Privacy & transparency in the family courts – Sir Andrew MacFarlane reports – Panopticon

‘The issue of how the protection of privacy rights should be balanced as against the fundamental public interest in achieving transparency and open justice within the family justice system has long vexed the family division of the High Court. On the one hand, ensuring the confidentiality of family law proceedings is crucial both in terms of protecting the fundamental privacy rights of those individuals who find themselves caught up in such proceedings and in terms of maximising their engagement in the process. On the other hand, a lack of meaningful transparency around the work of the family courts undermines public trust in the family justice system, increases the risk of miscarriages of justice and inhibits the public’s ability to press for reforms of the system on a properly informed basis. The family courts have for a number of years recognised that this balance was weighted too strongly in favour of preserving the confidentiality of family court proceedings, but that still left the fantastically difficult question of how the system should be reformed so as to increase the level of transparency. These are issues that were considered most recently by the courts in the case of Newman v Southampton City Council [2021] EWCA Civ 437. In that case, a journalist who had been unable to attend the first instance hearings of a particular high profile adoption case, was seeking access to the documents which had been placed before the first instance court. The Court of Appeal concluded that the High Court had been right to conclude that the balance of interests tipped in favour of preserving the confidentiality of the majority of relevant documents. However, it also observed that the case served to ‘underline the need for the Transparency Review’ (paragraph 92).’

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Panopticon, 2nd November 2021