Sweeping transparency reforms proposed for the family courts

The president of the Family Division, Sir Andrew McFarlane, has proposed a raft of sweeping changes with regard to transparency in the family courts following the publication of the outcome of the Transparency Review. The proposals include the publication of anonymised judgments and allowing the media to attend and report on cases.

McFarlane said the present system, where a journalist may be permitted to attend a hearing, but not report on it, was “not sustainable”. He said he had concluded “a major shift in culture and process” is required to increase transparency.

The review focused on “the dual goals of enhancing public confidence in the Family Justice system, whilst at the same time maintaining the anonymity of those families and children who turn to it for protection”, commented McFarlane. He said he believed the “twin principles of confidence and confidentiality” are not mutually exclusive.

One of the review’s main proposals is to allow the media to report publicly on what they see and hear in the family courts. However, McFarlane said: “Any reporting must… be subject to very clear rules to maintain the anonymity of children and families, and to keep confidential intimate details of their private lives”.

The proposals have received a mixed reaction from the profession.

Emily Foy, senior associate at Payne Hicks Beach, said the “revolutionary” proposals will be “broadly welcomed”. She added: “For too long the family court has operated behind a veil of secrecy which causes mistrust and fear. Enhanced transparency, which is taken as a given in other Court divisions, is long overdue and must be embraced if faith is to be restored in the family justice system”.

However, she acknowledged “a contrary and equally powerful view” that “individuals are entitled to a private family life without the fear of the exposure of intimate and often viscerally private details being published for general consumption”.

Foy added: “In this social media driven world and with a continuing huge appetite for human interest stories the risks of harm are potentially vast and protective safeguards must be adopted to avoid jigsaw identification, not only for children but for all family members.

“The understandable and entirely proper desire for openness must not be allowed to free fall into a new reality where all parties consider themselves to be journalists and therefore permitted to rewrite the carefully woven narrative of the judiciary”.

She said a “delicate balance” must be struck and it will be “incumbent on judges, practitioners, press and those otherwise implementing the rules to ensure that justice is still done, as well as now being seen to be done.” 

Philippa Dolan, partner at Collyer Bristow, has doubts about the new proposals: “For decades there have been calls for greater openness in the ‘secretive’ family courts, led – unsurprisingly – by the media. And it looks as if the President of the Family Division has now capitulated.

“Sir Andrew McFarlane states that he doesn’t see ‘..being more open as being directly in conflict with the principle that we must maintain confidentiality around individuals’ private information’. I’m not sure how he reaches that conclusion. This will all be about the number of handbags or girlfriends that litigants have, as opposed to a mature debate about legal principles”.

She added: “It’s different with public law cases where, for example, children are removed from their parents in our name. We should be told what’s going on. Though I have my doubts that the badly under resourced family courts will have the capacity to adequately protect the identities of children and the vulnerable. But there is little but prurience behind the clamour for more personal information to pick over – and social media will make the whole exercise ever more toxic.”