President commits to guidance on transparency in the family courts

26th February 2019 Family Law

In the course of a ruling on an application to relax a reporting restriction order (orders that courts make to prevent publication of particular details of a legal case), the President of the Family Division has committed to producing guidance on transparency in the family courts.

The case that gave rise to this application has been covered extensively in the media. A mother had her two-year-old child removed by social services. After years living apart, a judge granted an order permitting the child to be placed for adoption. The mother took her case to the Court of Appeal and succeeded in overturning the placement order, eventually securing the child’s return to her. This was not a straightforward case by any means but things certainly went wrong during the process. The Court of Appeal remarked that serious findings about physical risk to the child were “based on the slimmest of evidence„ in the original court proceedings. In a case like this, what right should the media have to tell the story to show what has gone wrong?

It was the desire to hold the state to account that led freelance journalist, Louise Tickle, to crowdfund the court fee to appeal the reporting restriction order and enlist the assistance of lawyers acting on a pro bono basis. Louise won and as a result the family’s story can be told anonymously.

There are huge variations between judge’s attitudes towards publishing judgments, particularly those involving the removal of children from their parents’ care. However, the issue of transparency touches every aspect of the family justice system: decisions on how children’s time should be divided between their parents, rulings on the relocation of children overseas, international abduction and financial matters.

Journalists have been allowed into the family courts since 2009 but it is not always clear what they can report. Restrictions are vital to protect the privacy of children and vulnerable adults but this has to be balanced against the need for society at large to understand what is going on in the family justice system, especially when the courts are making decisions about something as crucial as whether a child should be separated from their parent(s).

In his judgment, the President stated that “at present there is no detailed guidance or route map for how such applications are to be determined. It is therefore my resolve as President to issue such guidance at the earliest opportunity.„ Such guidance is long overdue to provide clarity when there is disagreement over what reporters can and should publish. The previous President of the Family Division took a great interest in issues of transparency and was on record as saying that judges should not be “immune from criticism„.

A straightforward open-door policy is simply not an option for the family courts when they are hearing the most personal and private details of family life, particularly where children have suffered abuse. Restriction-free reporting would create transparency of course but it would also blow apart privacy and leave vulnerable children entirely exposed to publicity and, potentially, unwanted tracing by those who would do them harm.

With the interests of children firmly in mind, we need something better if the public are to have trust in a system charged with making some of the toughest decisions possible.

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Emma Benson is a Senior Associate Solicitor located in Manchesterin our Family department

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