Henry’s article was published in the FTAdviser, 23 February 2023, and can be found here.
Increased transparency arrives in the Family Court
A newly launched pilot program aims to enhance public confidence in the Family Court through increased transparency. Under the pilot, reporters may attend and report on court hearings relating to arrangements for children, so long as they maintain the anonymity of the parties and children.
The pilot heralds a major change in approach. Hearings in family law matters have traditionally been heard in private, with only the parties and their representatives permitted to attend. Since 2009 reporters have been able to attend hearings, but they have not been allowed to report on what they see and hear without specific permission from the judge.
In October 2021 the President of the Family Division, Sir Andrew McFarlane, released a ground-breaking report, “Confidence and Confidentiality”, in which he acknowledged that “justice taking place in private… is bound to lead to a loss of public confidence”. At the same time, he recognised that greater openness must not come at the expense of the interests of children, and the need to protect their anonymity.
The pilot aims to strike the balance between these concerns. It will operate for one year in Cardiff, Carlisle and Leeds, and covers both public law and private law children matters, i.e. those involving the state, such as care proceedings, as well as disputes between parents about issues such as where a child should live and contact arrangements.
In the pilot courts, there will be a presumption that accredited journalists and legal bloggers (“duly authorised lawyers attending for journalistic, research or public legal educational purposes”) will be permitted to report on what they see and hear in court, and should be provided with certain documents, such as the parties’ case summaries. However, there is a list of details about the case that cannot generally be reported, including the details of any alleged sexual abuse, and it will remain a criminal offence to publish information intended or likely to identify the children. Further, a judge can always order that there should be no reporting in a particular case.
There has already been one published judgment involving the pilot, BR & Others (Transparency Order: Finding of Fact Hearing)  EWFC 9, a case involving three families where the mothers were alleged to have fabricated or induced illness in a child. The judge recognised that a consequence of the pilot might be that people who already know a family may be able to identify them in reports about a case, and therefore learn more about their circumstances. He accepted that this might be uncomfortable for the families concerned, but held that it was justified by the need for open justice.
Some have raised concerns that the press may be more interested in sensationalising family disputes than in thoughtful analysis of the family justice system. Some press coverage of family law matters justifies this concern. However, there are also serious journalists and legal bloggers doing important work holding the Family Court to account, and this pilot will make it easier for them, and hopefully others, to carry out this essential task.
In practice, however, many parents may find it uncomfortable to have a reporter attending a hearing at which they are giving evidence on sensitive matters. Others may welcome the prospect of the independent press monitoring the operation of the family court, and the pilot permits parties to discuss their case with the reporter so that they can explain their perspective.
Whilst most hearings will not, in practice, be attended by the press, in cases where privacy is important to both parties they can, in most private law cases, choose to arbitrate instead. Arbitration also has other advantages such as speed and flexibility, but does involve the additional cost of the arbitrator’s fees.
If the pilot is successful it is likely to roll out across the country. Meanwhile, a report is awaited on the next steps regarding transparency in financial cases on divorce, after previous proposals to remove anonymity in these cases were firmly opposed by many family lawyers.
Overall, it is clear that significant change is coming – and if it succeeds in its aim of increasing public confidence in, and awareness of, the court’s work whilst protecting families’ anonymity, it will be a change for the better.