For legal professionals working in almost any other field of law the response to the (seemingly never-ending) debate about why the normal rules of open justice should or should not (and do or do not) apply in the Family Court is probably baffling. It’s been going on for as long as I have been in the profession (over two decades) and before then too, though the label ‘transparency’ has emerged much more recently. In 2014, when a group of us founded The Transparency Project, later to become an educational charity, the term itself was still the subject of some debate. Some viewed the underlying deficits in accountability and public understanding as issues that – in the family law context – did not need fixing, seeing those complaining of ‘secrecy’ as insufficiently appreciative of the need for privacy.

In 2021 the President of the Family Division completed his review of transparency issues, acknowledging the false dichotomy of framing the issues as ‘secret versus private’. Instead of reductive binaries forcing people into one of two camps – pro-privacy (and implicitly pro-children’s welfare) and pro-transparency (and anti-welfare) – the President’s plan took a broader approach to transparency, spanning the publication of judgments, steps to facilitate and encourage greater reporting in the media, and release of better information and data.

At the core of those reforms was the principle that it is possible to balance the legitimate need for and right to privacy in respect of family matters (many of which are highly intimate and personal) with the need for and right to freedom of speech in respect of the actions of the state. Courts make decisions on behalf of the community which touch profoundly on the exercise – even the continuation – of family life, and which can have as profound and enduring an impact across generations as any criminal sentence. The familiar cry of ‘but what about the children?’ was no longer sufficient to stop transparency progressing, because the welfare of the children and families at the heart of the process was at the heart of the reforms, and central to this philosophy was the notion that to serve families well a healthy, reflective, and accountable family justice system had to be seen to be working well, and accurate public understanding of what family courts did was beneficial.

Achieving change on the ground, however, has been slow and halting. Many of the reforms have been hampered by a lack of resource. The anonymisation unit that was to be so critical to enabling overworked judges to safely and efficiently publish their judgments hasn’t happened because there is no funding.

One of the other key reforms was a reporting pilot, which operated in three courts (Cardiff, Leeds and Carlisle) throughout 2023. The basic premise is a reversal of the automatic reporting restrictions that apply to cases about children so as to enable journalists and legal bloggers* already entitled to attend hearings to also presumptively report them anonymously. That pilot has been a modest success, but economic and resource pressures on the courts, the mainstream media, and the lawyers who make up the tiny cohort of ‘legal bloggers’, has limited the volume of output.

Nobody working in the criminal courts who has seen the decline in the number of court reporters over the last 10 or 15 years will be surprised to hear that editors are not racing to send all their reporters to the Family Court, where there is still a risk that a reporter will spend a lot of time at court with nothing to show at the end. Family Court proceedings are difficult to report, and even harder to report well, whether through news or more involved investigative types of reporting.

It is a testament to the work done by a small number of dedicated journalists over the last decade or so that some editors have commissioned and supported a number of reporters (some old hands, some newbies to the family court) to invest a good amount of time in the three pilot courts in 2023, with some good results.

That coverage has spanned print, digital, and broadcast media. The BBC’s Sanchia Berg and team spent several weeks at Leeds Family Court, producing text and broadcast packages about several cases they had followed. They were able, thanks to the pilot specifically permitting interviews with parents (usually prohibited in any meaningful way by operation of the statutory reporting restrictions), to give voice to parents and to bring to life their experience of the process and the impact on them and their children.

Local reporters from both Yorkshire Post and Wales Online have produced detailed reports of the cases they have observed, including how hearings unfolded, how parents responded to the removal of their children, and the ways in which judges managed the issues and the hearing in real time. Those reports gave some insight into the emotions at play and of the gravity of the decisions Family Court judges are required to make on a daily basis.

The Bureau of Investigative Journalism has supported a number of journalists to do issue specific work and reporting, some of which has resulted in in-depth coverage of specific cases, including interviews with participants and analysis of judgments.

What goes unseen in mainstream media coverage is that a small number of journalists and legal bloggers have dedicated a good chunk of their time to attending hearings that they have been unable to report immediately or in some cases at all, largely as a result of pending criminal investigations or proceedings, but sometimes simply because a decision on the finer detail of what ought to be reported was postponed until the end of lengthy proceedings. Some of that investment of time will eventually bear fruit; some will fall by the wayside. The Bureau has been willing to carry that risk, in one case over a period of six months before reporting was eventually sanctioned and publication was achieved. It is that uncertainty of ‘product’ resulting from attending hearings that has always represented a major barrier to getting more journalistic bums on the press bench. That barrier remains under the pilot, though it is less high than it was before.

Other barriers remain too: in particular the practical difficulties arising from opaque court lists, which typically are only published by HMCTS late on the afternoon before the hearing. The pilot team have worked hard to cobble together a workaround to make the lists somewhat more informative, but the problems persist, as do unfair complaints from judges and lawyers that reporters have not given notice of their wish to observe, or their need for a remote link to do so. To facilitate more reporting, reporters need to know what is on the list so that they can make an informed decision as to whether to attend a particular court, and what cases to observe.

In one shocking recent case a judge openly set out his own personal hostility to the transparency agenda, as he saw it, and to journalists generally, during a part of the hearing that a journalist wishing to report had been entitled to attend but had been excluded from, before eventually admitting her to the hearing to permit her to be cross-examined about her motivation and intentions, in advance of kicking her out entirely. The following day when a second journalist attended to try again, that journalist was admitted, but later successfully appealed his decision to kick her application to report into the long grass. It was only through that appeal that the outright hostility to the Senior Judiciary’s transparency reforms came to light. That case wasn’t a pilot case, but rather the exercise of the more long-standing right of journalists and legal bloggers to attend (subject only to it being necessary in the interest of justice to exclude them). My sense is that such views are increasingly on the wane (the judges in pilot courts are all enthusiastic converts), but it is a neat encapsulation of both the justification for greater transparency and the need for internal cultural change. You can read about that case on the Transparency Project blog, which also hosts the published transcript (see ‘Behind closed doors – A transcript from a private hearing’, Transparency Project Blog, 30 November 2023).

Just as well, then, that on 29 January the (children) reporting pilot expanded from three to 16 courts across England and Wales, and a new financial remedy reporting pilot began. This should really help with picking up the pace on familiarising the legal community with the law around transparency, with working with observers present, and with the cultural change that will only come with familiarity and a realisation that transparency can be safely done.

While the legal blogging element of the project has taken longer to bed in and develop, we are hopeful that the potential inclusion of London, with its concentration of law students and junior lawyers, will enable the number of legal bloggers to grow. If any family lawyers reading this article (or, indeed, from another discipline) are interested in observing and then writing up cases under the pilot, they can get in touch with The Transparency Project whose website (transparencyproject.org.uk) also houses resources to help lawyers and judges dealing with the unfamiliar prospect of a reporter in the back of the courtroom. 

Qualified lawyers with a practising certificate can become a legal blogger. Those who are qualified lawyers within the meaning of PD27B but who don’t have a practising certificate (eg pupils) should email: info@transparencyproject.org.uk as the Project may be able to authorise you to attend as a legal blogger under its umbrella. Find out more about the reporting pilot extension, and watch Lucy’s training video for lawyers, on the Transparency Project website.

* ‘Legal bloggers’ is shorthand for ‘duly authorised lawyers’ who, pursuant to FPR 27.11, are entitled, like journalists, to observe hearings with a view to reporting them.