There has been a pilot scheme running in relation to children’s cases for the past year to allow reporters into the family court. It has just been announced that this is being extended to a further 16 and a pilot scheme in respect of money cases is also scheduled. CB Family law Partner, Phillipa Dolan, provides her views on whether this is truly in the name of transparency or simply media titillation.

In recent decades there have been intermittent calls to allow reporters into the family court.  Unlike other courts, the family court has been a private space for money as well as children’s cases; the public (via the media) has only had access once there is an appeal.

The pressure to ease reporting restrictions on these most private and sensitive of matters has been growing.  There is no doubt that there has been an occasional ‘scandal’ reported such as an expert witness whose testimony is swimming against the tide of public opinion, or victims of domestic abuse being cross examined by their perpetrators.  However, in order to solve this perceived lack of confidence on the part of the public, an enormous sledgehammer has been aimed at this particular nut and every family lawyer I know has expressed serious concerns at this attack on the privacy of families.

We should draw a distinction here, of course, between money and children’s cases.  There is both a greater need to protect children from publicity, but also a stronger argument for publicising anonymously the decisions that are being made about their arrangements.  This is particularly so in public law cases where the state is imposing life-changing decisions in our name.

So what is the current position in this long running saga?  There has been a pilot scheme running in relation to children’s cases for the past year in three courts and it has just been announced that this is being extended to a further 16 – nearly half the total.  In December it was announced that a pilot scheme in respect of money cases will start at the end of this month in Central London, Leeds and Birmingham.

The President of the Family Division produced a report entitled “Confidence and Confidentiality” back in October 2021 and, more recently, has given guidance for the new pilot scheme dealing with money cases.  The President has been at pains to stress that it is not for the court to limit the reporters’ independence and the Transparency Reporting Pilot for Financial Remedy Proceedings explicitly states “The court should not engage in enquiries that amount to editorial control or approval or disapproval of proposed journalistic material.”  There are some caveats such as disclosing addresses, details of bank accounts, business interests etc but it is clear that the judiciary has given a green light to reporters to report as they see fit.

In the pilot, it is envisaged that the parties and any reporters wishing to attend court will reach a compromise where there is disagreement as to how much information should be disclosed.  It is frankly naïve to assume that the media is interested in legal principles.  With a few honourable exceptions, they will be there for the gossip and other salacious information that will titillate their audience and persuade them to spend more money on the respective news outlet for which the reporter works.  There will inevitably be tension between the lawyers (whose job is to protect their clients from embarrassment and distress) and the reporters.  What do we remember from the divorce of Paul McCartney and Heather Mills?  Not the argument about the ring-fencing of non-marital assets against ‘needs’.  Of course not.  It was Heather Mills throwing water over Fiona Shackleton.

The cynic in me wonders whether the current interest in introducing transparency is a way of distracting attention from all the truly dreadful aspects of our current justice system.  From virtually no legal assistance for court users (hence the increase in cases going to trial with two unrepresented litigants relying on the sense and sanity of the poor judge) to crumbling buildings and ridiculously long court lists.  There seems to be too much concern on the part of the judiciary as to how the family court is perceived and less on how to make it work better.   The vast majority of money cases are about a family’s personal finances and lifestyles but with enough quirky and ‘interesting’ stories to secure media interest on a slow news day.  How mortifying for clients to have the interested public (with no public interest element whatsoever) poring over how much they spend on handbags and expensive golf paraphernalia, never mind IVF treatments or therapy sessions.

Perhaps the most disturbing aspect is an openly acknowledged hope on the part of the judges and their advisors that this humiliating prospect will frighten enough people away from using the court that the backlog will diminish without the need to reinstate the eyewatering budget reductions that have been introduced after the last decade or so.  Don’t get me wrong.  Going to court is always a horrible prospect.  Of course, settling the case away from court makes perfect sense.  But that is not an ethical reason for making access to justice (open justice if you like) so completely unbearable that only showmen and sadists will want to engage with the process.  Sometimes cases need to go to court and have a decision made by a judge. That is an important aspect of open justice, far more important than titillating the public or even providing patchy reassurance that the judges know what they are doing.  They usually do.