By Denise McKenna

Journalists were allowed into family courts in England and Wales for the first time last month as part of a government bid to boost public confidence in the previously “behind closed doors” system.

The new rules are still unclear and, so far, little guidance has been made available as to how the changes should operate in practice. The reality, however, is that the Press will only be interested in newsworthy cases – such as those involving celebrities – so is unlikely attend what may be described as more routine cases. 

Nevertheless, there is some concern about the new legislation – namely the fear that it may compromise people’s privacy. I don’t believe anyone needs to be worried about this, as courts have the power to bar media access in the interests and safety of the parties concerned or connected with the case, especially children and witnesses.

Justice Minister Jack Straw has said: "Existing reporting restrictions for the newly attending media will of course still apply to protect children and families, but I want to ensure a change in the culture and practice of all courts towards greater openness, and this is an important step towards that goal."

So the new rules do not change the “private” nature of the proceedings. This means that although the media may be allowed into court, journalists will be subject to existing reporting restrictions:

·                     Where proceedings relate to children, nothing can be published during the course of the proceedings which is likely to identify any child.

·                     Where proceedings relate to finances, it is unclear at present to what extent the press will be able to publish information related to the detail of the case.

·                     The media will not however be entitled to receive or read court documents referred to in the course of evidence, submissions or judgment without the permission of the court.

These restrictions – and the power of the courts to prevent media access in some cases – have led a senior judge, Mr Justice McFarlane, to say in a speech to Resolution family lawyers at their annual conference in Bristol that he didn’t believe the new rules would enable journalists to report fully and accurately on cases.

He pointed out that while journalists are now able to attend family courts, sit in on cases and report on the process, the new rules are likely to mean that they are specifically excluded from reporting the detail of the cases, even after the case is over.

“Whilst accredited journalists can now expect to be permitted to sit in on a private court hearing relating to children, they will face tough sanctions if they report any detail of the particular case that they are observing,” he said. “Reporting will be limited to the process and the gist of proceedings, rather than the detail of any particular case. In other words the reporting will be about system rather than substance.

“The current changes will do little, I fear, to address the very real difficulty that journalists face when confronted, for the first time, after the end of the court case with a parent who is complaining about a miscarriage of justice. Such parents are, I would suggest, highly unlikely to tip a journalist off before the case starts and invite them to exercise their right to attend and observe the proceedings. Under the new scheme, the journalist is in no better position than they are now to evaluate the validity of the complaints that they are hearing.”

The reality is that no one really knows how the new system will work until the practice has been in operation for some time. My belief, however, is that more good will come of it than bad. For too long there has been a feeling that things may happen behind closed doors that shouldn’t happen – in other words, that justice, especially for parents and children involved in family law proceedings, may not always have been done.

Whether the new rules will, indeed, help to promote a fairer outcome in cases is yet to be seen. But the fact that there will now be some public scrutiny, where before there was little or none, has to be a step in the right direction.

If you are involved in divorce proceedings and are concern about possible media interest in your case, my advice is that you raise them with your lawyer.

·                     Denise McKenna is a solicitor with Benussi & Co