Much has been said over recent years about transparency in the Family Courts, the need for greater accountability and visibility of what goes on behind closed doors. In 2020, the best part of 225,000 cases were heard in the Family Courts in England and Wales. The trend is an upward one. A Dispatches documentary aired by Channel 4 earlier this year brought this to the fore (Torn Apart: Family Courts Uncovered) and, against this background, on 28 October 2021 Sir Andrew McFarlane, President of the Family Division, published his report on Transparency in the Family Court.
The report identifies the need for a major shift in culture and process to increase transparency and enhance public confidence in the Family Justice system whilst at the same time maintaining the anonymity of families and children. It is a difficult balance.
One of the main changes expected to follow will be the ability for accredited media representatives to not only attend hearings but also to report publicly on what they see and hear. Any reporting will be subject to very clear rules to maintain the anonymity of children and families and to preserve the confidentiality of intimate details of their private lives. Nevertheless, this is a far cry from the status quo and represents a sea change in the judiciary’s approach.
In essence, for the first time, media representatives will be able to attend court and report publicly on what they see and hear. It is also expected that they will be able to access pleadings such as position statements or witness statements filed at court, albeit further guidance is expected around this.
It is to be hoped that these changes will be for the positive in helping to drive greater transparency and public understanding, providing the public with a much needed window into the machinations of the Family Courts inner workings.
In tandem with these developments, Mr Justice Mostyn and His Honour Judge Hess have launched a consultation on a proposal to introduce a “Standard Reporting Permission Order” which is intended to enhance the transparency of and public confidence in financial remedy proceedings. This proposal would enable members of the press or “legal bloggers” to obtain and review financial documents filed at court and publish details (at least in broad terms) of a party’s wealth. If such proposals are introduced, it would mean that parties in financial remedy proceedings can no longer be certain that financial disclosure provided to the court would necessarily remain confidential.
The desirability of these changes is likely to be more divisive, and parties might be forgiven for questioning who this serves. It will be interesting to see how the judiciary intend to move forward in this regard following the conclusion of the consultation process on 26 November 2021 and what this will mean in practice. For those who wish to preserve anonymity, it is certainly conceivable that if such changes are made it may encourage a renewed focus on alternative forms of dispute resolution through for example mediation, arbitration or the collaborative family law process.