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January 30, 2023

New era for transparency in family court reporting begins with pilot scheme

The scheme, launched Monday, will allow freer family court reporting in three UK cities.

By Bron Maher

A new era of reporting from family courts in the UK begins on Monday as a pilot scheme begins.

Under the scheme, journalists may report much more freely what goes on inside family courtrooms at certain courts, including quoting family members involved.

But the easing of restrictions comes with strict requirements, including that the anonymity of families be preserved.

To help journalists navigate the new rules – and avoid being found in contempt of court – The Bureau of Investigative Journalism and freelance journalist Louise Tickle teamed up to create a website laying out the do’s and don’ts under the pilot scheme.

What’s family court reporting like now?

The current rules on reporting on family court cases were laid down in Section 12 of the Administration of Justice Act 1960, and prevent all but the most general information about a case from being published.

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Tickle told Press Gazette she began going to family court cases eight years ago. “I was doing stories for The Guardian about non-molestation orders and legal aid and I knew nothing about family courts at that point, except I had a vague idea that there was that restriction on what you could report.

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“And I very quickly found out that you could report almost nothing at all, which pretty much horrified me.”

In October 2018 Tickle won an effort to lift reporting restrictions on a case in which a local authority used what she called “weak evidence” to put a child into adoptive care. The victory led to new guidelines over challenging reporting restrictions in family courts, including guidance that journalists not face costs for any challenges.

Sir Andrew McFarlane, president of the Family Division of the courts, published a transparency review in October 2021 that found “there needs to be a major shift in culture and process to increase the transparency [of family courts] in a number of respects”.

At present, journalists holding a press card and authorised legal bloggers are allowed to attend most family court hearings and family proceedings at the High Court. But what information can be reported is strictly and complexly controlled.

“They can’t report anything apart from the most general gist of what happens in the courtroom,” said Tickle. “And that has been the subject of millions of pounds worth of contested case law, because nobody is confident as to what the general gist means. And it’s very, very scary if you get it wrong.”

Family members involved are also disallowed from telling journalists what happened in their court case. “They’re at risk of contempt of court for doing that – as would you be if you published what they said.”

Tickle said change had been slow in part because the rules are laid down in statute law, and there’s “a natural level of drag in Parliament” with regard to legislation not seen as urgent. But as well as that, the law’s gagging effect makes it difficult for people affected to explain their experiences.

“As media, or as people who are campaigning, it’s really difficult for them to give examples and talk about the things that are potentially going wrong, the things that they observe that need scrutiny, because you are literally not allowed to give examples of what you see in court. That is a contempt. So how do you campaign? How do you raise awareness?”

Tickle acknowledged “really strong competing arguments against greater transparency”, for example that nobody in family court cases is accused of a crime and that children’s safety and anonymity needs protecting. But she said the case for liberalisation has been growing over the past decade, in particular the last five years.

“We have the highest number of children in local authority care on record. That is a really significant public interest.”

While what goes on in family court was always important, Tickle said, “the more families affected by these powers being exerted in secret by the state, the more compelling is the reason for transparency.

“It’s taken a lot of people, from journalists like me and others, by lawyers, by judges, sometimes retired judges, arguing really from a range of different perspectives – and families themselves who’ve been through the family courts who in their view had terrible process and poor decision making – to raise the profile of this.”

What’s going to change under the scheme

The pilot scheme will take place in Cardiff, Carlisle and Leeds, and involves three main changes. The first is that the holder of a UK Press Authority press card and legal bloggers will be able to talk to family members “and assuming their case is in the scheme, will be able to quote them in their reporting,” said Tickle.

Second, journalists will be allowed access to “quite a number of documents which we always had to beg for before. And we will be allowed to quote from them.”

Lastly, journalists will be able to report what they actually see in court, which Tickle said used to be “a really serious contempt”.

Despite the easing of restrictions, families’ anonymity must still be preserved effectively. “Anonymity, for instance, in a big metropolitan area might involve less redaction of detail than [in] for instance Cumbria, which is a rural sparsely populated area,” Tickle explained.

“Effective anonymisation and imaginative, creative ways of making sure that you get editorially what you need to put in – while making sure the family are safe – will be very key…

“Even though these rules will make life a lot easier for journalists, they are still rules, and you still have to abide by them in detail.”

The new website is housed on The Bureau of Investigative Journalism site with the intention of creating “a really good place where something was detailed and gave examples and suggested how people might work to make sure that family members were as comfortable as possible,” Tickle said.

“And also to be able to work collaboratively, as far as possible, with lawyers representing the parties. Because that has been in some cases really good in my experience, but in other cases there has been a level of aggression and hostility which has made life distinctly uncomfortable for me and other journalists in family court…

“You can often get quite a long way in terms of what you’re able to report by negotiating creatively with lawyers about what will and won’t identify a family member, rather than just sort of sticking absolutely to wanting the moon on a stick.

“If you can say: ‘Well, I’ll give up the stick, I’ll just have the moon’ – then sometimes you can get there.”

Tickle suggested there were important stories about the UK that would now be easier to tell under the scheme.

“Stuff that goes on in family courts is just so compelling… it touches on so many parts of public policy and our life as a society.”

Email pged@pressgazette.co.uk to point out mistakes, provide story tips or send in a letter for publication on our "Letters Page" blog

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