On 30 January 2023, a 12 month pilot scheme was introduced in the family courts in Cardiff, Leeds and Carlisle with the aim of bringing greater transparency to family court proceedings.
The pilot will enable journalists and legal bloggers to “report on what they see and hear in court”, subject to strict standard anonymity safeguards. The pilot is initially starting with public law cases (i.e. care order proceedings) and will then expand to include private law cases (i.e. child arrangements order, leave to remove proceedings etc). The reporters will be bound by a “transparency order”, which is a type of injunctive order that will define what can or cannot be reported on and will protect the anonymity of the children, family members and any experts involved. The reporters will also for the first time be allowed access to documents such as skeleton arguments, case outlines and position statements.
This is a seismic change for the family courts, where currently the rules relating to family court reporting prevent all but the most general information about a case from being published. Accredited media representatives may attend hearings that are closed to the general public but can only publish details in very limited circumstances. This is because under section 12 of the Administration of Justice Act 1960, it may be contempt of court to publish information about proceedings relating to children if a court sits in private. This has had the practical effect of preventing the press from reporting what they observe and the consequence is that reporting is usually confined to publishing what the judge has chosen to put in a judgment, which is permitted to be published.
Another key change of significance is that parties to a case will be allowed to speak with journalists and give anonymous interviews whereas previously, parties could be guilty of contempt of court for disclosing details about the case. However, the pilot will not permit the parties themselves to publish information about their case.
With family courts in England and Wales hearing more than 200,000 cases a year, the public interest in understanding and improving family justice processes and orders is both urgent and compelling. The courts have the power to make significant interventions in the lives of families including the ability for children to be taken into care or deciding where children should live but for many years the family court has been criticised for operating in ‘secret’. The pilot is therefore intended to promote confidence in the family court by holding the court accountable for the decisions they make and giving families a voice.
In October 2021, the President of the Family Division, Sir Andrew McFarlance, published a report presenting his conclusions following an extensive review of the provisions relating to transparency in the family courts. The President expressed his view that “the level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects.”
The changes have been mostly welcomed as a positive step forward. By allowing reporting within family proceedings it will hopefully serve to educate and empower members of the public if faced with their own breakdown of a relationship, domestic abuse or dispute in relation to children arrangements. The pilot scheme could not only shed light and help people to understand how decisions are made but also greater analysis of those decisions – and whether the courts are doing the right thing for some of society’ most vulnerable families – could improve the quality of the decisions that are made.
However, there is a concern that the principal justification for greater transparency is misplaced. The traditional justification for greater transparency – and the underlying rationale behind this pilot scheme – is that it would improve the quality of the family justice system (both in respect to lawyers and judges). However, arguably this has been shown to be a fallacy; many point to the fact that the media do not appear to be particularly interested in focusing on such issues but seemingly prefer to report on salacious/colourful cases or those involving people in the public eye. Despite the legal press having been allowed into court – and to report – for a number of years, many claim that this has not led to any significant improvement in the quality of the family justice system. There are serious issues within the family justice system that need to be rectified. Some argue that the profession needs to take steps to deal with these problems properly – rather than assuming that greater transparency will automatically lead to these problems rectifying themselves.
There is also a fear that the move could put family court advisors at risk of harassment and online abuse as the media will be able to report the names of any local authority involved in the proceedings, any legal representatives, judges and in some circumstances court appointed experts. Whilst the courts will continue to prevent the identification of children, parents and other family members involved in family court cases, there are concerns that it may be possible to identify a family by ancillary details being reported such as the town where the family live, their job, their ethnicity or their religion. Family lawyers will need to be mindful of considering what the journalist can report and raising with the judge hearing the case any additional facts which could lead to identification of family members, which they consider should be restricted from publication.
The scheme will be evaluated by an outside agency at the end of the pilot and could eventually be implemented in other family court in England and Wales.
