Vardags Family Law Essay competition 2024/25 | Shreya Mehta

Shreya Mehta - London South Bank University

Transparency in Family Proceedings in the UK: Balancing Open Justice with Privacy

Transparency in family court proceedings has been a long-standing and debatable issue in the UK legal system. Achieving transparency requires a delicate balance between open justice and the protection of the privacy of vulnerable individuals, particularly children.

Open justice

Open justice is a fundamental principle in the UK legal system, that ensures justice is not only done but also seen to be done, as stated by Lord Chief Justice Hewart. Public visibility strengthens trust in the fairness of the courts and promotes greater understanding. This principle, corroborated in Article 6 of the European Convention on Human Rights (ECHR), was reaffirmed in Scott v Scott,(1) where it was that held there was no valid reason for the case to be heard in camera; the order was issued based on a mistaken impression of the law, emphasising that most cases should be public to ensure accountability and the prevention of misconduct.

Privacy in family courts

Article 8 of the ECHR, which protects the right to private and family life, often conflicts with open justice in family cases. Family court proceedings are usually conducted privately with limited transparency to protect parties dealing with sensitive and personal matters. They often involve judicial decisions regarding children’s welfare, domestic abuse, or family finances, which require discretion. Munby P in Re J (2) noted orders issued by family judges “are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.”(3)

To shield parties from unwanted publicity, there are restrictions on what can be reported. Section 97(2) of the Children Act 1989 makes it an offence to publish material that is intended or likely to identify a child involved in family law proceedings, ensuring the safeguarding of children. Section 12 of the Administration of Justice Act 1960 prohibits publishing information relating to private proceedings. However, these can be further obstacles for reporters.

The public’s interest in understanding these cases has grown, with criticism that excessive secrecy leads to perceptions of ‘secret justice’, questioning whether fairness and impartiality are present. It is important for the public to be able to scrutinise what occurs in family courts as in other courts. Fiona Wilson acknowledges that family courts “have been shrouded in secrecy” (4) despite society becoming more open. However, reporting on family law is difficult because of all the considerations regarding what can be published. In Tickle v Griffiths, (5) a journalist sought permission to cover a domestic abuse case involving public figures, challenging the strictness of the restrictions. It concerned whether certain information, like naming the accused, could be made public. The case reinforces the importance of responsible reporting by understanding the needed balance between openness through freedom of expression (6) to provide public accountability, while maintaining the privacy rights (7) of vulnerable parties to protect them from harm caused by publicity.

The balance’s necessity is reiterated in Re R (A Child) Reporting Restrictions),(8) where a journalist appealed a Reporting Restrictions Order. The purpose of the order was to protect the child’s welfare (paramount consideration) (9) and privacy, but it was challenged on the grounds of being too broad and infringing on the medias freedom of expression. Ultimately, the court upheld the reporting restrictions. There was a clear failure to make the essential balance between Article 8 and Article 10 of the ECHR, with the judges prioritising the child’s privacy. The courts had no specific guidance on this, raising questions about how openness should be determined.

Encouraging transparency

Rule 27.11 of the Family Procedure Rules allows accredited media representatives and legal bloggers to attend private and public family hearings unless the court directs otherwise. In 2014, Sir James Munby issued guidance encouraging the publication of anonymized judgments to enhance transparency, stating that it is important to “improve public understanding of the court process and confidence in the court system.”(10) In X v X, (11) Bodey J noted that anonymisation allows for more detailed reporting to help the public better understand judicial processes and reasonings, whereas non-anonymisation significantly limits the amount of information available, reducing the public’s ability to comprehend the court’s workings. The guidance suggested that to do this, judges should make more judgements openly available online.

In 2019, Sir Andrew McFarlane, President of the Family Division, appointed a review panel to investigate transparency in the Family Court. His findings and recommendations were published in the 2021 report ‘Confidence and Confidentiality: Transparency in the Family Courts’. The publication highlights that, contrary to what many believe, openness and confidentiality do not always conflict with one another, each are attainable. The objective was “to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality.”(12)

The pilot scheme

Pressure to provide greater transparency has led to efforts to open up family courts, such as the pilot scheme overseen by Sir Andrew McFarlane, which allowed more freedom to report on family court cases. There were two pilots: the children pilot and finance pilot. Their aim was to strike the mentioned balance between transparency and privacy.

The Children Pilot began in January 2023, covering 16 courts and applying to both private and public children cases, with cases listed anonymously, using codes to identify case issues.

