Evaluation of the Family Court Reporting Pilot and transparency in the family courts

About the study 

Following a review of transparency in the family courts which was instigated in 2019 by Sir Andrew McFarlane, the President of the Family Division, a recommendation was made to enable accredited journalists and legal bloggers to report on family cases, within the parameters of a ‘Transparency Order’ made by judges in the respective cases. The family court reporting pilot was established to facilitate this and was rolled out across three courts in England and Wales – Cardiff, Leeds and Carlisle. 

The pilot took a staggered approach, as it began in public law cases in January 2023 before it was rolled out to private law cases and cases before magistrates later in 2023. Supported by a steering group (a subgroup of the Transparency Implementation Group (TIG)) made up of Mrs Justice Lieven, Jack Harrison (TIG Secretary) and Lisa Harker (The Nuffield Family Justice Observatory), NatCen conducted an evaluation of the pilot. The objective of the evaluation is to understand the experiences of various groups involved in the pilot across the three courts, for cases where Transparency Orders had been granted. The evaluation consisted of qualitative fieldwork with these groups and was carried out between March 2023 and December 2023.

Findings

The Family Court Reporting Pilot enjoyed strong support amongst court staff, legal professionals and media stakeholders. A minority of court staff and legal professionals expressed concerns about the impact of greater transparency in family courts. However, even amongst more skeptical participants, the ability to report on the functioning of family courts was viewed as an inevitability, due to the demand for greater transparency and accountability from the public and the media.

Confidentiality and 'jigsaw identification'

One concern consistently raised by court staff and legal professionals regarding both the Reporting Pilot and the broader principle of reporting in family courts was the fear of jigsaw identification, by which details of cases contained within reporting compromise the confidentiality of children and their families. We found no evidence of notable incidents of potential jigsaw identification occurring during the pilot. The level of risk around unintentional disclosure of identifiable information is likely to sit at a lower level than anticipated by legal professionals or court staff. However, participants believed that additional training and advice may be necessary for courts serving rural populations where identification through reporting may be a greater risk.

Levels of interest from journalists and legal bloggers

Concerns were expressed that the ability to report could lead to sensationalised media coverage and that by focusing attention on a minority of high profile and controversial cases, the public are presented with a misleading impression of family courts. During the pilot, this did not occur. Media interest peaked at the beginning of the pilot and fell away more sharply than participants told us they had expected before the start of the pilot. There are practical barriers to overcome to facilitate media interest in reporting. However, a low level of media interest during the pilot may indicate that allowing greater transparency of the day-to-day realities of family court proceedings is effective in demystifying family courts through the absence of controversial or ‘newsworthy’ occurrences.

Communication, training and guidance

Despite presenting courts with a substantial change in procedures to manage alongside pre-existing responsibilities and duties, the administration of the pilot in the three pilot areas ran smoothly and presented no notable issues. Information sharing was timely and accessible, training widely available and the official guidance issued to courts was clear and direct. The presence of a dedicated member of staff with responsibility for the Reporting Pilot was highly valued by all participants. There is scope to provide media training tailored to pre-existing levels of legal knowledge and expertise. Information and advice may need to be tailored to the requirements of areas depending on the population. It may also be necessary to introduce clear accountability for ensuring court staff complete the available training, should take-up levels fluctuate over time or vary notably between courts.

Administration

Media participants struggled with judicial listings and in some cases found it hard to know whether to attend hearings when they had an interest in a case. A system of coding has been introduced for listings which should mitigate this. It is likely that greater experience over time will also help media stakeholders to interpret listings more effectively. The ability to remotely attend hearings is critical to enable accessibility for both journalists and legal bloggers but must be managed to prevent the focus shifting away from Judges and legal representatives onto media who are displayed on large screens in courtrooms when attending online.

The need for further research

The findings of this evaluation need to be interpreted with caution. It is possible that issues arise during expansion despite having not figured significantly during this small-scale pilot evaluation, such as incidences of jigsaw identification or sensationalised media reporting around high profile cases. The feasibility of expanding the pilot has been explored, and support for this was fairly consistent across participants. However, we would recommend a large-scale evaluation takes place, involving a larger, and more representative sample, conducted across multiple areas.

Methodology

A qualitative approach was used for this evaluation. NatCen worked with the steering group to select and recruit participants, using purposive and snowball sampling. Data collection was carried out by the research team at NatCen, over the period of August to November 2023. Interviews were semi-structured and took place online via MS Teams, lasting between 30-60 minutes, and took place with Designated Family Judges (DFJs), judges, lawyers, court staff, journalists, legal bloggers and family members involved in pilot case hearings where a Transparency Order was made.

A case and theme-based approach to qualitative data analysis developed by NatCen was used to analyse the data. Key topics emerged from the data after familiarisation with transcripts, which were then used to identify themes. The final stage of analysis involved in-depth review of the charted data to elicit similarities and difference in opinions and experiences across participants.