Journalists In The Family Courts: The Best Interests Of The Child Are Not A Trump Card

• Published date: 31 October 2023
• Subject Matter: Family and Matrimonial, Privacy, Family Law, Privacy Protection
• Law Firm: Withers LLP
• Author: Mr Sarfraz Ali and Andrew Fremlin-Key

How do the family courts balance the competing considerations of:

1. Open justice - ensuring legal processes are conducted openly so that the public can see that the courts and judges are doing their jobs properly; and
2. Privacy - people turn to the family courts to resolve the most private of matters, including the failure of their relationships and consequential issues such as the future arrangements for their children and the resolution of their financial matters?

Whilst this balancing act raises complicated issues, you might be forgiven for thinking that the law would nonetheless be clear. After all, the law (and family law in particular) is no stranger to needing to weigh up difficult issues of principle. We have clear laws about the obligations created by marriage and about reproductive technology, to pick a couple of examples, despite these issues being less than straightforward. You would also hope that judges would be aware of and in agreement as to what the law is.

That is, unfortunately, not always the case.

Instead, what happens in the family courts when it comes to whether a reporter is allowed into a hearing, what documents the reporter is allowed to see, and whether the parties will be permitted to remain anonymous in any press (or judicial) reports is a matter of practice. The answer might depend on geography, the level of judiciary involved or even which individual judge hears the case.

This is, to a large extent, a result of our common law system. Laws are not, like they are in many other countries, contained in a single and unified 'code'. There is a certain amount of codification in the form of legislation, but there is then a further body of case law which involves the courts following and applying principles to be found in previous court decisions. So even judges sometimes have to look quite hard to find the law!

The latest illustration of this isTickle v Father and others[2023] EWHC 2446 (Fam), reported this month. Proceedings concerning children in the Family Court are ordinarily heard in private, as the hearing before the Judge was. Louise Tickle, a journalist with a particular interest in family law, had sat in on the second day of a highly contentious 4-day hearing about the arrangements for a 5 year old child. She applied to the judge to report some elements of what she had observed on that day. She made it clear that her aim was to report procedural and systemic issues, including: the culture of the Family Justice System's...