The transparency pilot scheme provides for qualifying legal reporters and press to have greater access to the family courts – to attend hearings, speak to parties and their lawyers and review key documents, including position statements and pleadings. This started at the family courts in Leeds, Cardiff and Carlisle at the end of January 2023, covering Children Act proceedings. Since then, there has been increased coverage of both public and private law cases across the general press – including by the BBC, Sunday Times, the Economist, the Guardian, the Daily Mail, The Bureau of Investigative Journalism and others.
Driving transparency
The aim is to counter the negative perception, by some, of a lack of public access, awareness and therefore scrutiny as to what takes place in the family law courts and how the judges come to decisions relating to children and families. Reports from those who have been involved in the scheme indicate that there has been positive collaboration between press, parties and practitioners.
From 29 January 2025, the pilot was rolled out more widely across the UK and will operate in Liverpool, Manchester, West Yorkshire, Kingston-upon-Hull, Nottingham, Stoke, Derby, Birmingham, Central Family Court, East London, West London, Dorset, Truro, Luton, Guildford and Milton Keynes, covering public law cases as well as private children and financial cases.
Those responsible for the scheme have taken care to ensure there is as much clarity for all involved, issuing detailed guidance as to what should happen when a journalist wishes to attend a hearing – notice to the parties, a precedent transparency order and the information they can and cannot report. Such information includes the full names of the parties and any children; the names of the schools the children attend; and the names of private companies that may have an interest. It has been noted, however, that judges involved in overseeing these cases have divergent views, which is likely to influence their willingness to grant transparency orders and therefore there are concerns around consistency.
Unintended consequences?
Solicitors are duty-bound to act in the best interests of their clients. Understandably, some practitioners have concerns about whether the attendance of the press could negatively affect their clients. Family law proceedings can be innately stressful and knowing that a reporter may be listening to highly personal evidence on each side and may have sight of the parties' statements in relation to it, could inhibit and censor an individual’s evidence – with a potentially far-reaching impact on the outcome of a case. Furthermore, if the parties receive late notice of press attendance, this could be destabilising and distracting on what is already a high pressure time for the family. There is also a danger press attendance could be manipulated by one party over another - using the threat of issuing proceedings and a public court hearing as leverage.
On a practical level, dealing with a transparency order can take up a not insignificant amount of what is already limited court time – potentially mounting further pressure on courts. At present, it is not clear who will be compelled to meet the costs of dealing with these issues.
Those who can afford it are already exploring arbitration and other forms of non-court dispute resolution such as private FDRs: a form of negotiation hearing during which a senior barrister or retired judge is paid a fee to oversee a case. One wonders if more people will seek to avoid the court system to protect their privacy. Does this produce a two-tier system akin to the health system?
It is hoped, with time, that those involved in family cases will be able to work within a streamlined framework that enables there to be high-quality and reliable reporting in relation to the family law system, while maintaining the confidence of those who are compelled to rely on the court for assistance and their legitimate expectation that their access to justice will not be negatively affected by the presence of the press.
Alexandra Hirst is a senior associate at Boodle Hatfield
No comments yet