Introduction

Those of you who have appeared in Children Act cases in Leeds, Cardiff or Carlisle in the last 12 months will have encountered the transparency pilot scheme established in those courts in January 2023 and which will be expanded to more courts in January 2024. The essence of the Financial Remedies Court reporting pilot is the same: to permit reporters1 to publish an account of what takes place in court provided that anonymity and confidentiality are preserved.

The issue of transparency is not without controversy. We know that because:

• There has been a divergence of views amongst judges of the High Court as to the reportability or otherwise of what happens during financial remedy proceedings.
• The respondents to the survey issued by the Farquhar Group as part of its report published in April 2023 expressed a wide divergence of views about the involvement of reporters in financial remedy hearings.
• It was evident from the results of that survey that there is a lack of understanding amongst lawyers about what reporters are currently permitted to do.
• Recent experience has shown us that when judges – and the advocates appearing before them – get it wrong, they can expect to be skewered in the press.

As such, this pilot is to be welcomed. It provides a clear pathway as to what will happen from 29 January 2024 if a reporter attends a financial remedy case in the courts involved in the pilot – Central Family Court,2 Leeds and Birmingham – and from 4 November 2024 in the Family Division of the High Court. It covers applications for financial remedies upon divorce, applications under Sch 1 Children Act 1989 and applications under Part III Matrimonial and Family Proceedings Act 1984.

The Guidance applies to any level of judge of the Financial Remedies Court. It does not apply to the Court of Appeal (Civil Division), or to appeals to Circuit Judges or High Court Judges which are heard in open court.

Even if you do not routinely appear in the Central Family Court, Leeds or Birmingham, please read the President’s Guidance.3 This pilot represents evolution, not revolution. Reporters are already able to attend financial remedy hearings (but not FDRs) as of right. The most likely contentious issue will be what reporters are able to report arising from what they have heard and read at the hearings they attend. The procedural rules and substantive law underpinning the pilot applies to all financial remedy cases in all courts and there is evidence that advocates do not understand it. You are unlikely to be indulged by the court if you are not familiar with FPR 27.11/PD 27B or the Re S balancing exercise4 (see Annexe I to the President’s Guidance at paragraph 2(e)).

All family lawyers should have already read the Transparency Project’s enormously useful note as to what to do in cases when a reporter attends a hearing in the Family Court. If not, read it. A copy is attached to the President’s Guidance as Annexe I and there is a link to it on the Transparency Project’s website.5

The President’s Guidance is not binding. It is open to a judge in any particular case to depart from the guidance to the extent considered appropriate, in accordance with the law and the particular circumstances of the case. However, the Guidance is what the President of the Family Division and Mr Justice Peel as head of the Financial Remedies Court consider should be the general way forward.

The pilot makes clear that all parties must assist the court in furthering the Overriding Objective at FPR 1.3. In any case where a reporter attends, advocates are expected to be prepared to address the court on transparency issues and include transparency as part of the agenda in pre-hearing discussions with clients and the other advocates in the case. Lawyers and lay parties are expected to work constructively with pilot reporters.

The purpose of this article is to set out a series of simple steps and identify the points you will need to consider in pilot cases.

What should I do if I am appearing in a financial remedy case in the CFC, Leeds or Birmingham?

(1) Re-read the President’s Guidance. Judges and court staff have been trained on the pilot but late changes of personnel may mean the court requires assistance. Familiarise yourself with, and be prepared to advise your client, the other parties and the court about, what should happen in the event a reporter gives notice that they intend to attend your hearing.

(2) If it is an FDR hearing, there is nothing for you to do. Reporters cannot attend FDRs (FPR 27.11(1)(a)).

(3) For any hearings other than FDRs, download the draft transparency orders in case a reporter attends your hearing and the court intends to make a transparency order or interim transparency order – the advocates will be expected to draft them.

What will happen if a reporter contacts the court to say they want to attend the hearing?

(1) Reporters are expected to give notice to the court if they are proposing to attend a hearing. This does not always happen in practice and late or short notice will not in itself preclude a reporter’s attendance.

(2) If it is a remote hearing then the reporter will be entitled to attend remotely. If it is an attended hearing, the reporter may attend in person. If it is an attended hearing and the reporter wants to attend remotely, that is a case management decision for the judge. If there is the equipment and staff available to facilitate a hybrid hearing, efforts will be made to enable the reporter to attend remotely, but a reporter should not assume that they will automatically be entitled to do so.

