Transparency in the family court: What does the new pilot program mean for families facing separation and divorce?

At the beginning of 2023, The Family Court launched a new pilot designed to enhance public confidence and understanding of its role; aiming to balance the need to protect the confidentiality rights of individuals involved in proceedings, whilst also seeking to provide greater transparency around decisions made in the Courts.

The pilot arose as a direct result of President of the Family Division, Sir Andrew McFarlane’s report “Confidence and Confidentiality”. This nuanced report deals with the very real concerns that hearing family law matters behind closed doors, and without the ability for reporters to hold the courts to account is “bound to lead to a loss of public confidence.” It also attempts to address the inherent conflict between maintaining the confidentiality of, for example, vulnerable children; whilst also ensuring that justice is not only being done, but that it’s also being seen to be done by the public.

Could my divorce be made public?

Concerns have been raised that members of the press may abuse any new access rights, seeking out the high profile or celebrity cases to sensationalise rather than report in a balanced and informative way. The pilot is intended to allow only accredited journalists and legal bloggers, termed 'pilot reporters' who will be subject to strict rules of anonymity. This potential issue is noted within the report as an important point to consider.

It's worthwhile noting at this point that the Family Court doesn’t simply deal with divorce, finance and children matters. It also deals with other matters such as where the state is asking the court to remove a child from an unsafe home environment or where a child has been unlawfully taken from the jurisdiction. These disputes involve elements of sensitive and private information and evidence that should arguably remain behind closed doors.

What is the Family Court?

The courts responsible for dealing with divorce and other family-related disputes and matters in England and Wales are the Family Courts, of which there are 45 across the UK, plus the Family Division of the High Court. Most family cases are heard in the Family Court, but a limited number are heard in the Family Division of the High Court, including international child abduction cases, appeals from some Family Court decisions, matters with publicity issues, adoptions with a foreign element and matters that are typically technically challenging or unusual. Both the Family Courts and Family Division of the High Court are headed by the President of the Family Division, Sir Andrew McFarlane.

Why is greater transparency in the Family Court being introduced?

From 2009 until now, members of the media have been able to attend hearings that are closed to the public but could only report on a case if the Judge agreed to vary the automatic reporting restrictions in place – which meant journalists rarely attended. As a result, members of the public have little or no understanding of the Family Courts, what they do and how and why judgments are made.

The scheme aims to allow for scrutiny of the actions of the Courts and Local Authorities to improve public perception and knowledge of the overall system. If the pilot is successful, the new system is expected to roll out across Family Courts in England and Wales – marking a major change in the traditional approach to transparency and media reporting in family law matters that find themselves in court.

What is the pilot program?

Since 30 January this year, Family Courts in Leeds, Carlisle, and Cardiff have been taking part in a new pilot scheme. This allows accredited journalists and legal bloggers to report on both public cases and private cases – subject to strict rules on anonymity. Public matters are those involving the state - such as care proceedings. Private matters relate to matters including divorce, financial matters, and disputes between parents about contact and living arrangements.

The pilot program is running for 12 months and during its course, the reporting of cases is now permitted by way of a ‘Transparency Order’ in which a Judge sets out the rules of what can and cannot be reported.  The aim of this device is to balance the scales between confidentiality, and public interest and openness. In a further attempt to provide clarity to interested parties, those involved are now permitted to give interviews to the press without finding themselves in contempt of Court.  Some people may feel compelled to do this in order to explain their side of the story or provide what they feel to be important background information to any journalists in attendance.

How could this impact my case?

Unless it is being heard in Leeds, Cardiff or Carlisle – it won’t for now.

However, this may change if the pilot is deemed a success and rolled out more widely. As family lawyers to individuals and families who protect and value their privacy above all else, we understand that these proposals may be concerning.

We are already well-prepared and have a range of options available to ensure that your divorce, financial matters, or children disputes are kept outside of the media gaze. We know that for our clients, many of whom are in the public eye or are people of interest to the media, subtlety and discretion are fundamental.

Our advice always takes your personal situation and preferences into account, and where possible we encourage negotiations and settlement options that can avoid the need to share confidential details in Court. All contentious matters involve Court proceedings in some form, but we can help to minimise the need to attend hearings and share confidential and private information. Every client is different of course, but options such as mediation, arbitration or a Private FDR are all routes to consider. Rest assured that we will support you along every step of the way. 

How can we help?

Divorce and separation, and other family law matters can cause great stress to families. Wherever possible, we will try to help you resolve your family law issues that arise on divorce or separation without going to Court.

We help you to take control of how your issues are resolved and from the outset, providing strategic input into every case from our first meeting, including assessing the most suitable process to reach a resolution. 

You can get in touch with us and speak to a member of our team here. To find out more about us and the work that we do click here.