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29 JUL 2009

<i>Re Child X</i>: Practical Implications for the Media, Solicitors and Counsel

Re Child X (Residence and Contact - Rights of media attendance) - FPR Rule 10.28(4) [2009] EWHC 1728 (Fam)

By Iain Goldrein QC, author of Media Access to the Family Court: A Guide to the New Rules and their Application, published by Jordans Publishing.

What is the importance of Re Child X?
This case is a definitive statement of the law relating to media access to the family courts, particularly (but by no means exclusively) in the "celebrity" and child welfare context. [The numbers below in square brackets are the paragraph references from the judgment of Sir Mark Potter P.]

The actual decision in X
Media excluded under Rule 10.28(4)(a)(i) and under 10.28(4)(b); [59].

The net effect of the new Rules?
While the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of participating witnesses (save those whose published identity would reveal the identity of the child in the case) they are not entitled to set out the content of the evidence or the detail of matters investigated by the court; [38].

General principles flowing from Re Child X

a. The primary issue:
To decide whether or not to exclude the media from the court-room in the welfare or privacy interests of a party or third party; [46].

b. "Celebrity" cases:
No different in principle from any other [51].

c. The issue is not one of "discretion":
The Art 8/10 balancing exercise is not a simple issue of "discretion" as between two equally legitimate competing rights; it is a test of "necessity"[56]. Thus references to the Court's "discretion" in paragraph 3.1 and in the heading to paragraph 5 of the PD of 20 April 2009 are a misnomer. [48] and [56]. "Necessary" is the yardstick for any of the statutory grounds of exclusion [53]. It demands a strong interpretation; R v. Shayler [2003] 1 AC 247 at 268 [54] and [89].

d. Balancing exercise:
The court must conduct the balancing exercise and process of parallel analysis in respect of the interplay between Articles 8 and 10: see Campbell v. MGN Ltd [2004] 2 AC 457, Re S (A child) [200 5] 1 AC 593 [46]; recognising in this context that the issue is one of statutory "necessity" to exclude - as contrasted with Campbell and S which concerned issues of what could be reported. Note under Rule 10.28(4): To what extent is the "watchdog" function of the court engaged [58] and [65].

e. Burden of proof:
Easier for partial as contrasted with total exclusion [57].

Article 8 and adult interests
Rule 24.28(4) ground "b" ["justice will otherwise be impeded or prejudiced"] is capable of embracing the Article 8 interests of adult parties to prevent the press from hearing and/or reporting allegations of an outrageous or intimate nature before the court's decision as to whether or not they are established [45]. This is without prejudice to the fact, however, that in considering whether or not to exclude the press under Rule 10.28(4)(a)(i), the focus is upon the interests of the child and not the parents [52].

Applications against the media

a. Which court?:
i. Injunctions contra mundum to be heard in the High Court [11]. For service, use Press Association's CopyDirect service [83]. The President's PD of 18 March 2005 must be particularly used in cases of high media interest [13], together with the Official Solicitor/Cafcass Practice Note of the same date.

ii. Any relief sought beyond the jurisdiction of s. 12 AJA and s. 97(2) CA must be founded on Convention rights [11], is subject to s. 12(2) HRA [79], must be in the High Court [12] & [18], and must be dealt with under the
President's PD of 18 March 2005 [including its robust provisions as to the demand for service on the media; see [11] and [76] and in particular para 3].b. The impact of s. 12(2) and the demands for "service":
S 12(2) HRA emphasises the extent, breadth and depth of the Convention right to freedom of expression [including the need for "service"]; [76].

c. What if case is in the county court?:
If the need for an order arises in existing proceedings in the County Court, Judges should either transfer the application to the High Court or consult their FDLJ [12].

d. Foreign journalist:
The issue of reporters from out of the jurisdiction, out of the reach of the court, is relevant [67].

e. What can the media be shown when injunctive relief is being sought?:
i. The media must have the opportunity to see any informative material upon which to base any decision: See
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