On 29 October 2021 the President of the Family Division Sir Andrew McFarlane produced his long awaited final publication of the Family Division’s Transparency Review titled Confidence and Confidentiality: Transparency in the Family Courts, following an extensive review of the current systems.
Overview of the Report
An increased openness in the family court has been an issue for debate over many years, with concerns expressed by many about what happens behind the doors of the ‘secret family court’. The President explains in his document that what has made it so difficult a subject for successive Presidents of the family division has been that ‘at the heart of the issue is the tension that exists between two principal policy drivers, namely, on the one hand, the need to enhance public confidence in the Family Court and, on the other, the need to maintain confidentiality by safeguarding the privacy of those who turn to the court for protection or for the resolution of intimate disputes.’ In particular a concern that many family practitioners share is that children should not be identified and that the fear of being identified would have a negative impact on their openness in proceedings. There is research on children and young people’s views on this issue, which are very clear – they do not wish to have the detail of their lives made public.
He concludes that ‘that the time has 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.’ finding that openness and confidentiality are not irreconcilable and each is achievable. Reporting will be subject to very clear rules to ensure that there is anonymity of the children and family members in each case. The aim being to enhance public confidence whilst firmly protecting continued confidentiality.
The report recommends reform of the automatic statutory reporting restrictions on family proceedings set out in section 12 of the Administration of Justice Act 1960, the President describes an Act which was intended to ‘protect and support the administration of justice’ that has actually had ‘the contrary effect of undermining confidence in the administration of family justice to a marked degree’. Consideration of amendment of section 12 is of course for Parliament and not the judiciary, however the President supports calls for urgent consideration to be given by government and Parliament to a review of this provision.
Some sought total public access to Family Court hearings, the President was clear that that is not currently justified, instead the focus will be on establishing a workable regime that ‘permits and facilitates press and legal blogger reporting of Family cases’.
There is much detail in the report and it really is a must read document for anyone practicing in the field of family law. One significant change will be that all family judges will be asked to publish anonymised versions of at least 10% of their judgments each year.
To progress the necessary changes the president is to establish a Transparency Implementation Group ‘TIG’ to take forward the changes that I have proposed. Given the importance of ensuring anonymity is preserved there will be a trial period of the new scheme in two areas one rural and one urban.
Full Family Court Report
The report can be found here.
