The Transparency Reporting Pilot (RP) has introduced the presumption that accredited members of the UK press and legal bloggers may attend and report on family hearings held in private, subject to preserving the principle of anonymity.  

The facilitating mechanism takes the form of a transparency order (‘TO’) acting as an injunction which details the parameters within which reporting can take place.

How has the first year of the Transparency Reporting Pilot been received?

As the The Transparency Reporting Pilot enters its second year, it continues to generate support, criticism, and anxieties in varying measures.

Valid concerns have been raised around;

• The ‘jigsaw identification’ of children and families
• The potential for variations to the draft TO permitting the public naming of social workers
• The strain that may be placed on court time and resources in addressing opposition and variations to a TO

Many of those involved in care proceedings – be it families, social workers, or legal professionals – have indicated that they’re yet to be convinced that the introduction of the transparency principle justifies this risk.

Anticipating these concerns, the President’s 2023 guidance directly considers these risks and seeks to mitigate them through case-specific restrictions.

The aims of the Pilot and its potential benefits are clear. It is a long-established argument that transparency in court proceedings is a fundamental civil good, although that proposition has been long been caveated in the context of the family court. The present pursuit of transparency in family proceedings recognises that the orders made in care proceedings are among the most significant interventions that the state makes into peoples’ lives.  Moreover, proponents have argued that transparency in the family court can increase public knowledge of the work of, and increase confidence in, our courts and safeguarding institutions.

The development of the RP

The initial pilot (29th January 2023 – 29th January 2024) owes its inception to President MacFarlane’s October 2021 report ‘Confidence and Confidentiality: Transparency in the Family Court’ which concluded:

“The time has come for accredited media representatives and legal bloggers to be able, not only to attend and observe family court hearings, but also to report publicly on what they see and hear … Openness and confidentiality are not irreconcilable, and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality.”

The president later established the Transparency Implementation Group (‘TIG’).  A sub-group led by Mrs Justice Lieven in consultation with the TIG launched the pilot in Leeds, Cardiff, and Carlisle. These areas were selected to provide the TIG with a cross-section of communities in England and Wales. The three DFJ areas encompassed the range of risks and challenges posed by the introduction of transparency orders in rural, suburban, and metropolitan communities while also providing three distinct demographic profiles. The transparency principle was thus introduced allowing reporting of proceedings subject to protecting the anonymity of children and families.

On 29^th January 2024, the RP expanded from 3 to 19 DFJ of England and Wales’s 43 DFJ areas.  From the same date, the RP has been extended to financial remedies proceedings. This article addresses the RP in relation to public law proceedings only. This latest sizeable expansion of the RP will provide an opportunity to assess at scale how far risks are being suitably mitigated and to what extent the RP is fulfilling its objectives.

The President’s Guidance and the Draft Transparency Order

The President’s Guidance provides an authoritative starting point in any consideration of the RP providing practitioners with essential directives for effectively implementing transparency measures.  It offers practical guidance on the procedures governing the attendance and reporting of proceedings by journalists and legal bloggers.  The draft TO appended to the Guidance serves as the starting point in shaping the parameters of transparency within the RP.

Outlined within the draft TO are explicit prohibitions on the reporting of sensitive information to safeguard the privacy and welfare of individuals involved in family court proceedings.  The draft TO expressly excludes the reporting of the following:

1. The name or date of birth of any subject child in the case;
2. The name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child(ren) being identified;
3. The name of any person who is a party to, or intervening in, the proceedings;
4. The address of any child or family member;
5. The name or address of any foster carer;
6. The school/hospital/placement name or address, or any identifying features of a school of the child;
7. Photographs or images of the child, their parents, carer or any other identifying person, or any of the locations specified above in conjunction with other information relating to the proceedings. This includes photographs of the parents or other parties leaving the Court building;
8. The names of any medical professional who is or has been treating any of the children or family member;
9. In cases involving alleged sexual abuse, the details of such alleged abuse;
10. Any other information likely to identify the child as a subject child or former subject child.

It must be noted that permission of the court can be sought to name the above individuals.  Such permission lies within the discretion of the presiding judge and cannot be unilaterally agreed upon by the parties.

