Transparency pilot offers a window on society

As any good lawyer knows, justice must not only be done, it must be seen to be done. So last month’s big expansion of a reporting pilot to cover nearly half the family courts in England and Wales is a big step forward in opening up a hitherto very secretive family justice system.

It all started in 2019 when president of the Family Division Sir Andrew McFarlane ordered a review of transparency in the family courts. The key question was whether the courts were striking the right balance between the obvious need to protect the confidentiality of individual children and family members, versus the broader imperative for the public to feel confident that the family courts are doing a good job. How can we be sure family judges are making the right decisions when we do not know how these are reached?

The review’s conclusions led to a year-long pilot scheme in three areas – Leeds, Cardiff and Carlisle – that began on 30 January 2023. It introduced a presumption that accredited media and legal bloggers may report on what they see and hear during family court cases, and may even interview lay parties involved in the case, subject to strict anonymity rules. This anonymity is assured through judges making a ‘transparency order’ which sets out what can and cannot be reported in an individual case.

This year-long pilot has been deemed a success, and last month it was boldly extended to cover 16 courts. As in the original scheme, the new pilot courts will initially restrict reporting to public law proceedings (that is, where a local authority is involved), before extending it to private law cases (involving disputes between family members).

The judiciary seems pleased with the level of mainstream media interest that the first year of the pilot has generated. In announcing its decision to extend the scheme, it pointed to ‘groundbreaking’ coverage of family proceedings by the likes of the BBC, the Sunday Times, the Daily Mail and the Bureau of Investigative Journalism, among others. And importantly, there have been no reports of the anonymity of any parties being breached.

So in terms of increasing transparency, the extension of the pilot scheme is clearly a positive development. It will also do no harm for the shocking lack of resources and crumbling infrastructure of the family courts to fall under the gaze of the mainstream media.

But while it is easy to count up the number of column inches or broadcast minutes now being devoted to family proceedings, we should be alive to the fact that opening up reporting of these cases may be having other, invisible effects. In particular, how do the parties themselves feel about it? For some – particularly victims of abuse – the prospect of a journalist sitting in court only adds to their anxiety and makes the court process even more daunting. While judges and journalists alike are taking a very careful approach towards protecting the identity of parties, clients will still be anxious that something will go wrong; that someone reading the media report will know enough to piece together their identity. The more sensitive the facts, the more humiliating the abuse suffered, the greater that fear will be. But let us hope that, as the pilot expands and media reporting continues with appropriate care and attention, parties can increasingly begin to trust that their identity really will be protected.

The expansion of media reporting will play a vital role in revealing how decisions are made in the family law, the pressure that the court system is under, the problems created by lack of legal representation, and the huge commitment shown by judges and lawyers in this field. But perhaps even more importantly, given that the courts deal every day with the very worst disputes involving families and relationships, it will help us to understand what is going on in society – and what we should do about it.

Rachel Rothwell is editor of Gazette sister magazine Litigation Funding, the essential guide to finance and costs.

For subscription details, tel: 020 8049 3890, or click here