The Grounds for Exclusion
By way of background, a court can exclude the media when:
- it is necessary:
- in the interests of any child concerned in, or connected with, the proceedings;
- for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
- for the orderly conduct of the proceedings; or
- justice will otherwise be impeded or prejudiced.
Examples of cases where justice may be impeded include:
- a hearing involving price sensitive information (such as information affecting share values);
- where a witness (other than a party) has credible reasons for not giving evidence if the media is present; and
- if a witness (which could theoretically be a party – but this is unlikely) will not give full or frank evidence if the media is present.
Case Law
The first case to deal with this question was X v X [2009]. The husband argued that the media’s presence would inhibit his giving of evidence as the consequent publicity could damage his property business. The application failed as Mr Justice Charles thought the husband’s real objection related to reporting issues.
Recently, the Earl and Countess Spencer applied jointly to prevent the media from attending their final hearing in ancillary relief proceedings. They argued that the giving of their evidence may be impeded, the proceedings were initiated before the change of law and the media interest was due solely to their status. Their application was refused.
Mr Justice Munby concluded that the media should be allowed to attend and commented that it would be:
"potentially dangerous, very dangerous, territory……. to privilege one group of the community – those who attract the attention of the media – over and above another group who do not"
Whilst it is undoubtedly correct that there should not be a special rule to privilege celebrities, this ruling may be more likely to work to their detriment.
However, those in the public eye can take heart from a second recent case being Re Child X [2009] involving a celebrity’s child. The President of the Family Division heard the case and stated that whilst, “private law family cases concerning the children of celebrities are no different in principle from those involving the children of anyone else”, he upheld an order excluding the media from protracted residence and contact proceedings.
The President commented that, “the press’ interest in and surrounding the case will be more intense in the case of children of celebrities; and the need for protection of the child from intrusion or publicity, and the danger of leakage of information to the public will similarly be the more intense”.
The ban was upheld for the following reasons:
- the appointed psychiatrist had assured the child (before the coming into force of the new rules) that their discussions would be shared only with her parents and the court so to do otherwise would breach trust and confidentiality;
- therefore a witness had credible reasons for the media to be excluded; and
- foreign media were interested in the case and their reporting would be beyond the reach of any contempt proceedings in this country.
Interestingly, although it is clear from Spencer v Spencer that there are no transitional rules (for cases which commenced before the new rules) the Court acknowledged in Re Child X that the psychiatrist’s assurances (given before the new rules came into force and not reversible) could be considered within the context of that case.
After an initial flurry of activity the media appear largely absent from family proceedings except when celebrities are involved. Therefore, the aim of the new rules (to enable reporting on family law procedure) could be seen as a poor relation to the drive for celebrity gossip.
By Emily Brown and Katharine Vigus