Anything but transparent: what the expansion of the Transparency Reporting Pilot may mean in the Family Courts in England and Wales?

Since April 2009, when press attendance was first permitted in family courts, there has been continued debate regarding balancing respect for the private lives of those litigating in the family court with protecting the public interest in what happens legal proceedings.

Open justice – the idea that justice should not just be done but should be seen to be done – is an important principle which underpins the idea of increasing transparency. 

Family courts make important decisions about arrangements for children and the financial implications of separation, and the public should be aware of what is going on in these courts.  Increasing understanding and awareness of the decisions made by the family court can help to bring much needed clarity regarding the court's approach, which makes it easier for those seeking to negotiate their own solutions outside of the court process (whether financial or regarding how their children share their time with their parents) . 

However, these cases require scrutiny of people's private lives, including a deep dive into their financial resources, and so the court must also have respect for the parties' privacy. 

How do the family courts strike the right balance?

The President of the Family Division has recently introduced 'Pilots' to trial a new approach in family courts. The pilot for Children proceedings has been ongoing for a year in a select group of courts and has just extended to 16 courts across the country – notably the particularly busy Central Family Court, which attracts a wide spectrum of cases, for both private and public law matters. 

The financial remedy pilot has just begun and runs in Birmingham, Leeds and the Central Family Court, with it set to be extended to the Royal Courts of Justice from November 2024.

However, the President's Guidance for the financial proceedings pilot is not without controversy. 

The Transparency Reporting Pilot

For those who are looking for total transparency in the family courts it does not go far enough.  The draft Transparency Orders (likely to be a default position) would ensure that much of the detail cannot be reported (e.g. parties' names, places of work, properties) and there is a continued presumption that judgments should be published anonymously. 

Although the court retains discretion, the default is closer to anonymity than transparency. 

However, those with concerns regarding increased reporting, are apprehensive that under the pilot the press has greater access to the court documents and so a more invasive approach than just listening to the case unfold.

Furthermore, the decision to publish the parties' names on the case listing document (accessible to those attending court) with additional information indicating what sort of case it is so, means that it is easier for accredited journalist to find cases to listen to. 

Regardless of your view as to whether the pilot goes too far or not far enough, lawyers and client alike need to be tuned in to the following implications:

1. In all courts, finance and children, the parties' names will be on the case listing document with additional information indicating what sort of case it is so that accredited legal bloggers/journalists can decide whether to attend.
2. There is no longer a need to pre-empt the possibility of journalists wanting to attend a hearing, and thereby alert a journalist, inadvertently, to a case of interest, by flagging that you may require a Transparency Order.
3. However, parties and advocates must be prepared to address the Court on whether a Transparency Order should be made, and to what extent, at the start of all hearings where the pilot is running. If it is considered appropriate, it is thought a Transparency Order would be made at the first hearing attended by a reporter. Nonetheless, solicitors and barristers must become familiar with draft Transparency Orders and how to implement them in practice.
4. Costs may increase for clients in addressing transparency issues.
5. The pilot could force further matters to be litigated in private – or be used as a tactic to encourage a party sensitive to publicity to settle to avoid the risk of a court hearing.
6. Reporters will be able to see the ES1 (ie very brief case summary document) and (much more detailed) position statements of parties. The Court will juggle the competing objectives of confidentiality and anonymity with sufficient information to make reporting beneficial. This may have a significant impact on the way in which position statements, often containing sensitive or potentially controversial arguments, are crafted.
7. District and Circuit Judges are being encouraged to publish more judgments which, having considered time constraints and the possibility of judgments being scrutinised more vigorously form different angles, may result in shorter judgments.

Inevitably there is going to be some bedding in of what the pilot means in practice. 

But gone are the days where practitioners could say that everything was wrapped in an impenetrable wall of confidentiality.

They will need to be particularly alert to possible journalistic interest in cases – and, potentially concerningly, the manner in which media outlets choose to represent cases for their commercial aims against the legal principles which in fact underly them.