Privacy & transparency in the family courts – Sir Andrew MacFarlane reports

November 2nd, 2021

The issue of how the protection of privacy rights should be balanced as against the fundamental public interest in achieving transparency and open justice within the family justice system has long vexed the family division of the High Court. On the one hand, ensuring the confidentiality of family law proceedings is crucial both in terms of protecting the fundamental privacy rights of those individuals who find themselves caught up in such proceedings and in terms of maximising their engagement in the process. On the other hand, a lack of meaningful transparency around the work of the family courts undermines public trust in the family justice system, increases the risk of miscarriages of justice and inhibits the public’s ability to press for reforms of the system on a properly informed basis. The family courts have for a number of years recognised that this balance was weighted too strongly in favour of preserving the confidentiality of family court proceedings, but that still left the fantastically difficult question of how the system should be reformed so as to increase the level of transparency. These are issues that were considered most recently by the courts in the case of Newman v Southampton City Council [2021] EWCA Civ 437. In that case, a journalist who had been unable to attend the first instance hearings of a particular high profile adoption case, was seeking  access to the documents which had been placed before the first instance court. The Court of Appeal concluded that the High Court had been right to conclude that the balance of interests tipped in favour of preserving the confidentiality of the majority of relevant documents. However, it also observed that the case served to ‘underline the need for the Transparency Review’ (paragraph 92).

The Court of Appeal was referring here to the major transparency review which was, at the time, being conducted by the President of the Family Division, Sir Andrew MacFarlane. Sir Andrew has very recently published his report, following that review – see here. The report, which is predominantly concerned with cases involving children, concludes that major changes are required in the family justice system to increase its transparency, including above all enabling ‘accredited media representatives to be able, not only to attend hearings, but to report publicly on what they see and hear‘, albeit that an reporting must ‘be subject to very clear rules to maintain the anonymity of children and families, and to keep confidential intimate details of their private lives‘.

On the question of journalistic documents, Sir Andrew notably adopted a more cautious approach. See paragraphs 42-43 of the report which contains the following conclusions:

’42. There is a difficult issue about what documents journalists and bloggers should be able to see. In the [Court of Protection] it is normal practice for those who request them to be shown
Skeleton Arguments. In a system where oral submissions are often limited and extensive reference is made to Skeletons this is the only way that an observer can understand what is happening. Equally, when oral evidence is usually largely taken as read, a journalist who does not have the witness statements will not be able to understand the case.

43. The detail of what documents should normally be given to journalists in the different setting of a Family hearing is a matter that will need further consideration. My preliminary view is that those attending should be allowed to read position statements and witness statements but not medical reports or primary documents such as police disclosure. However, in all cases the judge will have a discretion to withhold documentation if that is necessary on the facts of the case.’

It is also worth noting what the report says on the issue of  creating systemic transparency around the work done within the family justice system. As to this, the report concludes as follows on the issue of ‘data collection’:

’58. The lack of judgments being published and the lack of consistent data on the operation of the Family justice system means that it is hard to conduct any evidence based assessments of what we do. This cannot be good for the outcomes for children going through the system. I am therefore going to propose a scheme of compulsory data collection at the end of each case. This can be done as a web-based tool which I hope that the [Transparency Implementation Group] together with HMCTS can devise and trial. I am convinced that better data collection could be transformational in terms of understanding the decisions that are being made, seeing patterns and problems, and ultimately achieving better outcomes. In the slightly longer term there is a need to move towards data collection on what happens to children after the final orders are made.

59. In the last three years Family justice has been extremely well served by the work of the National Family Justice Observatory (a dedicated research body that is generously funded by the Nuffield Foundation)15. The work done by the FJO has been a real game-changer which has shed light on the working of the Family Court. It was invaluable during the onset of Covid 19 to have access to research that held a mirror up, in real time, to the impact that our new ways of remote working were having on all involved. The FJO research on babies who are the subject of early care proceedings has had a similar impact. These and other projects, which are just the start of the work that the FJO intends to undertake, have a significant part to play in increasing public understanding of the Family Court and thereby increasing transparency’

Whilst the report is primarily concerned with transparency in cases involving children, it does note the work that has been done separately in terms of achieving transparency around financial remedy cases (i.e. in divorce proceedings), particularly by Mostyn J and HHJ Hess. Sir Andrew specifically notes his support of the transparency initiatives which have been separately proposed in respect of those proceedings (see paragraph 54).

At the conclusion of the report, Sir Andrew makes the points that: ‘a genuine increase in transparency requires a major cultural shift’ which shift ‘can only come with clear and firm leadership from the President‘ and that there now needs to be a ‘period of accelerated change‘. He goes on to make clear that he will be establishing a Transparency Implementation Group but that ‘the first step on the process of implementation’ will be to conduct what he anticipates will be a short consultation on ‘the detail‘ of the reforms, albeit not the ‘overall direction of travel’ .

There is no doubt that this report constitutes a watershed moment in terms of opening the family justice system up to public scrutiny. It will be important in due course to assess how the changes signalled by this report cash out in terms of reforms of both the culture and practice of the family courts.

Anya Proops QC

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