On the 27th of January reporting restrictions in family courts in England and Wales eased allowing accredited journalists and legal bloggers to report openly on family court proceedings. Some feel this could encourage more couples to try arbitration.
The new provisions follow the successful roll out of the Family Court Reporting Pilot which started in January 2023. At the end of the two year pilot, the Family Procedure Rule Committee approved its extension to all family courts in England and Wales and issued new practice directions to support the required changes to the Family Procedure Rules.
As in the pilot, the roll out to the remaining family courts in England and Wales will be a stepped process that starts with public law cases, then moves to private law and finally magistrates’ cases.
Under the new provisions, journalists and bloggers can report on what is said in family court as long as a transparency order has been granted. The transparency order protects the anonymity of the families and families involved and it is likely to be granted unless there is a legitimate reason not to, for example that it would leave the families in personal danger. In addition, reporters can also request certain documents and speak to the people involved in the case so that they can be quoted in their resultant article.
Sir Andrew McFarlane, President of the Family Division, believes this is a “watershed moment for family justice”:
“Improving public understanding and confidence in the Family Court is of fundamental importance. Over the last two years there has been a presumption that journalists and legal bloggers can report what they see and hear from pilot courts in England and Wales. The reporting that we have seen has been significant, and includes coverage of issues affecting some of the most vulnerable people in our society, such as: children subject to Deprivation of Liberty Orders; the need to limit parental rights for convicted paedophiles and cases of child neglect or abandonment.
There have been no known breaches of anonymity of children, and the aims of the pilot, to increase public understanding and awareness of the Family Court, are being realised. I am grateful to all in the court system who have supported the pilot, but I would particularly like to thank all of the journalists and legal bloggers who have engaged with the pilot over the last two years and would like to urge them and others to continue to report on these complex and vitally important issues.”
Will the new transparency encourage couples to try arbitration and other forms of Alternative Dispute Resolution (ADR)?
While this is undoubtedly a “watershed moment for family justice” that aims to increase transparency around and the public’s understanding of the family justice system, there are concerns over the new levels of transparency compromising the privacy of those involved in these cases, most specifically children. Despite the fact preserving their anonymity is central to the new provisions, there is always a chance sensitive information could unwittingly be made public.
This is why some feel that it is likely many more couples are to try arbitration or one of the other alternative methods of dispute resolution (ADR), for example mediation or collaborative law. All these options can be used instead of traditional litigation and offer families a less confrontational and more stable way to resolve their disputes without having to go to court.
Arbitration can be used if there are issues that a couple cannot resolve by agreement. Arbitration offers a private court environment in which an experienced ‘judge’ – in this case an accredited arbitrator – hears the evidence put forward by both parties then adjudicates what they have heard before delivering a legally binding determination similar to a court judgment.
There are several benefits to arbitration. It is less stressful and helps reduce conflict given the conversations are based upon communication and cooperation. It is also highly tailored to the families’ exact circumstances and requirements. The court process, by contrast, can often be a little prescriptive, particularly given the current need to clear the backlog of cases. The ability to tailor the approach also allows for greater flexibility and control which can make the process easier for everyone involved.
Most of all, however, arbitration and ADR guarantees confidentiality which is why more couples may opt to try arbitration now that the new transparency and reporting provisions are in place.
The family team at Westgate Chambers specialise in all forms of ADR and Non Court Dispute Resolution (NCDR). If you would like to find out more, please visit our NDR page or contact us today to arranged an initial consultation with one of our highly experienced family barristers.
