There has been longstanding difficulty in striking the right balance between having transparency in the family court process, whilst protecting the need for privacy in these confidential and intimate court proceedings. These difficulties have been further entrenched over the last 18 months, with most family court hearings taking place remotely. However, we are hopeful family proceedings will take priority next year when we start returning to in-person hearings.
Sir Andrew McFarlane, President of the Family Division in England and Wales, is taking steps in an aim to transform public confidence in family courts, through accredited journalist reporting of family court proceedings, and by increasing publication of judgements. This has again sparked discussions surrounding this topic north of the border.
As Sir Andrew has said, we must ensure a “cloak of confidentiality” for children and adults in such proceedings. However, he certainly thinks it is possible to maintain this at the same time as operating a much more open justice system. In short, both can be achieved.
More transparency of the family court process and reporting of mainstream decisions will also have educational value. It will provide helpful guidance to family law practitioners in advising clients, as although each case turns on its own facts, the more reported decisions available, the more established precedent can be utilised in advising individuals considering litigation, or those already in the process. This could also encourage resolution by agreement, if individuals are more aware of what could be in store if they decide to litigate. Further, increasing transparency will allow for a more aligned approach between bodies such as social care and support services who are influencing decisions being made by the courts.
Judgements concerning children are anonymised to protect the privacy of these individuals, but public scrutiny of decisions is important in the family justice system continuing to evolve, and in ensuring the system is properly respected and valued.