Balancing Openness and Confidentiality: The Transparency Reporting Pilot in the Family Courts

On Monday 29 January 2024 the Transparency Reporting Pilot, which was launched last year in Cardiff, Leeds and Carlisle, will be extended and come into effect in a number of other court centres, including the Family Courts at the Central Family Court, East London and West London. In this article we set out what all family practitioners working in these court centres will need to know about the new rules as of Monday 29 January 2024.

What is the Reporting Pilot?

In November 2021, the Transparency Implementation Group (TIG) was set up to implement the President of the Family Division’s recommendations regarding transparency in family justice. The Reporting Pilot, designed by the TIG, allow accredited journalists and ‘legal bloggers’ to report on court proceedings, subject to maintaining the anonymity of the children concerned at certain courts.

In any case where an accredited journalist or legal blogger attends a hearing, the Court will consider whether to make a Transparency Order.  A Transparency Order permits reporting on certain matters and keeps other matters confidential. It remains in place until any child to whom the proceedings relate reaches 18 years of age. Importantly, unlike attendance of reporters generally, reporters attending courts within the Reporting Pilot need not apply for permission to report in those cases.

It is noted that pilot reporters may attend without notice, however they are encouraged to do so. Notice is given by email or phone to the relevant Court.

Courts within the Scheme  

The pilot was initially January 2023 – January 2024 in Cardiff, Leeds and Carlisle. It has now expanded to a further 16 courts, with official effect from 29th January 2024.

Courts included from 29th January 2024 are:

• North West: Liverpool, Manchester
• North East: West Yorkshire, Kingston-upon-Hull
• Midlands: Nottingham, Stoke, Derby, Birmingham
• London: Central Family Court, East London, West London
• South West: Dorset, Truro
• South East: Luton, Guildford, Milton Keynes

Transparency Orders: When and How

Upon an accredited journalist being present, the court is essentially concerned with two questions: (1) whether to make the Transparency Order at all and (2) what terms on which to make the Transparency Order. Of course, it may be that conditions imposed mitigate concerns as to whether a Transparency Order should be made. 

1. Whether to make the order at all

When the court is considering the former question, the Court retains a discretion to order that no reporting may take place. In so doing, the Court will balance the parties’ Article 6 and 8 ECHR rights (to a fair trial and a private and family life) against the Article 10 ECHR right to freedom of expression. The Court’s discretion is maintained and therefore the Order may be varied, or indeed, it may be ordered that no further reporting may take place. Importantly, whilst the child’s best interests will be an important consideration, they are not the paramount or only factor. Instead, the child’s best interests must be balanced against other rights and the wider considerations surrounding the public interest of reporting cases in the Family Courts.

The considerations the Court will take into account when deciding whether reporting should take place can be found in the guidance and in Mrs Justice Lieven’s judgment in Tickle v Father and Ors [2023] EWHC 2446 (Fam). Crucially, although adjournment is possible Mrs Justice Lieven emphasised that adjournment in and of itself is an intrusion upon reporting rights and should not be treated as a normal case management decision (see paragraph [51]).

2. What should be the terms of the Order

A standard form Order has been produced and a Word version is attached to the Reporting Pilot Guidance (see link above). Those practitioners familiar with the Court of Protection will recognise that this Order is similar to transparency orders that are routinely made in that jurisdiction. This is however a ‘standard form’ Transparency Order, and the Court may modify the terms of the order appropriate to each case.

What may pilot reporters be provided with?

A draft order must be given to the pilot reporter attending the hearing, and pilot reporters, in accordance with FPR r.27.11, may request to be provided copies of documents drafted by parties (for example; case summaries, threshold, position statements) and any indices from the Court Bundle. As any quotes from these documents must not breach the requirements for anonymity, it will likely not be necessary to redact these documents.  If the reporter wishes to see any other documents, the reporter must apply to the Court for permission.

What should practitioners do and expect as a result of the Scheme?

Firstly, practitioners should ensure that they are fully aware of the new rules under the pilot scheme. The Transparency Project has produced useful Guidance for Judges and Practitioners available here.

Secondly, practitioners should ensure that their clients are aware of the Reporting Pilot scheme. There is separate guidance produced to assist lay clients.

Thirdly, in accordance with the guidance, all advocates should consider the issue of transparency in advance of the first hearing in a case (or any subsequent hearing if it is not addressed at the first hearing). This should be addressed whether or not notice from a reporter has been given. Advocates should ensure they have instructions on whether a Transparency Order should be made and any proposed amendments to the draft order.

To this end, the Local Authority legal representatives would be well advised to prepare the draft order in advance so that other parties can consider the proposed terms on what will be permitted to be reported. This should avoid any party (particularly the parents) feeling ambushed by the presence of  a reporter at a hearing where the court is considering issues of the utmost privacy and confidentiality. Equally, local authority clients need to be aware that the actions of Children’s Services, their policies, practices and funding decisions are likely to be of interest to reporters. However, it is important to note that whilst parties’ views will be considered in considering whether to grant a Transparency Order, a party cannot merely veto a reporter’s presence.

Finally, practitioners should be alert that although a draft order has been provided, there may be additional conditions which should be sought to protect any party’s interests. Parties must be alert to the risk of jigsaw identification based on the particular facts and circumstances of the case. For example, the standard form draft order does not provide that the details of a medical condition is omitted from reporting. If a disease or illness has a particular rarity, this, along with identification of the Local Authority, may lead to confidentiality being compromised.