Text:ICLR Independent News and Media Ltd v A [2009] EWHC 2858 (Fam)
Headnote
PRACTICE — Court of Protection — Hearings in public — Hearings within exceptions to open justice principles — “Good reason” to be demonstrated when applying for hearing to be held in public — Whether necessary to show “good reason” before Convention rights engaged — Human Rights Act 1998, Sch 1, Pt I, arts 8, 10 — Mental Capacity Act 2005, ss 45, 51 — Court of Protection Rules 2007 (SI No 2007/1744), rr 90, 91, 92, 93
Summary
Since Court of Protection proceedings were within the recognised exceptions to the open justice principle article 10 rights were not immediately engaged and it was for an applicant to demonstrate “good reason” before the court was obligated to conduct the conventional balancing exercise between article 10 and article 8 rights.
Hedley J, sitting in the Family Division, so stated when granting applications by Independent News and Media Ltd, Guardian News and Media Ltd, Times Newspapers Ltd, Associated Newspapers Ltd, Telegraph Media Group Ltd, Independent Television News and the Press Association, for permission to attend and report proceedings in the Court of Protection in respect of A, a young adult who, despite possessing remarkable gifts, had severe learning difficulties and was likely to remain dependent on others for care and the management of his affairs.
HEDLEY J said that the Court of Protection Rules 2007, rr 90–93, supplemented by Practice Direction 13A (Hearings: including reporting restrictions), provided that ordinarily hearings should take place in private, that the burden of establishing that a particular case should be heard in public or reported lay on the applicant, and that an application should only be granted where it appeared to the court that there was good reason for so doing. Although there was no statutory commentary on “good reason”, those words did not import a concept of being exceptional and should be given their ordinary meaning. Rejecting the media’s contention that once an application was made under r 91 there was an immediate engagement of article 10 rights obliging the court to undertake the balancing exercise, with “good reason” established if the balance favoured the media, in his Lordship’s view a two stage approach was required. First the court needed to consider whether good reason was established; while its absence would preclude the making of any order at all the standard should not be set too high. Where “good reason” was found that would not automatically entitle an applicant to an order but would obligate the court to undertake the exercise prescribed in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593B, always bearing in mind the statutory purpose. It was for an applicant to demonstrate what should be allowed to be reported rather than for a respondent to show what should be restricted with everything else necessarily allowed. Here, since good reason within r 93 had been demonstrated, the balance was in favour of the media being allowed to attend what were in all other respects private proceedings, and being permitted to report material already in the public domain or which answered the legitimate questions of a reasonable person who knew what was already in the public domain. Such material would include A’s name, the nature of his talent and disability, his reliance on others for care and the management of his affairs but not, inter alia, details of his care and medical treatment, nature of his earnings or family discussions.
Other
[2009] EWHC 2858 (Fam)M; [2009] WLR (D) 332
Fam D : Hedley J : 12 November 2009
Appearances: Guy Vassall-Adams (instructed by Romana Canneti) for the applicants. Gavin Millar QC and Barbara Hewson (instructed by Irwin Mitchell) for the Official Solicitor as A’s litigation friend.
Reported by: Jeanette Burn, Barrister.