This post was contributed by Ms Charlotte Crilly, Module Convenor for Legal system and method.
Most court proceedings in England and Wales are, as a general rule, open to the public. The court system operates on the basis of the principle of open justice, that justice must be done openly and transparently, and courts must accordingly hold hearings in public and allow the media to report on hearings.
In Scott v Scott  AC 417, Lord Atkinson summarised the purpose of open justice by saying that:
The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses … but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.Lord Atkinson
The Judicial College’s Guide to Reporting Restrictions explains that the general rule that justice must be administered in public can be broken down into these elements:
- Proceedings must be held in public.
- Evidence must be communicated publicly.
- Fair, accurate and contemporaneous media reporting of proceedings should not be prevented by any action of the court unless strictly necessary.
In the family courts there are tight restrictions on what can be reported. There are around 250,00 cases in the family courts each year. The courts usually sit in private and although accredited media representatives and legal bloggers (duly authorised lawyers) are permitted to be present, they cannot in most cases report on the proceedings. Under section 12 of the Administration of Justice Act 1960, for example, it can constitute contempt of court to publish information about proceedings relating to children if a court sits in private.
Sir Andrew McFarlane, the President of the Family Court and Head of Family Justice, has pointed out that where the public are given no account of how the family courts operate, this leads to a perception that they are providing “secret” justice, and that there is something to hide. In his report on Transparency in the Family Court, in October 2021, he noted that this is one of the two principles which underlies the debate on whether there should be reporting of proceedings in the family courts. This is the principle of confidence: that there is a significant and important public interest in society having confidence in the work of the Family Court, and that openness and accessibility can increase this level of confidence.
The competing principle, which has been the basis for the current restrictions on reporting in the family courts is said in the report to be that of confidentiality. Counterbalancing the arguments for openness and accountability in allowing the reporting of proceedings, was the argument that much of the evidence in family proceedings was intensely private, and the anonymity and confidentiality of the children and families who use the court must be protected.
The report maintained that these two competing principles could be balanced, and there should be greater openness in family courts. There was an overwhelming argument that the work of those courts was of fundamental importance to society, and should be opened up to effective public scrutiny. Confidentiality would still be of paramount importance – greater openness must never be at the expense of the interests of children concerned. The broad conclusion reached was that the time had come for accredited media representatives and legal bloggers to be able not only to attend and observe Family Court hearings, but also to report publicly on proceedings.
As a result of the Transparency in the Family Court report, a new pilot scheme started on 30 January 2023 to allow reporting of family court proceedings in certain circumstances. The pilot will cover three courts and will run for twelve months, after which it will be evaluated to see if it should be extended to all family courts. To protect the confidentiality of children and their parents, their anonymity will be preserved. A Transparency Order will dictate what can and cannot be reported. Only accredited media representatives and legal bloggers will be able to report on cases.
In a related development on the subject of open justice, the Ministry of Justice has stated that it will launch in 2023 a call for evidence on open justice in courts and tribunals, and how to strengthen openness and transparency. This statement was in response to a report by the House of Commons Justice Committee on open justice: court report in the digital age. That report found that much more could be done to ensure that the media and the public can access the information they need to follow court proceedings and that changes should be made to the way this information can be accessed online. The report also supported the work taking place to enhance the transparency of the Family Court.
Sir Andrew McFarlane has noted that “for at least three decades the question of whether there should be more openness in the conduct of family proceedings has been a live issue.” This is largely because of a perceived conflict between on the one hand the principle of open justice, and on the other hand the need to preserve the confidentiality of vulnerable children and their families. Do you think the new pilot scheme has drawn the balance correctly in allowing the reporting of many more cases in the family courts, subject to rules for the protection of families? Do you think it poses too much of a risk of sensitive information being exposed to public view? Or have the family courts operated for too long in secret? These are difficult questions, and it will be interesting to see the evaluation of the pilot in twelve months’ time, and whether reporting of family proceedings continues.