The time has come for accredited media representatives and legal bloggers to be able, not only to attend hearings in the Family Courts, but to report publicly on what they see and hear, the President of the Family Division has said.
In a report, 'Transparency Review – Family Division', Sir Andrew McFarlane described the present system in the Family Courts whereby a journalist may attend any hearing but may not always report what they observe, as "not sustainable".
However, Sir Andrew said that reporting "must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives."
Openness and confidentiality are not irreconcilable, and each is achievable, he insisted. The aim of the proposals is to "enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality".
The President stopped short of recommending total public access to Family Court hearings, saying that he was not persuaded that this was currently justified.
"There are differences between the nature of the evidence and hearings in the CoP (which does regularly sit in public) and cases in the Family Court," Mr McFarlane wrote.
"For the present, at least, the focus should be on establishing a workable regime that permits and facilitates press and legal blogger reporting of Family cases."
Sir Andrew said the rules he intends to bring forward will be subject to four provisos. Firstly, whilst the effect of the change he proposes is that the presumption will be reversed to one that allows reporting, it will always be at the judge's discretion whether, in a particular case, all non-parties should be excluded.
Secondly, reporting in whatever form of what happened in court must always be subject to ensuring that the anonymity of the children and their family is maintained. The President said he would produce guidance on how this will be achieved.
Thirdly, active consideration will be given to incorporating or adapting the proposed 'Family Court Reporting Pilot', which has funding from the Rowntree Foundation, into the new scheme.
Fourthly, any proposed rule changes or practice directions will be subject to the requirement of ministerial approval.
The President said he also wished to ensure a larger number of judgments are published. To achieve this, he called upon all judges to publish anonymised versions of at least 10% of their decisions each year. This would be "a very significant increase in the present output".
The guidance on how the courts conduct anonymisation will need to be revised, Sir Andrew acknowledged. This process of revision must amongst other things ensure that judges are given "straight forward advice" on how to approach the task of anonymisation.
The approach to the naming of local authorities, treating clinicians, social workers and experts in judgments "needs further consideration and further consultation responses on this issue will be called for," he said.
Alongside the provision of new advice, and in light of the "very real" practical constraints on the ability of judges to produce any judgments for publication, the Family President said he would press for the establishment of a unit within the HMCTS which - through a combination of human input and/or software - would undertake the task of anonymisation.
The report also suggested that data collection should be ramped up. Sir Andrew said: "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 we do."
He added: "This cannot be good for the outcomes for children going through the system. I am therefore going to propose a scheme of compulsory data collection at the end of each case. This can be done as a web-based tool which I hope that the TIG together with HMCTS can devise and trial."
The Family Court's annual report of its operation, which includes data setting out case numbers, categories of proceedings and outcomes, will also be made public.
Sir Andrew said he would establish a Transparency Implementation Group' ['TIG'] to take forward the changes that he has proposed, but added that he would remain closely involved and steer the progress of transparency as it goes forward.
The President appointed a small panel to support the review and to act as a source of insight and advice. The Panel received written statements from a number of those interested and held short evidence sessions in which they heard 12 individuals or groups.