The President of the Family Division, Sir Andrew McFarlane, has published his report on transparency in the family courts. Following a consultation and the appointment of a transparency review panel, he has concluded that there needs to be a ‘major shift in culture and process to increase the transparency of the system.’ The report makes various recommendations, aiming to strike a balance between increasing public confidence in the Family Justice System, and maintaining the anonymity of families and children who turn to it for protection.

Background

When appointed three years ago, the President promised to undertake a full review of transparency. In February 2020, an invitation to submit evidence was issued, particularly in relation to the balance between confidentiality and public transparency. The review was paused in November 2020 due to coronavirus and later resumed in early 2021. The report is the product of written statements and short evidence sessions.

What is transparency and should it be enhanced?

The President explains that to see transparency as a single question is a ‘trap’.

‘A trap, and one into which I and, I suspect, many others may have fallen when first approaching this issue, is to see ‘transparency’ as raising a single question, ‘should the Family Court be open to the public and/or press’, to which there would be a single binary answer of either ‘yes’ or ‘no’… There are in fact many ways that the Family Court can be more open, and provide more information about what takes place there, without altering the current restrictions on reporting and attendance’

Further, a key theme throughout the President’s report is the benefit of enhancing transparency:

“Through open justice, the workings of the justice system are held up to public scrutiny by hearings being open to the public and/or by permitting media reporting of the proceedings. The work of the Family Court is of significant importance in the life of our society, yet, as is plain, the current limited degree of openness does not permit effective public scrutiny.”

According to the President, despite the best intentions of those involved, the current arrangements are not satisfactory in providing ‘at least an adequate degree of openness’ for various reasons:

  • Media representatives have not attended many Family Court hearings
  • In many cases, the Practice Guidance on ‘Publication of Judgments’ is not being adhered to
  • The work of the Family Court is not open to any outside scrutiny or appraisal
  • Frequent press reports are published providing anonymous accounts of negative experiences in the Family Court, which the system cannot respond to or assist with
  • Justice being conducted in private is very likely to lead to a loss of public confidence and sentiments that there is something to hide, causing reputational damage

These considerations lead the President to draw the conclusion that the court must ‘regard openness as the new norm…there needs to be a major shift in culture and process to increase the transparency of the system.’

Recommendations

Although the President does not shy away from stressing the need for greater openness, he is clear that this must not be at the expense of the interests of children. Media representatives must be able to attend and report publicly on hearings however, reporting should still be subject to clear rules on maintaining the anonymity of children and family members. The President proposes the creation of a Transparency Implementation Group (TIG), which will support him in actioning the following:

  1. The creation of rules to mitigate the impact of section 12 of the Administration of Justice Act 1960

These rules will enable journalists and legal bloggers to attend Family Court proceedings and report on their events subject to the following:

  • It is always at the judge’s discretion whether non-parties should be excluded
  • Reporting what happened in court must maintain the anonymity of the children and family
  • Consideration will be given to whether the proposed ‘Family Court Reporting Pilot’ should be incorporated or adapted into the new scheme
  • Proposed rule changes or PDs will be subject to government ministerial approval

2. Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR r 12.75(1), PD12G and PD14E

This communication would be limited to discussion of the case and informing the journalist/blogger of details of proceedings.

3. The publication of judgments

The President explains that, in the majority of cases, there will not be a legitimate reason for the public to be provided with detailed accounts of child abuse and how to withhold this information requires consultation. He suggests that either this information is removed from published judgments and replaced with a brief factual summary, or the sensitive information is provided in an annex which is not published with the judgment.

Judges are asked to publish anonymised versions of at least 10% of their judgments annually. Due to the practical restraints on judges, the President will encourage the establishment of an Anonymisation Unit within HMCTS.

4. A ‘standard reporting permission order’ for use in FRC proceedings

Mr Justice Mostyn and His Honour Judge Hess have undertaken work to enhance transparency in financial remedy proceedings which the President supports.

5. The need to establish a relationship of trust and confidence to ensure the reporting of family proceedings is reliable and well informed

The President intends to create a Media Liaison Committee comprised of journalists, media lawyers and judiciary, aiming to enhance journalists’ understanding of the Family Court. It is also suggested that MPs be invited to the Court to develop their understanding as they regularly receive complaints about the operation of the Court.

6. A scheme of compulsory data collection at the end of cases

The President believes data collection will aid in understanding decisions, including by the recognition of patterns and issues, which will lead to improved outcomes. In the longer term, data collection can focus on what happens to children after final orders are made.

7. Court listings should be made available in advance to journalists/bloggers

This aims to help journalists/bloggers understand what cases may be of interest and recognise the nature of proceedings.

8. The creation of a Family Court online resource

This development would explain the work of the Family Court, how cases are dealt with, options for dispute resolution and how to make applications.

9. Providing the public with access to an annual report on the operation of the Family Court

This report would include data setting out case numbers, categories of proceedings and outcomes, in addition to an annual audit on the progress of the various transparency initiatives to be launched.

Conclusion

The TIG will take forward the proposed changes, but the President has insisted that he will remain closely involved. The proposals will also be subject to consultation concerning the detail and not the overall direction of travel, which was the subject of the Review.

Pietra Asprou