As Adam Wagner reports, the family courts have just published a Guide to Media Access and Reporting. It was produced in conjunction with the Judicial College and the Society of Editors and was written by two barristers, Adam Wolanski and Kate Wilson.
The report is really handy and readable, and will be invaluable to any journalists (or even bloggers...) wanting to understand how to gain access to family law proceedings, and what they can lawfully report. The report is helpfully broken up into different sections, depending on the type of hearing. What is immediately striking, reading the report, is that the Court of Protection is subject to an almost entirely different regime to the Family Courts. For cases relating to the inherent jurisdiction of the Court of Protection (so those are cases that do not concern the Mental Capacity Act 2005 - e.g.. concerning vulnerable adults who have capacity), there is no statutory regime in place, but the court has powers to exclude the public or the media at its discretion. Furthermore, s12(1) Administration of Justice Act 1960 does not apply, as the inherent jurisdiction is beyond the scope of the Mental Capacity Act 2005; therefore 'In the absence of an injunction there would appear to be no restraint upon reporting'.
Restrictions on access and reporting on Court of Protection hearings that relate to the Mental Capacity Act 2005 are governed by the Court of Protection Rules, and are almost the inverse of the situation under the inherent jurisdiction. Hearings are in private unless the judge exercises his or her discretion to permit either the media or a member of the public to attend (see rule 90), or rule 93 permits the judge to hold the hearing in public. The starting point is that nothing may be reported about the hearing, but rule 91 permits the court to make orders permitting certain information to be published. There is an odd tension between the requirement in the rules that access should be permitted where 'is there a “good reason” for permitting the media’s attendance', and the comment by the report's authors that in the family courts 'A person wishing to exclude the media must satisfy the court of the necessity of exclusion; it is not for the media to justify their attendance.'
The line in the report that chimed most with me was:
Although it remains a matter for the judge, senior members of the judiciary have encouraged the making of public judgments
Which brings me on to my next 'open justice' topic...
...where are all the judgments?!
Earlier this week the Court of Protection published it's second annual report. The report indicates that in 2010 the CoP received 1283 applications relating to welfare, it made 218 orders relating to welfare and appointed 106 welfare deputies. Of these, 18 published judgments are available on the Court of Protection pages of Bailii. A few more are available on the Family Court pages, hidden amongst the divorce and child protection cases. And a handful more yet are available on the excellent www.mentalhealthlaw.co.uk blog.
The question is - what are the reasons for the incredibly low proportion of judgments that see the light of day? The Court of Protection themselves seem irked by this issue, commenting:
'Since the MCA came into being in October 2007, practitioners and judges have been hampered by a lack of reported case law and inconsistent reporting of judgments handed down by the Court of Protection. The cause of this was the Family/Chancery Division divide whereby significant decisions have tended to be reported in a similar way to before the MCA with cases decided by Family Division judges reported like other Family or Public Law cases and Cases decided by Chancery Division judges reported like other Chancery cases. This has made it difficult to locate relevant case law in the mainstream law reports.'
But the issue is not merely one of 'locating' the case law, it seems to come down to the decisions of Court of Protection judges to exercise their discretion not to publish written judgments. The answer may lie in the limited resources and time available to judges to produce written judgments that can be published, but the problem is quite a serious one from the perspective of open justice. These rulings are neither handed down in public, nor published in any form accessible to the public. This would seem - to me - to be in breach of the requirement that 'Judgement shall be pronounced publicly' contained within Article 6 (see also Pretto v Italy, 1983).
Brownie points for case summaries
Court of Protection judges will, however, be getting open justice brownie points for including in the annual report excellent summaries of important cases from 2010. The report on media access states:
Whether or not a judgment is handed down in private or public (and if so, in what form) is primarily a matter for the judge’s discretion. Although it remains a matter for the judge, senior members of the judiciary have encouraged the making of public judgments. Furthermore judges should consider providing short written summaries in cases which have attracted media attention to assist the reporting of them.
So we're halfway there...