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Culture shift in the family court – the pros and cons of privacy versus protection

Nov 9, 2021

In our latest post for November, family law blogger John Bolch discusses what could be a major shift in culture and process when it comes to the delicate balance of opening up the family court while protecting the families and children who turn to it for protection.

Culture shift in the family court

The family court could be about to experience what the President of the Family Division Sir Andrew McFarlane has called a ‘major shift in culture and process’, as it opens up to provide more information about what it does.
In an important new report Sir Andrew has outlined a set of proposals for change, aimed at enhancing public confidence in the Family Justice system, whilst at the same time maintaining the anonymity of those families and children who turn to it for protection.

Why is change required?

The issue with the family court is, quite simply, that it deals with matters that are by their nature private. This is especially so when it comes to children involved in family court proceedings - their welfare should of course be protected at all costs.

But the downside to this privacy is that it lays the family justice system open to the charge of operating a system of secret and unaccountable justice. This in turn has led to various accusations of bad practice, which the courts have been unable to defend.

The inevitable result is that public confidence in the system has suffered.

Those in charge of the family justice system have for some time been aware of the need for the system to be more open but, as the President says, the pace of change has been ‘glacial’. However, the President clearly believes that his proposals will at last speed up the process.

And, as we will see, he also believes that he can walk the fine line between enhancing public confidence in the system and safeguarding the privacy of those who turn to the court for protection, or for the resolution of intimate disputes.

The President’s proposals

The President’s main conclusion is that the time has come for accredited media representatives to be able not only to attend hearings, but to report publicly on what they see and hear. He therefore proposes that rules be put in place that will allow more journalists to sit in on family court hearings, and report more freely on what happens. However, it will still be at the discretion of the judge in the case as to whether they can attend a particular hearing, and the reporting must always be subject to ensuring that the anonymity of the children and their family is maintained.

Of course the media reporting of cases is only going to present a true picture of what the family court does if the reporting is accurate. Sir Andrew therefore says that: "There is a need to work with the media to establish a relationship of trust and confidence in order to ensure that any reporting of Family court proceedings is reliable and well informed."

The President is also proposing that far more family court judgments be published, to give the public a better idea of what the court does. He says that he will ask all judges to publish anonymised versions of at least 10% of their judgments each year.

Lastly, Sir Andrew points out that the lack of judgments being published and the lack of consistent data on the operation of the family justice system means that it is hard to conduct any evidence-based assessments of what the courts do. He therefore proposes a scheme of compulsory data collection at the end of each case, which he says “could be transformational in terms of understanding the decisions that are being made, seeing patterns and problems, and ultimately achieving better outcomes.”

Closer scrutiny

All of the above may appear at first glance to be simply about letting the public know what the family court does. But it could also ultimately have an effect upon how the family court works.

If the President succeeds with his plans then we can expect the work of everyone involved in the family court to come under closer scrutiny. And that doesn’t just mean the judges and lawyers. It also includes social workers, Cafcass officers and experts supplying evidence to the court.

And if that closer scrutiny leads to valid criticism then, as with data collection, practices and procedures may be improved in response.

And if it means that those who work in, or for, the family justice system (or at least some of them) have to ‘raise their game’, that can surely only be to the benefit of all those who are unfortunate enough to find that their lives are at the mercy of the system.

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