The journey to transparency

Despite the fact that since 2009 accredited journalists have been able to attend private hearings in the family courts, the statutory restrictions on what they could publish, and the lack of advance warning as to when hearings might take place and where, meant that the prospect of attending hearings was both uneconomical, impractical and frustrating. Some judgments were published and therefore it was easier to report using those judgments as a basis. From October 2018 the doors of the family courts were opened a little wider and “duly accredited lawyers/ legal bloggers” were also permitted to attend the hearings, however, again, what they could report from those hearing was very limited indeed.

There was a clear call for greater transparency in the family courts and this was coming both from judiciary, the media and the wider public.

The movement supporting transparency reached an inflection point in 2019 when Sir Andrew McFarlane, President of the Family Division, appointed a review panel to investigate transparency in the Family Court. The panel’s findings were published in 2021 in a report: “Confidence and Confidentiality: Transparency in the Family Courts”. The review marked a turning point for accredited journalists (and legal bloggers) concluding that they should be able to “attend and observe Family Court hearings, [and] also to report publicly on what they see and hear”.

In November 2021, a Transparency Implementation Group was formed to carry out the review of the panel’s recommendation.

In January 2023 three pilot courts were identified, Leeds, Carlisle and Cardiff and the Transparency Pilot was rolled out, initially for public law children cases and then for private law children cases in May of the same year. The pilot intended to reverse the default position on private hearings and allow journalists and legal bloggers to report on what they see and hear but with stringent conditions. The conditions are set out in a transparency order which is made at the beginning of the hearing. This sets out in detail what the journalist or legal blogger can and cannot report on. The anonymity of the child, and any information which could identify the child, through jigsaw identification remains a primary concern and the focus of the Court when considering what can and cannot be published.

Guidance on how to make a Transparency Order came in January last year in Re BR & Ors (Transparency Order: Finding of Fact Hearing). The judgment, by Poole J, sets out the legal framework behind the execution of a Transparency Order alongside the guidance provided in the Pilot Scheme.

The first pilot, initially set to run for 12 months, has now been extended, with coverage of cases at 16 more Family Court centres from 29 January 2024. The pilot includes some financial remedy cases as well as both public and private children cases.

The importance of transparency in the courts

There needs to be greater transparency in the family courts to ensure public confidence in the legal system. Allowing journalists and legal bloggers to report on what they see and hear, allows for greater accountability as well as a greater understanding of how and why decisions are made.

This newly established transparency must tread a fine line between openness and safeguarding; integral to the Family Courts is the anonymity vouchsafed to the families and children that turn to it for protection. And so, within this decision to expand pilot transparency lies an apparent tension. The President addressed the need to strike the balance between anonymity and openness arguing that the “twin principles of confidence and confidentiality are not, in my view, mutually exclusive and it is possible to achieve both goals.” In Re BR also indicated the flexibility of a Transparency Order

A positive step for journalism

This is, without a doubt, a shift that has the potential to create a positive impact on the media’s coverage of some of the less well-understood aspects of the law within the reporting of matters in the Family Courts. The hope is that with cooperation between the media and the Courts there can be successful, accurate reporting which remains within the bounds of the Transparency Order. Failure to abide by the terms of the Order runs the risk of journalists and bloggers being held in contempt of court.

Balancing the legal and communications impacts of these changes

The extension of the pilot schemes will present new challenges for barristers, solicitors and communicators alike. In some cases it  may be in the interests of the client for their lawyer to oppose the transparency imposed by the pilot, and those applications will be reviewed  by the Courts on their merits. In others cases clients may embrace the fact that proceedings are  attended by the media.

Whatever the case background lawyers and communication teams will need to ensure that they understand the transparency provisions, when in communications with press or bloggers. Only then will we ensure that there is fair and accurate reporting in accordance with the law.