The Family Proceedings (Amendment) (No.2) Rules 2009 passed in relation to the family proceedings in the supreme and county courts of England and Wales.
The Family Proceedings Courts (Miscellaneous Amendments) Rules 2009 passed in relation to family proceedings in the magistrates’ courts.
The above rules came into force on 27 April 2009. They amend the Family Proceedings Rules 1991 (the 1991 Rules). The two sets of rules mirror each other and, for the purpose of this briefing, we refer to The Family Proceedings (Amendment) (No 2) Rules 2009 as most of the queries we receive relate to county court proceedings. Please do not hesitate to contact us to discuss the magistrates rules.
The new rule 10.28 relates to family proceedings held in private. These will include care, supervision and contact/residence proceedings. Significantly, rule 10.28 (2) (f) allows a duly accredited representative of newsgathering and reporting organisations to be present. This is subject to the court’s discretion (having made the decision itself or following an application by a party, witness, Cafcass officer or the child themselves). The court can direct under rule 10.28 (3) that the press shall not attend the proceedings or any part of them if it is necessary:
- in the interests of any child concerned in, or connection with, the proceedings;
- for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
- for the orderly conduct of the proceedings; or because
- justice will otherwise be impeded or prejudiced.
Obtaining information in relation to proceedings involving children
Rules 11.1 – 11.9 deal with permitted communication in relation to proceedings under the inherent jurisdiction, Children Act 1989 or that relate wholly or mainly to the maintenance or upbringing of a minor. Salient points for professionals working within the NHS include:
- (Rule 11.2) General information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated to a professional acting in furtherance of the protection of children. This will include health professionals involved in child protection.
- (Rule 11.4) A person may be contacted by a party to proceedings or their legal representative to enable a party to make various communications, including making a complaint against a person or body concerned in the proceedings, which may include an NHS body or professional.
- (Rule 11.5) Communication by a party, legal representative or person lawfully in receipt of information may communicate information to specified people for specific purposes. Recipients include the police, Secretary of State, Ministers of the Crown and professional regulatory bodies (such as the GMC or NMC). Specifically, a party can communicate with a healthcare professional or a person or body providing counselling services for children or families any information relating to the proceedings to enable the party or any child of the party to obtain healthcare or counselling. A health professional receiving information can only communicate that information to another person for the purpose for which they received the information or for professional development or training in an anonymous way, unless they have consent (rule 11.8).
We have canvassed the application of the new rules with Cafcass and the Official Solicitor. Unsurprisingly, they have reported that the press were seeking to access proceedings from the date the rules came into force.
As always with regard to information, it is important to ensure that you keep clear, contemporaneous records. Remember that documents handed over to inter-agency partners pre-proceedings (eg, under the Public Law Outline) may be disclosed into proceedings and you should ensure they are accurate and professionally presented. If you have legitimate concerns (for a child, yourself or others) about the press seeing documents or hearing your evidence, ensure you flag this up as soon as possible so that your managers can assist and/or seek legal advice on your behalf.