The Finance Pilot, launched in January 2024, was first implemented in Birmingham, Leeds, and London’s Central Family Court. Since the initiative began, the court lists included the names of the parties and the subject matter of the hearing, which were applied to financial remedy courts.

In both pilots, reporters gained access to certain documents, such as case summaries, which they could quote in their reports. They were also allowed to speak to and quote family members or parties in the case (with permission).

Through transparency orders, accredited journalists and legal bloggers could report on these family court cases based on what they see and hear by following strict anonymity rules. The courts had to consider order terms for reporters attending hearings. The orders clarify reporting boundaries, enabling journalists to report more freely while respecting the priority of confidentiality. Restrictions were eased, but there was still certain information that could not be published without court permission (with each pilot slightly differing), such as children’s names, dates of birth, addresses, and school information.

The pilots were designed to improve reporting by addressing criticism and implementing review recommendations. Many expressed views on the reporting pilots. Sir Andrew McFarlane described them as a “huge step in the judiciary’s ongoing work to increase transparency and improve public confidence and understanding of the family justice system.”(13) Louise Tickle, a leading voice for family court transparency, has also praised these efforts, calling the expansion of the pilots to more courts a “vote of confidence.”(14) Likewise, family law specialist, Lucy Reed KC reflects on the success and headway made so far, acknowledging the “great step forward”(15) but stated that “there is still a great deal more cultural and practical change required before the Family Court can say it is operating as transparently as possible.”

Arguments for greater transparency

Family court disputes can be lengthy and stressful for parties involved in private hearings, leaving the public with restricted knowledge of proceedings. The process creates uncertainty when you factor in the wide scope a court has in determining decisions. The public’s exposure has mainly been limited to television shows and minimal reported cases, fuelling the accusations of secrecy. Verified media and reporter access can dispel misconceptions and highlight issues within the system. By publishing anonymised judgements, it enables public scrutiny and understanding, and encourages informed discussions.

Advocates for greater transparency argue that it allows for a fairer approach and improves public confidence in judgements. The reporting of everyday decisions produces an expectation of the courts and judges, holding them accountable to adhere to their professional standards. Sir James Munby criticised the misuse of privacy laws stating that the “law designed to protect children’s privacy are used by judges and councils to cover up decisions” and “prevent public officials being held to account.”(16) Cases like the appeal of F v H,(17) where a judge was criticised in the media for his bias in court and misogynistic and outdated views, highlight systemic failings. Similarly, poor practice is evident in JH v MH,(18) where the judge failed to support the vulnerable participants when providing evidence by taking the necessary measures.

The recent pilots have been successful in testing if greater transparency is feasible, guaranteeing further access is capable of being executed safely without creating disruption or causing harm.

Transparency concerns

Despite its benefits, transparency also raises concerns. One concern is sensationalised media coverage. While responsible journalism can lead to informed public conversations and debate, sensationalising family disputes in the press turns the focus away from the legal analysis and issues and can lead to misrepresentations.

Justifiable concerns about the abuse of media power exist as seen in Campbell v MGN,(19) where the media breached Ms. Campbell’s entitlement to privacy by using their freedom of expression to publish what they want, even if invading. The case shows public interest should not take priority over protecting privacy, therefore an appropriate balance is crucial.

A major worry is case details in reports risking the confidentiality of children and families, particularly through the ‘jigsaw identification’, where information could be pieced together, like a puzzle, to reveal the protected identities of parties. Dr Julia Brophy’s research on this concept proves that details disclosed in judgements, media reports and other publicly available sources, even if anonymised, increases the risk and likeliness that children and families can be identified by piecing information together. Her research emphasises the vulnerability of children in such situations and advocates for stricter controls in publishing to protect their privacy, well-being and prevent identification. Mrs Justice Lieven, lead judge for the pilot, comments positively stating there was nervousness going into the pilot but “it’s gone better than feared.”(20) She concluded that “anonymity has been preserved”, and she has “not had any complaints about jigsaw identification.”

The issue of identification is prominent in Re S,(21) concerning an eight-year-old boy whose mother was accused of killing his brother. It was argued that naming and photographing the mother in the media would inevitably identify the child, exposing them to harmful publicity. Lord Steyn balanced privacy interests with the freedom of expression interests to determine whether to impose reporting restrictions or allow the publication. This test does not establish one article as having precedence over the other, the outcome depending on each case. While the case favoured publication due to murder trials being public interest, it underlined the need to carefully weigh privacy against open justice based on circumstances.

