Until now, what happens in the family court has largely remained confidential to the public. The current law prevents reporting on a family law case unless explicitly ordered by the Judge. Commencing this January, a new 12-month government pilot scheme is taking place in Cardiff, Carlisle and Leeds which will allow reporting of family court cases for the first time. So, what does this mean for the family court?
Each year, thousands of cases are heard in the family courts involving hundreds of thousands of people. These cases include divorce and financial proceedings, disputes relating to child arrangements and public law proceedings involving the local authority applying to safeguard the welfare of children. Clearly, the very nature of the family court is to deal with deeply personal issues relating to the most private and sensitive aspects of people’s lives. The often-cited reason for the current approach of the law is to protect the confidentiality of both adults and children involved in such court disputes.
On the flip side, the current system in family courts is contrary to the principles of ‘open justice’. Despite the huge caseload and the important societal issues that are dealt with, surprisingly little is known about what happens in family cases. Most of what the general public does know has come from personal experience or anecdotal stories which create widespread misunderstanding of the processes and approaches of the family courts. Furthermore, without increasing transparency, there is little to increase public confidence in the system, or alternatively increase scrutiny and exert pressure for change.
The secrecy of the family courts has long been questioned, with many feeling that greater transparency and accountability are needed. In recent years there has been some sway towards further openness and accessibility in the family courts, with Lord Justice McFarlane (President of the Family Division) appointing a panel to review the process and produce a report last year, the Transparency Review. Following that report, Lord Justice MacFarlane has provided his conclusions in his report ‘Confidence and Confidentiality: Transparency in the Family Courts'. He concludes that ‘there needs to be a major shift in culture and process to increase the transparency in the system in a number of respects'.
The new 12-month pilot is to be rolled out in 3 locations including Cardiff, selected to represent a mixture of rural and urban communities. The pilot will allow journalists to report on what they ‘see and hear’ so long as the anonymity of the families is protected. Reporters will be able to name local authorities and lawyers involved as well as experts appointed by the Court but will not be allowed to name individual social workers and medical professionals treating children or any family members in the case, unless specifically ordered by the Court. The scheme will operate by giving judges discretion to make a ‘Transparency Order’ in cases and will retain the right to refuse to issue an order to restrict the reporting on a case where it is necessary to do so.
Lord Justice Macfarlane has highlighted the continued importance of the Articles of the European Convention on Human Rights when judges exercise their discretion on whether to make a Transparency Order. Macfarlane is clear, that ‘greater openness must not be at the expense of the interests of children’ and therefore the anonymity of children is of central importance.
It is yet to be seen how successful the pilot scheme will be and how it will operate in practice. It is hoped that it will create a workable middle ground between transparency and anonymity, but what is clear, the pilot represents a significant move to implementing change in the family courts.
From the end of January, accredited journalists will be able to report what they see and hear as long as they protect the anonymity of families.