Transparency in the Family Court

08/11/2021

Proceedings in the Family Court are currently confidential and only the parties to the proceedings and their solicitor and Barrister can attend Court hearings. Other witnesses can be called to give evidence, but they will only be in Court whilst giving their evidence.

The Judge conducting the hearing does have the power to allow some form of reporting to take place, but entirely at his or her discretion. Typically only important Judgements, usually given in the Court of Appeal or the Supreme Court, are published. In cases involving children their identity is always kept confidential.

Would openness increase confidence in the Courts?

The President of the Family Division Sir Andrew McFarlane has recently considered the question of openness in the conduct of family proceedings. The President commented that consideration needed to be given to making Family Law proceedings more transparent to “enhance confidence in the Family Court“, however this needs to be balanced against “the need to maintain confidentiality by safeguarding the privacy of those who turn to the court for protection or for the resolution of intimate disputes.”

Having carefully considered all the issues, the President concluded that he had “reached a clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects“. He remarked that at the present time, with cases being dealt with in private, the lack of information coming out of the Family Court was bound to lead to a loss of public confidence and perception that there is something to hide.

Reporting not access

The President stressed that he was not proposing any access for the public to family court hearings. Rather there should be consideration as to how the reporting of family cases can be improved and expanded upon, and that any increased openness should not be “at the expense of the interest of children“. He acknowledged that in the vast majority of cases children would not be identified and that there would need to be “very clear rules to maintain both the anonymity of the children and family members who are before the court and the confidentiality of intimate details of their private lives, with the aim of enhancing public confidence, while at the same time firmly protecting continued confidentiality“.Consideration must also be given to the possibility of journalists distorting or misunderstanding the court’s process to produce a story, and what documents the journalist is entitled to read. There will need to be a monitoring system in place and that any inappropriate reporting would be taken up by the relevant editor.

Trial Run

The President listed several other concerns that would need to be addressed and acknowledged that there would need to be a focused ‘trial run’ on the system. Typically the new procedure, which will be called a ‘pilot scheme’ will be tested in one or two areas for a fixed period of time, to be monitored, which will allow any issues that arise from the new system to be addressed before it is rolled out nationally.Children and Family Court Advisory and Support Service, known as ‘CAFCASS’ , who assist and advise the Family Court in cases involving children have cautiously supported the proposed move to transparency “as long as the wishes and feelings of children and young people about sensitivity and privacy are respected“.

Pinney Talfourd comment

Michael Sheville, Partner in the Family law team at Pinney Talfourd LLP commented:”It would no doubt be of benefit for there to be more transparency as to the workings of the Family Court as it could widen the public’s knowledge and understanding as to how cases are dealt with and decided. However, any change to the current position, which provides for proceedings to be confidential unless the Court orders otherwise, needs to be given very careful consideration before it can be implemented nationally. Safeguards must be in place to protect the privacy of parties to proceedings, especially their children, to prevent inappropriate or sensationalist reporting, and the prevent the reporting of false and/or misleading information.

The Family Court will need to balance the interests of the public as opposed to the interest of the family and their children. The trial judge should always retain discretion as to the extent to which journalists will be able to attend the Family Court, have access to written evidence and other documents filed by the parties and, where relevant, expert witnesses, and report on hearings.”

More information

For more information contact our family team here.   

This article was written by Michael Sheville, Partner. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of November 2021.

08/11/2021

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