Transparency in the Family Courts: where are we now?

Insight

22.03.2024

For many years, journalists and legal bloggers were entitled to attend family court hearings (with some exceptions) but what they could report was heavily restricted and as a result their attendance was rare.

There were, as a result of this and the declining number of judgments being reported, calls for greater transparency in the family justice system. A review by the Transparency Implementation Group was undertaken, which resulted in the launch of a pilot scheme to increase transparency in family proceedings.

Journalists are now afforded greater freedom to report on what they see and hear during court hearings. The pilot scheme has also brought much needed clarity and the parties to proceedings are now in a better position to weigh in the balance the risk of publicity in their cases.

The pilot scheme

There are two separate pilots; one which applies to certain financial cases (including financial remedies on divorce) and another which applies to public and private law children cases. The two pilots are similar in lots of respects but also have notable differences.

Finance Pilot

The Finance Pilot is a 12-month project which has been rolled out across Birmingham, Leeds, and London’s Central Family Court. It is due to be extended to the Royal Courts of Justice in November 2024.

Since the pilot came into effect on 29 January 2024, the court lists have included the names of the parties and the subject matter of the hearing (eg financial remedy). However, it is important to note that this change to the court lists applies to all Financial Remedies Courts, not just the courts in the pilot.

Reporters are now entitled to see certain documents (for example, the parties’ Position Statements and Case Summaries) and can ask the court for additional documentation.

The court will consider the terms of a “Transparency Order” when a reporter attends a hearing, whether remotely or in person. The Transparency Order is a new, standardised order which reverses the presumption against publication and permits anonymised reporting of most of the details of cases. However, the starting-point for reporting remains the preservation of anonymity and confidentiality.

The standard Transparency Order sets out that the following information must not be reported without the express permission of the court:

the names and addresses of the parties (including any intervenors) and their children and any photographs of them;
the identity of any school attended by a child of the family;
the identity of the employers, the name of the business or the place of work of any of the parties;
the address of any real property owned by the parties;
the identity of any account or investment held by the parties;
the identity of any private company or partnership in which any party has an interest; and
the name and address of any witness or of any other person referred to in the hearing save for an expert witness.

Reporters will not be permitted to attend Financial Dispute Resolution hearings (FDRs) and all out-of-court settlements will remain confidential.

Children Pilot

The Children Pilot began in 2023 but has been extended to cover 16 courts across the country, including in London.

Under the Children Pilot, cases will be listed anonymously (unlike in Financial Remedies Courts) with a code identifying the case issues and whether a journalist may attend the hearing. Like under the Finance Pilot, reporters are entitled to see certain documents (including case outlines, skeleton arguments, case summaries, position statements, threshold documents and chronologies) and can ask the court for additional documentation.

Also like under the Finance Pilot, the court will consider the terms of a “Transparency Order” when a reporter attends a hearing, whether remotely or in person. The standard Transparency Order sets out that the following information must not be reported without the express permission of the court:

the name or date of birth of any subject child in the case;
the name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child(ren) being identified;
the name of any person who is a party to, or intervening in, the proceedings;
the address of any child or family member;
the name or address of any foster carer;
the school/hospital/placement name or address, or any identifying features of a school of the child;
photographs or images of the child, their parents, carer or any other identifying person, or any of the locations specified above in conjunction with other information relating to the proceedings;
the names of any medical professional who is or has been treating any of the children or family member;
in cases involving alleged sexual abuse, the details of such alleged abuse; and
any other information likely to identify the child as a subject child or former subject child.

Where does that leave us now?

The benefit of a Transparency Order is that it provides much needed clarity as to what can and cannot be reported.

The main changes introduced by the pilots are summarised as follows:

it is easier for reporters to identify who is involved in hearings and the issue or subject matter to be heard;
reporters have greater freedom to write about what they see or hear in court, albeit without naming the parties’ names or identifying details;
reporters are entitled to certain documents and can ask the court for additional documentation; and
it is now permissible for lawyers to approach reporters on behalf of their client if so instructed. There are concerns that this will be used by one party to apply pressure on the other party.

We are yet to see if more journalists will attend hearings and more judgments will be reported; so far, there has not been an obvious increase in journalists attending hearings. However, it is likely that we will see a greater uptake of alternative methods of dispute resolution, such as mediation and arbitration, which do not carry the same risk of publicity.

Conclusion

Although the pilots and standard Transparency Orders provide greater clarity on what can and cannot be reported, judges may still depart from the standard position. Lawyers must be prepared to make submissions at every hearing and parties to proceedings must be alive to the possibility that a journalist may turn up at court at the last minute, even though reporters are supposed to give notice of their intention to attend where possible.

Without definitive authority or parliamentary legislation, the Transparency Orders are merely a starting point. It is clear that this is not the end of the road.

With thanks to Constance Gillespie, current trainee in the team, for their help in preparing this briefing.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.