Henry Hood’s article was published in the print version of The Law Society Gazette on 3 February 2023. The article can be accessed online here.
Reporting in the Family Court: a change for the better?
A Family Court Reporting Pilot launched on 30 January is the first major step towards implementing a “cultural shift” towards increased transparency in the family justice system. Under the pilot, reporters will be permitted not only to attend hearings relating to arrangements for children (as they can now) but also to report on what they see and hear – something which is, unless otherwise ordered, prohibited under s12 Administration of Justice Act 1960.
The pilot follows a ground-breaking report, “Confidence and Confidentiality”, issued by the President of the Family Division, Sir Andrew McFarlane in October 2021. The President acknowledged that the status quo did not allow effective public scrutiny of the Family Court, resulting in a loss of public confidence in the court’s work. He addressed head on the tension between increasing transparency, and thus public confidence, and respecting the confidentiality of those involved in these sensitive cases, particularly children.
The pilot seeks to balance these interests. It applies in Cardiff, Carlisle and Leeds to children proceedings; both public law proceedings in which the state is involved and private law proceedings between parents or other carers or family members. There will be a presumption that a Transparency Order (TO) should be made permitting “pilot reporters” (defined as “duly accredited representatives of news gathering and reporting organisations and duly authorised lawyers attending for journalistic, research or public legal educational purposes”) to report on hearings subject to certain restrictions.
In particular, the anonymity of children must be strictly preserved – publishing information intended or likely to identify the children will remain prohibited under s97(2) Children Act 1989. The President’s template TO provides for pilot reporters to be provided with skeleton arguments and similar documents, orders and court bundle indices; they are not entitled to see other documents though they may apply for access to them. Judges retain discretion as to whether they should decline to make a TO (in which case no reporting will be permitted) or to adjust the terms of the template.
On 25 January Mr Justice Poole handed down the first reported judgment involving a TO, BR & Others (Transparency Order: Finding of Fact Hearing)  EWFC 9. Whilst the pilot had not yet commenced, the hearing, concerning three families where the mothers were alleged to have fabricated or induced illness in a child, was due to last eleven weeks and Poole J considered it appropriate to adopt the pilot from the outset. Potential pilot reporters were alerted to the hearing through the RCJ’s Press Office and some duly attended.
Poole J identified that whilst judges retain a discretion as to whether to make a TO, the pilot would be ineffective if judges routinely declined to do so, and held that save in exceptional cases the template TO would strike the right balance. Poole J accepted that inevitably some people who already know a family might find out more about them as a result of reporting, but held that whilst this may be uncomfortable, it must be balanced against the principle of open justice.
Although concerns have been expressed that journalists may be more interested in sensationalising family dramas than in thoughtful reporting on the family justice system, there are serious journalists and legal bloggers keen to report fairly on the workings of the Family Court and these changes will enhance their ability to do so. It is to be hoped that the reporters will also be able to draw wider attention to problems arising from the under-funding of the family justice system, including extensive delays and many parents in private law proceedings having to represent themselves due the unavailability of legal aid.
From our clients’ perspective, many will not relish the prospect of reporters attending a hearing and watching them give evidence on such sensitive matters. In BR & Others, a submission was made that the reporters only be permitted to attend remotely to avoid distress to the parties, but Poole J held that such discomfort did not justify excluding reports from observing hearings in person. In practice, if course, the majority of cases are unlikely to attract press interest.
Where both parties prefer, they can, in most private law cases, choose to arbitrate, thus ensuring privacy. It was recently confirmed, in G v G  EWFC 151, that the test for challenging an arbitral award in children cases is the same as the test for appealing an order in such cases, which – together with the roll out of transparency programs – may increase the, so far somewhat limited, take up of arbitration in children matters.
Other clients, particularly those who have read negative reporting on the Family Court, may find it reassuring that the independent press is monitoring the court. Under the pilot, the parties will, if they wish, be able to discuss the case with the reporters, so that their perspective may be reflected in any reporting.
Meanwhile, a report is awaited on the next steps regarding transparency in financial cases on divorce. An October 2021 consultation document proposed stripping parties to such proceedings of their anonymity; responses from family lawyers raised a range of concerns, following which Mr Justice Mostyn has, through caselaw, suggested that the underlying legal landscape does not, when correctly understood, provide for parties to financial remedy proceedings to have anonymity in any event. This approach has not been widely followed, and a report is awaited from the Financial Remedies Court transparency sub-group.
Plainly, change is coming to the Family Court – and if it succeeds in increasing public confidence in, and awareness of, the court’s work whilst protecting the anonymity of families – which is the desired outcome – it will be a change for the better.