Al-Hilli (Children), Re

Accredited media representatives have a right, or starting-point, of attendance at private family proceedings. They may be excluded under FPR rule 27.11(3) only where a specified ground is established and exclusion is necessary. The applicant bears that burden.

Where Article 2 is relied on, the court must assess objectively whether media attendance would materially increase an existing risk and whether the resulting risk would meet the threshold of a real and immediate risk to life. Article 2 does not remove the need for a parallel analysis of competing Convention rights. The court should consider whether partial exclusion or other measures can address risks as they arise. General concerns about disclosure are insufficient where reporting restrictions and court control provide adequate protection.

The judgment arose in care proceedings concerning two children whose parents had been killed in France. The Chief Constable of Surrey applied to exclude accredited press representatives from the forthcoming substantive family hearing. The application relied on the children’s welfare and safety, Article 2 of the European Convention on Human Rights, Articles 8 and 6, and the contention that media attendance might prejudice the French criminal investigation.

The local authority and children’s guardian did not support the application. The central questions were whether there was currently a real and immediate risk to the children’s lives, whether press attendance would materially increase that risk, and whether exclusion was necessary under FPR rule 27.11(3).

1. Application refused. The Chief Constable failed to establish that accredited media attendance at the substantive hearing would materially increase any risk to the children or impede justice.
2. Under FPR rule 27.11, accredited media representatives have a right or starting-point of attendance at private family proceedings. The burden lies on the person seeking exclusion. The court must be satisfied that one of the limited grounds in rule 27.11(3) is established and that exclusion is necessary.
3. The word “necessary” has a stringent meaning. It is not equivalent to desirable, useful or reasonable. The court must assess the risk objectively and guard against allowing protective instincts to outweigh the importance of Article 10.
4. Article 2 was not currently engaged. Protective measures had substantially reduced the risk arising from the children having been victims and witnesses of the shootings. The alleged inheritance motive did not create an additional risk. The relevant question was whether media attendance would materially increase the risk and, if so, whether the increase would reach the real and immediate risk threshold.
5. The court was required to conduct a parallel analysis of Articles 2, 6, 8 and 10. Article 2 did not eliminate the need for that assessment. Reporting restrictions, statutory sanctions, control over references to documents, and the power to exclude particular journalists or parts of a hearing could address risks as they arose. The watchdog role of the press was an important public interest.
6. The court was not required to direct that evidence be served on the media in support of an exclusion application unless it so ordered. The applicant should, where possible, notify the relevant media organisations and outline the reasons for the application.
7. The application to exclude the press from the substantive hearing was therefore refused. The issue could be reconsidered during the hearing if particular risks emerged.