Transparency in Family Court system – the way forward or a breach of privacy?

The nature of family law proceedings is that extremely personal information may be disclosed in the court process. This could be in relation to your children, finances, health, or commercially sensitive information. The perceived advantage to having greater transparency in the family courts is that it will encourage parties to consider the court a last resort and instead look to reach settlements using alternative dispute resolution methods, such as mediation, private FDRs and arbitration. However, the fear of their case being reported may also pressure parties into settlement or an out-of-court process when that may not be the best forum to resolve their issues. Another possible issue with regard to financial disputes is that without transparency and reporting, it will be harder to understand the ways to improve family law legislation and ensure it changes suitably to align with the ever-changing financial and relationship landscapes. In a more recent development, the issue of greater transparency has been considered for child matters.

The issue of transparency arose again in the recent case of Tickle v Father. Louise Tickle, family law journalist and commentator, attended the second day of a four-day private law hearing in relation to a father’s application to enforce the terms of an order made in 2021. The key issue was the time / s he was to spend with his child. This longstanding case involved allegations of domestic abuse and alienating behavior. On the first day of the hearing, another accredited member of the press had applied to attend and been refused.

Ms Tickle was granted permission to attend on day two. On the same day, the mother applied to postpone the hearing as she was representing herself, whereas the father was represented by a barrister. An application made by the father as a result was successful and included the court ordering the mother to pay a proportion of the father’s legal costs. A further hearing was listed for eight weeks’ time.

After the hearing, Ms Tickle applied for permission to report on the proceedings, not the substantive issues in the case. The report, she asserted, would focus on the procedural and systematic issues that had emerged from the hearing, which would be in the public interest. Ms Tickle outlined that she sought to report on the continuing practical difficulties arising due to a lack of legal aid provision, the disruption caused to private law applications concerning children, delays within the court system, and issues regarding transparency and media attendance.

Ms Tickle’s application was adjourned until the conclusion of proceedings, a decision supported by the father and the social worker in the case. The basis for this was that reporting at the earlier stage would mean a report lacking in context and carrying a significant risk of being misleading.

Dealing with the appeal, Mrs Justice Lieven had to consider whether ‘the best interests of the child, treated as a primary consideration, are weighty enough to justify maintaining that fetter’ on journalists and whether these interests make it ‘necessary and proportionate to impose restrictions on the Article 8 and 10 rights relied on by the applicant and the mother’.

Article 8 of the Human Rights Act 1998 is the right to respect for your family and private life, balanced against Article 10, the right to freedom of expression.

The outcome was, that issues such as this must still be reviewed on a case-by-case basis. Mrs Justice Lieven said that,

‘this is a case where the Article 8 / 10 balance, and taking into account any impact on Article 6 rights, points clearly in favour of allowing the requested report. In brief summary, there is effectively no risk of the child being identified’.

Mrs Justice Lieven noted a strong public interest in allowing Ms Tickle to report on the broader concerns about the Family Justice System.

In May 2023, the Financial Remedies Court Transparency Implementation Group (TIG) published their report on transparency. This followed a pilot scheme that commenced in January 2023, allowing accredited journalists to report on some public child law cases in the Leeds, Carlisle and Cardiff Family Courts. This included an extensive review of survey responses by legal professionals and members of the press, as well as a comparison against other legal systems. Following this, the default position was that reports should be generally anonymised, by the media and in judgments.

Transparency continues to be an uncertain area in the Family Courts, for legal practitioners and reporters alike, although there certainly appears to be a drive for increased reporting of cases. Improving the public’s understanding of the family law systems and the court processes is an undeniable benefit of increased transparency. This must be balanced with a careful approach to maintain confidentiality and privacy for the parties and children entangled in family court proceedings.