13 March 2023

Scrutiny of the family courts has been a hot topic of debate for some time now. There have been various rule changes over the years to allow access to the family courts, in particular allowing the media to attend some court hearings. However, many restrictions have remained in place. A new pilot scheme taking place over the next 12 months will now allow accredited journalists to report on some cases in the Leeds, Carlisle and Cardiff Family Courts, with the intention of enabling closer scrutiny of the actions of local authorities and the court themselves.

The pilot will begin with only public law cases, which usually involve local authorities, such as proceedings for a child to be removed from their family, but will extend to private law cases within “a couple months”. Private law cases are those where the courts adjudicate on issues relating to children when the parents cannot agree, for example, with which parent a child should live or which school a child should attend. As part of the pilot, journalists will be given access to legal documents produced in the case, such as witness statements and expert reports.

Transparency in the Family Courts

The importance of the principle of open justice has been recognised in the United Kingdom for centuries. However, the view that the principle of open justice does not or should not apply to family proceedings, be that under the Children Act or Matrimonial Causes Act, have become more common place.

The current rule is that, broadly speaking, children matters as well as financial proceedings are to be held in private. Meaning the only people who may be present in the court room are the parties themselves, their advisors and court staff. Members of the public and wider family members are usually excluded. Accredited members of the press may attend some hearings in financial proceedings, but there are strict rules about what documents they may see and what they can report. The perceived secretive nature of these proceedings can impact on the public and lead to a lack of confidence in the family justice system. A growing wave of support has been that to comply with the principle of open justice, it is only fair that all who want to understand the family court and its processes should be able to witness it first hand, not behind a veil of privacy and tightly controlled (and minimal) reported judgments.

The pilot is one initiative to provide greater transparency within the family court system.

What does the pilot say?

The pilot, introduced by Sir Andrew McFarlane, President of the Family Division, will run from January 2023 to January 2024 in the Family Courts sitting at Cardiff, Leeds and Carlisle, with the aim of permitting greater reporting of children cases. Under the pilot, no longer will it be necessary for accredited journalists to apply for and be granted leave to publish information from the courts covered by it. Such reporting would be subject to a Transparency Order issued in each case which will allow reporting, although strict anonymity on the proceedings will be imposed. Accredited journalists will also be entitled to see the key documents and the principal professionals in the case, for example experts, can be named.

The pilot will start with public law cases and then be extended to cover private law cases. It will not extend to financial cases.

What does this mean in practice?

Clients have long been reassured that if they are unable to reach an agreement without court intervention and they enter the court arena to resolve financial issues or arrangements for their children they would, save in rare cases, be able to do so in a private environment. Even if their case was considered complex, nuanced or dealt with an important point of law and the judgment published, it would in most cases be fully anonymised to protect the identity of the parties.

This may now change. Starting with the pilot, and potentially to be expanded following the awaited publication of a report by the Financial Remedies Court Transparency Implementation Group, for those commencing proceedings within any of the pilot courts, clients and solicitors must be prepared for members of the accredited press to be in court and for the cases to be reported in the press, although the report should anonymise the parties and children will not be named. It should be noted that the court retains a discretion to restrict reporting in certain circumstances.

These changes may give rise to a greater proportion of clients looking to resolve matters out of court, perhaps with the help of a mediator or through arbitration. Generally, if parties are able to resolve matters without involving the court, whether financial in nature or regarding their children, the outcome is more positive in terms of the speed of resolution, the cost involved and, most importantly where children are involved, the ongoing long-term relationship between the parties. It may well be then that the greater scrutiny of the family courts leads to other benefits for separating families.

This article was written by Chris Salter and Nicole Marks.

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