The 12-month Pilot Scheme which started on 30 January 2023 has been rolled out to 4 courts in 3 locations: Leeds, Carlisle, and Cardiff. The Scheme allows journalists, reporters, and ‘legal bloggers’ to attend family cases (public first, then private further down the line) and to report on the same with appropriate anonymity. It does not permit members of the public in general to attend the Family Courts, and parties to the case are still restricted from publishing any details (though they can speak to the media about it).
Whilst journalists and reporters have been permitted to attend most public and private law family cases since the introduction of rule 27.11 of the FPR, this is not something which we have seen regularly at all due to the strict reporting restrictions that have existed alongside.
People have been campaigning for decades for greater scrutiny and transparency in the Family Courts, often criticising them as “secretive”. Whilst some small steps have been taken in this time, this is the biggest acceleration we have seen. When you consider the sheer number of cases going through the family courts (more than 200,000 annually), it is no surprise that people want independent accountability. The Transparency Project have described this as an “exciting new initiative” to achieve this.
Most lawyers working with the family courts can probably accept that public confidence in the family justice system is low, and it goes without saying that a lack of public access and reporting will only fuel this mistrust. However, the paramount concern of the Courts and the lawyers or professionals involved has always been to protect children in proceedings and a huge part of that includes protecting their identity. Do not despair, this will still be the case when following the new guidance. Sir Andrew MacFarlane (President of the Family Division) who has been the pioneer of this move, says the following:
“The reporting pilot in Leeds, Carlisle and Cardiff marks the start of the judiciary’s ongoing work to make transparency in the Family Court a reality. Openness and confidentiality are not irreconcilable, and each is achievable. The aim of the pilot is to understand the impact of open reporting and to enhance public confidence, whilst at the same time firmly protecting continued confidentiality.”
To ensure continued confidentiality, a number of measures are being trialled though the Pilot Scheme. Most pertinently, the introduction of ‘Transparency Orders’ which are an injunctive order preventing names and a number of other identifying features of a case from being published. The Courts are aiming to issue this Order at the ‘gatekeeping/allocation’ stage with the ability to vary throughout or at the conclusion of proceedings. This should hopefully quell some worries about the extra workloads for advocates drafting the orders; nevertheless, introducing this new layer to family cases is inevitably going to put more time pressures onto the Courts and lawyers, who are already incredibly stretched in this sector.
A standard template has been produced to assist the Courts with this, which helpfully lists the standard details which are not to be published. This list is not exhaustive and can be varied to include further restrictions on a case-by-case basis: If there are concerns by any party, or the Judge, about certain parts of the case being disclosed due to risks around preserving anonymity, there will be an opportunity for representations to be made in Court, including by the media, and a decision made about what will be included. Preferably, the parties should be aiming to work with the Media to reach a consensus where possible about the terms of the Transparency Order. Either way, this process is sure to add unwanted pressure to the listing times and time for pre-hearing discussions.
Another concern may simply be that we are not used to having others present in Family cases. It has always been a closed and private process and engaging with journalists in the family courts is currently unfamiliar territory for us all. Hannah Markham KC (Chair of the FLBA) acknowledges this but says “it’s something we’ve got to get over.”
We will have to wait and see how the pilot goes, but it is intended that it can be rolled out across England and Wales, and will hopefully become common practise for everyone involved.
Helpful guidance and further information can be found at:
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