Payne Hicks Beach

Payne Hicks Beach

11 November 2021

The Transparency Review: What does it mean for you?

The President of the Family Division, Sir Andrew McFarlane, has published a long awaited report on transparency in the family courts.  The report, entitled “Confidence and Confidentiality: Transparency in the Family Court” follows an extensive two year multi-disciplinary review of the current rules.

The main conclusions are as follows:

  1. Accredited media representatives should be permitted not only to attend hearings, but also to report publicly on what they see and hear. This is a change in emphasis from the current arrangement, whereby representatives can attend on request but there is a presumption that they will not do so unless permitted.
  2. Any reporting of family cases must maintain the anonymity of children and families and allow them to maintain privacy in relation to intimate details of their private family lives.
  3. Whilst there will be a presumption that accredited media representatives can attend Court, the Judge retains ultimate discretion as to whether a particular party can be excluded in any given case.
  4. There will be a “trial run” of the new recommendations to consider the effect of the changes and ensure that they work in an effective way, and to ensure that journalists do not distort or misrepresent what they hear in Court in pursuit of “a good story”.
  5. Whilst it is expected that journalists should have access to documents such as Skeleton Arguments and Witness Statements, this was for further discussion and should not extend to medical records or primary disclosure, such as police reports.  Again, the Judge would retain discretion as to what should and could be accessed on a case by case basis.
  6. Media representatives should be added to the list of those to whom a party can communicate information relating to children proceedings, allowing them to be aware of, attend and report on children proceedings.
  7. All Judges to be asked to publish 10% of their judgments every year, on an anonymised basis, in order to widen public access and increase transparency.
  8. A standard reporting provision order to be consulted on for introduction in financial remedy proceedings.
  9. Links to be established between journalists, media lawyers and the judiciary through the creation of a Media Liaison Committee.
  10. A scheme to be introduced for compulsory data collection at the end of each case to allow evidence based assessment of the role of the family Court and outcomes.
  11. Moving forward, the listing of cases to include the general nature of hearings and basic details, alongside case numbers and parties, to allow accredited members of the press to ascertain which hearings they may wish to attend.
  12. A dedicated family Court online resource for parties, parents and children explaining how the family Court works, guidance through the process and signposting to further resources, support and Alternative Dispute Resolution options.

So what does this mean on the ground? 

The answer, for the vast majority of litigants, is “very little”.  Whilst the enhanced transparency now proposed must be embraced if faith is to be restored in the family justice system, the reality is that many parties will be blissfully unaware of the changes. This will be a careful balancing exercise and for all those who think the proposals do not go far enough, there is 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.

In this social media driven world and with a unabatingly colossal 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. There is a delicate balance to 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.

Emily Foy is an experienced family solicitor, specialising in high net worth financial settlements, particularly those with an international element and has a growing practice in the particular legal complexities faced by the modern family. For further information, please contact Emily by email or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4300.

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

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