Transparency Pilots – coming to a court near you

Sir Andrew McFarlane, President of the Family Division, gave evidence to the Justice Committee on 23 April 2024 and referenced amendments Harriet Harman MP proposed to Jade’s Law (Victims and Prisoners Bill) to suspend parental rights when sentencing child sex offenders. The proposed amendments came about as a result of a case that came before the Cardiff Family Court which was reported on by Sanchia Berg as part of the Transparency Pilot. Cardiff Family Court has been a forerunner of the Transparency Pilot along with Leeds and Carlisle. As of 29 January 2024, the pilot has extended its reach to a further 16 courts – resulting in almost half of the family hearing centres in England and Wales now being a part of the pilot. It’s clear therefore, the pilot is coming to a court near you!

While reporting of family cases is finding success in the eyes of the President, who reported how it has achieved positive results to the Justice Committee, it is not, however, without its issues.

Not all are on board with the pilot, as reported by Louise Tickle in her Guardian article about a judge who had prevented a journalist reporting on a hearing who had expressed his disapproval of the pilot (see Jo O’Sullivan’s interview with Louise in the previous article). There may be apprehension and even fear amongst the advocates, parties and other professionals who appear before family courts as to what may be reported about them or about the scrutiny that may follow. There are also issues around the way that legal bloggers and reporters can find out what issues arise in cases in order for them to determine what cases they wish to observe and report on.

Don’t panic. There is a lot of information and guidance available.

Transparency should form part of the agenda for every pre-hearing discussion and we (parties and advocates) should be turning our mind to it before walking through the courtroom door, as r1.3 of the Family Procedure Rules makes clear. So – be prepared! There are clearly efforts to shift the culture following the reverse of the burden from “Should reporting be allowed” to “is reporting subject to restrictions” – there is an assumption under the pilot that reporters can report, subject to some safeguards.

Initially the pilot started with public law cases, before furthering its reach to private law children cases in October 2023 at the three initial pilot courts. At the time of this article, the additional courts added in January 2024 will initially only pilot reporting on public law cases. This will change and the courts in the extended pilots will in future catch up with the initial three.

How is success to be measured?

Data collection was on the agenda of the Transparency Review Report Recommendations in October 2021, but to date it’s difficult to pin down the figures. The indications from the President are that there was an initial flurry of reporting on public law cases before a slowing of interest. The private law cases have not gained much interest but the articles, blogs, posts and interviews have, in the President’s view, been of quality. He feels the reporting has been accurate and appropriate. It is doing its job of letting the public know what goes on in family courts without disrupting the anonymity of those who need shielding from the publicity such media could bring.

One of the biggest issues facing journalists and bloggers is knowing which cases are worth their while reporting on. The anonymised case lists give no insight or indication to people wanting to report. A recommendation of the Transparency Review Report in 2021 was for lists to be more informative and whilst work has been done around this (it is partially implemented) it is not where it needs to be just yet. Until it is, the numbers of cases being reported is likely to remain fairly low.

How can you prepare for possible reporting in your cases?

• Advise your clients from the outset of their instruction of the potential for a Transparency Order and what that means. Reassure them about what is involved and the process. Make sure that they understand the presumption is that the Transparency Order will be made. This may contribute to their decision as to whether or not they seek to make applications at all, and may potentially encourage them to consider non-court dispute resolution methods.
• Consider advising clients of the pilot in the initial appointment and in the initial engagement letter. They also need to be aware that although journalists and bloggers may now be given permission to report their case, clients themselves are not permitted to themselves publish information – which includes sharing a published post and making comment on it that could identify parties/the child.
• Familiarise yourself with the Transparency Order, which can be found on the Resolution website. The order can last for a specified period or until further order. A Transparency Order allows a reporter/blogger to publish what is said in court subject to restrictions – as a result the order is effectively an injunction.
• You can reassure your clients that their names and the children’s names won’t be published.
• Ensure you know who or what can and cannot be named (see further information below).
• Be aware that all of the documents prepared by advocates and litigants in the proceedings can be given to the person reporting in order to provide context.
• Remember that reporters must have appropriate information such as a letter from their editor or press ID card to identify them as journalists. Legal Bloggers will need to have completed a Form FP301. A legal blogger must be suitably qualified as a lawyer as defined in PD27B and not involved in the case.

The following can be named unless further restrictions are imposed by the court:

• Cafcass/Cafcass Cymru (but not normally the Children’s Guardian’s name or the reporting officer).
• Any NHS Trust.
• Independent Social Workers when appointed by the Court.
• Local Authorities involved in proceedings which includes the Director and Assistant Director or CSC (but not normally the front line and junior social workers).
• Court appointed experts (but not normally treating clinicians or medical professionals).
• Legal representatives, judges, legal advisers and magistrates.

The following cannot be published:

• Any photographs of the child, parents or carers.
• The names and dates of birth of any child subject to the proceedings.
• The names of family members and parents who are parties to the proceedings or involved in them, or whose name(s) could enable the public to identify the child.
• The address of children, family members or foster carers, or the schools or hospitals where children attend or are registered.

If there are allegations of sexual abuse, the court will use its discretion over what can or cannot be reported.

What if your client disagrees with a Transparency Order being made?

Under the pilot the presumption is in favour of an order and it may be difficult to challenge this. It is possible to put forward arguments that are likely to be centred around the welfare of the child, as a major factor but not paramount – see Tickle v Herefordshire County Council and others [2022] EWHC 1017 (Fam)  – as well as Article 6 and 8 rights, which may be opposed with Article 10 arguments. Simply disagreeing with the request for a Transparency Order is unlikely to find success.

There is a lot of information available for you to ensure that you have a grasp of matters, and I would encourage all to read the case of Re BR & ors (Transparency Order: Finding of fact hearing)  which provides clarity on the law, the arguments put forward in that matter and how they were dealt with by Mr Justice Poole. There is a very helpful guide that you could provide to your clients prepared by the Transparency Implementation Group – consider also sending this to any litigants in person involved in your cases. There are also informative videos on the same website. The Transparency Project is active in providing reports on cases. (Although credited with much of the impetus behind the Transparency Pilot, The Transparency Project is not the same thing). Its website is always a fascinating read, especially the round up that they provide periodically. It also has many links to the articles written on and as part of the Transparency Pilot.

How the Pilot will progress remains to be seen – however, it seems that it is here to stay and we should ensure we are prepared for it.

I shall leave the closing words to the Lady Chief Justice, Baroness Carr of Walton-On-The-Hill, who gave a keynote speech to The Society of Editors on 30 April 2024, during which she explained why she set up a Transparency and Open Justice Board to be chaired by Mr Justice Nicklin, the intention of which is to examine and modernise our approach to open justice, which will cover all courts and tribunals.

“The judiciary and media share a common duty: we are and must continue to be the guardians of open justice. The greatest threat comes not from direct attack on the principle, but rather from careless – sometimes inadvertent – failures to protect its ideals. I intend the judiciary to step up, continuing to play our important constitutional role of protecting and promoting open justice as an essential element of the rule of law. The Board that I have established will take this important work forward, and I am delighted to be publishing its terms of reference today. It will review and challenge the way that the judiciary works and ensure that openness and transparency is at the heart of what we do. We will renew the promise that justice will not only be done, but will be seen to be done.”

Angela.Killa@jcpsolicitors.co.uk