Tuesday, 17 May 2011

Commenting on Family Cases

"Justice is not a cloistered virtue: she must be allowed to to suffer scrutiny and respectful, even though outspoken, comments by ordinary men" - Lord Atkin - Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 (PC).  This statement, by one of the most distinguished of British judges, is frequently quoted.  Unfortunately, one of the most difficult areas to comment upon is that of family cases and there is clear tension between the media and the judiciary over this matter.  This is, yet another, area where Articles 8 (Private and Family Life) and 10 (Expression) of the European Convention on Human Rights come into collision.

The previous Labour Government secured the enactment of the Children, Schools and Families Act 2010, Part 2 of which created a new scheme relating to publicity of child family cases.  This scheme would apply across all family courts.  The coalition government announced in October 2010 that it would await await the outcome of the Family Justice Review before deciding whether to commence Part 2 of the 2010 Act.  This leaves the matter of reporting to be  regulated by the Children Act 1989 s.97(2)  and it should be noted that contempt of court proceedings may also arise under the Administration of Justice Act 1960 s.12.  

Issue appears to have been joined between the journalist Mr Christopher Booker and
His Honour Judge Bellamy who has sat recently as a Deputy High Court Judge.  In Re L (a child: Media Reporting) [2011] EWHC B8 (Fam), the learned judge was very critical of articles published by Mr Booker - read paras. 185 to 193 of the judgment.  Mr Booker has now published his rejoinder to the judge's criticism - see The Telegraph 17th May 2011 - "A judge attacks my 'one-sided' child protection stories - but it cuts both ways.

In X, Y, Z and Brian Morgan v A Local Authority [2011] EWHC 1157, Lord Justice Wall (President of the Family Division) has weighed in stating that he agreed entirely with paragraphs 185 to 193 of Judge Bellamy's judgment in Re L - (see para 102 of X Y Z).  The issue in X Y Z was an application by a journalist for permission to publish the name of a doctor who had presented expert evidence in a child care case.  Wall P allowed the application and also gave permission for the doctor's report to be released though it will be subject to certain redactions.

A number of other interesting angles arise in these two cases.  Judge Bellamy in Re L was very critical of the Police using handcuffs when they arrested the child's parents at the hospital - Re L paras. 182-184.  In Re L the very difficult area of expert evidence in relation to metaphyseal fractures is considered.  These are often taken to be an indicator of non-accidental injury to young children but there is medical opinion that this is not necessarily the case - see this NSPCC documentation.  Wall P also looked at - (paras. 91 - 97 in X Y Z) - what might occur in future cases regarding anonymity of experts and publication of their reports.  He stated - "I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings."

Wall P also made the key point that there is a need for paediatricians to be willing to act as expert witnesses in these difficult cases.   He argues (para 86 of X Y Z) that they have nothing to fear from the courts but then, rather interestingly, points out that Professor Sir Roy Meadow was cleared of serious professional misconduct by the courts.

As for the Family Justice Review grasping this difficult nettle, we must wait and see.  So far they admit to having only given the matter minimal consideration - see the Interim Report paras. 3.16 - 3.19.    At 3.19 they stated - "Legislation in this area has to cover a range of circumstances and the detail of which cases can be open and which not (for example final adoptions) matters. In our view, based on our limited consideration of the issue, the general principle should be that people – including the media – should be able to attend court hearings but not be allowed to do or say anything that might identify the parties in public."  Hopefully, they will have more to say in their final report.  More openness is needed and Wall P's views relating to experts are welcome.  Furthermore, as Lord Atkin reminded us so many years ago, fair comment about judicial decisions is acceptable.

See also U K Human Rights Blog - post by Adam Wagner - "Must journalists attend court hearings to report accurately?"

Reference material:   Parliament briefing - Media attendance at family cases - Reporting of family cases


  1. The Review is unlikely to grasp this nettle because it is explicitly outside the panel's terms of reference. The Justice Select Committee is taking evidence on it though; the oral evidence given is on the Parliament website.

  2. @ Julie - Thank you for the comment.

    I am not so certain that this is "explicitly" outside their terms of reference though I accept that the review is aimed at how to promote informed settlement / agreement and also at the management of the family justice system. I am certain that the question of openness is not explicitly included in their terms of reference as set out in Annex A of their interim report.

    What interested me is that the review chose to comment about openness in their interim report - paras. 3.16 to 3.19. I provided a link in the post above.

    I fully accept that the Justice Committee is also looking at family justice. Their review was announced in July 2010 and is, I think, on-going. They are certainly addressing the question of openness.

    We will see how it goes. I was rather disappointed that they kept Part 2 of the 2010 Act on hold though I can see why.

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  4. . In X, Y and Z the very difficult area of expert evidence in relation to metaphyseal fractures in considered
    There was in fact NEVER any question over fractures in this case.

    1. Sorry Milly, got to correct you there, metaphyseal fractures were never considered in X, Y & Z.

  5. @ Milly - Thank you. I have amended the post. It was in Re L that the fractures were considered. Once again, thanks for noting this.

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