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Posts Tagged ‘publicity’

The Children Schools and Families Act 2010 made its way through ‘wash up’ and received Royal Assent on 8 April 2010.

Amongst other things (not dealt with here) it makes substantial and controversial changes to the law concerning the publication of material relating to family proceedings, which are summarised below. There will be repeals and amendments of a number of pieces of primary legislation, in particular s12 Administration of Justice Act 1960, s97 Children Act 1989 and s39 Children and Young Persons act 1933.

The relevant provisions are contained in Part II of the Act, and they apply to all relevant family proceedings at which the public are / were not entitled to be present. Broadly: divorce, civil partnership and financial matters are not ‘relevant family proceedings’. References to ‘the Act’ in this article refer to Part II and its associated schedules. At the time of writing the Act is not yet in force and no date for its implementation has been announced.

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Fudge - Stephanie189

Children Schools & Fudge Act 2010?

Further to my previous post on the passing of the Children Schools & Families Act 2010, The Times has published an article about the new provisions which is spot on: it identifies – importantly – that the new law, when it is brought into force, will in fact be more restrictive than the existing privacy rules covering children proceedings. In particular, not only will anonymity rules apply to the children themselves, but they will also apply to anyone involved in the proceedings, apart from professional witnesses.

So much for open justice. The Times says ‘a Fudge’, I’m inclined to agree.

PS Does anybody know when this is likely to be brought into force?

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Thinking about telling the world about the injustice you have suffered at the hands of the family court system? Understandably many parents who have been through family court proceedings want to blog or write about their experience of trying to get contact with their son or daughter, or about how the state wrongly took their children from them. Many want to get advice from other parents who have been through similar experiences through online support forums or web communities.

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Before you go describing the details of your case online make sure that what you are about to post is within the law. There may be lots in the press about the opening up of the family justice system, but it is actually very easy to fall foul of the law about publishing information about court cases concerning children – the law applies not just to reporters but also to you as a parent. If you do publish information about the case, whether in blog form or otherwise, you won’t be the first person to do so. But be warned, like those who have gone before you, even if you are careful not to name names you are likely to be committing a contempt of court and possibly a criminal offence.

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I have come across detailed journals about the journey of children and their parents through the court system, and I often get comments that I moderate off my blog because if published they would offend against the law. It’s a worry that people think they can publish what they like as long as it’s anonymous, and this post is intented to raise a few flags to those people, so they can be better informed about what the law says about their actions**. Hence the blogger’s guide to writing about family proceedings:

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So, here are Ten Things You Should Know:

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1 Apart from allowing the media access to court hearings on 27 April 2009, pretty much nothing else has changed. Reporting restrictions where children are concerned still apply.

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2 Reporting restrictions apply to individuals, including parents, as well as just reporters and thet are more complex than just saying ‘the child, who can’t be named for legal reasons’ etc.

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3 It is a criminal offence to publish information intended to or likely to identify a child as involved in Children Act proceedings (s97(2) Children Act 1989).

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4 It is a contempt of court to publish information relating to proceedings wholly or mainly concerning the upbringing of any child (s12 Administration of Justice Act 1960). You can be punished for contempt of court by imprisonment. Any communication of information to someone else, whether orally or in writing is a ‘publication’. ‘Information relating to proceedings’ means details of what has gone on in court, including what the judge, witnesses or experts have said or written in court documents. It is ok to give the gist of the issue in the case e.g. that the case concerned decisions about where the child should live or how often they should see their parents. It is not ok to give details of allegations made by the parties, for example about violence or the standard of parenting given by one parent.

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5 It is ok to publish information identifying a child as having previously been involved in Children Act proceedings once the case has finished (Clayton v Clayton 2006) e.g. My daughter Sarah Smith was the subject of an application by me for residence (Be warned though, Jack Straw has said he will abolish this exception although it seems unlikely that he will find time to amend the law any time soon).

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6 However, it is still a contempt of court to publish information about what has gone on in the court case even after the court case is finished – s12 Administration of Justice Act 1960 applies indefinitely.

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7 The court has a wide power to make specific orders to relax or restrict the application of the law set out above. If you want to publish something that the law prevents you from publishing you will need to apply to the judge dealing with the case. If you are publishing material that comes to the attention of others involved in the case you may find yourself on the wrong end of an application for an injunction, and possibly with costs implications.

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8 If the press approach you to speak to them, do not rely on the media to know what is and is not lawful. Even respectable national papers regularly publish material that is in breach of the law.

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9 You are not entitled to disclose court documents to the press or to publish them online. You can disclose them to somebody confidentially if you need to do that in order to obtain advice support or assistance in the conduct of your case, but you must make sure that anyone you disclose documents to in this way knows that the material is confidential and must not be passed any further. You should look at rule 11.1 – 11.9 FPR 1991 to see what can be disclosed and when. Giving details of your case to other parents for help on an online support forum is probably not within the rules even if the forum is members only, but on the other hand the Court of Appeal have taken a relatively sympathetic approach to this type of activity in the past, when it was clear that a useful purpose was being served by the forum (see Re G [2003] EWCA Civ 489). Using a forum to run down the other parent is likely to meet with a less sympathetic approach.

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10 Consider what impact any publication will have on the child, and consider what impact it may have on the court’s view of you if it is drawn to their attention. It may prove very unhelpful if the Judge thinks you are on a crusade for justice that has distracted you from the practical needs of your child. Consider also how publishing material will HELP you secure justice or what unwanted attention it might attract.

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So those are my ten points – it is often superficially attractive to get all your disgruntlements off your chest, and to gripe about how unfair the system is. And it is all too easy to forget who may be reading what you have posted in a careless moment. At least if you do decide to publish and be damned you can do it from a position of first having a rough understanding what the law says about it.

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Postscript: Number 11 on the list is that points 1 – 10 are a very very broad brush and quite superficial summary of what is actually quite  a subtle area of law. This is the Nutshells version only.

** NB: This post is a summary of the law concerning disclosure and publication of information in relation to family proceedings concerning children. As with everything on this blog it should not be treated as legal advice and I would suggest that anyone in doubt should 1) seek legal advice about the specifics of your case and 2) hold off on publication until that doubt is resolved.

POST SCRIPT NO 2: Don’t forget the law is due to change, on a date to be announced…See here.

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At least we can be sure that the accredited media who are now permitted access to the family courts can be relied upon to report lawfully, accurately and without bias or pathos…sorry, did I snigger when I said that? What a shocking piece of journalism / creative writing. There are self-indulgent English idyll flourishes (the reporter tells us ‘I met George on one of those bright days when the English countryside is at its most luminous and all seems right with the world’ – by Gad I can smell the Pimms), references to Charles and Di, and a male protagonist who is more like your ‘average vicar’ than an F4J campaigner (I think that’s reassuring). They should get Hugh Grant to star in the movie of it and call it Four Weddings and a Divorce. Can you guess which paper it comes from before clicking on the link?

I am increasingly cnvinced that there is a market to be cornered in educating journalists about s12 Administration of Justice Act 1960. And, given the frequency with which it is ignored, a case for it’s early reform.

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