The Guidance further provides a subset of individuals and organisations who would ordinarily be named, and deviation from this list is also a matter for that judge.

1. The local authority/authorities involved in the proceedings;
2. The director and assistant director of Children’s Services within the LA (but usually not the social workers working directly with the family, including the Team Manager, unless the Court so orders);
3. Senior personnel at Cafcass but not normally the reporting officer, or children’s guardian named in the case;
4. Any NHS Trust; 
5. Court appointed experts; 
6. Legal representatives and judges;
7. Anyone else named in a published judgment.

Reporters must be given a copy of any TO made. Furthermore, upon request, they are entitled to be provided a copy of:

1. Documents drafted by advocates or the parties if they are litigants in person: Case outlines, skeleton arguments, summaries, position statements, threshold documents, and chronologies.  
2. Any indices from the Court bundle. 

A request by a reporter for the above documents can be made before, or upon attendance at a hearing.  The President was clear in his guidance that these documents should not ordinarily be redacted. However, where those documents reference or quote documents which the reporter is not entitled to see (such as subject evidence), the reporter must not reproduce or report this without the permission of the court.

To enable a reporter to understand the issues in a given case the court may disclose further documents of which reporting is prohibited. Any such additional disclosure is a matter for the court’s consideration and may not be agreed by consent between the parties. 

The Transparency Reporting Pilot in practice

The substantive question before the court remains whether to make a transparency order (TO) and the terms thereof.  Evidently, that question necessitates a balancing Article 6, 8, and 10 rights. Both direct precedents addressing the RP and established case law on judgment reporting inform this deliberation.

The RP was directly addressed in Re BR and Others (Transparency Order: Finding of Fact Hearing) [2023] EWFC 9. In this case, Mr. Justice Poole offers an overview of the RP’s development, emphasizing the President of the Family Division’s commitment to fostering transparency in family court proceedings, at [16] he sets out:

“There have been no new statutes, rules or practice directions to facilitate the RP but the President of the Family Division has made it clear that he regards it as important to begin to allow reporting of family proceedings with a view to enhancing public confidence in the family justice system. The RP is designed to begin a sea change in transparency in the family courts. It would soon become wholly ineffective if judges in the pilot courts routinely refused to make TO’s but the decision whether to permit reporting is one for the judge to make in each case where a pilot reporter attends.”

At [20] Mr Justice Poole sets out nine considerations, these do not benefit from abridgement and practitioners should be familiar with each of the below:

(i) The court must seek to achieve a balance between the rights of publication and the rights of the child to anonymity, applying the principles in In re S.

(ii) The children involved in these family proceedings would be likely to suffer harm if their anonymity were lost.

(iii) There is a significant public interest in allowing reporting of family proceedings as explained in the President’s RP Guidance and his publication, Confidence and Confidentiality: Transparency in the Family Court.

(iv) Save in exceptional cases where it would be particularly difficult to achieve anonymity for the child, the terms of the template TO will strike the right balance as required by In re S.

(v) A TO does not exclude section 97(2) of the Children Act 1989 which makes it a criminal offence to publish information likely to identify a child. That places a heavy burden on pilot reporters who are required not only to abide by the prohibitions on reporting the list of specific information set out in the TO, but also to avoid the likelihood of jigsaw identification. The template TO and section 97(2) in combination provide significant protections against subject children being identified.

(vi) The court cannot dictate the detail of what reporters write or broadcast. However, the circumstances of the particular case may require that the reporting of specific information, not already included in para 13 of the template TO, should be prohibited. Any such further prohibitions should be limited so as to avoid undue interference with Article 10 rights to freedom of expression.

(vii) In a particular case there may be other information which might not itself identify the child, but which the court might recognise in the TO as being likely to identify the child if reported in combination with reportable information (jigsaw identification).

(viii) In a particular case it may be appropriate to allow reporting of information that would otherwise be prohibited within the template TO, if there is a particularly strong public interest in it being reported.

(ix) A TO can properly be made even if there are or may be pending criminal investigations or proceedings, but the template TO will usually have to be revised to prevent reporting until the conclusion of those investigations or proceedings, so as to avoid causing prejudice to them.

