Transparency: Poppy Holmes discusses the importance of the family courts operating under a balance between transparency and privacy for parties

Introduction

Transparency is a hot topic in family law circles. This is essentially the idea that court hearings in which a couple’s assets are divided on their divorce or disputes regarding their children are aired are open for the media to observe and report on. It is a subject that divides opinion: to what extent should there be an ‘open’ justice system? How far should the courts protect the private lives of those entering their doors; their names, their level of assets, their arguments about dividing those assets, their disputes about how their children’s time should be shared following their separation etc.? What is the right balance and what will achieve the most fairness? On one side is the argument that transparency fosters trust in the legal system, by allowing the general public to understand more about what happens at family court hearings – a distinct move away from the ‘closed doors of the family court’ that have been much criticised in the media – and therefore feeling more informed about the process, having a better understanding of what is likely to be fair in the court’s eyes, and seeing justice be done. This can help couples make choices about how to resolve their disagreement, whether this be via another form of dispute resolution (such as mediation) or by litigating on an informed basis and having a greater understanding of what might be ordered and why, which could help couples accept and abide by whatever order is made. 

Development of transparency

Transparency isn’t a new concept. To briefly track its history in the context of the family justice system, since 2009, journalists have had the opportunity to attend family law hearings and much of the senior courts’ work (the High Court, Court of Appeal and Supreme Court) is routinely public with hearings being live streamed and judgments being reported. However, the position regarding the lower court tiers is different. Whilst journalists could in theory attend hearings, they were subject to very strict reporting rules that meant that they could not disclose much of what happened in the hearings. As a result they largely would not attend. 

The new Family Court Transparency Pilot introduced by the Family Division in January 2023 is what has caused such concern. This pilot sets the procedure for reporting on family law cases, allowing media representatives (legal bloggers and accredited journalists) to attend hearings and report on what they see and hear. It is now an uncomfortable reality to those using the court to determine their disputes with their partner/spouse that journalists may attend their hearing. Lawyers make clear that these reports are subject to clear rules and restrictions but in the writer’s view this has been of little or no comfort to those who fear their personal details may be spread across a paper, and who are all too aware that whatever arguments the lawyers may present about the need for anonymity, the judge is free to decide this issue. Even if the parties’ names are not included, it is sometimes possible to identify a person from the other details that are reported so basic anonymity doesn’t always reassure. Initially, the pilot was launched and rolled out into the family courts in Leeds, Cardiff and Carlisle. At the end of January 2024, this was extended to other courts including Liverpool, Dorset and Milton Keynes. In July 2024, this was extended into private law cases. Reporters continue to be aware that they must comply with strict rules when reporting on cases, however the rule of anonymity can be lifted. Thus, in practical terms, the media can report on family cases if an application is made, and a transparency order is granted. It is likely that, early next year, there will be a Family Procedure Rule amendment to confirm that the transparency pilot is no longer a ‘pilot’. It will be embedded in the rules to stay.

What does this mean for clients?

For high-profile clients who are keen to keep their financial information away from the press, the transparency rules will likely encourage them to opt for out of court resolution (now called Non Court Dispute Resolution – NCDR) such as mediation, private financial dispute resolution hearing or arbitration. There are many positives to this as not only will it allow parties to deal with their personal financial matters in a private environment, it will also remove cases from the court process thus easing the massive pressure on public resources.

How is it going?

The pilot has shown mixed results in terms of success. Some believe that it has been a positive step in increasing public understanding of family law processes, with the judiciary praising various journalists for providing coverage of family court cases over the past year. It has naturally led to greater accountability on the part of the courts, which can only be a positive. However, there are challenges that remain and the most important could be said to be the potential impact on vulnerable individuals involved and how their personal privacy is protected. This also includes judges and legal professionals involved in the cases. One particular judge has said that he has received a lot of online abuse following one of his reported cases. One must also consider how reliable the current view is, bearing in mind there aren’t nearly as many journalists attending court as expected. This is likely due to not many cases being sufficiently in the public interest to merit reporting and the fact that some cases take years to conclude. The press does not have the resources to hang around waiting at courts for an interesting case, however the Bureau of Investigative Journalism is actively encouraging journalists to attend hearings and report on their findings. Some cases are also held back from publication because of commercial confidentiality concerns, but overall there has only been a handful of transparency orders made at the Central Family Court. Judges are still telling lawyers that there is nothing to fear, but that we should expect more press attendance in the future. Whilst the commonly held view in legal circles (in the writer’s experience) is the press that have attended have been co-operative and helpful, there is no control over what they are going to say and how they will say this.

Concluding thoughts

Ultimately, promoting transparency in family law not only enhances the integrity of the legal system but also increases the confidence of those parties involved. The flip side is serious: an invasion of privacy that is on a scale unprecedented in decades. There is no easy right or wrong here, the decision as to where this balance should lie is an extremely difficult one and only time will tell as to whether those promoting this have got it right.  

Should you need any advice about family proceedings, we at Dawson Cornwell would be happy to assist you with this. Please do not hesitate to contact us on +44 (0)20 7242 2556 or mail@dawsoncornwell.com 

Poppy Holmes

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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