On 30th January 2023, a reporting pilot scheme was launched in the Cardiff, Carlisle and Leeds family courts. The scheme is set to last 12 months, concluding on 30 January 2024 and applies only to children law cases. The catalyst for change follows Sir Andrew MacFarlane’s Transparency Review, published in October 2021, which emphasised the need for greater openness, accountability, and public confidence in the family justice system.
The position pre-pilot scheme
Ordinarily, family cases concerning children are held in private. This is established by section 12 of the Administration of Justice Act 1960, which provides that where proceedings are brought under the Children Act 1989, reporting of the information relating to the case will be contempt of court.[1] Further protection is afforded to children by way of section 97(2) of the Children Act 1989. Notwithstanding these statutory protections, legal bloggers and journalists were permitted to attend family court hearings prior to the scheme’s implementation.[2] However, to report, an application to the court was required.
Changes under the pilot scheme
Under the pilot scheme, journalists are given more freedom to report what goes on within the family court. Essentially, the usual presumption of no reporting is reversed, and legal bloggers and accredited media may attend and report on what they see and hear during family court cases. Furthermore, reporters will be provided with copies of documents relating to the proceedings. However, all reporting is subject to the principles of protection and anonymity of children.[3] For reporting to be permitted, the Court will consider whether to make a Transparency Order.
While any order made is subject to judicial discretion, standard terms of a Transparency Order prohibit publication of:
- The names and dates of birth of subject children of proceedings, their parents and family members, and any intervening party;
- Foster carers;
- Schools and other residential or educational placements; and
- Photographs or images of the children and their family.
Parties not afforded the same protection include:
- Local Authorities;
- NHS Trusts;
- Court appointed experts;
- Senior Cafcass personnel;
- Senior children’s services personnel; and
- Lawyers and judges involved in the case.
Accordingly, it is important to note that whilst a Transparency Order will permit parties to discuss proceedings with a qualifying reporter, it does not allow them to directly publish information themselves relating to their case. Therefore, families involved in cases which are part of the pilot scheme remain subject to strict confidentiality rules.
Transparency Orders in practice
Although early days, guidance on how to approach making a Transparency Order was set out in January 2023 by Poole J in Re BR & Ors (Transparency Order: Fact Finding Hearing).[4] The case concerned three separate care proceedings heard together, which featured allegations of fabricated or induced illness. In each case, the same hospital – which was named – treated all the subject children.
Within the judgment, Poole J sets out the clear legal framework which governs the making of a Transparency Order in combination with the President’s Guidance on the Reporting Pilot. In summary, the following points are of note:
- There is considerable public interest in the reporting of family law proceedings;
- The Transparency Order aims to strike a balance between an individuals right to privacy and the public interest in publication. Simultaneously, the child’s anonymity must be maintained at all times;
- It may be appropriate to allow reporting information that may otherwise be prohibited within the standard Transparency Order template if there is strong public interest in its content;
- The court cannot dictate the detail of what reporters write or broadcast. Nevertheless, some specific information not already included in the standard Transparency Order can and should be prohibited. Further restrictions should be limited to avoid interference with the reporter’s freedom of expression;
- There may be other information which is reportable that although doesn’t identify the child directly, may give rise to the risk of identification (‘jigsaw identification’); and
- Notwithstanding there may be ongoing criminal proceedings, a revised Transparency Order may still be made to prevent reporting until their conclusion.
Considering this guidance, in Re BR Poole J varied the Transparency Order to reflect ongoing criminal proceedings and risk of inadvertent identification. Further, it was noted that documents made available to reporters may change according to a reporters’ familiarity with the case.
Overall, Re BR illustrates the flexibility of Transparency Orders and individual approach to be taken to their terms on a case-by-case basis. As such, parties involved in proceedings which form part of the pilot scheme should be reassured in the knowledge that despite there being a greater push for transparency, as per the President’s report in 2021, greater openness should not be to the detriment of the child, for, ‘the welfare of children is what much of family justice is about’.[5]
[1] Administration of Justice Act 1960, Section 12(1).
[2] Family Procedure Rules 2010, r27.11; Practice Direction 36J.
[3] Reporting Pilot Guidance (26.01.2023), paragraph 9.
[4] [2023] EWFC 9.
[5] Confidence and Confidentiality in the Family Courts (October 2021), paragraph 33.
Author
Lillian Garnier
Paralegal
Proofed By
Katrin White
Senior Associate
