Opening up family courts in England and Wales to journalists was never intended to solve all their problems. This is a public service that, like so many others, is chronically overloaded and underfunded. While the number of children in council care fell slightly last year, the figure of 81,770 in England was still 16% higher than a decade ago. Recent increases in legal aid fees applied only to immigration, housing and criminal cases – leaving family lawyers out.
But new rules about what can be reported are an important legacy of the court’s president, Sir Andrew McFarlane, who retired on Monday. These apply both to public law cases, involving care proceedings, and private law cases, which are usually disputes between couples. Following the national rollout of transparency orders, which enable reporters and legal bloggers to write about cases as long as they protect anonymity, his successor – who is yet to be announced – will inherit a more open family justice system.
Cuts by news organisations mean that there is less court reporting overall than there used to be. Most family hearings continue as before, with no one present apart from the parties, witnesses, lawyers and court staff. But it matters that these cases are no longer off-limits to journalists because of the signal this sends that the public has a right to know about them. The push for transparency can also be linked to reforms including new rules on the use of expert witnesses. Awareness of the system’s flaws has helped to ensure that they are addressed – although there are concerns about the emphasis placed on overcoming delays. As Lisa Harker of Nuffield Family Justice Observatory points out, good decisions are better than speedy ones.
In an interview to mark his last day in the job, Sir Andrew focused on a project affecting private law cases. In “child-focused courts”, information gathering takes place at an earlier stage with a view to reducing conflict and improving outcomes. As with transparency, pilot schemes in several areas produced promising results, though a successful rollout will depend on the Children and Family Court Advisory and Support Service (Cafcass) being able to recruit sufficient social workers to write the high-quality reports that courts need.
Other upcoming changes relate to expert witnesses and parental rights. Alison Levitt, a justice minister, has signalled her support for new rules on the use of court-appointed experts. These are being reviewed by a judicial committee after a landmark case in which evidence on “parental alienation”, which led to a mother losing contact with her children, was overturned. Lady Levitt’s recognition of the ways in which women are badly served by the family courts is welcome, although the presumption of both parents’ involvement in a child’s life will not be repealed – as promised by ministers in recognition of the harm this can cause when one parent, usually a father, is a domestic abuser – if the courts and tribunals bill does not pass before the end of this parliament.
Family court judgments can be finely balanced and extremely difficult. Lack of resources, especially the removal of legal aid in private law cases, makes reaching the right ones even harder. There are some grounds for hope of gradual improvement, and a shift towards greater openness and accountability. But openness alone cannot repair a system under strain.
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