It is quite well known that journalists can attend Criminal Court hearings to report on cases, whether it be theft of a can of beans from the local supermarket or a serial killer being tried for murder in the Old Bailey. However, the Family Court, has traditionally always been a very private affair. Court hearings are generally held in private, with only the parties in the case allowed to be present, these are often, their legal representatives, any professionals such as social workers and the Judge or Lay Justices.
The Dispatches program ‘Torn Apart – Family Courts Uncovered’ shown on Channel 4 in July 2021 shone a light upon the ongoing public concern about the privacy surrounding Family Court proceedings. Since then, a series of harrowing stories have been released in the media regarding neglect and abuse of children, again highlighting the public’s concern surrounding Family Court procedures and systems. It understandably raises alarm bells when cases of children being harmed by their parents, stepparents or other close family members are reported. It also raises serious questions about how the system works and how such systematic failures can be happening. Those cases are inevitably being reported due to being the worst-case scenarios and their details are therefore being released to the public during the Criminal Court proceedings, rather than during the Family Court.
The President of the Family Division, Sir Andrew McFarlane, began an extensive review about transparency in the Family Courts following his appointment three years ago. In October 2021, McFarlane concluded that “there needs to be a major shift in culture and process to increase the transparency in a number of respects”.
Section 12 of the Administration of Justice Act 1960 prevents family cases from being reported without the consent of the Judge. Although, the Family Procedure Rules 2010 allows ‘duly accredited representatives of news gathering and reporting organisations’ and more recently, ‘legal bloggers’ to be present during a private hearing; the effect of the reporting restrictions in relation to cases concerning children preserves the illusion of secrecy in the Family Court.
The difficulty changing the current situation is being able to balance the need for more openness within Family Court proceedings, with the confidentiality of the children and families at the centre of these cases. Most Family Law Proceedings relate to children, and it is widely accepted that it would not be fair to those children for their cases to be publicly disclosed. The nature of Family Law cases generally includes families who have turned to the Court for protection or for the resolution of private disagreements, and they are not going to want their intimate details being shared widely in the public eye.
It is inevitable that change is coming, and it seems wholly plausible that people require a much better understanding of how the Family Courts work, which it is hoped would in turn improve public confidence and drive-up standards within the system. Sir McFarlane has stated that he will be establishing a ‘Transparency Implementation Group’ to take forward the changes he intends to make, although he will be remaining closely involved to monitor the progress of transparency as it develops.
So, what changes should we look out for? It is intended for journalists and legal bloggers to attend Family Court proceedings and report on what happened, but the default position will always ensure the anonymity of the children and their family. There will be better communication of information to media representatives and legal bloggers and Judges will be asked to publish anonymised versions of at least 10% of their judgments each year – a considerable improvement on the present output. Sir McFarlane suggests local MPs are invited to the court to gain a better understanding of the work and approach of the Family Court, to assist them in dealing with the complaints they receive from the public. Listings of cases are set to include details such as the general nature of the proceedings, the category of hearing and the time estimate, rather than just the case number and a name or initials, as it is currently. It is proposed there should be a greater online presence, to provide a modern online service which will provide more information about the workings of the Family Court, general procedure and even how to make an application. An annual review will also provide data setting out case numbers, categories, and outcomes of proceedings. It will also include an annual audit on the progress of the various ‘transparency’ initiatives to be launched.
Ultimately, it will remain a finely tuned balancing exercise for Sir Macfarlane and the ‘TIG’ as to how to bring the Family Court in to the open but at the same time ensuring the privacy of children and their families is preserved. It must, however, be a positive sign that efforts are being made to modernise the system and allow the public to have a much-improved insight in to how the Family Court works.
Fraser Dawbarns have a team of friendly and experienced lawyers who can offer advice on a range of family matters in King’s Lynn, Wisbech, Downham Market, March and Ely.
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