Transparency Order

In an unprecedented and ground-breaking development, Mr Justice Poole made what is the first ‘Transparency Order’ under the Transparency Pilot scheme which was launched on a trial basis in Courts in Leeds, Carlisle and Cardiff on 30^th January 2023.

It sets aside the archaic rules previously laid down in Section 12 of the Administration of Justice Act 1960, whereby very strict rules on reporting have been in place for decades. Although technically permitted to attend Family Hearings, journalists found this to be a pointless exercise, given they could report on ‘almost nothing at all’ as Freelance Journalist Louise Tickle put it. Her subsequent campaign for greater transparency within the Family Courts culminated in her winning an Appeal in 2018 to report on a case in which the Local Authority in question, Southampton City Council, had adduced somewhat weak evidence in support of their application to place a child for adoption (M (A Child) [2018] EWCA Civ 240).

Following Tickle’s successful appeal, the President of the Family Division of the High Court Sir Andrew McFarlane was of the view that new guidance ought to be issued in respect of reporting in Family Law matters and, following the publishing of his Transparency Review in October 2021, concluded that ‘there needs to be a major shift in culture and process to increase the transparency (of family courts) in a number of respects’.

One such proposal made by Sir Andrew was of course a reporting pilot. It was successfully implemented on a trial basis in Courts in Leeds, Cardiff and Carlisle on 30^th January 2023 by the Transparency Implementation Group (TIG), led by Mrs Justice Lieven and supported by Secretary Jack Harrison. By virtue of the pilot, certain legal bloggers and accredited journalists are now permitted to report upon a lot more of what they see and hear in Court.

Of course, what they may report on is to be set out in a Transparency Order, made by the Court. The first Transparency Order was made by Mr Justice Poole sitting in Leeds and covers a Finding of Fact hearing involving three separate Yorkshire-based families concerning allegations that the mother in each family has ‘fabricated or induced illness in one child of each family’. Whilst the justice in this instance permitted the naming of the Sheffield Children’s Hospital whereat some of the children are being treated and for some of the documentation to be disclosed, he did include variations including;

• No reporting shall be permitted until the hearing has concluded, including the criminal proceedings; and
• No other documentation except for the opening and closing position statements/skeleton arguments and the indices to the trial bundle shall be shared in the absence of ‘express permission of the Court’; and
• Crucially, the parties in the case shall remain anonymous.

Clearly, whilst the reform has undoubtedly widened the scope for reporting in family matters, it does on the whole protect the identities of those involved.

The Transparency Pilot is to be evaluated in 12 month increments, and so the future of transparency in family law cases remains an area to keep your eye on.