By Stuart Barlow, Solicitor, Family Law Specialist

 To make sure that children, vulnerable adults and families are protected from unwanted publicity, restrictions have been put in place to limit what the media can report. A new era for transparency in family court reporting has begun with a pilot scheme that was launched on the 30th January 2023 under the title of Reporting Pilot.

Reporters are generally allowed to attend family court hearings. They do not need to apply or give notice. The rules give a general right of attendance to journalists and legal bloggers, to most, but not all, private hearings.

The Family Procedure Rules 2010 govern the procedure in the Family Court and the High Court.

Under rule 27.10, hearings relating to family matters are generally held in private, meaning members of the public cannot be present.

While accredited media representatives may attend hearings under rule 27.11(2), subject to exceptions, there are strict limits on what they can report.

Under section 12 of the Administration of Justice Act 1960 it may, for example, be a contempt of court to publish information about proceedings relating to children if a court sits in private. Additionally, under section 97(2) of the Children Act 1989, it is an offence to publish information which could identify a child involved in certain proceedings.

Review of transparency in the Family Courts

In 2019, the President of the Family Division, Sir Andrew McFarlane, appointed a review panel to investigate transparency in the Family Courts. Amongst other things the panel asked the following questions:

• Is the line currently drawn correctly between, on the one hand, the need for confidentiality for the parties and children whose personal information may be the subject of proceedings in the Family Court, and, on the other hand, the need for the public to have confidence in the work that these courts undertake on behalf of the State and society?
• If not, what steps should be taken to achieve either greater openness or increased confidentiality?
• Any observations on the Practice Guidance: Family Court Anonymisation Guidance issued by the President on 7 December 2018 and the President’s Guidance as to reporting in the Family Courts, issued on 29 October 2019.

Sir Andrew published the panel’s findings and his recommendations in the October 2021 report, Confidence and Confidentiality: Transparency in the Family Courts.

Sir Andrew said the time had come: “for accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear.”

He said: “Openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality.”

Sir Andrew noted that witnesses to the review panel had referred to the “chilling effect” of section 12 of the 1960 Act (contempt of court). Sir Andrew said: “… the fear of breaching it and the costs involved in litigation have acted as a major disincentive to journalists and others reporting on Family cases.” He said it was not for judiciary to consider whether section 12 should be repealed or replaced but that he supported “calls for urgent consideration to be given by government and Parliament to a review of this provision.”

The Reporting Pilot

In the October 2021 report, Sir Andrew proposed bringing forward rules to mitigate the impact of section 12, so allowing journalists and legal bloggers to attend and report on Family Court proceedings.

In November 2021, a Transparency Implementation Group was established to carry out these recommendations. The result of this work is the ‘Reporting Pilot’ .

On 30^th January 2023, the Reporting Pilot was launched in the designated courts of Cardiff, Leeds and Carlisle.

The Reporting Pilot will apply to any level of judge of the family court, or in the Family Division of the High Court. Initially the Reporting Pilot will begin with district, circuit, and high court judges, and then will be phased to include magistrates at an appropriate point. Depending on the court centre and the level of interest, the types of cases within the pilot may be phased in.

The pilot will run over a period of 12 months and be subject to independent evaluation. The aim of the pilot is to introduce a presumption that legal bloggers and accredited media may report on what they see and hear during family court cases, subject to strict rules of anonymity (the transparency principle). Only so-called ‘pilot reporters’ will be able to attend and report on proceedings heard in pilot courts.

All reporting will be subject to the principles of protection of the anonymity of any children involved unless the Judge orders otherwise (the anonymity principle).

The ability to report is being piloted to make sure it can be done safely and with minimum disruption to those involved in the cases, and the courts. Judges in these courts will make a Transparency Order, which sets out the rules of  what can and cannot be reported.The Court may depart from the transparency principle in any case. In deciding whether to restrict reporting, the Court must ensure the rights of the family and parties to a fair trial under Article 6 ECHR and must balance the rights to a private and family life under Article 8 ECHR, and the rights of the press, public and parties under Article 10 ECHR (or any other relevant rights which may be engaged).

Transparency orders

 The court will consider whether to make a Transparency Order in any case where a pilot reporter attends a hearing (remotely or in person). The court retains a discretion to direct that there should be no reporting of the case.

