Balancing privacy and accountability: a new era for Family Justice

With effect from 27 January 2025 the Reporting Pilot, that has aimed to bring greater transparency to the family courts, will be extended to all courts in England and Wales.  As I reflected on this, it was interesting to have stumbled upon some of my own articles on the topic of transparency over the years and to see how far we have come – and how quickly.

In the midst of the unsavoury pantomime (- a deliberate choice of word given the season) that was Johnny Depp and Amber Heard’s court showdown in mid-2022, I wrote about transparency: Depp v Heard - will transparency in the English family court increase public confidence or feed the insatiably prurient public appetite?.  At the time I noted that an informal poll of family lawyers showed only about 25% were in favour of more transparency. However, rather than this stemming from some sort of clandestine, shadowy wish to draw a veil over inappropriate practice, I reflected it was more likely this reticence was borne out of respect for private family life and ingrained habit.  Indeed, I quoted the President of the Family Division, Sir Andrew McFarlane, who said in October 2021 that increased transparency would require “significant cultural and process shift”.

And, so it seems, precisely that cultural and process shift has already come about, rather more swiftly than one might have imagined. 

The following potted history shows how firmly the Transparency Project has captured the zeitgeist and so accelerated its scope, stemming from the creation of the Transparency Implementation Group in November 2021:

Children law cases

• With effect from 30 January 2023, the reporting pilot launched in three court centres (Carlisle, Leeds and Cardiff), initially only applying to public children law cases but subsequently extended to private law cases in May 2023.
• January 2024 saw the reporting pilot extended to 16 more areas, meaning that about half of all family court areas were covered. Again, the change was first implemented in public children law cases and later to private law and magistrates’ proceedings.
• The reporting pilot will operate in all courts in England and Wales with effect from 27 January 2025, but not in respect of all cases.  As before, its introduction will be staggered so that it first applies to public law children cases, followed by private law children cases from May 2025 and hearings before magistrates will come within the scope later next year. 

Financial remedy cases

• In financial remedy proceedings, the reporting pilot launched in the Central Family Court in London, in Birmingham and Leeds on 29 January 2024.
• Recently, in November 2024, the Financial Remedies Court reporting pilot was extended to include financial remedy cases in the Royal Courts of Justice at High Court level.
• It was announced last week that after 29 January 2025, the pilot launched in the CFC, Birmingham and Leeds will apply to financial remedy proceedings taking place in all courts and the pilot scheme will be extended for a further year, running to 29 January 2026.

It is important to stress that transparency does not preclude anonymity; (save for the odd avaricious footballer’s wife who has already aired their own dirty laundry in public – naming no names) this is not a charter for ‘naming and shaming’, nor an effort in satisfying an apparently insatiable algorithmic appetite for prurience and misery. In fact, quite the contrary is true and the Mostyn J commitment to broad publication (including names) is not the direction of travel. Indeed, the original pilot scheme was committed to ensuring the anonymity of children and families.  Whilst the recently published Family Court Annual Report highlighted that Media Engagement sub-group are working hard to increase confidence between the media and the family court, thereby increasing engagement, it has also reinforced the importance of anonymity.  Similarly, an extensive consultation by the Financial Remedies sub-group in April 2023 recommended that, whilst reporters should be able to publish what happens in financial remedy hearings, confidentiality and anonymity should be preserved. In all cases confidentiality and respect for intimate details of private life are critical and it will also always be important to be mindful of the risk of jigsaw identification.

For further detail about how the scheme operates in relation to Financial Remedy Proceedings, reference is made to this guidance from the President, just prior to the launch of the pilot at the start of this year: Reporting.PilotScheme.Final.Dec2023Stated briefly, the media are to be encouraged to attend, engage with and report on all family law proceedings, but subject to reporting restrictions to preserve anonymity of the parties, their children and any commercially sensitive information.

It would be interesting to rerun the poll referred to above and to know what proportion of family lawyers would now vote in favour of increased transparency.  In all cases the debate seems to come down to a tension between a desire, on the one hand, for people to keep their private affairs private and, on the other hand, for the courts to shrug off the perception of secrecy and consequent criticisms of injustice and to welcome in a new spirit of openness and accountability. Put in alternative terms, I think there would be near universal support from family law practitioners seeking to defend the historic approach (of less transparency) in saying that this was driven primarily by a benevolent (but perhaps excessive) desire to protect families from public embarrassment.  

Whatever the arguments on either side may be, it is now clear that the pendulum has swung (rather speedily so) in favour of openness and transparency and that appears to be welcomed by all. The move should help dispel any criticism of “secret justice in secret courts” and balance personal privacy. Particularly with this extension of the transparency project to more courts with effect from January 2025, the hope is this will discharge the courts’ obligation to act in the public interest (and be judged as such), without giving excessive weight to prurient interest.