Court reporting: key benefits and risks

Allowing accredited journalists and legal bloggers to report publicly on what they see and hear in family courts – starting with public law cases where local authorities intervene to protect children – has many benefits, chief of which are transparency and accountability.

Reporting on such cases allows the public to understand why the courts operate in the way they do and how decisions are made. It also opens the door to greater accountability and could potentially even prevent miscarriages of justice (there have been cases where non-accidental injuries allegedly inflicted by parents were later attributed to medical conditions, for example).

To address these issues, a 12-month pilot scheme allowing media representatives to report on family court proceedings started in January 2023 in Cardiff, Leeds and Carlisle. The focus has been public law cases and, if successful, will move on to private law Children Act 1989 cases and then potentially financial remedy cases. The pilot is subject to all the usual regulations, and reporters could find themselves in contempt of court if they publish individuals’ names or other identifying information, unless the court orders otherwise.

This is an exercise in discussing processes followed and outcomes achieved, and building public trust. If the pilot leads to sensationalist reports in the media, public confidence could be damaged not enhanced – it is fair to say that the media does not always appear particularly interested in genuine issues of public concern, preferring to report on more salacious cases.

Legal balancing act

It has long been mooted in legal circles that family courts should consider ways to improve openness without compromising the right to privacy. In 2019, the president of the Family Division Sir Andrew McFarlane (pictured) appointed a panel to investigate transparency in the family court. The findings and Sir Andrew’s recommendations were published in the October 2021 report Confidence and Confidentiality: Transparency in the Family Courts.

Sir Andrew said: ‘Openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, while at the same time firmly protecting continued confidentiality.’ Achieving that balance has to be managed carefully, especially when the pilot is rolled out to other family court cases, including private children act proceedings and financial remedy proceedings.

Challenging misconceptions

The pilot also has the potential to dispel some of the myths that currently swirl around the family justice system, including allegations of bias towards mothers in private child arrangements and the loss of parental rights following public care orders. This could go a long way to boosting the public’s faith in the system.

Until January this year, the general public was only privy to case outcomes, and was left to draw its own conclusions about how certain rulings had been arrived at and whether they were fair or not. In reality, judges are faced with vast, detailed reports and mountains of evidence, and it is that context that will help the public gain a better understanding of the who, what, why, where and when. It is important that the public understands these processes and the reasons behind court rulings, especially where the judgments seem harsh or unfair to the uninitiated.

Members of the public who become involved in law cases may benefit, too. A greater understanding of family court processes could reduce stress levels and confusion in what are invariably stressful circumstances.

What happens next?

The legal world is not known for speedy decision-making: the consequences are too important and due process needs to be observed. But we need to consider how these changes could affect people and other areas of the law.

There needs to be careful thought, for example, on expanding the scheme to include cases involving finances, as few are likely to welcome media scrutiny of their private lives and assets.

We all have a right to privacy thanks to article 8 of the Human Rights Act 1998, and that includes people in the public eye. So we have to think about how court reporting on private law cases could impact celebrities, sports stars and even royals.

What will happen if footballers start losing major sponsorship deals following revelations in financial remedy proceedings? Would some law firms even want to get involved?

The rules covering what may or may not be reported in a particular case can be set out in transparency orders issued by the court, with each order taking the form of an injunction and reporters bound by their terms. We will no doubt see a spike in applications for these if changes progress.

Critics of the pilot say the family court system needs urgent review and greater transparency will only scratch the surface. Lengthy proceedings, stress on families and children, and overburdened courts feature regularly in complaints. Some believe proceedings can be impenetrable, leading to an imbalance of power, especially for those who cannot afford representation, and that costs quickly get out of hand. Perceived inconsistencies in rulings, a lack of ancillary support services such as counselling, and vulnerable people slipping through the cracks are some of the other issues that give cause for concern.

This pilot scheme is an exciting progression – we just need to be vigilant and ensure the right people’s interests are served.

Karen Jeary is a partner in the family and relationships team at Mayo Wynne Baxter