The family court reporting pilot has this week (30th January) launched in Cardiff, Leeds, and Carlisle in what marks a significant step towards “opening up the family court” and increasing transparency.
The pilot introduces 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.
The pilot scheme will ensure sure it can be done safely and with minimum disruption to those involved in the cases, and the courts. This will be done through judges in these Courts making a “Transparency Order” setting out the rules of what can and cannot be reported.
“The reporting pilot […] marks the start of the judiciary’s ongoing work to make transparency in the Family Court a reality,” said President of the Family Division Sir Andrew McFarlane. The reporting pilot was one of his main recommendations following his Transparency Review in 2021, leading to the formation of the Transparency Implementation Group, a sub-group of which has been the driving force behind the reporting pilot until now. McFarlane continued:
“Openness and confidentiality are not irreconcilable, and each is achievable. The aim of the pilot is to understand the impact of open reporting and to enhance public confidence, whilst at the same time firmly protecting continued confidentiality.”
McFarlane said reporting is subject to clear rules that maintain both the anonymity of children and family members as well as confidentiality regarding “intimate details of their private lives”. He added:
“The pilot is a work in progress, and the judges in each area, practitioners and media will be monitoring the transparency orders, and the process, as cases come to court. The reporting pilot is one aspect of the work being done to open up the Family Court, there are other working groups for data collection, financial remedies, and anonymisation and publication of judgments.”
Full details of the pilot, including detailed guidance for reporters, can be found on the Reporting Pilot page.
The industry reacts
“This debate has been rumbling on for three or more decades,” said Graham Coy, Partner at Wilsons Solicitors, adding:
“It began with a series of article in the press complaining about ‘secret courts’. At times, the criticism of Judges, experts and lawyers was virulent and all too often ill-informed.”
Explaining McFarlane’s rationale for the pilot, Coy said McFarlane is working to balance the need to enhance public confidence in the family court while also maintaining confidentiality and safeguarding privacy. The latter, suggested Coy, is inherently required in family proceedings which are “by their very nature extremely worrying and distressing” and should, therefore, remain private in his view:
“Where is the clamour for ‘openness’ coming from? Not from our clients. Has anyone stopped long enough to think about the impact upon the most important people affected by transparency: our clients and the children involved?
After many years as a family lawyer, I know all too well that if my clients thought that when they went to court the press would be present they would be appalled, no matter what safeguards may be put in place. it is They will feel under pressure to reach a settlement on almost any terms.
In that event, who benefits? Certainly not our clients. The law as it stands about reporting is a mess and it does need clarity and reform. The public do need to understand what we do and why, but this is not the correct approach.”
Jon Yates, Solicitor, Ashfords, was less concerned: “This will potentially cause panic, but fear not.” He explained that certain reporting provisions in the family courts have existed since October 2018 which, in practice, “have caused no notable deluge of cases being reported”, adding that “after all, most readers will not be interested in where Child X will spend Christmas this year”. He concluded:
“It should be noted that not all types of proceedings can be reported on, and the media will be reliant on tips offs, or sitting at court all day, to be aware of when those most interesting hearings– or in all likelihood those of celebrities – will be going ahead. Those cases which are reported on will be subject to strict rules in terms of what can be printed which will only likely further reduce interest.
So will we suddenly see reporters in the family court? The short answer, probably not.”
Alex Davies, Partner and Head of Family Team at Cripps, took a balanced view, noting that there are “competing interests at play”:
“On one hand, open justice must be a positive thing. Family court decisions made behind closed doors with no opportunity for public scrutiny has bred inconsistency across the country, with outcomes in similar cases being markedly different in one locality compared with the next.
On the other hand, many clients will not relish the thought of a journalist popping up at a court hearing during, what is, the most stressful part of their life. For those with the money to conduct proceedings privately through arbitration, that will never be a problem and we routinely advise those that can to do so. However, there will be occasions when people will go to court in a situation that is already tense and highly emotional, only to be faced with, what they will see as, the prying eyes of the press digging into their private life.”
Davies said the creation of an “easily understandable record of how different judges approach the many issues that arise in divorce and relationship breakdown” is of real value to a variety of stakeholders, though noted this will take time:
“Those predicting the overnight creation of a nationwide database of decisions will, I think, be disappointed.
But initiatives like this teach us more about our own society and opens up the courts to greater scrutiny, and for that I support it.”