Just days after reporting restrictions were formally lifted in the family courts, the case of Tickle v Surrey County Council [2024] (Tickle) has thrown the issue of transparency in legal proceedings into the spotlight.
Last week, the Court of Appeal (CoA) overturned a decision by the High Court prohibiting the publication of the identity of the judges involved in the historic care proceedings relating to Sara Sharif, who was tragically and brutally murdered, with Sir Geoffrey Vos commenting that "[t]he whole idea of anonymising the judge was, I have to say, misguided."
The move towards greater transparency in legal proceedings
Earlier this year, the Transparency and Open Justice Board (the Board) called for judicial review proceedings to be livestreamed and, where appropriate, broadcast on television. Judicial sentencing remarks in high-profile criminal cases are also being broadcast to the public. In a world of social media and quick-fire reporting on platforms like X, it may be hoped that, in making the justice system more accessible, the accuracy of reporting is improved and more easily verified.
The Board recognises, however, that there will be occasions where, if "a sufficiently weighty countervailing factor is established, Courts and Tribunals may be required to derogate from open justice." One can envisage this may be the case in certain family matters or, for example, where issues of national security arise, and it is essential that judges retain the power to exercise their discretion in this regard.
Public law – the naming of judges in legal proceedings
From a public law perspective, the naming of judges is generally non-controversial and is a key tenet of constitutional law and open justice.
In Tickle, the CoA considered whether the High Court had the necessary jurisdiction to grant anonymity to various individuals involved in the historic Sara Sharif care proceedings, including three judges, under section 6 of the Human Rights Act 1999 or under Articles 2, 3 or 8 of the European Convention on Human Rights. It concluded that there was "no evidential basis on which to think that the threshold for the application of articles 2, 3 or 8 had been reached."
The CoA emphasised that the principle of open justice requires that judges are named, even in family proceedings, to aid transparency and public scrutiny. It further emphasised that, in accepting a public role, judges are expected to be resilient to public scrutiny and criticism. Importantly, the CoA considered that the legal precedents concerning the anonymisation of certain individuals, such as social workers (who do not work in the public eye), were not directly applicable to judges.
The CoA was critical of the High Court judge's comments in relation to the media and underscored the importance of media scrutiny in maintaining the integrity of the justice system. The judgment acknowledged "Judges will sit on many types of case in which feelings run high, and where there may be risks to their personal safety, [however], the first port of call is not, and cannot properly be the anonymisation of the judge's name." The CoA noted that it is up to the relevant authorities to put in place measures to meet these risks, with the Lady Chief Justice announcing last week that an operational taskforce is being established to address concerns regarding threats to the judiciary (both in person and online).
From a public law perspective, the judgment reflects a drive to ensure continued transparency in the justice system and a recognition that judges yield a significant amount of power in modern day democracies.
Family law – legislation lifting reporting restrictions in the Family Court
The CoA's judgment in the Tickle case coincided with the implementation of new open reporting provisions which allow journalists to report on what they see and hear in the family courts in England and Wales. The changes have been introduced, following a two-year pilot, seeking to improve transparency within family proceedings, and in doing so to help address repeated headlines about the Family Court being a closed and secretive network.
It is hoped that more reporting will help dispel unhelpful myths about the Family Court, which have contributed to undermining confidence in its decisions. Inevitably, concerns remain as to how best to ensure any media reporting is accurate, fair and avoids sensationalism.
From the perspective of the individual litigants in the Family Court, the changes may provide mixed reactions. For some, the prospect of the media being able to "tell their story" (albeit with conditions of anonymity) will be welcome. For others, inevitably there will be concern about giving confidential information to the court for fear of it being reported. Whilst safeguards remain in place (for example there will ordinarily be a prohibition on naming the parties and children of the family) reporters will be allowed to attend and report on what they see and hear in court save for at without prejudice negotiation hearings, such as the financial dispute resolution hearing (FDR) in financial proceedings. Journalists will also need to adhere to a Transparency Order which regulates their attendance and what information they receive. They will be entitled to receive position statements and ES1 (a short summary of the case for the judge in cases regarding financial matters), save that the court may permit redaction if the documents include information prohibited from publication - notably details of properties, private companies and specific financial instruments. For many clients this restriction may not seem enough.
In the recent decision in Vince v Vince (Re Transparency), Cusworth J clarified that journalists attending a hearing can share information obtained at a court hearing with journalists who had not been present, subject to them also agreeing to the Transparency Order.
However, individual concerns also need to be balanced with the public's right to know about the operation of the Family Court. In the 2023 case of Tsvetkov v Khayrova, where the parties sought to avoid publication of their private details, Mr Justice Peel justified naming the parties based on their conduct within the proceedings, noting that the respondent husband had not paid UK tax, despite being a citizen and resident of the UK, and that the case had been allocated no less than 11 court hearings spread over multiple days.
Questions have been raised as to whether the new transparency rules in the Family Court will lead people – particularly those with greater financial means - to use non-court dispute resolution (NCDR) such as mediation, arbitration or private FDRs. NCDR can be swift, private and overseen by a mediator or evaluator of the parties' choice. However, it comes at a financial cost. There is a question, therefore, as to whether the new rules will inadvertently have the effect of creating a two-tier system in which those who can afford to pay for NCDR can avoid the consequences of transparency, while those with more limited resources remain in the court system.