Behind closed doors: the Family Court
Rachel Frost-Smith reviews plans for increased transparency in the Family Court
The Family Court makes crucial decisions every day which fundamentally affect the lives of parties and the welfare and identity of children. Decisions include what name a child is known by, whether a child lives with or spends time with a parent, which school a child attends. In public law children cases, a child may be removed from the care of their biological family. The court also has wideranging powers on divorce and dissolution of civil partnerships, including transferring the ownership of property, making pension sharing orders, ordering payment of a lump sum and spousal maintenance orders.
Understandably, particularly in cases involving children, only professionals and those who have experienced it have largely known the work of the court. Cases often involve an unedited and intimate portrait of family life, allegations of abuse and exposure of the difficulties families face when a parent suffers from mental ill health or addiction. It is perhaps understandable that this decision-making has taken place behind closed doors. This is about to change. There are groups who will welcome this change, seeing it as a step towards being able to publicly challenge decisions they consider unjust, wrong or biased.
By allowing the work of the court to be more transparent, it may assist the public to understand the legal concepts involved in family cases, the very difficult and complex balancing exercises that the court undertakes in many cases, the challenges it faces because of underfunding, and the hard work of the professionals who work in the system. However, clients often ask about whether details will become known to others – and are worried. These concerns will need to be addressed empathetically with the client, and proactively with the court.
A pilot permitting reporting about cases heard in the Family Court will take place from January 2023 to January 2024. The pilot is the next stage following the publication of a review by the President of the Family Division, ‘Confidence and Confidentiality: Transparency in the Family Court’, in October 2021. The areas for the pilot have been carefully chosen to cover a mix of rural and urban communities and will be Cardiff, Leeds and Carlisle.
Reporting of family proceedings will be the default position. In these designated courts, accredited journalists and ‘legal bloggers’ will be allowed to report on what they see and hear (the ‘transparency principle’). All reporting will be subject to the principles of protecting the anonymity of any children involved, unless the judge orders otherwise (the ‘anonymity principle’). The court may depart from the transparency principle in any case. In deciding to restrict reporting, the court must balance the rights of family/parties to a fair trial – and balance the right to a private and family life against the rights of the press, public and parties. Only ‘pilot reporters’ (duly accredited representatives of a newsgathering or reporting organisation or authorised legal blogger) may attend a hearing. If a reporter attends court, their details should be recorded on the case management order for the hearing.
The standard draft order details what sensitive information should not be reported without the express permission of the court. Pilot reporters are bound by the terms of the Transparency Order, s97 of the Children Act 1989 and their professional rules and codes of conduct. There are also principles by which reporters are asked to abide. These focus on assisting the court to achieve the overriding objective, minimising disruption to the proceedings, working constructively with the parties, being sensitive to the feelings and possible vulnerabilities of the parties and making any requests for interviews with represented parties to their lawyers.
Feelings often run high in family cases, and it is important that protection is also afforded to those who work in the system, including judges and social workers. Sadly, there have been cases where professionals have been attacked by a party who is unhappy with decisions or recommendations. It will remain with the court to make decisions about what degree of transparency is appropriate in each case. It is hoped that lawyers working in the Family Court system will embrace the potential benefits and work collaboratively with the court in the best interests of any children involved.
Rachel Frost-Smith is legal director and solicitor advocate (Higher Courts Civil Proceedings) at Birketts: birketts.co.uk