Transparency in the Family Courts expanded

January 2024

There has been a longstanding call for greater transparency in the Family Court. Greater openness and public scrutiny enables an increase in the confidence in the Family Court and decisions made in family proceedings.

Steps towards transparency.

Since 2009 accredited reporters and more recently legal bloggers have been permitted to attend family court hearings. In practice, very few reporters or legal bloggers attended family court hearings as there were very strict limitations on what reporters could publish. 

The process of transparency was revived with Practice Guidance on “Publication of Judgements” issued in January 2014 by the former President of the Family Division, Sir James Munby P. This required the publication of anonymised judgements in certain category of cases.

The issue was further considered by the current President, Sir Andrew McFarlane’s, in the  Transparency in the Family Court Report dated 29 October 2021 that many of the decisions made in family cases involved judges and magistrates “exercising a degree of discretion”, and therefore it was legitimate for the public to know of these judgments, to “provide a basis for trust in the soundness of the court’s approach and its decisions, or to establish a ground for concern in that regard” [paragraph 5].

Open Justice is crucial in understanding the workings of the justice system, as it enables public scrutiny but also greater confidence. The confidence is not just with the general public but can also be beneficial to professionals. This was identified by the President in the 2021 report, which recognised that “Openness and accessibility …may also enhance the ability …those who work within it to learn and improve” [paragraph 5]. Therefore, transparency can assist with the wider dissemination of information and scope for improvement and education across professionals.

Change of Culture.

Transparency is part of the change in culture with a clear move away from outdated beliefs that the Family Court operates as a secret court with decisions being made behind closed doors. With a greater understanding of how and why decisions have been made in the Family Court increases confidence and respect for the decisions made by the Family Court.

Transparency v Confidentiality

A policy of greater transparency has to be balanced with the need for confidentiality and privacy of the parties and the children who are the subjects of the family proceedings. 

Sir Andrew McFarlane further endorsed transparency by introducing a pilot in Cardiff, Leeds and Carlisle in January 2023. This pilot permitted disclosure of documents approved by the Judge which could include position statements and witness statements to journalists. The pilot also permitted journalists attending the Family Court to report on any hearings and make reference to documents critical to understanding the background of cases.

Journalists are not able to publish on the following:

  1. identify the child concerned or publish other identifying data for example school or locality
  2. detailed evidence of abuse

Extension of the pilot

This pilot scheme is now to be extended to a further 16 Family Courts from the end of January 2024, which include in addition Liverpool, Manchester, West Yorkshire, Kingston-upon-Hull, Nottingham, Stoke, Derby, Birmingham, Central Family Court (London), East London, West London, Dorset, Truro Luton, Guildford and Milton Keynes. 

‘Extending the reporting pilot to family courts across the country is a huge step in the judiciary’s ongoing work to increase transparency and improve public confidence and understanding of the family justice system….after a ‘pioneering year of reporting from Leeds, Cardiff and Carlisle’. 
Sir Andrew McFarlane.

Aim of the pilot

The aim of the pilot is to introduce a presumption that accredited media and legal bloggers may report on what they see and hear during family court cases, subject to “strict rules of anonymity”. This is done through judges in the pilot courts making a ‘Transparency Order’, which sets out the rules of what can and cannot be reported.

The pilot aims to consider whether the expanded reporting continues to advance public confidence and understanding of the challenges faced by the Family Court. Alongside minimal disruption to the courts and everyone involved in the cases. The success of the scheme can only be achieved by balancing the need for transparency together with the confidentiality of the parties in the case. In particular, the privacy of the child or children who are the subject of the family court proceedings. Depending on the outcome of the expanded pilot scheme the transparency scheme is expected to eventually be rolled out to all family courts in England and Wales.

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Disclaimer

The contents of this guide are for information and are not intended to be relied upon as legal advice

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