In October 2021, the President of the Family Division, Sir Andrew McFarlane, published a report into transparency within the Family Court system. In a short blog series, we will be explaining what this report means for families in court.
Transparency has always been a challenging area in family law. On the one hand, it is important for the public at large to have confidence in the judicial system and to do so, they need to see what is going on. But on the other hand, the nature of family law means that much, if not all, of the proceedings consist of very personal and sensitive issues, including around children. In a bid to balance these considerations, Sir Andrew’s report concluded that ‘the time has come for accredited media representative and legal bloggers to be able, not only to attend and observe Family Court hearing, but also to report publicly on what they see and hear.’
Since 2009, the Family Court has been working towards greater transparency. Accredited members of the press have been able to attend certain family hearings since 2009. Although there was concern at the time by divorcing couples, the restrictions were so tight on what could be reported that the media quickly lost interest in attending. Legal bloggers were then allowed into courtrooms from 2018. And although there have been efforts to encourage judges to publish more judgments (often anonymised), there was still a clear divide between those judges who favoured hearings in open court and those who sought to maintain the privacy of families.
What has most recently been proposed is that in proceedings not relating specifically to children, the starting point should be that the media will be allowed into the courtroom and will be able to report on what happens provided they maintain the anonymity of any children and their families and keep intimate details of their private lives confidential. The press would also be given access to certain court documents that set out the background of the case and what arguments each side are raising. The suggestion is that the press would be able to report the names of the family involved, publish photographs, a description of the facts and legal issues involved as well as being able to quote from documents, witnesses and the judge.
Implementing this proposal will be a big change for the Family Court and the families who use it. It is possible that the proposals may result in more couples moving away from the courts and instead using mediation or arbitration to resolve their dispute - processes where proceedings can be kept confidential. However, at this stage, it really is a case of watch this space. We should hear in the next few weeks when a pilot testing out these proposals will start, and the names of the courts that will be involved.
If you have any concerns or questions about transparency within the court system and how it might affect you, our team would be happy to help you.
IMPORTANT!
Since writing this blog, an announcement has been made that from 30 January 2023 the current position for the media and legal bloggers who attend Family Court hearings will change in three courts. Under a pilot scheme it won't be necessary for a journalist or legal blogger to apply for permission to report or publish information from a hearing at Cardiff Family Court, Carlisle Family Court or Leeds Family Court. In these three courts, journalists and bloggers who attend will be able to write about the case, subject to rules to ensure that children are kept anonymous.