an exclusion order will deprive the media of their strong prima facie right to attend the proceedings, they will not thereby be deprived of attending a case in which the issues raised matters of public interest or of particular importance from the point of view of the watchdog role of the press,” Sir Mark said.
But press attendance at a later hearing was an issue which the judge dealing with the case should keep under review.