Courts and regulations around reporting

At the end of January, a reporting pilot was introduced in the family courts in Cardiff, Leeds and Carlisle, following a review of transparency in the family courts by Sir Andrew Mcfarlane, President of the Family Division. 

The pilot is part of a wider project to achieve “Confidence and Confidentiality” in the family courts. The review acknowledged that “the last few years …. has undermined public confidence in the family divisional justice system, because we usually conduct our business behind closed doors effectively, and journalists cannot report what is said, it has allowed suspicion to grow.”   

To enable the pilot, which is only one of the recommendations emerging from the review, the Transparency Implementation Group has been set up to carry out the recommendations.   

In summary, the pilot allows accredited journalists and legal bloggers to “report on what they see and hear in court.” They will be known as pilot reporters and they can attend court and hear evidence. They can talk to lawyers, judges, the local authority and CAFCASS (Children and Family Court Advisory and Support Service), provided they are not directly involved in the case, and also to court appointed experts. They can also publish information on behalf of the families involved in the case, provided they do not identify the child involved or the family.

Prior to the pilot, journalists were prevented from reporting on family cases by section 12 of the Administration of Justice Act 1960, which could hold a person who breached the act, in contempt of court, facing weighty and expensive litigation.

This provided a robust disincentive to publicise any information, with witnesses commenting that the provision had a “chilling effect.” This provision will remain but will only be applied if journalists report outside permitted reporting. 

Rules on the pilot

It is not a free reign to report on all cases. The cases that currently qualify are cases involving children, and reporting must be subject to strict anonymity rules. Initially, it will be public law cases that allow admission and reporting. Following the pilot, it is believed that reporting will then extend to private law children's cases. However, Mrs Justice Lieven, who heads the pilot, has made it clear that journalists will not be able to report on sensitive cases such as those involving financial remedy or domestic abuse.  

All cases will be subject to a “transparency order,” which will be issued by the judge hearing a case, on a case-by-case basis, clearly identifying what can or cannot be reported. It will be a tailor-made approach, but the names and addresses of the children and their families will not be disclosed. The cases will remain subject to strict anonymity rules, and the idea is that reporting can be achieved with minimal disruption to those involved in the case and the courts.

The president comments that “the pilot is a work in progress” and will have a duration of 12 months initially. 

So why the change? From experience, the family court is increasingly under pressure to explain its processes, to be open in its decision-making, and to remove any assumptions of secrecy. Since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the court has seen a marked growth in litigants in person, seeking the assistance of the court, which has led to the need for more openness and transparency, due to the lack of affordable advice and representation.

Unfortunately, all too often as practitioners, we hear that families involved in the court process have a negative view. Comments, such as they feel they have been treated “like a piece of paperwork,” have been reported in the press. There is a lack of understanding and intimidation in approaching and questioning professionals, which prevents challenge in relation to decision-making. The court has also been accused of being “out of touch” or “failing” its users for some time. 

Having been involved in public law cases, I’ve witnessed mistrust first-hand. Clients criticising judges and court appointed experts for perceived conspiracy and secrecy. If matters are reported, then any perceived injustice may be called out by the readers of the accredited reports, or a conclusion may be reached that the court has acted appropriately, promoting trust, transparency and building confidence. 

An early evaluation of the profession’s views seems to suggest that the reporting is welcomed. The Law Society said “it is important for both the public and the media to have confidence in the family justice system. They should be able to see that it is fair and accountable at all levels and understand the processes involved.” 

The judiciary readily admits that it took decades to recommend changes, and they suggest this is a culture change. However, is that the case or is reporting so limited it cannot be challenged, and therefore, is it a token gesture?

Principles on reporting

Reporting must be limited because there are two competing principles, the first being to maintain confidentiality and safeguard vulnerable people who look to the court for resolution, in contrast to the need to invest in public confidence and for the court to be accountable. Not an easy remit.   

The purpose of the family court is to protect children. The overriding provision of the Children Act 1989 is that the welfare of a child should be the court’s paramount concern. This surely means anonymity must take precedence over reporting, and thus, a very fine balancing exercise will need to be in play. The proof will be in the pudding, and time will tell if the courts are challenged upon process.

Keeping an eye on the tabloids for early reporting, I did not have to wait long. In mid-February, an article on Mail Online boasted “now reporters have at last gained access to the Family Courts …..” concerning a case heard before the designated family judge in Cardiff, His Honour Jonathan Furness QC.

The matter concerned a child in a care home who requested to be placed elsewhere due to an attack. The report raises concerns about availability of placements, and therefore, the report does not only deal with the court process, but also raises social and political aspects, which may also lead to public scrutiny. 

The judge is reported to have said “this is the sort of case that ought to be reported.” The reporter responds (in her article) to the judge’s comment: “[The judge] was all too aware, perhaps, that the girl is just one of thousands of vulnerable children, let down by a broken system whose stories have never been revealed. Until now.”  

This article makes it abundantly clear that the reporter’s opinion, which potentially mirrors the press’ position in general, is that the pilot scheme is a landmark change, an opening of a secretive chamber that now must be accountable for its actions. 

In this article, one could argue that reporting is a success. It does what it says on the tin, promotes openness. Surely this is triumphed as another element of scrutiny to promote confidence in our family court system, but will interest wane over time or will momentum in reporting build? 

It will be interesting to see if the court is challenged in its decision making, and how this unfolds in the press. Can there be any redress at all?

For now, it can be seen as a step in the right direction. This pilot scheme goes some way to provide transparency but is it enough to build confidence in an overloaded court system.   

Victoria Cannon is a Partner at Stowe Family Law stowefamilylaw.co.uk