GLD Vacancies

Reporting in the Family Courts

Rebecca Foulkes examines how the recently-launched Reporting Pilot in the family courts will work in practice.

In October 2021 Sir Andrew McFarlane, President of the Family Division, reported on the outcome of his Transparency Review. The principal conclusion reached by the President was that accredited media representatives and legal bloggers should be able, not only to attend hearings, but to report publicly on what they see and hear, “subject to very clear rules to maintain the anonymity of children and families, and to keep confidential intimate details of their private lives”.

One of the main recommendations was the creation of a Reporting Pilot (RP), which launched in Cardiff, Leeds and Carlisle on 30 January 2023 and will run for 12 months. The RP has commenced with public law cases and will shortly extend to private law cases. It does not apply to financial remedy cases or applications under the Family Law Act 1996. The RP will begin with district, circuit and High Court judges and will then be phased to include magistrates at an appropriate point.

Only “pilot reporters” may attend and report on proceedings taking place in a designated RP Court. A pilot reporter is any duly accredited representative of a news gathering or reporting organisation or duly authorised lawyer (legal blogger) who may attend a hearing under FPR r.27.11. Where a pilot reporter attends a hearing, their name and contact details should be recorded on the case management order.

The court will consider whether to make a Transparency Order (TO) in any case where a pilot reporter attends a hearing (remotely or in person) but retains a discretion to direct that there should be no reporting of the case. A standard form of TO has been produced, although the court may modify its terms as it considers appropriate on the facts of the individual case. A TO will (usually) remain in force until the 18th birthday of the youngest subject child.

The standard TO permits a pilot reporter to publish any information relating to the proceedings except for:

  1. The name or date of birth of any subject child in the case;
  2. 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;
  3. The name of any person who is a party to, or intervening in, the proceedings;
  4. The address of any child or family member;
  5. The name or address of any foster carer;
  6. The school/hospital/placement name or address, or any identifying features of a school of the child;
  7. 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 (this includes photographs of the parents or other parties leaving the Court building);
  8. The names of any medical professional who is or has been treating any of the children or family member;
  9. In cases involving alleged sexual abuse, the details of such alleged abuse;
  10. Any other information likely to identify the child as a subject child or former subject child.

The standard TO prohibits the identification of any body, agency or professional except for:

  1. The local authority/authorities involved in the proceedings;
  2. The director and assistant director of Children’s Services within the LA (but usually not the social workers working directly with the family, including the Team Manager, unless the Court so orders);
  3. Senior personnel at Cafcass but not normally the reporting officer, or children’s guardian named in the case;
  4. Any NHS Trust;
  5. Court appointed experts;
  6. Legal representatives and judges;
  7. Anyone else named in a published judgment.

The standard TO permits parties to discuss the proceedings with a pilot reporter and (subject to the terms of the TO) permits the reporter to quote parties in their reporting. A pilot reporter is entitled to see, quote from, or publish documents drafted by advocates (or litigants in person) (i.e. case outlines, skeleton arguments, summaries, position statements, threshold documents and chronologies), any court bundle indices, and any suitably anonymised orders within the case.

The RP represents a significant change to how Family Courts manage the balance between the imperative for open justice and the individual litigant’s right to confidentiality within their private and family lives. The RP seeks to preserve the anonymity of the individuals involved in cases, and the success of this objective will no doubt be carefully reviewed at the end of the Pilot period. The potential for ‘jigsaw’ identification within local communities and the resultant harm that may come from reports within social media remain a very real risk, as well as being the overwhelming concern of those young people who gave evidence to the Transparency Review Panel. Whilst the President has made clear that greater openness must not be at the expense of the interests of children, he has at the same time confirmed that the broad approach for the future will remain a move towards greater openness for the Family Justice system and it therefore appears that public reporting of family proceedings is here to stay.

Rebecca Foulkes is a barrister at 4PB.
42BR Midpage CP