Transparency in the Family Court

The decision to open the Family Courts to the outside world, is frankly long overdue. Fears that the Family Court is a secretive court system, where babies are removed unjustly from their parents has to an extent been allowed to fester for some time in the world of twitter and elsewhere. Journalists and campaigners (including many lawyers and members of the judiciary) have for many years queried why openness should not prevail.

In November 2021, the President of the Family Division set up the Transparency Implementation Group (TIG) to implement his recommendations regarding transparency in family justice. The Reporting Pilot, designed by the TIG, allows accredited journalists and ‘legal bloggers’ to report on court proceedings, subject to maintaining the anonymity of the children concerned at certain courts. As of 29 January 2024, this initial pilot was extended to nearly half of all family courts. The initial centres of Leeds, Cardiff and Carlisle were joined by Liverpool, Manchester, Birmingham, and the Central Family Court, amongst others leading Justice Centres.

Under the rules in any case where an accredited journalist or legal blogger attends a hearing, the court will consider whether to make a Transparency Order. Such an Order permits reporting on certain matters and keeps other matters confidential. It remains in place until any child to whom the proceedings relate reaches 18 years of age. Importantly, unlike attendance of reporters generally, reporters attending courts within the Reporting Pilot need not apply for permission to report in those cases.

It is noted that under the pilot, reporters may attend without notice, however they are encouraged to do so. Notice can be given by email or phone to the relevant Court.

So what might these journalists and legal bloggers discover? Who or what is at greatest risk from independent scrutiny? We lawyers who attend court everyday have been brought up on the archaic practises of the legal system. Where we refer to our opponent as “our learned friend”, bow as we enter and leave court and often stand whilst appearing before the court. We also in some court still retain the traditional wig and gown.

I appreciate that because of a significant underfunding in local journalism and local news outlets, the press (as we once knew it) is sadly in decline. That news outlets do not have the journalists that they once had, to wait around courts and listen out for those more interesting stories. Nevertheless, there will be many journalists and legal bloggers interested in understanding what really goes on within the court system

Yet the Family Court (where the wig no longer exists in the vast majority of cases) shows a legal system failing to support the very people that it is there to protect: the children. Where delay is considered by statue never to be in the best interests of the child; where however, private law court proceedings are on average taking 45 weeks from start to finish. That could be 45 weeks, where a child, is not seeing a parent, despite, there being no actual safeguarding concerns. I wholly appreciate that this is not a happy outcome and indeed the judiciary are eager to change the dialogue (think Birmingham Pathfinder initiative, as but one example).

Yet we are still left with a very significant number of cases being heard before the courts where neither (or just one) parent has the advantage of legal representation. The scathing cuts to legal aid by both political parties has redefined the concept of ‘access to justice’. Yet sadly, despite the best endeavours of the legal profession, this is nothing new. Politicians have and will continue to give a polite nod towards the importance of legal aid, or indeed pro bono services, but the pot and real access to justice continues to dwindle.

So, what else might our journalist or blogger friends unearth. That Magistrates undertake the vast majority of private law proceedings. Again, nothing new. They have after all been part of the legal system in this country for over 600 years. That traditional concept of local justice, of justice by one’s peers (even that is starting to sound out of place in modern society). Magistrates are volunteers. So cheap, from the government’s perspective.

They are not legally qualified (oh, they get a few days of training and on the job experience, but so do the staff at our High Street shops. Should they make decisions about our children?). I am of course being facetious, but I have been involved in cases where their decision-making has raised one or two eyebrows. Where their off the cuff comments to criticise both parents (even where one has been a victim of serious domestic violence) for the fact that they could not agree arrangements, or that they are poor parents has a feel of more puritan times. Language matters in Family Court cases, and it’s occasional inappropriate use by Magistrates can enthuse years of further domestic abuse from one parent to another. How will such lazy language or indeed decision making stand up to the scrutiny of the cover of the Daily Mail.

And then of course there is domestic abuse generally.

The Domestic Abuse Act required in certain Family cases that a qualified legal representative (QLR) is appointed to as to ensure that a litigant in person is not cross-examined by the perpetrator or alleged perpetrator of their abuse and vice versa. It being recognised that the cross-examination is by its very nature a form or continuation of abuse on the victim. Again, an initiative long overdue and welcomed. But the funding by the State of such QLRs has significantly hindered the take up of advocates to this scheme, raising further burdens and delay on the courts.

There is another concern. That the court’s enthusiasm (supported by the Children Act 1989) of a ‘pro contact culture’ is putting at risk victims of domestic abuse and indeed their children (who may themselves be victims). Will those readers of the Daily Mail think it is appropriate for the father found on the balance of probabilities to have raped a child's mother or domestically abused that mother be nevertheless entitled and welcomed to spend unsupervised alternate weekends and half of all holidays with that child? Would not those same readers be surprised that when a Family Court Judge makes a determination on evidence that a parent has committed such abuse on his ex-partner or their child that the record of such a decision would simply sit in that court file and not be recorded on a National Database or anywhere, to protect others from such harm in the future.

As such one welcomes transparency but wonders whether a court system already burdened by a lack of funding, resources and confidence can in fact stand up to any level of open scrutiny.

Jason M Hadden