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Transparency Review

Posted on 4 February 2022

The President of the Family Division, Sir Andrew McFarlane has published his review of transparency in the Family Court. He considers that there should be a culture change in the family courts, with significantly greater transparency and reporting of family proceedings. He acknowledged the tension between building public confidence in the Family Court through greater transparency and the need to maintain confidentiality.

His overall conclusion was that the time has come for accredited media representatives and legal bloggers to be able report publicly on what they see and hear in family proceedings. Reporting, however, must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality.

His detailed proposals for change including amending the Family Procedure Rules to create a presumption in favour of permitting reporting, albeit subject to anonymising the details of the children and their family.

As a preliminary view, he also considers that members of the media attending should be allowed to read position statements and witness statements, but not medical reports or police disclosure. The Judge, would, however, have a discretion to withhold documentation.

Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings – this would be limited to discussion of the case and informing the journalist/blogger of details of the proceedings.

He further expressed a desire that data be collected on the outcome of all cases, ideally through some form of web-based tool, which will provide better information on patterns and problems, and that there be a better Family Court online resource, providing better information about what the Family Court does and signposting support.

He intends to establish a Transparency Implementation Group to work on implementing these recommendations.

Sandra Davis says: Whilst the Review has at its heart the laudable aim of assisting the public to understand the work of the Family Court, the reality is that the public (and press) will be interested in the details of the most sensational (and salacious) of cases, rather than the run-of-the-mill work of the courts. By their nature, the cases that interest the press are unlikely to be those in which the litigants will share the public's desire to have details made freely available. Children have repeatedly stated that they do not wish details of cases they are involved in to be made public and even with a degree of anonymity, jigsaw identification can be all too easy. Litigants, particularly those who are already high-profile, are likely to think twice before propelling a case into court and alternative dispute resolution will continue to increase in popularity.

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