Transparency In Family Courts – A Work In Progress
This is a key principle of our legal system. Up and down the country, courts sit every day in open court, ie where members of the public and press can attend and cases and judgments are published and reported, with parties and full details of the case, unless special anonymity orders are made.
Except for family proceedings. These have for a long time, been heard in private, and judgments when published have been anonymised. The press can attend hearings in family courts but their report on cases is generally restricted, especially to protect children from being identified. In financial remedy proceedings, journalists and legal reporters can publish information, provided the anonymity of any child is secured.
It is important that the public have confidence in our Family justice system and its workings. The question of transparency in Family Law proceedings, whether allowing the general public to attend or, for publishing what happens, has been under scrutiny and is currently the subject of a pilot project. Our President of the Family Division, Sir Andrew McFarlane, published a report in October 2021 which advocated greater openness in the Family Courts. Two key recommendations from the President to address the “secrecy” of the workings of the Family Court were to:
- Encourage Family Judges to publish more of their judgments; and
- To allow freer reporting of what goes on in the Family Court hearings.
Some Judges have also endorsed and acted upon the move towards greater openness in family proceedings by publishing judgments in financial matters.
The Pilot Project
Fast forward then to February 2023, and Leeds, Cardiff and Carlisle Family Courts are three regions in which a pilot transparency scheme is being undertaken. Mr Justice Poole, on 25 January, is thought to be the first judge to make a “Transparency Order” which relates to a public law children matter.
What is a Transparency Order?
A transparency order allows accredited journalists or authorised bloggers to not only attend and observe family court hearings but also to report on proceedings with restrictions to protect the identities of children.
The order adopts the model included in Sir Andrew McFarlane’s guidance for the Family Division with two “major changes” that, according to Poole J, “would not be necessary in most situations.”
The modifications stipulate that no coverage of the proceedings may be done before the hearing is over and “possibly, due to possible criminal procedures, long after that.” The second change is the addition of a private schedule to the order that includes the real names of all parties, including any children. This was only necessary due to the large number of parties involved in the present case.
Poole J stated: ‘The purpose of doing so was to avoid inadvertent reporting of any members of the three families. If a pilot reporter has any doubts about whether an individual is subject to the prohibition on identification, they can check the confidential schedule’.
The finding of fact hearing concerns three different family law applications that local authorities made to the court in connection to three different families, all of which reside in Yorkshire. Allegations include that the mother in each family “fabricated or produced illness in one child of each family”. A criminal inquiry has been launched following the arrest of three women.
Transparency and securing open justice in the Family Courts is generally seen as a much-needed move forward, particularly to increase public confidence in the workings of the Family Court. The tricky question will always be, given that these proceedings are about individuals’ private lives, often involving children, how their right to privacy and the impact on them of reporting can be balanced with freedom of speech and the need for open justice and to dispel the image of a family court whose workings take place behind a veil of secrecy.
This may well give rise to an increased number of families who will engage in ADR – Alternative Dispute Resolution, such as Mediation and Arbitration to deal with their matter. These forms of ADR are private, being outside the court process.
This blog has been co-written by Easha Saudulla, Legal Clerk in our Family Law Team.