The law on media reporting of private proceedings continues to develop with the judgment of the Court of Appeal in Re W  EWCA Civ 113. The decision arises out of the care proceedings that followed the death of 13-month old Poppi Worthington which attracted very high levels of public interest and media coverage.
In November 2015, the trial judge (Jackson J) had made various orders allowing for publicity and media attendance at an upcoming fact finding hearing. These included permission for daily reporting of that hearing, something all parties and judges agreed was very unusual. These orders were promptly appealed to the Court of Appeal which announced at the time that the appeal would only be allowed to a very limited extent, with its reasoned judgment to follow. That judgment has now been published and is available here.
The key points from the judgment of McFarlane LJ (which whom Macur and King LJJ agreed) can be summarised as follows:
- Any presumption or principle in favour of open justice which applies generally to court proceedings does not apply to proceedings that are held in private and which relate to children: the default position in such cases is to the contrary. That does not prevent accredited media representatives from attending court but does prevent them from reporting what they saw, heard or read within the proceedings.
- That default position, which is designed to protect children, can be modified by a judge upon the application of a party or the media and has in any event been tempered by the President of the Family Division’s transparency initiative, the purpose of which is to allow greater public access to, and understanding of, the work of the family courts.
- In the present case, Jackson J had used the power available to him to move from the default position so as to allow a controlled degree of publicity. This was a matter for his discretion, to be exercised by conducting a balancing exercise between the rights to privacy and a private life which are encompassed within ECHR, Art 8, on the one hand, and the right to freedom of expression reflected in Art 10 (but see the important caveat to this below).
- Two factors of particular significance in this case were the significant amount of detail about the case which was already in the public domain, and the fact that the same judge had had “tight control” throughout these long running proceedings and was “best placed to understand the pressing nature of the need for openness in this case and to have a feel for the genuine public interest locally in the proceedings”.
- In spite of “a feeling of substantial unease at this degree of openness at the start of an unpredictable fact finding exercise”, it was simply not possible to hold that Jackson J was wrong in his analysis of the issue and his decision to grant media access to this degree.
- The appeal was, however, allowed to the very limited extent of: (a) requiring the removal of reference to any of the medical evidence from the edited version of an earlier judgment, and (b) inserting a tighter requirement to prohibit reporting until after the court proceedings have concluded on any given day, so the court has an opportunity to consider whether any additional directions are required in respect of any particular part of the day’s evidence.
The caveat referred to above is this: the appeal had proceeded on the basis agreed between all parties, that the balancing exercise in such cases (i.e. between articles 8 and 10) was not one in which paramount consideration must be afforded to the welfare of the child who is the subject of the proceedings. The written judgment proceeds on this basis but expresses some doubt as to whether it is correct, albeit saying no more than that “this potential point…if it is arguable, must fall for determination by this court on another occasion.”
Finally, as a reminder, the judgment of Jackson J following the hearing in question had of course already been published in January 2016 (available here) but provides something of a postscript to the Court of Appeal’s judgment in two respects:
- Jackson J’s comment that the “unusual package of arrangements for this hearing” arose from the application of existing law to the exceptionally unusual circumstances of this case and did not establish new law or practice in the Family Court and they were not intended to set a precedent for other family cases.
- The judge’s view that the conduct of the journalists in court was entirely professional, their presence did not adversely affect the hearing and on the contrary, their attendance may be said to have reflected the seriousness of the occasion. The judge also said that “the media’s ability to observe the court going about its work in this particular case, and to report and comment on the outcome and the process, has…been a valid exercise.”