The Transparency Review - Opening the Family Courts to public Scrutiny
Sir Andrew McFarlane, the President of the Family Division, announced in May 2019 that he was heading a review of the current reporting arrangements in the Family Courts, entitled “ In Confidence and Confidentiality: Transparency in the Family Courts”, It is commonly known as the Transparency Review, and the proposals and recommendations suggested by Sir Andrew have now been published.
Daniel Theron, a partner, stated “the recommendations made by Sir Andrew, if adopted, will signal a significant change in attitude”, Daniel further commented “Family Court decisions have a considerable impact on society and the families involved, particularly minor children. Greater scrutiny should lead to a greater understanding of the decisions made, as well as inevitably subjecting all the agencies involved in advising the courts, to greater accountability.”
Amongst the proposals that Sir Andrew advocates within the “culture of change” includes the publication of anonymised judgments, permitting the parties involved in a case and their relatives, to speak to journalists and also allowing journalists to report what they see and hear within the family courts. Sir Andrew has requested “all judges to publish anonymised versions of at least 10% of their judgments each year”. However, it is abundantly clear that the identity of the individuals will be protected in such judgments.
The Transparency Review recommendations will not allow a lurid tabloid free-for-all, judges will still retain the ability to apply reporting restrictions and any journalists who flout the rules will find themselves in contempt of court.
The Under Secretary of State for the Ministry of Justice, Lord Wolfson of Tredegar QC, is quoting as saying, "We want to create a system that is as transparent as possible while maintaining important safeguards for cases involving children. Family court judges do vitally important work and the government will work closely with the judiciary to deliver on this review and improve access to, and reporting of, the family courts."
The Children and Family Court Advisory and Support Service (Cafcass) has taken a cautious approach, stating it “supports the principle of increasing the public’s understanding of the family court and how it reaches the decisions it makes” however the organisation clearly has reservations and further states “any increase in the transparency of the family court process and decisions must be balanced against what is best for the children and young people going through proceedings”.
Daniel comments further “the question of transparency is a double-edged sword, the nature of the matters that come before the Family Courts are often highly sensitive, including divorce, child welfare often involving allegations of abuse, family violence and mental health issues. As well as other complicated issues, such as adoption and forced marriage, many people involved wish to make a new life and leave the past behind and fear that their involvement may be sensationalised by the press if journalists are allowed to report on cases”. Daniel also points out “conversely, other individuals feel that they have been badly treated by the agencies that advise the court, often in cases of adoption or child custody and are not permitted to shine a light on the way they have been treated through the press. What should be strongly emphasised is that transparency can only be evoked on the strict understanding that privacy is maintained and protected.”
Giambrone & Partners family lawyers are keenly aware of the need to protect clients’ privacy at the same time recognising that Sir Andrew’s aim for ‘a major shift in culture’ towards transparency may act in the best interests of individuals whose cases are heard by the Family Courts. The proposed changes have the ability to provide practitioners and the world at large with a greater understanding of how decisions in family cases are being made.
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