There will be a standard form of Transparency Order, but the court may modify the terms of the standard order as appropriate on the facts of the case. The court may do so of its own motion, or by invitation.

The court retains a discretion to (later) vary or discharge the Transparency Order or to direct that there should be no (further) reporting of the case. This discretion may be exercised of the court’s own motion or on application by a party or a pilot reporter.

The rules on what may or may not be reported in a particular case will be set out in a transparency order issued by the court. Each order will take the form of an injunction and reporters will be bound by its terms.

All reporting will be subject to the principle of anonymity in relation to children, family members and other specified parties, unless the court orders otherwise.

The standard Transparency Order will state that it remains in place until any child to whom the proceedings relate reaches the age of 18.

The standard Transparency Order will provide that, in any reporting about the proceedings, the following must not be reported to the public at large, or a section of the public, without the express permission of the court:

a.The name or date of birth of any subject child in the case;

1. The name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child(ren) being identified;
2. The name of any person who is a party to, or intervening in, the proceedings;
3. The address of any child or family member;
4. The name or address of any foster carer;
5. The school/hospital/placement name or address, or any identifying features of a school of the child;
6. Photographs or images of the child, their parents, carer or any other identifying person, or any of the locations specified above in conjunction with other information relating to the proceedings;
7. The names of any medical professional who is or has been treating any of the children or family member;
8. In cases involving alleged sexual abuse, the details of such alleged abuse;
9. Any other information likely to identify the child as a subject child or former subject child.

Under the standard Transparency Order journalists will be able to identify:

• The local authority/authorities involved in the proceedings
• The director and assistant director of children’s services within the local authority (but usually not the social workers working directly with the family, including the team manager, unless the court so orders)
• Senior personnel at Children and Family Court Advisory and Support Service (Cafcass) (but usually not the guardian appointed for the child)
• Any NHS Trust
• Court-appointed experts (but not treating clinicians or medical professionals)
• Legal representatives and judges
• Anyone else named in a published judgment.

Family members

Family members will for the first time be free to speak to journalists reporting under the pilot without being at risk of contempt of court. It will also be permissible for journalists to quote family members in their reporting, as long as the family is effectively anonymised. It will not permit the parties to themselves publish information from the proceedings where this would be restricted by section 12 AJA1960 and/or the rules of court. This includes re-publishing any media articles or blogs written about the case under the pilot, where accompanied by comment that may identify the child concerned.

Documents

A reporter who attends a hearing, or who intends to attend a forthcoming hearing, is entitled to see certain documents from a case (but not all documents). They are also entitled to quote from or publish the contents of those documents, subject to effective anonymisation, once a transparency order has been made.

The permitted documents are:

• Documents drafted by advocates (or litigants if a party is self-representing): ie case outlines, skeleton arguments, summaries, position statements, threshold documents and chronologies.
• Any indices from the court bundle.
• Any suitably anonymised orders within the case.

Qualifying cases

 The following cases will be part of the Reporting Pilot:

1. All applications for public and private law Orders under Parts II and IV Children Act 1989, including applications to discharge, vary or enforce existing Orders. The pilot will commence with public law cases and shortly thereafter extend to private law cases.
2. All applications for placement orders where the application is made within care proceedings, up to the point at which any placement order is made or the application for a placement order or otherwise is concluded.
3. All applications under the inherent jurisdiction of the High Court, including applications to authorise the deprivation of a child’s liberty

The pilot will start with public law cases (such as care order proceedings) and then proceed to include private law cases (for example, child arrangements orders).

Financial remedy proceedings are excluded

 The pilot excludes financial remedy cases, such as money claims made on divorce, along with applications under the Family Law Act 1996 eg non molestation orders

The current practice is for courts to restrict the publication of confidential financial information where parties have been compelled to disclose their affairs as part of the proceedings. The transparency of such proceedings continues to be a matter of debate. The Transparency Implementation Group is examining the issue as part of ongoing work to open up the Family Court.

What happens next ?

• The Ministry of Justice has agreed to fund an independent evaluation of the pilot. The procurement process is ongoing.
• Evaluators will be specialist social scientists who will involve each stakeholder group to evaluate the process adopted, and the impact of the pilot on the stakeholders involved.
• Further details will be published in due course on the judiciary.uk website.
• For most family courts the legal position will remain the same at least for the time being