In Louise Tickle v Father [2023] EWHC 2446 (Fam) Mrs Justice Lieven draws together the relevant case law, particularly in respect of reporting judgements and embeds the RP in this context. At [43] to [52] 9 more considerations are provided, there is significant overlap with those of Mr Justice Poole with the addition of the following:

• It should be rare for a judge to enquire why a journalist is reporting, however on a case-specific basis the judge may seek a background of the application to report.

• The views of the parties are of great significance but not determinative. As per Griffiths, a party may wish to ‘tell their story’ and to prevent them from doing so would be an interference with their Article 8 rights.
• Adjourning an application to report is in itself an interference with the reporter’s Article 10 rights and is thus not a standard case management decision. The court must consider a reporter’s limited resources regarding returning on a future occasion. It should be noted that this does not supplant paragraph [39] of the President’s Guidance which provides that where an application for a TO is made without notice it is appropriate to “postpone a decision on permission to report, or making a TO, until a hearing where the parties are on notice.”

In a small measure of divergence from Re BR and Others, Mrs Justice Lieven considers that the correct balancing of Article 8 and 10 rights is that in Griffiths v Tickle [2021] EWCA Civ 1882 (particularly at [27] to [40]).  While Mr Justice Poole confirms that the balancing exercise as set out in both Griffiths v Tickle and Re S, is the correct one, he continues at [18] to consider that the detailed scrutiny given to the balancing exercise in the former care could not be achieved in the RP where TO’s are expected to become routine. The more common question will, therefore, be one of adding further restrictions to the starting point of the draft TO.

Clearly, The Transparency Reporting Pilot has benefitted from the President’s clear guidance and the evolving body of case law. As the RP takes effect across into more DFJ areas, its success or failure will heavily depend on practitioners’ robust understanding of the guidance and associated considerations, as well as their ability to adapt to the challenges posed by transparency orders. The coming months will be instructive in any assessment of the long-term viability of transparency in the family court

Useful Reminders for practitioners

• Practitioners should refrain from acting as editors to reporters attending court, as reporters are responsible for reporting within the confines of the Transparency Order (TO).
• Breaching a TO constitutes a breach of an injunction and contempt of court, warranting application for committal.
• If practitioners are required to provide documents to a reporter under the TO, they are protected by Schedule 2 of the Data Protection Act 2018, as disclosure is court-ordered.
• Practitioners ordinarily should not redact documents independently for disclosure, as the responsibility lies with the reporter to comply with the TO unassisted.
• Parents cannot apply for a TO under the RP (this does not infringe upon their right “to tell their own stories” as described in Griffiths v Tickle)
• Even if a TO is made, the court’s ability to exclude members of the press from a hearing under FPR r27.11(3) remains unaffected if the provisions under that rule are satisfied.
• Although press attendance is rare, practitioners should anticipate it and be prepared to address TO terms as a preliminary issue.
• The President’s Guidance makes clear that prior notice of attendance and intention to report should be given by reporters (this may be by any acceptable means). The TIG has sought to restate this message to reporters and legal bloggers throughout the pilot. However, there is no Strict requirement a defined period of notice and practitioners should be prepared for last minute attendance.
• The President’s Guidance provides that legal blogger should produce form FP301 at the start of the hearing or provide ID evidencing that they are an accredited member of the media (such as a UK Press Card). In practice, many freelance journalists no longer use a UK Press Card and alternative means of identification are likely to be considered sufficient.
• Pilot reporters continue to be bound by the provision of s.97 ChA 89 regarding protecting the anonymity of the child for the duration of proceedings. A TO when made will extend such protection until the child’s 18th Birthday.
• The transparency order, when made, functions as an injunction which varies the provisions of s.12 AJA 1960. Provided the TO is complied with, no contempt would be committed under s.12.

This update was written by Patrick Steel, a pupil at Westgate Chambers. 

We will continue to follow the development of the Transparency Reporting Pilot. However, should you or one of your clients requires assistance with any form of family hearing, please contact our hugely experienced family law team today.