Publicity risks may also discourage individuals from being fully candid in court, by withholding information, potentially compromising evidence and affecting the fairness of proceedings and their outcomes. There is also criticism as mentioned by Alexandra Hirst that “the comforting reassurance that their hearing will remain private and is highly unlikely to be reported on will be undermined by this change.”(22) HHJ Mark Haigh has shown opposition making it clear his stance on the transparency project is not supportive, remarking that his judgements “are not for public consumption or to allow press and journalists to further their journalistic ambitions”(23) and careers. He believes that “we are failing children by putting all this stuff on the internet” and is “very unconvinced about the motives of some journalists.”

It is likely transparency will prompt more people to settle disputes privately or pursue alternative dispute resolution methods, to preserve their confidentiality.

These concerns stress the need for safeguarding to protect the privacy of vulnerable parties. Courts must carefully regulate transparency to ensure it does not undermine justice.

Where are we now?

While concerns about transparency are valid, they can be addressed through taking measures such as verifying media representatives and reporters, anonymising reporting, and clear reporting restrictions and guidelines. These safeguards create a responsible system for reporting family proceedings, holding accountability
through the public’s eyes while protecting individual privacy.

The reporting pilots represent a significant step towards achieving an appropriate balance of openness and privacy, providing a structured approach to media access and reporting. Its success has led to transparency orders becoming permanent, effective from the end of January 2025. To begin, the enforcement will be staggered, eventually applying nationwide.

By adopting greater transparency while safeguarding privacy, family courts can uphold public trust and make certain that judges remain accountable. Lucy Reed notes “finding ways to make the family court more transparent…is critically important if the family court is to build and maintain public trust and confidence.”(24)

Although implementing transparency effectively in UK family proceedings is still a work in progress, it is important to notice it is core to the work of the family court and there have been huge strides taken towards achieving this goal.

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Bibliography

(1) Scott v Scott [1913] AC 417

(2) Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam)

(3) Nigel Lowe and others, ‘Bromley’s Family Law’ (12th edn, OUP 2021) Ch 1, pg 19

(4) Fiona Wilson, ‘Transparency in the Family Law Courts’ (Lawson-West Solicitors, 20 December 2024) accessed 25 January 2025

(5) Tickle v Griffiths [2021] EWHC 3365 (Fam)

(6) European Convention on Human Rights 1950, Art 10

(7) European Convention on Human Rights 1950, Art 8

(8) Re R (A Child) (Reporting Restrictions) [2019] EWCA 482 Civ

(9) Children Act 1989, s1

(10) Sir James Munby, ‘Transparency in the Family Courts: Publication of Judgements, Practice Guidance’ (Courts and Tribunals Judiciary, 16 January 2014)

(11) X v X [2016] EWHC 3512 (Fam)

(12) Sir Andrew McFarlane, ‘Confidence and Confidentiality: Transparency in the Family Courts’ (Courts and Tribunals Judiciary, 28 October 2021)

(13) Sir Andrew McFarlane, ‘Transparency in the Family Courts: Publication of Judgements, Practice Guidance’ (Courts and Tribunals Judiciary, 19 June 2024)

(14) BASW, ‘Social workers to face greater press and public scrutiny as more family courts open up’ (British Association of Social Workers, 29 January 2024) accessed 25 January

(15) Berg S, ’Landmark new rules to bring transparency to family courts’ (BBC, 20 December 2024) accessed 14 January 2025

(16) Emily Dugan, ‘Family court privacy laws put judges’ needs first’, (The Times, 23 May 2021) accessed 23 January 2025

(17) F v H (Fact-finding) [2019] EWFC B80

(18) JH v MF [2020] EWHC 86 (Fam)

(19) Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22

(20) Louise Tickle and Hannah Summers, ‘Family court transparency pilot expanded across England and Wales’ (The Bureau of Investigative Journalism, 12 January 2024) accessed 25 January 2025

(21) Re S (Identification: Restrictions on Publication) [2004] UKHL 47

(22) Alexander Hirst, ‘Press now allowed to report from family courts – Alexandra comments on BBC News, The Independent and The London Standard’ (Boodle Hatfield, 27 January 2025) accessed 25 January 2025

(23) Louise Tickle, ‘When a judge prefers his own biases to the law, all is lost’ (Transparency Project, 30 November 2023) accessed 26 January 2025

(24) PA Media, ‘New rules ease reporting restrictions in family courts across England and Wales’ (The Guardian, 27 January 2025) accessed 27 January 2025

