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Court  |  Family law

Increased Transparency in Family Courts

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Walker Family Law
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The work of the Family Court is eyed by many with suspicion, if not outright mistrust, or even hostility.

The primary reason for this is quite simple: because of the nature of the work the court is unable to operate completely openly, in particular when dealing with the private lives of vulnerable children. And if the public can’t see what the court does, and why, then it may naturally become suspicious.

Those who work within the family justice system have long been aware of the widespread mistrust of the family courts. Indeed, back in 2013 the then President of the Family Division Sir James Munby indicated his determination to meet the charge that the courts operate a “system of secret and unaccountable justice”.

Sir James met the charge by making the workings of the court more transparent.

This ‘transparency drive’ began with Sir James issuing guidance to judges, requesting them to publish more of their judgments, so that the public could better understand what the Family Court does.

But it didn’t stop there.

The ‘secret’ Family Courts

Before we move on to look at the latest development in the drive to make the family courts more transparent, we first need to look at the rules governing what can be made public about the work of the Family Court.

The first thing to note is that hearings relating to family matters are generally held in private. This means that members of the public are not allowed to attend the hearings.

However, for a long time accredited media representatives have been allowed to attend most hearings. They are not allowed to attend adoption proceedings, or hearings fixed with the intention of helping the parties reach resolve the matter by agreement, and the court may exclude them from other cases, for example where it is considered necessary in the interests of a child.

But just because the media has been allowed to attend hearings does not mean that have been free to report everything they see and hear. On the contrary, there are strict rules restricting what they can report, especially in cases involving children. In particular, they cannot publish anything that might identify a child concerned in the proceedings, unless the court gives permission for them to do so.

And anyone breaching reporting rules may be subject to legal sanctions. For example, it may be a contempt of court to publish information about proceedings relating to children if a court sits in private. And the Children Act specifically provides that it is a criminal offence to publish information which could identify a child involved in certain proceedings.

All of these reporting restrictions have of course perpetuated the idea in some circles that the Family Court does indeed operate a “system of secret and unaccountable justice”. To address this, in 2021 the present President of the Family Division Sir Andrew McFarlane recommended that accredited journalists and ‘legal bloggers’ (i.e. authorised lawyers) should be able to report on what they see and hear in court, subject to strict conditions of anonymity.

This recommendation was eventually put into practice in January 2023, when courts in Leeds, Cardiff, and Carlisle began piloting new rules allowing reporting in the Family Court, in what became known as the ‘Reporting Pilot’. In January 2024 the Reporting Pilot was extended to 16 further court areas.

Two principles

The Reporting Pilot was subjected to an independent assessment and was evaluated as a success. Accordingly, on the 27th of January 2025 it was rolled out across all family courts in England and Wales.

So what does this mean for users of the Family Court?

As mentioned above, the new rules apply to accredited journalists and authorised lawyers. An accredited journalist is a journalist who carries a UK Press Card, although the court also has a discretion to allow non-accredited journalists.

The basic principle behind the rules is that accredited journalists and authorised lawyers are allowed to report on what they see and hear in court. This is known as “the transparency principle”. The court may depart from the transparency principle in any case, balancing the family’s right to privacy against the freedom of the press.

All reporting is subject to the principles of protection of the anonymity of any children involved, unless the Judge orders otherwise. This is known as “the anonymity principle”.

So how does it work in practice?

Transparency Order

When a reporter attends a hearing, and wishes to report, they should ask the judge to make a Transparency Order (reporters are encouraged to inform the court and the parties in advance of their intention to attend).

The Transparency Order sets out, amongst other things, what may or may not be reported.

There is standard form of Transparency Order, but the court can modify the terms of the standard order as appropriate on the facts of the case. The court may do this of its own motion, or by invitation, for example by one of the parties. The court also retains a discretion to later vary or discharge the Transparency Order, or to direct that there should be no (further) reporting of the case. This discretion may be exercised of the court’s own motion, or on application by a party or a reporter.

The standard Transparency Order states that it remains in place until any child to whom the proceedings relate reaches the age of 18.

The standard Transparency Order provides that, in any reporting about the proceedings, certain matters must not be reported without the express permission of the court, including:

1. The name or date of birth of any subject child in the case;

2. The name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child(ren) being identified;

3. The address of any child or family member;

4. The name of the child’s school;

5. Photographs or images of the child, or their parents;

6. The names of any medical professional who is or has been treating any of the children or a family member;

7. In cases involving alleged sexual abuse, the details of such alleged abuse; and

8. Any other information likely to identify the child.

The court has a discretion to exclude journalists from a particular hearing, or part of a hearing, but this should only be done for specific reasons. The court may also decide that there should be no reporting, or restricted or delayed reporting of all, or part, of the proceedings.

In addition to these restrictions, the Transparency Order will allow the parties to discuss the proceedings with a journalist and, subject to the terms of the Transparency Order, permit the journalist to quote parties in their reporting. It will not, however, permit the parties to themselves publish information from the proceedings where this would be restricted by the contempt law mentioned above, or rules of the court.

The standard Transparency Order will also provide that, on request, reporters are entitled to be provided with copies of, and quote from, certain court documents, including case outlines, skeleton arguments, summaries, position statements, threshold documents, and chronologies. If a journalist wishes to see any other document not permitted to be disclosed by the Transparency Order, they must apply to the court for permission.

Finally, when deciding whether to make, or vary, a Transparency Order the court is required to give careful consideration to certain categories of case. Examples of this include cases where matters relevant to the case are subject to criminal charges, active investigation, or proceedings, where reporting may cause prejudice to those proceedings; urgent applications that are made without notice, where reporting and or/publication of the hearing or facts would cause prejudice to the applicant; and cases where it is particularly difficult to achieve anonymity for the child.

A “watershed moment”

Sir Andrew McFarlane has described the establishment of the open reporting provisions in all family courts in England and Wales as a “watershed moment for family justice.” He said:

“Improving public understanding and confidence in the Family Court is of fundamental importance. Over the last two years there has been a presumption that journalists and legal bloggers can report what they see and hear from pilot courts in England and Wales. The reporting that we have seen has been significant, and includes coverage of issues affecting some of the most vulnerable people in our society, such as: children subject to Deprivation of Liberty Orders; the need to limit parental rights for convicted paedophiles and cases of child neglect or abandonment.

“There have been no known breaches of anonymity of children, and the aims of the pilot, to increase public understanding and awareness of the Family Court, are being realised.”

It should surely be the case that public understanding will be increased, but whether this will be enough to silence the detractors, we will have to wait and see.

It will still be the case that most family cases will not be reported upon, even if the rules allow it. There are only so many journalists and legal bloggers, and they can only cover a small fraction of the quarter of a million-odd new cases that are started in the family courts of England and Wales each year.

And the detractors may feel that the reporting restrictions that still apply will mean that the Family Court is not sufficiently open to justify the removal of the ‘secret justice’ complaint.

As for the users of the courts, obviously nothing will change for those who do not have a reporter present at their hearings, but for those who do they will have to be prepared for the possibility of their private affairs becoming public knowledge, although some may welcome the opportunity of discussing their cases with the press.