A Family Court Reporting Pilot launched on 30 January is the first major step towards implementing a ‘cultural shift’ towards increased transparency in the family justice system. Under the pilot, reporters will be permitted not only to attend hearings relating to arrangements for children (as they can now) but also to report on what they see and hear – something which is, unless otherwise ordered, prohibited under section 12 of the Administration of Justice Act 1960.
The pilot follows a groundbreaking report, Confidence and Confidentiality, issued by the president of the Family Division, Sir Andrew McFarlane, in October 2021. The president acknowledged that the status quo did not allow effective public scrutiny of the Family Court, resulting in a loss of public confidence in the court. He addressed head-on the tension between increasing transparency, and thus public confidence, and respecting the confidentiality of those involved in these sensitive cases, particularly children.
The pilot seeks to balance these interests. It applies in Cardiff, Carlisle and Leeds to children proceedings; public law proceedings in which the state is involved; and private law proceedings between parents or other carers or family members. There will be a presumption that a Transparency Order (TO) should be made permitting ‘pilot reporters’ (defined as ‘duly accredited representatives of news gathering and reporting organisations and duly authorised lawyers attending for journalistic, research or public legal educational purposes’) to report on hearings subject to certain restrictions.
In particular, the anonymity of children must be strictly preserved – publishing information intended or likely to identify the children will remain prohibited under section 97(2) of the Children Act 1989. The president’s template TO provides for pilot reporters to be provided with skeleton arguments and similar documents, orders and court bundle indices; they are not entitled to see other documents though they may apply for access to them. Judges retain discretion as to whether they should decline to make a TO (in which case no reporting will be permitted) or to adjust the terms of the template.
On 25 January Mr Justice Poole handed down the first reported judgment involving a TO, BR & Others (Transparency Order: Finding of Fact Hearing) [2023] EWFC 9. While the pilot had not yet commenced, the hearing, concerning three families where the mothers were alleged to have fabricated or induced illness in a child, was due to last 11 weeks, and Poole J considered it appropriate to adopt the pilot from the outset. Potential pilot reporters were alerted to the hearing through the Royal Courts of Justice press office and some duly attended.
Poole J identified that while judges retain a discretion as to whether to make a TO, the pilot would be ineffective if judges routinely declined to do so, and held that save in exceptional cases the template TO would strike the right balance. Poole J accepted that inevitably some people who already know a family might find out more about them as a result of reporting, but held that while this may be uncomfortable, it must be balanced against the principle of open justice.
Although concerns have been expressed that journalists may be more interested in sensationalising family dramas than in thoughtful reporting on the family justice system, there are serious journalists and legal bloggers keen to report fairly on the workings of the Family Court, and these changes will enhance their ability to do so. One hopes that the reporters will also be able to draw wider attention to problems arising from the underfunding of the family justice system, including extensive delays, and many parents in private law proceedings having to represent themselves due to the unavailability of legal aid.
From our clients’ perspective, many will not relish the prospect of reporters attending a hearing and watching them give evidence on such sensitive matters. In BR & Others, a submission was made that the reporters only be permitted to attend remotely to avoid distress to the parties, but Poole J held that such discomfort did not justify excluding reporters from observing hearings in person. In practice, if course, most cases are unlikely to attract press interest.
Where both parties prefer, they can, in most private law cases, choose to arbitrate, thus ensuring privacy. It was recently confirmed, in G v G [2022] EWFC 151, that the test for challenging an arbitral award in children cases is the same as the test for appealing an order in such cases, which – together with the roll-out of transparency programmes – may increase the (so far limited) take-up of arbitration in children matters.
Other clients, particularly those who have read negative reports about the Family Court, may find it reassuring that the press is monitoring the court. Under the pilot, the parties will be able to discuss the case with the reporters so that their perspective may be reflected in any reporting.
Meanwhile, a report is awaited on next steps regarding transparency in financial cases on divorce. An October 2021 consultation document proposed stripping parties to such proceedings of their anonymity. Responses from family lawyers raised concerns, following which Mr Justice Mostyn has, through case law, suggested that the underlying legal landscape does not, when correctly understood, provide for parties to financial remedy proceedings to have anonymity in any event. This approach has not been widely followed, and a report is awaited from the Financial Remedies Court transparency sub-group.
Plainly, change is coming to the Family Court. If it succeeds in increasing public confidence in, and awareness of, the court’s work while protecting the anonymity of families – which is the desired outcome – it will be a change for the better.
Henry Hood is senior partner at Hunters Law, London
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