Transparency is an issue which the Family Court in England & Wales has grappled with for several years.
In the red corner is the need for open justice; a precious and fundamental principle of any functioning legal system. Family law has often been accused of operating in the shadows, avoiding public scrutiny and leading to widespread confusion and misunderstanding about how judge’s apply the law and use their extremely wide discretion.
In the blue corner are litigants’ rights to privacy and the protection of society’s most vulnerable, including children. After all, the Family Court is concerned with the most personal of issues, from marital breakdown and child arrangements to children in care.
It effectively becomes a shootout between Article 8 (right to a private life) and Article 10 (freedom of expression) of the Human Rights.
In a bid to tackle these competing issues head on, Sir Andrew McFarlane, President of the Family Division, introduced a new Transparency Reporting Pilot scheme, starting in January 2023 for a period of 12 months, in Cardiff, Leeds and Carlisle.
Under the scheme, accredited journalists and ‘legal bloggers’ (known as Pilot Reporters) would be allowed as of right to report on what they see and hear in court, subject to such further provision and restriction the presiding judge felt necessary to protect the parties to the case.
The President has now announced that the pilot scheme will be extended and rolled out to a further 16 courts across the country, including London and Birmingham, with effect from today.
But what does this mean for family law litigants and transparency in the family court?
This pilot scheme applies only to cases involving children, including private disputes between separated parents and those involving the local authority.
Pilot Reporters do not have to notify the court or the parties of their intention to attend a hearing. If a case is subject to press interest or coverage, the court will consider making a Transparency Order, which is an order of the court setting out clearly what can and cannot be reported to the public without the court’s express permission.
The court has retained a great deal of discretion as to what can be reported, including names and personal details of the parties which are prohibited. The court can even exclude a Pilot Reporter from a hearing or part of a hearing altogether, provided this is done for a specific reason and that reason is recorded in the order of the court. Furthermore, the court can determine that there should be no reporting whatsoever.
It cannot therefore be said that Sir Andrew McFarlane has left the doors of the Family Court wide open for all to see with the extension of this pilot. It is more like an upstairs window has been left open, and you can only look in with the right ladder, and the window could be shut, or the curtains closed, at any moment!
Could these new transparency rules be, in part, used as a deterrent to keep some cases away from the family court altogether?
It is of legitimate concern to some families who fear that these new transparency rules could have an adverse effect on their lives and wellbeing. In order to do this, they may turn to non-court led methods, whether that be a financial case or a case involving the arrangements for their children, in a bid to keep control. Such out of court methods may include mediation, arbitration, and private FDR’s (in a finance case).
I spoke to colleague Hannah Nicholls, Family Mediator and a leading figure within HCR’s new ADR Hub, about the Pilot Scheme and President’s recent thoughts:
“It has been highlighted by the President of the Family Law Division that the courts are taking a considerable amount of time to conclude cases, which is having a significant impact upon families and children. There will be cases that will inevitably require court intervention but where there are no safeguarding/safety concerns and both parties are willing to explore alternative options, the court should be seen as a last resort. The new transparency rules will likely encourage families to engage with non-court based approaches to family law and see court as a last resort. The new transparency rules also fall at the same time as the Government explore proposals for the earlier resolution of family matters, meaning that mediation and arbitration may become more appealing. At HCR our family team are fully on board with alternative methods of dispute resolution, and we actively promote and offer access to these services in each of our national office locations”.