Transparency in the family courts – President issues a “route map” for those dealing with applications to vary or lift reporting restrictions

At the end October 2019, the President of the Family Division, Sir Andrew McFarlane published guidance (first published in draft in May 2019) into reporting from the family courts[1]. It sets out clear guidelines for reporters, litigants and the court when making or responding to a request to vary or lift reporting restrictions. It also refers to earlier guidance about the publication of judgments in family proceedings[2], supplemented by more recent guidance on the anonymisation of these judgments[3]. The President reminds judges that they should be routinely publishing judgments to promote public understanding of family proceedings. He suggests that where an application is made to vary or lift reporting restrictions the court should also consider whether to publish a copy of the judgment.

The guidance encourages positive action on the part of the court and legal representatives to assist reporters. It also makes the process of applying to vary or lift (or considering whether to do so) cheaper, easier and clearer for reporters. The guidance reflects the reality of reporting; that without prior knowledge of a case, a journalist may attend a hearing without knowing whether it will be newsworthy. They are unlikely to have legal representation (at least initially). Prior to this guidance, criticisms from the press suggested that the procedure for applying to vary or lift reporting restrictions was opaque and inconsistently applied by courts nationwide. A further more concerning criticism is that, even once an application had been made, the approach to determination of the application by the courts was unbalanced or even incorrect in certain instances.

There has been a growing trend towards greater transparency but the new guidance is a big step forward in the efforts to open up the family courts to public scrutiny.  It was issued first in draft and opened up for a consultation following the President’s decision in an appeal brought by freelance journalist, Louise Tickle, against a Reporting Restriction Order (RRO) made by His Honour Judge Levey in the case of Re R(a child) [2019] EWCA Civ 482. In that judgment, McFarlane LJ (as he then was), voiced his sympathy for both the judge and the journalists involved arising from the lack of “detailed guidance or route map” for how applications to vary/lift RROs should be made or determined. The intention behind the guidance is explicitly clear; the President wants to promote public awareness and understanding about family proceedings. To avoid repetition of the mistakes made in Re R, the roles of judges, practitioners, litigants and reporters in facilitating this have been made crystal clear.

The principle of open justice, which applies to all courts, is a foundation that promotes the rule of law and ensures public confidence in the legal system. The idea being that justice must be seen to be done. Open justice provides that a) proceedings should be held in open court to which the public and media are able to attend, and b) nothing should be done to discourage the publication of fair and accurate reporting of proceedings. This principle is enhanced by the provisions of Article 6 and 10 of the Human Rights Act 1998 (“HRA 1998”).

In derogation from this principle, the general rule pursuant to r27.10 of FPR 2010 is that family proceedings take place in private so that the general public have no right to attend (subject to certain exceptions). Family proceedings are, unavoidably, concerned with difficult circumstances and the decisions made by the courts have significant and far reaching effects on the lives of the individuals involved. Statute and case law have developed in the recognition of the need to protect the confidentiality of children and family members involved in court proceedings. These rights are also enshrined in Article 8 of the HRA 1998.

It is argued in favour of privacy that family proceedings deal with sensitive issues involving parties who are often highly vulnerable. Those involved in family proceedings and especially children and victims of abuse should be protected from having their difficulties published or from running the risk of identification. A lot is written about transparency in relation to cases involving children, particularly those involving public law, but it also applies to financial remedy proceedings. Parties have a legitimate right to protection of their private and family life particularly in relation to details of their finances provided under compulsion. In all cases, reporting may be unfair or inaccurate or not represent the bigger picture leaving parties to battle not just with the family courts but also the court of public opinion.

On the other side of the argument, there is recognition amongst practitioners and the judiciary that the public perception of family law is generally negative. This is, in part, due to the nature of much of the reporting to date which documents the salacious details or the failures rather than the successes. It is felt that family proceedings are unjustifiably secret so that the decisions made are considered to be unfair or unjust. They are also criticised for being incomprehensible and not user friendly. The magnitude of some of the decisions made by the family law is such that it is vital for the public to be able to understand the court process, the workings of the law and the individuals who are part of it. Those making or influencing these decisions should be open for public scrutiny.

It is for this reason that successive Presidents of the Family Division have promoted greater public access to the practice and procedure of family law. This has happened through the admittance of journalists to family proceedings (with effect from April 2009); the introduction of guidance to promote the publication of judgments and now guidance to enable journalists and bloggers to report from family proceedings. It is hoped that, as well as allowing for greater scrutiny of decision making, it will give an insight and appreciation of the endeavours of those involved in family law. It would also document the significant pressures on all parts of the system as a result of the cuts to legal services.

The new guidance reiterates that in deciding whether to make, vary or lift restrictions the court must conduct a delicate balancing exercise between the competing rights of Articles 6, 8 and Article 10 mindful that neither article has precedence. The best interests of any child will always be a primary consideration. The court must focus on an assessment of the competing values in the particular case. This will involve careful consideration of the justifications for interfering with or restricting each right with reference to proportionality.

It is hoped that, if correctly applied, the combination of the guidance on the publication and anonymisation of judgments and carefully considered reporting restrictions will allow both sets of rights to be respected with as little interference as possible. The President has given courts and reporters their route map but it is only guidance and is not a rule or practice direction. It remains to be seen whether he has gone far enough to ensure consistency of approach or if he has brought about a real change.

By Anna-Laura Lock, senior associate at Winckworth Sherwood LLP

[1] President’s Guidance: Guidance As To Reporting in the Family Courts

[2] Practice Guidance (Family Courts:Transparency) [2014] 1 WLR 230

[3] Practice Guidance: Family Court – Anonymisation Guidance

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