(3) The court office will ordinarily be responsible for checking the credentials of the reporter. Journalists require a press card. Legal bloggers are expected to produce ID and Form FP301 (or a letter from their appropriate institution) confirming they are qualified lawyers attending for journalistic, educational or research purposes. You should check this has been done.

(4) Advocates are expected to work co-operatively and constructively with reporters in furtherance of the Overriding Objective, but reporters are not to interfere with pre-hearing discussions. Request for interviews with parties must be made through their advocates.

(5) Advocates may approach reporters, whether directly or through their press body, on behalf of their clients if so instructed but cannot question a reporter about their sources or seek to exercise editorial control.

(6) Remember that any applications or discussions before the judge relating to the role of the reporter – for example whether they should be excluded, what they may or may not report, or whether the documents they receive (see below) should be redacted – should take place in the presence of the reporter and the reporter is entitled to make representations.

What should I do if I am attending a financial remedy case in the CFC, Leeds or Birmingham other than an FDR and a reporter attends the hearing?

(1) Be clear with your clients that reporters are entitled (as they have been since 2009) to attend the hearing. Whilst the court can hear argument as to their attendance, the exceptions to their entitlement to attend are limited (see FPR 27.11(3)) and are unlikely to arise. The reporter can be present for as much of the hearing as they want to be. Reporters do not have to stay for the whole of the hearing.

(2) Familiarise yourself with, and be prepared to advise/remind others in the case about, the terms of the standard transparency order (attached to the President’s Guidance as Annexe II). In essence, reporters will be permitted to publish any information relating to the proceedings save for:

(a) the names and addresses of the parties (including any intervenors) and their children and any photographs of them;

(b) the identity of any school attended by a child of the family;

(c) the identity of the employers, the name of the business or the place of work of any of the parties;

(d) the address of any real property owned by the parties;

(e) the identity of any account or investment held by the parties;

(f) the identity of any private company or partnership in which any party has an interest;

(g) the name and address of any witness or of any other person referred to in the hearing save for an expert witness.

(3) A transparency order may be made at any stage of proceedings, but it is expected that a transparency order will be considered and, if appropriate, made, at the first hearing attended by a reporter.

(4) Bearing in mind the extent of what a reporter cannot publish pursuant to the standard transparency order and that, consequently, the identity of the parties, their children or other identifying facts will remain confidential, consider whether there are any circumstances particular to your case which would support an argument that a transparency order should not be made or that reporting should be further restricted.

(5) The court retains the discretion to direct that there should be no reporting of the case. In some circumstances the judge may decide to adjourn consideration of the transparency order until the conclusion of the hearing and prohibit any reporting of the case in the meantime. In those circumstances an interim transparency order will be made. This appears as Annexe III of the President’s Guidance.

(6) The details of the reporter should appear on the face of the transparency order and reporters must be served with a copy – this will usually be done by email by the court staff.

(7) The court may at any time modify or discharge the terms of the transparency order as it considers appropriate. Notice should usually be given of any application to do so.

(8) The draft transparency order sets out that the reporter will be given copies of any position statements filed in the case and the ES1 (but not the ES2, which is likely to contain confidential or commercially sensitive financial information) to aid their understanding of the issues in the case. The court retains the power to restrict or widen the scope of the documents to be provided to the reporter.

(9) It is not envisaged that the position statements or ES1 would require redaction, given that the transparency order is unlikely to permit confidential information to be reported in any event. However, consider whether there any circumstances particular to your case which would require an application in the face of the court to redact any information set out in the position statements or ES1.

(10) The reporter may quote from the documents with which they are provided, so long as any such publication is in accordance with the ambit of reporting permitted under the transparency order.

(11) If a document is referred to during a hearing, that does not entitle the reporter to see the document without permission of the court. The normal rule in civil proceedings (CPR 31.22) does not apply to financial remedy cases.

(12) The judge will, at the conclusion of the case, complete a feedback form to inform the President as to the success or otherwise of the pilot. You are not required to provide feedback but if you want to share any feedback, it can be sent to the email address set out below.

Further information

The TIG homepage6 on the Judiciary website includes links to all of the documents referred to above including the President’s Guidance, the draft orders, the Farquhar Group report and a PowerPoint training video.

In the event of queries, legal practitioners are invited to send an email to pilots@thetig.org.uk, managed by Emily Ward and Henrietta Boyle. They will respond as soon as they can but remember they are busy practitioners and patience may be required. Judges are invited to direct their queries about the pilot to their local Financial Remedies Court lead judge in the first instance.