Making Family Court Proceedings More Open And Transparent

The issue of openness and transparency in the Family Court (FC) has been the subject of intense debate for many years. The matter straddles two opposing ideologies;

1. The principle that to ensure justice is done fairly, all courts should be open to the public and press, a principle eloquently summed up by Lord Hewart in R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) “Not only must Justice be done; it must also be seen to be done.” The rights of the media and others (including the parties) to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) must also be protected.
2. The rights under Article 8 of the ECHR which protect the right to private and family life, and the overriding doctrine of family law in England and Wales – the paramountcy of the welfare of the child, which is also protected in broad principles by the UN Convention on the Rights of the Child, Article 12.

In Scott v Scott  [1913] AC 417, Lord Atkinson summarised the reason that justice must be open and transparent:

“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses … but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”

At present, almost all FC proceedings are held in private; however, accredited legal journalists and legal bloggers can attend most private hearings. Under section 12 of the Administration of Justice Act 1960, the publication concerning any proceedings related to a private hearing will not be in itself contempt of court unless the proceedings (in so far as they relate to family matters):

• relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
• are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
• otherwise relate wholly or mainly to the maintenance or upbringing of a minor
• are brought under the Mental Capacity Act 2005 or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the County Court;
• where the Court (having power to do so) expressly prohibits the publication of all information relating to the proceedings.

The attendance of media representatives and legal bloggers is governed by Family Procedure Rule (FPR) 27.11 and FPR Practice Direction (PD) 27B. In addition, the Children Act 1989, s 97(2) makes provision for privacy for children involved in certain proceedings:

“(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—

(a) any child as being involved in any proceedings before the High Court or the Family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b) an address or school as being that of a child involved in any such proceedings.”

Reporting restrictions in cases involving the publication of confidential financial information disclosed in financial remedy proceedings that do not involve children is governed by case law.

These rules significantly curtail what journalists and bloggers can report in FC proceedings. To increase openness and transparency in the FC, a pilot was launched on 30 January 2023 in England and Wales. FCs in Cardiff, Leeds, and Carlisle will allow accredited journalists and legal bloggers to report on what they see and hear in proceedings. The pilot will be subject to an independent evaluation. Unless the Judge says otherwise, the identities of any children involved in proceedings will remain anonymous.

What led to the Family Court Openness and Transparency Pilot being launched?

In 2019, the President of the FC, Sir Andrew McFarlane, ordered a review into transparency in the FC. The conclusions and recommendations of the review were published in President of the Family Division: Confidence and Confidentiality: Transparency in the Family Courts (28 October 2021). In the report, President McFarlane stated:

“Justice taking place in private, where the press cannot report what has happened and where public information is very limited, is bound to lead to a loss of public confidence and a perception that there is something to hide. The number of published judgments fell from 222 in 2015 to 87 in 2019. The system is suffering from serious reputational damage because it is, or is perceived to be, happening behind closed doors. Further a lack of openness undermines accountability and allows occasional poor practice to continue unchecked.”

The report recommended changes that would allow media representatives and legal bloggers to report on what they see and hear at FC hearings, provided they maintain the anonymity of children and their families and keep intimate details of their private lives confidential.

Thus, the pilot was launched in January 2023.

What is a legal blogger for the purposes of attending private Family Court proceedings?

It is important to note that to attend private hearings, a legal blogger must:

• Hold a valid Practising Certificate to conduct litigation or be able to attend the FC.
• Work for a higher education institution designated as a recognised body under section 216 of the Education Reform Act 1988.
• Be a qualified lawyer working for an educational charity, the name, objects and registered charity number of which have been provided to the President of the Family Division.

Should people be worried about the Family Court openness and transparency pilot?

Lord Bingham in his book, The Rule of Law (2010),

“all persons and authorities within the state, whether public or private, should be bound by and entitled to benefit from laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”

Open justice is a fundamental principle of the rule of law and therefore, it is in the interests of every citizen that the decisions made by the judiciary can be scrutinised, publicly discussed, and even criticised. The alternative is that judicial decisions are cloaked in secrecy, leading to a loss of public trust, poor judicial performance, and, in the worst case, the risk of corruption and political interference.

Although President McFarlane’s report clearly illustrated the need for change, there remain watertight rules concerning the protection of children’s privacy and private financial disclosures. The 12 month pilot, if successful, is likely to be rolled out across England and Wales. On balance, this is a positive step forward for everyone who engages in family law proceedings.

To talk to our Family Law Solicitors in Coventry and Warwickshire, please call us on 02476 231000 or email enquiries@askewslegal.coPlease note that this article is for information purposes only and does not constitute legal advice.