At first glance, family affairs might seem lower stakes than ensuring that criminals receive their just deserts or that multi-million-pound property deals are completed as all parties intended. But in reality, core preoccupations of the family court system like divorce, children and inheritance are both emotive and deeply meaningful to most people. Confidence in the conclusions reached is vital, and trust in the judgements issued equally important for the public good.

The reporting restrictions on family proceedings are some of the strictest in the legal system, in order to protect the privacy of participants, especially children and other vulnerable individuals. But for years, the media complained of these restrictions, characterising them as secrecy and casting doubt on rulings being made behind closed doors.

Years of criticism

After years of criticism, the judiciary began to realise that this perceived secrecy had become a problem. For full confidence in the family courts, lawyers and judges needed to do more than pursue justice within closed courtrooms. Justice needed to be seen to be done.

The first President of the Family Division to really address this issue was the now retired Sir James Munby, who repeatedly emphasised the importance of transparency during his tenure. By ‘transparency’, the former President meant a gradual loosening of courtroom reporting restrictions for accredited media representatives, without compromising the necessary privacy protections. This would, he hoped, encourage media interest and translate into more coverage, leading, ultimately, to greater public confidence in the family court system.

Open justice

Sir James’ successor as President, Sir Andrew McFarlane, has continued this focus on open justice. In January 2023, Sir Andrew launched the so-called Transparency Implementation Group Reporting Pilot at three family courts: Leeds, Cardiff and Carlisle. This experimental scheme introduced a presumption in favour of reporting and media coverage, offering journalists greater freedom as long as they continued to respect the family court’s strict rules on anonymity. The trial was designed to iron out any problems and ensure procedures worked as intended, without causing undue disruption to the smooth running of the courts.

Initially limited to so-called ‘public’ law (cases involving the care system), the pilot was later extended to ‘private’ cases (disputes between individuals). In January 2024, 16 additional family courts were added to the pilot scheme.

Journalists who attend family hearings can also request case documents, including outlines, arguments, summaries and statements of the positions being taken by each party.

The anonymity of participants is protected in a number of ways. Each case is listed without identifying information, but issues of potential interest to the media are highlighted via codes.

Transparency orders

In addition, transparency orders are normally issued by the presiding Judge in each case. These set out what can and can’t be reported. The listed conditions are usually standard, pro forma restrictions, intended to prevent the identification of any children involved in the case by prohibiting the publication of names, dates and places of birth, addresses, schools and photographs. Details of close family members or carers can also compromise anonymity via piecemeal identification, so such information is usually also prohibited.

But transparency orders can also be customised by Judges on a case-by-case basis, if special measures are thought to be necessary at a particular hearing. The clear permission of the court is required to deviate from these restrictions in any way.

Journalists are encouraged to give advance notice of plans to attend family court hearings at the participating courts, but lawyers also recognise that media plans frequently change and reporters can and do appear at short notice. On such occasions it is important for all parties to be flexible and respond accordingly.

The Courts and Tribunals Judiciary highlighted some of the results to date of this new, more flexible approach to media coverage:

“…there has been ground breaking coverage of both public and private law cases, including a mini-series on BBC Radio 4’s Today programme, [and stories in] the Press Association, the BBC News website, the Sunday Times, the Economist, the Guardian and the Observer, the Daily Mail and others.”