Family lawyers: engaging with journalists
Although for some lawyers, engaging with journalists in family courts will be unfamiliar territory, with a modest amount of pre-reading, adapting to the pilot should hopefully not be overly taxing or burdensome.
The guidance that accompanies the pilot is the key document that will guide lawyers, judges and reporters (journalists and legal bloggers).
The guidance brings with it an expectation of cooperative working under the auspices of the overriding objective. Transparency is an important overarching objective of the president of the family division, intended to contribute to the legitimacy of and public confidence in the system (even if that sometimes involves highlighting things that aren’t working so well).
Reporters attending hearings under this scheme could be interested in understanding more about the family justice system, how it works and what each role involves. There will be many opportunities in a case attended by a journalist to facilitate more accurate and rounded reporting, but you should not expect reporters necessarily to produce lengthy and detailed explanations of even complex cases, or that they will necessarily present a picture you agree with.
Most reporters, particularly those writing news items, will be constrained to tight word limits and will be writing for an audience without particular legal knowledge. They must also produce material that the public wants to read. What they consider of interest may be different to your perspective, and what they write could inevitably be very different from a lawyer’s summary of a case or judgment.
Legal bloggers on the other hand are typically not restricted by word limits and do not need to write for a commercial publication. They may approach matters from a different perspective, and are more likely to have the freedom to write for an audience looking for legal detail. Part of the purpose of the pilot is to facilitate these two different but complementary styles and formats of writing so that there is something for everyone who wishes to find out more about the family court.
A journalist’s own professional code will usually require them to protect their sources. In addition, a party is quite entitled to invite a member of the press to attend a hearing (and the guidance makes this explicit). This means that it is neither necessary nor appropriate to quiz a reporter on who invited them or how they found out about the hearing/case. Most reporters will simply decline to answer such an enquiry, even if it comes from the judge. Raising issues of this sort is unlikely to assist the court or the parties and pursuit of such points can place a reporter in an invidious position, and can become oppressive. It is better not to ask at all.
The pilot guidance also makes clear that a party is entitled to discuss the case with a reporter, but that the reporter cannot report the contents of any such interview/discussion unless and until a transparency order is in place. Any reporting must be in line with its terms.
You will need to understand these elements of the pilot to be able to advise your client about what is and is not permitted, to respond to any enquiries they may raise with you, and to deal with any issues raised against your client by another party in connection with them speaking to the media (or being suspected of doing so).
You should already be familiar with rule 27.11, which permits reporters (latterly including legal bloggers) to attend most family court hearings, with limited exceptions, such as financial dispute resolutions (FDRs), and subject to whatever automatic reporting restrictions apply in the particular category of case they are observing. You may be representing a client who would prefer that a reporter didn’t attend at all, and you will need to give realistic advice about whether a request for their exclusion under family procedure rule 27.11 is likely to succeed.
The transparency order has been carefully drafted to ensure that the anonymity of the family will be protected in any reporting of the case, and the risk of identification is unlikely, therefore, to be a good reason for the exclusion of a reporter. If a client has such worries it may be better to consider whether or not there is any adjustment to the terms of the transparency order that might help reassure them or reduce the risk of any inadvertent identification.
You may find that it is beneficial for you and/or your client to speak to a reporter to get a feel for what they are likely to be interested in and why. A journalist will not provide you with a draft of their proposed article, but they may be able to give you an understanding of the sort of piece they are hoping to write – sometimes they will have come with a particular issue to explore, sometimes their attendance will be focused on the particular case, and sometimes they will be taking pot luck. A journalist doesn’t have to share their proposals with you, but understanding the nature of any public interest in their proposed journalism may help you to identify and work through any potential areas of disagreement about the terms of the transparency order in a constructive way that balances the need to protect your client’s interests and the public interest in the reporting of the case.
Make sure you are familiar with the relevant case law in this area, in particular Re S  UKHL 47, which sets out the approach the court should take in any case where there is a conflict between Article 8 rights (including welfare of a child) and Article 10 rights of a party or the media. That approach will inform your advice to your client where they are objecting (or considering objecting) to a transparency order being made, or to its proposed terms. You will find that the president of the family division’s 2019 reporting guidance will also be a useful document to refer to here.
For most lawyers reading this website, it will be unnecessary to ask that you be courteous to reporters attending your cases. However, the journalists who have put together these materials have direct experience of lawyers being uncommunicative and even hostile on occasion. Journalists are professionals simply trying to do their job. They may not fully understand your role, and you may not understand theirs.
If you apply the overriding objective and attempt to work constructively and cooperatively with reporters for the overall benefit of your client, you will find that they may be able to work with you to find creative solutions to a particular sticking point that meet everyone’s needs. That won’t always be possible, and sometimes their professional boundaries will come up against yours in ways that require a judicial determination, but if you treat a reporter like another professional, many nascent disputes can be headed off and the operation of the pilot will run that much more smoothly and with minimum stress for all. Remember, the pilot is new and unfamiliar territory for everyone.
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Coordinator: Louise Tickle
With thanks to: Rights of Women, Lucy Reed
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