What does the new report on transparency in the Family Courts mean for Family Law Proceedings?

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At the end of October 2021, the Family division released a report regarding transparency in the Family Courts. This was the response to a lasting issue with the lack of openness and secrecy  within Family Law, the impact of which is a growing public distrust with the system and a lack of accountability. The new report indicates that key changes have to be made regarding media access to family proceedings in order to promote communication between judges and journalists, and allow parties the freedom to talk about their cases outside of the court.  

Andrew MacFarlane, the president of the Family division, hailed it as heralding a ‘long overdue chance for the legal sector; which has been neglected and  resource constrained for far too long.’

The Background

Transparency in the Family Courts has been notoriously difficult to establish because of the highly sensitive and personal nature of the cases. These cases are protected from press and public opinion by Section 12 of the Administration of Justice Act 1960 and Judges themselves, who can order closed proceedings. 

Section 12 outlines automatic statutory reporting restrictions on family proceedings. These restrictions mean that judgments are anonymised and court proceedings are often closed to the media. In addition to this, parties cannot talk about their cases to journalists. Where children are involved in proceedings, no reporting is allowed at all, unless the case reaches the Court of Appeal. Such strict restrictions were designed to afford the parties involved privacy, as well as to protect the administration of Justice. However, earlier this month, alongside the report, MacFarlane argued that they have had the contrary effect. 

In relying on vague reporting and public knowledge of only the most serious cases which reach the Court of appeal, potential users of the family law system have become more cautious. This lack of trust with the system, coupled with a lack of accountability translates into little support for the family division and ultimately a poor administration of Justice. Joshua Rozenberg from the Law Gazette highlights this reality through the decrease of published judgements from 222 in 2015 to only 87 in 2019, despite the family court dealing with 225,000 cases last year.

Impact of the Report

The report, coupled with MacFarlane’s comments, indicates that increased transparency within family proceedings is clearly desirable for many working within the Family division. Importantly, the recommendations explored do not affect the restrictions applying to cases concerning the interests of children, however the default position for other family proceedings, we are told, should now be ‘open for reporting.’

The measured approach taken suggests that accredited media representatives and legal bloggers should have access to the family courts and report on what they see and hear. This would not extend to revealing the identities of the parties or to information the Judge restricts. In addition to this, the report suggests that individuals should be able to choose to talk to journalists and share their experience within the system. The aim of this would be to improve the public confidence in family courts, lifting the shroud of secrecy which has made the area seem so inaccessible and untrustworthy- ‘Justice must be seen to be done.’

However, it is important to note that despite the positive changes recommended by the Family division, large scale change will only be able to occur with government backing. Thus, despite the welcome outcome of the report and MacFarlane’s new priority for the Family division, it would seem that a lot more work must be done to achieve the desirable amount of transparency recommended.

Overview

  • On 28th October 2021, the Family division’s transparency review, In Confidence and Confidentiality: Transparency in the Family Courts was published, responding to the growing calls for more openness within Family proceedings.
  • The reports findings were staunchly supported by the President of the Family Division, Sir Andrew MacFarlane and called for greater media access to Family courts.
  • This is a desirable improvement to the Family system to encourage greater confidence in the public, and the report findings suggest that such improvements are a priority. However, government support is needed. 

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