SHINING LIGHT: THE IMPACT OF OPENING UP FAMILY COURTS 

Published on 25 February, 2025 | Anna Davies

There are, I would suggest, few individuals who would disagree with the idea that greater awareness has distinct merits.

Amongst those in the judiciary or lawyers working in the family court system, the concept of transparency has many supporters, for sure.

They include Sir Andrew McFarlane who, since his promotion to the post of President of the Family Division of the High Court in 2018, has made it one of his central campaigns.

Just over three years ago, he published the results of an extensive review on the issue (https://www.judiciary.uk/guidance-and-resources/transparency-in-the-family-courts-report-3/).

“Justice taking place in private,” he explained, “where the press cannot report what has happened and where public information is very limited, is bound to lead to a loss of public confidence and a perception that there is something to hide”.

Yet even as he outlined his intention to respect the “genuine and legitimate public interest in the Family justice system” by beginning the process whereby accredited media could report on the cases heard within it, he acknowledged an underlying tension.

Improving public confidence in how family courts operate had to be balanced with a need to safeguard the “privacy of those who turn to the court for protection or for the resolution of intimate disputes”.

An additional element can now arguably be added to those twin imperatives – the security of the judges entrusted with the responsibility of deciding such issues.

Earlier this year, that was put into sharp relief because of the response to the naming of a judge who presided over care proceedings involving a child, Sara Sharif, later murdered by her father (https://www.thetimes.com/article/bc217e06-99df-4db8-9343-a79546f9823b?shareToken=9a0bc0360f3b3d9819d75fd93a9a1da7).

That ruling coincided with the national roll-out of provisions allowing media to attend on and report most proceedings in the 42 local family court areas in England and Wales (https://www.judiciary.uk/family-court-reporting-provisions-to-extend-to-all-family-courts-in-england-and-wales/).

It followed a successful pilot scheme which began in January 2023 and means that journalists can report on proceedings if a transparency order is made. However, there is now a presumption that such an order will be made unless there is a specific reason not to do so.

A further pilot regarding media coverage of financial remedy proceedings is still underway and will continue until the end of January next year.

Only last week, the Lady Chief Justice, Baroness Carr of Walton-on-the-Hill, told media of the risks that “unfair or sensational negative reporting creates real, everyday risks to the safety and lives of judges and their families” (https://www.judiciary.uk/lady-chief-justices-annual-press-conference-2025/).

She has launched a “security task force” to consider the risks which judges face (https://www.thetimes.com/article/f5f09fdd-1058-4900-a9ff-f5b8aa0f325a?shareToken=81011d1886692b733f43d9c542943030).

Whilst the impact of greater openness on the judiciary is the subject of ministerial review, families also have to consider what the changes mean for them.

In some cases, the prospect of having private disputes reported by media is something which they are very much keen to avoid.

Together with the understandable desire to avoid delays due to the large volume of work handled by the courts, the likelihood of their personal affairs featuring on news pages has prompted an increase in couples choosing to resolve their differences in other ways, such as mediation, private Financial Dispute Resolution (FDR) hearings or arbitration.

Deterring people from adding to the number of matters brought before family court is certainly not one of the stated objectives of the transparency drive. Neither is it in anyone’s interests for judges to feel inhibited about the potential consequences of deciding cases.

Instead, the focus should be on ensuring fairness for everyone involved in the family court system.

I believe that if people know what exactly family courts do and whether, in fact, their problems really do need to go before a judge or can be settled via non-court dispute resolution methods, it is to everyone’s benefit.

As Sir Andrew McFarlane identified in 2021, such knowledge makes for more “informed debate”.

I would suggest that it also reduces or even removes some of the stress and apprehension which can be associated with tackling family difficulties.

All-’round clarity means fairness for all and that should surely be the objective for ministers, judges, family lawyers and – most importantly of all – clients.