Transparency in the Family Courts

On 28 October 2021, President of the Family Division of the High Court Sir Andrew McFarlane released a review, several years in the making, of transparency in the context of the Family Court. This issue has often been considered too difficult to tackle, as understandably there is an inherent difficulty in balancing the need for openness in the Court proceedings in order for the professionals involved to be held accountable, and privacy for the parties, particularly in cases involving children. However, the President is determined not to let the complications get in the way of the fact that, going forward, there needs to be much greater transparency in relation to Family Proceedings if we are to have any hope of educating the public, learning from previous cases, and scrutinising the profession.

 The background

At present, private law proceedings are governed by Section 12 of the Administration of Justice Act 1960, which does not allow any reporting in relation to cases involving children; although members of the legal press are permitted to attend any hearing held in private, these reporting restrictions have effectively meant that many have not considered it worthwhile to do so. Further, while this legislation does not apply to financial proceedings, the Court nonetheless restricts publication of confidential financial information disclosed in these proceedings under principles established in case law.

What will the changes mean?

What then can be done to ensure the crucial confidentiality that enables users of the Family justice system to feel safe in the knowledge they will not be recognised, while making sure that that same justice system can be better understood by first-time users, as well as improved by professionals who well know its difficulties and pitfalls?

The President’s proposals are essentially workarounds of the current legislation, meaning that the law will not need to be changed for them to be implemented, although he strongly suggests that parliament revisits the 1960 Act to review whether it is still fit for purpose. The report is very clear in the central importance of the anonymity of any children involved in reported proceedings being maintained – nonetheless, the proposed changes will create the presumption that reporting of private Family proceedings is permitted at the discretion of the Judge in each case (taking into account what is in the best interests of all parties involved).

Greater emphasis is also to be placed on the publication of judgments, which to date have not been published in large numbers due to the anonymisation requirements placed on an already stretched Court system. The proposal is for greater use of summaries within judgments where details are not in the public interest (for examples details of abuse), making the main body of the judgment easier to anonymise and publish, and for all Judges to be asked to publish anonymised versions of at least 10% of their judgments each year. The President is also seeking to consult on ways that the burden of anonymisation can be reduced for practitioners and Judges, whether through increased personnel or new software.

These changes should not only make it easier for professionals to learn from each other’s cases, and ensure that accurate information about Family proceedings is relayed to the public, but should also allay any fears families going through proceedings may have about being recognised in the context of a judgment. The President’s guidance, if properly followed, will mean that potentially salacious details will not be published as part of a judgment, and will also reduce the risk of so-called ‘jigsaw’ identification, where a person’s identity is pieced together through details such as the names of schools, professionals or locations.

Other proposed changes include improved communication with the media, data collection to facilitate assessment of where the system needs improvement, readily available court listings for journalists (so they can more easily establish which cases ought to be reported in the public interest), an online hub for families to more easily access information about the Family Court, and an annual report into the operation of the Court. All of these changes will be implemented as part of a pilot scheme in two local authority areas so that it can be ensured that they are effective and safe, which is to be overseen by a Transparency Implementation Group, with the President remaining closely involved.

Paola Cuffolo Solicitor

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