More transparency in the family courts will fight client fears

As part of a new pilot scheme – the ‘Reporting Pilot’ – to make proceedings in the family courts more transparent and less secretive, press reporters and legal bloggers have been covering family cases from the Leeds, Carlisle and Cardiff courtrooms over the last year. In the last few weeks the pilot has been extended to nearly half of all family courts in England & Wales.

Towards the end of 2023, the BBC reported on a case where a woman asked the family courts to try to block her ex-husband, who is in prison for child abuse, from being able to see their child after release, as parental responsibility remains even after a conviction for child abuse. The judge ruled that the father was ‘extremely high risk’, and therefore would not have access to the child and know her whereabouts. A barring order was also imposed by the judge, to mitigate the risk of the ex-husband applying to overturn the judgment upon release.

Whilst distressing, the reporting of these cases (with anonymity still intact) will undoubtedly have a positive impact across society. Particularly for the scrutiny of the legal process, and vitally to temper clients fears about how their family situations would be dealt with. In my experience, a historical lack of transparency around how the family courts are dealing with these cases has been damaging and putting individuals off from engaging with the family courts. And this is a view not only expressed by many of my peers, but also Sir Andrew McFarlane from his Confidence and Confidentiality: Transparency in the Family Courts report from 2021:

“…regular press reports appear based upon anonymous accounts of negative experiences in the Family Court by parents, victims of domestic abuse and others. Without knowledge of the identity of the complainant, it is not possible for the system to respond or to assist the media by retrospectively finding and publishing any judgment or account of the court process in such cases. This is a thoroughly unsatisfactory state of affairs, with the drip-drip of concerning stories, that are neither answered nor explained by publication of a judgment, inevitably eroding public confidence in the Family justice system.”

It’s important client identifying factors remain confidential, especially for children involved in the process, as a lack of confidentiality could prevent people engaging with the system entirely. The secrecy around processes and proceedings in family court has made people fearful of the outcomes, and that’s why we as lawyers must do our best to welcome media reporting in the family courts in 2024, and help our clients do too.

As many readers will know, it is at the judge’s discretion in each and every case to decide whether media access is permitted. And lawyers can apply for transparency orders if they disagree with the judge’s decision, and if their clients are particularly concerned. It is vital these safeguards remain to uphold client confidence too.

The ultimate aim is to introduce media reporting in the family courts as the ‘norm’. Last May, the pilot was extended to private law child cases, and it was announced in December, a 12-month pilot will go ahead for financial remedy proceedings.

As well as educating the public on family law proceedings, other benefits could result in parents opting for alternative dispute resolution options, for example when there are  disagreements about co-parenting relationships (where abuse isn’t involved). Through more understanding of how the courts deal with these cases, and how expensive and time-consuming they can be, clients may be more open to mediation, for example, which could be in their family’s best interests too. Eventually, this could go some way in easing the backlog of cases in the family courts.

As lawyers we have an obligation to act in the best interests of our clients. Although the Reporting Pilot can feel exposing, opening up our courts could encourage better practices and increased confidence in our family courts, strengthening our legal system for our clients’ best interests.

Kiran Beeharry is a Partner in the Family Law Team at SA Law