In October 2021, the Rt Hon. Sir Andrew McFarlane, President of the Family Division, published: “Confidence and Confidentiality: Transparency in the Family Court, a review of the issue of transparency in family justice.”
In his report, he made several recommendations for achieving better and purposeful transparency in the family courts. This echoes similar progress being made in the civil courts. His vision is to enhance public confidence in the family court system whilst balancing the need for the protection of confidentiality, which he stated “were not irreconcilable”.
Reporting of family cases has not historically been permitted accept by the production of official law reports. The President of the Family Law Division, following recommendations from his report, set up a group to implement a pilot to permit legal bloggers and accredited media representatives to report on cases.
The purpose of the pilot is to assess whether such legal bloggers and identified media personnel can be afforded a general right to report on family matters, subject to strict rules of anonymity, and be done safely and under the rules of a Transparency Order. The pilot period was initially 12 months to conclude in January 2024 but has now been extended and looks set to be rolled out further.
Who can report on a Family Law Matter? Introducing Pilot Reporters
In official pilot guidance which is available on the Courts and Tribunals website, the scheme is limited to 19 areas across England and Wales, covering both private and public law family matters.
The official ‘Pilot Reporters’ are accredited representatives (journalists) of news and media organisations, or authorised lawyers writing legal blogs in their professional capacity. However, the Courts may permit others to report on matters where it is appropriate.
What types of cases can be reported on as part of the Pilot?
The pilot covers cases of general applications including where children and care proceedings are involved, but not financial remedy cases or any application under the Family Law Act 1996 and it does not apply to appeals made to the Court of Appeal (Civil Division).
Permitted cases can be heard by any level of judge in the Family Court or in the Family Division of the High Court and include:
- Applications for public and private law Orders under Parts II and IV Children Act 1989, including FDAC cases ;
- Applications for placement Orders in care proceedings ; and
- Applications made to the High Court, including those which deprive a child’s liberty
What is a Transparency Order?
A Transparency Order sets out what can be reported and what must be kept confidential. The Transparency Order should include the name of the Pilot Reporters in attendance at the hearing.
Its purpose is to permit the sharing of relevant details of hearings whilst protecting the anonymity of children, Parties and Witnesses in family matters.
What does a Transparency Order protect?
A Transparency Order protects any information which would identify the child, their residence, or health or education records. This includes photographs of the child, parents or carers, and any other identifying persons, including medical professionals who are directly involved with a child’s care.
Access to documents and court bundles for Pilot Reporters
All Pilot Reporters are entitled to receive copies of, see, and quote from documents, case outlines, arguments, summaries, position statements, and indices from the Court bundle. These cannot be requested after the conclusion of the hearing and any such requests must be made to the party or the lawyer who drafted the documents. Additional documents that are referred to in a hearing are not automatically included within this entitlement, but Pilot Reporters can request sight of such papers.
Principles of reporting established
The Transparency Order shall be created and operate under the principles of reporting which have been developed to govern the relationship between Pilot Reporters, Parties, Witnesses and Lawyers involved in the case. Pilot Reporters are subject to reporting principles which have been agreed and include:
- Assisting the Court to achieve the Overriding Objective
- Minimising disruption to proceedings
- Working constructively with the parties
- Sensitivity to the feelings and vulnerabilities of parties and act with discretion
- Where instructed, all interview requests must be made through the party’s lawyer
- Lawyers can approach Pilot Reporters directly, where instructed to do so
- Lawyers and parties are expected to work constructively with Pilot Reporters
- Discussions and information sharing are subject to the usual rules governing Contempt of Court, disclosure, and nothing can be reported until a Transparency Order is granted
What is the procedure for making a Transparency Order?
The pilot provides participating courts with the authority to make a Transparency Order. Transparency Orders can be made by the Court’s own volition or by application from a party, their lawyer, or a Pilot Reporter.
Transparency Orders shall only need to be considered where a Pilot Reporter attends a hearing. The Court will consider the details of the matter and the parties involved, and any representations from parties about requested amendments or limitations to an Order.
This process is usually conducted in the Case Management Hearing at the commencement of proceedings. Once granted, the Transparency Order shall apply to that hearing and all further proceedings.
Can I apply to have a Transparency Order varied or apply for it to be struck out?
Transparency Orders can be varied or removed either by the Court or by application of either party. Whilst there is no guidance and it is still in its pilot phase, there are no specific grounds to vary or strike out a Transparency Order. However, if you are seeking to achieve this, consider whether any of these apply to your matter:
- Cases involving criminal charges, investigations or proceedings, or where reporting may cause prejudice to those proceedings
- Applications made without notice and reporting would cause prejudice to the applicant
- Where child anonymity may be difficult to achieve
- FDAC cases, especially where lawyers are not instructed
What happens if a Transparency Order is breached?
As with any other breach of a Court Order, the Court has power to deal with the defaulting party, including in this pilot, the Pilot Reporters, as it sees fit. A breach of a Court Order is a Contempt of Court, and the Court may apply sanctions as a result.
Clear breaches will include reporting or sharing publicly information that has been restricted under the Transparency Order or which prejudices anonymity or the proceedings.
In summary
Transparency Orders form part of the Ministry of Justice’s move towards greater transparency and, with the right protection and due diligence of the Court and the Parties, this pilot should enable a balance to be struck to bring greater transparency yet continue to protect children and the vulnerable.
The results of the pilot will provide an interesting reflection of the number of Transparency orders granted, and whether these were adhered to. This pilot is a step forward for all those involved in the profession, and for Parties who are looking to learn more about how matters are dealt with.
If you need assistance with any of the above issues or require support with your Hearing or case preparation, please contact Sima directly by calling 02073531746 or via email: clerks@simanajma.com.
