Open House: Family Courts And Transparency 

Published on 14 February, 2023 | Sky Langwieser

“Knowledge”, as one popular saying goes, “is power”.

The implication is that an understanding of how something functions equips us with confidence.

It’s a maxim brought to mind by a significant project which is currently underway at three family courts in England and Wales.

As the name given to the initiative – the Transparency Implementation Group Reporting Pilot – implies, it is something of a trial run to determine the impact of measures to enable media to shed greater light on the courts’ work.

It entails accredited media and legal ‘bloggers being able to “report on what they see and hear during family court cases, subject to strict rules of anonymity” (https://www.judiciary.uk/message-from-the-president-of-the-family-division-reporting-pilot-in-the-family-court/#:~:text=The%20President%20of%20the%20Family%20Division%2C%20Sir%20Andrew%20McFarlane%20said,irreconcilable%2C%20and%20each%20is%20achievable.).

The period of assessment will last a year and involve cases and journalists operating out of the family courts at Cardiff, Leeds and Carlisle.

This is a venture which has been widely regarded as being very much a passion of the President of the Family Division of the High Court, Sir Andrew McFarlane.

Back in October 2021, in fact, he published a guidance note setting out his views (https://www.judiciary.uk/guidance-and-resources/transparency-in-the-family-courts-report-3/).

Sir Andrew explained that there needed to be “a major shift in culture and process” in order to achieve greater insight into how the courts operate.

Achieving that objective would, he stressed, enhance public understanding without necessarily compromising the imperative to keep some of the sensitive details which feature in family cases out of the public domain.

He also insisted that the right balance could be struck successfully. The “twin principles of confidence and confidentiality are not, in my view, mutually exclusive”, he remarked.

Sir Andrew’s pursuit of openness is, in my opinion and that of my colleagues, wholly laudable.

Family courts across England and Wales handle an enormous number and variety of cases.

According to figures published by the Ministry of Justice just before Christmas, some 65,691 new cases appeared in the family court system between July and September last year alone (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2022/family-court-statistics-quarterly-july-to-september-2022#overview-of-the-family-justice-system).

The sheer volume – and, in some instances, the complexity – of cases can lead to certain matters taking longer to conclude, something which wasn’t helped by the courts being forced to limit operations during the pandemic.

Things have not been helped either by a reduction in the number of family courts across England and Wales in recent years (https://www.theguardian.com/law/2019/sep/13/77-more-courts-in-england-and-wales-to-close) and the withdrawal of Legal Aid for many cases in 2013.

That last point has exacerbated delays, given that it has resulted in more parties conducting cases themselves. The number of cases in which both sides have legal representation has fallen from 41 per cent a decade ago to just 18 per cent last autumn.

According to media reports, highlighting why cases might take time to resolve is as much a part of the push for transparency as demonstrating the mechanics of the family court infrastructure (https://www.thetimes.co.uk/article/db909334-82df-490b-9bc7-aa5687902365?shareToken=d8ffa35aa9b6436c92bdeda8eb896588).

Even for those able to rely on the advice of skilled legal practitioners, the prospect of participating in any legal process can be somewhat intimidating.

I share Sir Andrew McFarlane’s conviction that the more people know about how things work and how decisions are arrived at, the more proceedings are demystified and, therefore, become less stressful.

Of course, the details of whether the ongoing pilot is considered successful and how lessons drawn from it are put into wider practice remain to be seen. As Sir Andrew has himself acknowledged, the scheme is a “work in progress”.

Nevertheless, I believe that it is an important first step towards making the family courts a more open environment.

When the only available information about how they operate is limited to reported judgements which form just a small proportion of the overall caseload, there is the potential for difficulty.

If the interests of openness and confidentiality can be balance as Sir Andrew maintains, it will be no bad thing.