In late October, the President of the Family Court in England & Wales, Sir Andrew McFarlane, called for a ‘major shift in the culture’ and has made recommendations for there to be significant change in respect of transparency in Family Court hearings.
At present, much of the work of the Family Court is conducted in private. This means that only the individuals involved in a case (including experts and third parties appointed to the case) as well as their legal representatives can be present at Court hearings.
Some Family Court hearings may occasionally be of interest to, and attended by, journalists who must however successfully apply to be present in Family Court hearings, which is a process in itself that can be a difficult bridge to cross and includes a system of accreditation.
Sir Andrew’s recommendations instead suggest that the presumption that reporting should not take place is effectively reversed, to produce a system of reporting much more akin to that of the criminal justice system. At present, when journalists attend a hearing, there are reporting restrictions often in place, to protect the identity of children involved for example. However, Sir Andrew believes that restrictions are often too burdensome, acting instead to prevent openness in our justice system.
Sir Andrew considers that where important decisions are made every day by the Family Courts, such as, for example, ruling on whether one parent can relocate with their child abroad or a great distance away from “home” in this country against the other parent’s wishes, the time has come for greater visibility via the press. It is hoped this will foster greater public confidence in the legal system.
The proposed changes may place further administrative pressure on judges, who will eventually be required to publish 10% of their judgments following upcoming pilots in two areas. However, this seems essential to increase accountability and breed consistency and trust in decisions.
In other sectors and areas of law, the media acts as a mechanism to review the effectiveness of certain systems and ensures that those facing difficulties with the system have a voice. Seemingly, it is now the turn of the Family Law Courts to follow suit.
Our Family Team echo Sir Andrew’s comments that open justice is a fundamental right and we work diligently every day for our clients to achieve fair and just results, both in Court and through negotiations outside of Court proceedings.
Of course, we recognise that the publication of personal information may sit uncomfortably with some. However, we are reassured that if there is to be an opening up of reporting in Family cases, then it will come hand-in-hand with very clear rules designed to maintain the anonymity of individuals, children and families and to ensure that intimate details of their private lives are kept confidential.
It is a concern that select cases are sensationalised through the media, sometimes owing to a lack of understanding of the law, but often as a consequence of celebrity or high profile “news”. However, this is in part a result of a lack of reporting generally, which leaves only the most unusual or “press-worthy” cases to reach the headlines.
In 2019, less than 100 Family Court decisions were published in the media. We therefore hope that, rather than circulating misinformation, increased disclosure of decisions will instead lead to a better understanding of how the Family Courts operate, over a breadth of different cases which most normal families can relate to, rather than those involving very large sums of money, known personalities or unusual circumstances.
Whilst there will be an inevitable debate over striking the difficult balance between our rights to privacy, a fair trial and freedom of speech, greater openness should lead to greater public understanding, consistency in decision-making and fairness to all involved in family legal and Court processes. The debate in this regard, as now being generated through Sir Andrew, is therefore welcomed as a positive evolution of transparency in legal proceedings.
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