Family court reporting – a further step towards openness

Family Court proceedings are by their very nature private, dealing with highly personal, and sometimes confidential, issues. Anyone involved in them may therefore be alarmed at the news that journalists are to be allowed to attend and report upon Family Court hearings.

So what exactly is being allowed, and what does it mean for Family Court litigants?

The present position

To understand the changes, we need to first look at the current rules, which may very briefly be stated as follows:

1. Almost all family court proceedings are held in private, i.e. the general public have no right to be present.
2. Accredited journalists and ‘legal bloggers’ (i.e. authorised lawyers attending for journalistic, research or public legal educational purposes) are allowed to attend most private family court hearings.
3. However, in proceedings concerning children section 12 of the Administration of Justice Act 1960 significantly curtails what can be published. Whilst journalists may attend, they can report very little without the permission of the court.
4. Parents involved in children proceedings may not talk to journalists or qualified legal bloggers about their case.

As will be seen, these rules can be extremely restrictive, and this has led to concerns that they do not permit effective public scrutiny. As the President of the Family Division pointed out: “It is by openness that judges are held to account for the decisions they make so that the public can have confidence that they are discharging their important role properly.”

Against this background it was decided to take steps to increase transparency in the family justice system.

The reporting pilot

The pilot launched on 30 January 2023. It will run over a period of 12 months, and be subject to independent evaluation.

The aim of the pilot is that in the designated courts (Cardiff, Leeds and Carlisle) accredited journalists and legal bloggers will be allowed to report on what they see and hear in court (this is known as “the transparency principle”).

This will however be subject to “the anonymity principle”, i.e. that all reporting will be subject to the principles of protection of the anonymity of any children involved, unless the Judge orders otherwise.

And the Court may depart from the transparency principle in any case. In deciding whether to restrict reporting, the Court must ensure the rights of the family and parties to a fair trial, and must balance their right to a private and family life against the right of the press, public and parties to freedom of expression.

In any case where a pilot reporter attends a hearing the Court will consider whether to make a Transparency Order, stating what may or may not be published. Certain matters, such as names of children and anything that may lead to children being identified, must not be reported without the express permission of the Court.

The Transparency Order should also provide that, on request, pilot reporters are entitled to be provided with copies of, see, and quote from certain documents prepared in connection with the case, such as case outlines, skeleton arguments, and position statements.

The Transparency Order will permit the parties to discuss the proceedings with a pilot reporter and, subject to the terms of the Transparency Order, permit the reporter to quote parties in their reporting. It will not permit the parties to themselves publish information from the proceedings where this would be restricted by section 12 of the Administration of Justice Act 1960 and/or the Rules of Court.

The pilot will not apply to all types of family cases. It commenced with public law cases (i.e. children cases involving social services, such as care proceedings), and will shortly extend to private law children cases, i.e. cases concerning disputes between parents over arrangements for their children.

Note that the pilot does not apply to financial remedy cases (section 12 of the Administration of Justice Act 1960 does not usually apply to such cases, although the Court may restrict publication of confidential financial information disclosed in financial remedy proceedings, where this is sought by one of the parties). The issue of transparency in financial remedy cases is however being looked at, so we can expect some developments in that area too.

The first Transparency Order was in fact made before the launch of the pilot. In the case Re: BR and others Mr Justice Poole, sitting at the Family Court in Leeds, decided that it was appropriate to make a Transparency Order on 17 January, at the start of an eleven-week fact-finding hearing in three sets of care proceedings concerning allegations that the mother in each family had fabricated or induced illness in one child of each family.

Should litigants be alarmed?

If the pilot is deemed to be successful then one can expect the scheme to be rolled out across England and Wales.

So should litigants be alarmed at that prospect?

Hopefully not. As we have seen, the scheme still includes important privacy protections, especially with regard to children, and will be carefully overseen by the Court.

The idea of the Family Court being more open to public scrutiny must surely be welcomed by all who have an interest in the family justice system.