Confidence and confidentiality: Transparency in the Family Court

A review of how to achieve greater transparency in the family courts by Sir Andrew McFarlane, President of the Family Division, highlighted the difficulty in balancing the need for confidentiality and the need to enhance public confidence in the family court.

The report makes clear that the issue of transparency is not a binary issue – openness can be achieved without opening hearings to the general public.

What do these proposals mean in practice?

Currently, journalists can attend hearings, but they cannot report the evidence unless a judge approves an application.  There is a reluctance on the part of journalists to attend court, given reporting the details of these hearings could risk them being found in contempt of court. The review proposes “accredited media representatives” and “legal bloggers” should be able to not only attend hearings, but report publicly on what they see and hear.

How will these proposals impact individuals engaging in the court process?

The main advantage is likely to be to for the family justice system as a whole as opposed to individuals currently involved in the court process. Greater openness should lead to greater accountability – which, in turn, should lead to public support for greater investment.

The report takes steps to address the mistrust some have in the family justice system, which is long overdue. This mistrust is not helped by the frequent references in the media to the “secret family court.” Greater faith in the family justice system is needed.

The review makes clear the move to transparency must not outweigh the right to privacy and confidentiality of the participants – in particular, children and victims of domestic abuse. The review provides that these proposals are “subject to the proviso that the anonymity of individual children needs to be preserved”.  That reassurance needs to be communicated.

Children who are the subject of these proceedings are mostly inadvertent participants. They usually did not instigate these proceedings, yet are their main subjects. The report emphasises the safeguards that need to be put in place to ensure they cannot be identified. This is especially important in the age of social media. Once information is made public, it could prove a constant reminder for many years to come of a difficult, personal period in their life that they are likely to wish to move on from.

Many clients ask at the start of their process who will see their documents and seek reassurance that the information they provide will be confidential. As solicitors, we reassure them that is the case. Certain documentation will now be made available to those attending the hearings and reporting on them. Research into children’s views has overwhelmingly confirmed children and young people do not want the details of their lives made public.

Will this move to openness discourage domestic abuse victims from coming forward? Will children have concerns about using their voice? It may be the fear of reporting will increase the uptake of out-of-court resolution, but it is more likely there will be a reluctance for children and domestic abuse victims to be open and their voices may be silenced.

Checks needed for “legal bloggers”

It is also unclear what constitutes a “legal blogger”. Many individuals “blog” – and it is important that the necessary checks are put in place to ensure that those attending and reporting on the hearings are not simply members of the wider public.  The review states judges will still retain the ability to apply reporting restrictions – and it is hoped this will ensure this limits intrusions by the tabloids who may wish to report on cases for headlines.

Extra pressure on an underresourced court system

Concerns have also been expressed over whether this is a priority for the courts. Does the family court system, which is already stretched and under resourced have the capacity to deal with the administration involved? It is proposed all judges will “publish anonymised versions of at least 10 per cent of their judgments each year”. It is questionable whether the court has the resources to deal with this, both administratively and practically.

The proposals set out in this review are welcome and much needed. It is an important initiative which is long overdue. However, it is key the relevant safeguards are in place not only to protect the anonymity of those engaging in the family court process, but also to enable their solicitors to reassure their clients their privacy will be protected, so they feel comfortable participating in proceedings.

Marwa Hadi-Barnes is a senior associate and head of family law with Lewis Denley Solicitors: lewisdenley.com