Primary sources

Cases:

• Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22
• F v H (Fact-finding) [2019] EWFC B80
• JH v MF [2020] EWHC 86 (Fam)
• Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam)
• Re R (A Child) (Reporting Restrictions) [2019] EWCA 482 Civ - Re S (Identification: Restrictions on Publication) [2004] UKHL 47
• Scott v Scott [1913] AC 417
• Tickle v Griffiths [2021] EWHC 3365 (Fam)
• X v X [2016] EWHC 3512 (Fam)

Legislation:

• Administration of Justice Act 1960
• Children Act 1989
• European Convention on Human Rights 1950
• Family Procedure Rules 2021

Secondary sources

Books:

• Lowe N and others, ‘Bromley’s Family Law’ (12th edn, OUP 2021)

Articles:

• Lock A and S Arbe-Barnes, ‘F v H (Fact-finding) [2019] – lessons to be learnt’ [2020] (205) Winckworth Sherwood LLP – The Review, 24-29
• Rowbottom J, ’A landmark at a turning point: Campbell and the use of privacy law to constrain media power’ [2015] 7(2) The Journal of Media Law, 170-195

Websites and blogs

• Barlow S, ’The Reporting Pilot in the Family Courts’, (Resolution Member) accessed 17 January 2025
• BASW, ‘Social workers to face greater press and public scrutiny as more family courts open up’ (British Association of Social Workers, 29 January 2024) accessed 25 January
• Berg S, ’Landmark new rules to bring transparency to family courts’ (BBC, 20 December 2024) accessed 14 January 2025
• Brown L, ‘Transparency in the Family Courts’ (Vardags, 2 September 2014) accessed 24 January 2025
• Cockayne K and L Robertson, ’Transparency: a clearer view’ (St Mary’s Chambers, 24 January 2024) accessed 19 January 2025
• Doughty J, ‘Protecting the identity of a child whose sibling has been killed by their parents’ (Transparency Project, 8 March 2022) accessed 22 January
• Dugan E, ‘Family court privacy laws put judges’ needs first’ (The Times, 23 May 2021) accessed 23 January 2025
• Editorial, ‘The Guardian view on family law: transparency is in the public interest’ (The Guardian, 15 February 2019) accessed 22 January 2025 -
• Harragin F and S Eames, ’Transparency in the Family Courts: where are we now?’ (Farrer & Co, 22 March 2024) accessed 18 January 2025
• Hirst A, ‘Press now allowed to report from family courts – Alexandra comments on BBC News, The Independent and The London Standard’ (Boodle Hatfield, 27 January 2025) accessed 25 January 2025
• Maher B, ‘New era for transparency in family court reporting begins with pilot scheme’ (Press Gazette, 30 January 2023) accessed 23 January 2025
• PA Media, ‘New rules ease reporting restrictions in family courts across England and Wales’ (The Guardian, 27 January 2025) accessed 27 January 2025
• Reed L, ‘Griffiths v Tickle – a lawyer’s view’ (Transparency Project, 16 December 2021) accessed 23 January 2025
• Reed L, ‘Pilot’s Progress’ (Transparency Project, 5 November 2023) accessed 24 January 2025
• Tickle L and H Summers, ‘Family court transparency pilot expanded across England and Wales’ (The Bureau of Investigative Journalism, 12 January 2024) accessed 25 January 2025
• Tickle L, ‘When a judge prefers his own biases to the law, all is lost’ (Transparency Project, 30 November 2023) accessed 26 January 2025
• Wilson F, ‘Transparency in the Family Law Courts’ (Lawson-West Solicitors, 20 December 2024) accessed 25 January 2025

Official reports and papers:

• Brophy J, K Perry, and E Harrison, "A review of anonymised judgments on Bailii: Children, privacy and ‘jigsaw identification’." (October 2015) accessed 18 January 2025
• Doughty J, ‘Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people’ (Cardiff University, 17 March 2017) accessed 24 January 2025
• McFarlane A, ‘Confidence and Confidentiality: Transparency in the Family Courts’ (Courts and Tribunals Judiciary, 28 October 2021) accessed 16 January 2025
• McFarlane A, ‘Transparency in the Family Courts: Publication of Judgements, Practice Guidance’ (Courts and Tribunals Judiciary, 19 June 2024) accessed 23 January 2025
• Munby J, ‘Transparency in the Family Courts: Publication of Judgements, Practice Guidance’ (Courts and Tribunals Judiciary, 16 January 2014) accessed 15 January 2025