The Transparency Reporting Pilot which began in January this year in Cardiff, Carlisle and Leeds with public law cases will extend to private law cases on 15 May 2023.
Under the standard terms of the transparency order, journalists will be able to identify:
- the local authorities involved in the proceedings
- the director and assistant director of any local authority children’s services involved (but not usually the social workers working directly with the family)
- senior CAFCASS personnel
- any NHS trust
- court-appointed experts
- legal representatives and judges
- anyone else named in a published judgment
A reporter who attends a hearing, or who intends to attend a forthcoming hearing, is entitled to see certain documents from a case (but not all documents). They are also entitled to quote from or publish the contents of those documents, subject to effective anonymisation, once a Transparency Order has been made.
The permitted documents are:
- Documents drafted by advocates (or litigants if a party is self-representing): ie case outlines, skeleton arguments, summaries, position statements, threshold documents and chronologies.
- Any indices from the court bundle.
- Any suitably anonymised orders within the case.
The Court has a discretion to exclude pilot reporters from a particular hearing or part of a hearing, but this should only be done for specific reasons and should be recorded in the case management order (FPR r27.11(3)). The Court may also decide that there should be no reporting of all or part of the proceedings.
The Transparency Order will permit the parties to discuss the proceedings with a pilot reporter. It will not permit the parties themselves to publish information from the proceedings where this would be restricted by section 12 AJA 1960 and/or the Rules of Court. This includes re-publishing any media articles or blogs written about the case under the pilot, where accompanied by comment that may identify the child concerned.
s.97 Children Act 1989, protecting the anonymity of the child, will continue to apply for the duration of the proceedings. The effect of the transparency order is to extend that protection until the child’s 18th birthday.
Parties and their advocates are expected to be prepared to address the Court on whether a Transparency Order should be made, and to what extent.
So, from Monday 15 May, if you have a private law case proceeding in the courts involved make sure you do the following:
- Read the President’s Guidance;
- Explain to your client what the pilot might mean for them and / or their children. Give your client the opportunity to discuss any concerns they may have about the scheme with you, and ensure they are aware they can request that reporters are excluded (though give realistic advice about whether that request will be successful); think about whether there might be an appropriate amendment to the terms of the standard transparency order that might help reassure your client and / or reduce the risk of identification. You could refer to Stowe’s blog here.
- If your client is considering objecting to a transparency order being made, make sure that you are familiar with Re S [2004] UKHL 47 (attached) which sets out the approach the court should take where there is a conflict between Article 8 rights (including welfare of a child) and Article 10 rights of a party or the media. The President’s Guidance as to Reporting in the Family Courts from October 2019 (also attached) may also be useful.
- Reiterate to your client that even though there might be journalist reporting on their case, they themselves are still subject to the usual confidentiality requirements.
- Be prepared to address the Court on the issue if necessary.
- Consider adding an additional paragraph explaining the Transparency Pilot to your initial letter of advice, if your case might be listed in one of the participating courts. (We will be working on adding this to the Proclaim template, but this might take a little time).
