Transparency in the family courts

Three years ago, Sir Andrew McFarlane, President of the Family Division, said that he would undertake a full review of all of the issues “with the aim of formulating [his] own view and recommendations for any change in practice and approach so that, insofar as it is appropriate for a judge to do so, [he] might then move forward to achieve their implementation.” Last week Sir Andrew published his Report entitled “Confidence and Confidentiality: Transparency in the Family Courts”.

In his report he states that “For at least three decades the question of whether there should be more openness in the conduct of Family proceedings has been a live issue”. He elaborates that, “At the heart of the issue is the tension that exists between two principal policy drivers, namely, on the one hand, the need to enhance public confidence in the Family Court and, on the other, the need to maintain confidentiality by safeguarding the privacy of those who turn to the court for protection or for the resolution of intimate disputes.”

He further states that “as is plain, the current limited degree of openness does not permit effective public scrutiny. It is by openness that judges are held to account for the decisions they make so that the public can have confidence that they are discharging their important role properly”; and “The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm.” He has therefore “reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects.”

Sir Andrew stresses that “Greater openness must not be at the expense of the interests of children. All the changes.… must be subject to the proviso that the anonymity of individual children needs to be preserved.” However, his overall conclusion is that “the time has come for accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear. Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives. Openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality.”

Sir Andrew then goes on to list a number of changes including reversing the presumption to one that allows reporting rather than prohibits it (albeit always at the judge’s discretion as to whether non-parties should be excluded) whilst ensuring anonymity for children and their families are maintained. He says that he will produce Guidance on how this will be achieved. He adds that any proposed rule changes or practice directions will be subject to ministerial approval. He further states that the changes will be trialled first on a small scale to ensure the changes work and unforeseen issues can be ironed out, and he adds in respect of the publication of judgments that he “will press for the establishment of an Anonymisation Unit within HMCTS which, through a combination of human input and/or software, will undertake the task of anonymisation.”

He has decided to establish a ‘Transparency Implementation Group’ “to consult and seek comment upon the proposals”, and states that “the consultation will be about the detail and not the overall direction of travel”, given he has already determined the latter.

Whilst the main focus of the report is about cases involving children, in relation to financial remedy cases he refers to a ‘standard reporting permission order’, which has been developed by two senior judges, which he says he supports and which is out for a very short consultation now with comments requested by 26 November 2021.

Commentary

A concern is that like with the then Master of the Rolls’ ‘Super Injunction Committee’ over a decade ago, a no doubt well-intentioned pursuit of reform will result in a system being put in place that fails to sufficiently or practically protect the parties and their families, and enables salacious press (especially tabloid) intrusion into deeply personal matters with very little if any public interest justification. Could the increased threat of publicity result in a greater reluctance in the public to pursue proper recourse through the courts? Could that reluctance to end up inside the court system result in questionable behaviour being deployed by parties and even blackmail in extreme cases? Only time will tell but given there will still be a lot of scope for judicial intervention in each case one would hope the right balance will ultimately be struck.