Law Articles

Transparency and the Family Court System 10/03/2023

30th January 2023 saw the introduction of the Family Court Reporting pilot which, if successful, will change the face of the Family Court system as we know it.

Billed as a “cultural shift” towards transparency, the pilot will allow reporters to attend hearings relating to arrangements for children as they can now, but also to report on what they observe.

Such reporting is ordinarily prohibited under Section 12 of the Administration of Justice Act 1960.

In October 2021 the President of the Family Division, Andrew McFarlane, issued a report entitled “Confidence and Confidentiality” which set out that the current set up of the Family Court avoids public scrutiny which in turn leads to a lack of public confidence. He also went on to address the required balancing act of ensuring transparency and public confidence whilst at the same time maintaining the confidentiality of those involved, including the children.

The pilot is intending to deal with these conflicts directly. There is an assumption that a Transparency Order should be made permitting reporters to report on certain cases and with certain restrictions in place. The most important stipulation in this case being that the anonymity of any children involved in proceedings must be strictly protected. The publishing of information which would or could identify children is to be prohibited under S. 97(2) of the Children Act 1989.

The framework sets out that permitted reporters should also be permitted to see certain documents such as bundle indexes, skeleton arguments and Court Orders. They are not to be permitted sight of other documents, although they would be permitted to apply to see other documents.

Judges would have discretion to agree or refuse these applications as well as to decline to make a Transparency Order in the first place, or to change the terms upon which one has been granted.

Mr Justice Poole set out that whilst Judges must retain their autonomy in being able to decide on a case by case basis whether an Order will be granted and on what basis, in order to ensure the success of the pilot, they should not decline to grant an Order if this could be done. He accepted that if someone knew some facts about a family then they could possibly be identified to them from what had been reported, however, in his view the risk of this happening was worth it in order to gain the right level of transparency as a whole.

It is also hoped that not only will reporters provide a fair and accurate account of what happens in the Court, but that this will also include shining a light on the problems within the Family Justice System which may need some attention, such as underfunding of services, delays and the amount of litigants in person following the stripping back of legal aid funding over the last few years.

Generally speaking, participants in Family Court proceedings are anxious to attend Court, particularly if they are litigants in person which will mean that they will not have anybody present to speak on their behalf. Introducing such measures is surely only going to exacerbate feelings of anxiety should a reporter be present, whom they do not know, to listen to and report on deeply personal issues to litigants and their families.

In BR & Others it was submitted that reporters only be permitted to attend remotely to reduce but this notion was rejected. Poole J held that any discomfort felt by the parties was outweighed by the benefit that purported transparency would bring to proceedings.

Parties should take some comfort from the fact that the court process is subject to scrutiny and also from the fact that they will be permitted to speak to reporters to discuss their case and to ensure that accounts provided are accurate.

Only time will tell what the outcome of this pilot scheme will be and which of the recommendations will be taken on and when these will be implemented. It is truly hoped that if reporters are to be permitted to report on cases longer term, that the protection of litigants, whether represented or in person, is at the very least considered. In some cases, this may deter potential applicants from making an application to court, and therefore not getting the legal help that they require, for fear that they may have to discuss their personal business in front of reporters and that this information will be reported on for the world to read thereafter.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.