Family law: plit decisions | Law Gazette

Historically, the business of the family courts has been conducted behind closed doors, leading to accusations of ‘secret justice’. But over the past few years, those doors have slowly been prised open, allowing for greater public understanding and scrutiny.

That process has not been simple. Last month, the extension of a pilot scheme to allow reporting in all family courts in England and Wales coincided with a determination by one judge to prevent the naming of another judge who had decided a case where the child involved was later murdered.

The case of Sara Sharif, who was killed by her father Urfan Sharif and stepmother Beinash Batool in August 2023, demonstrates the life-changing nature of the decisions that family judges make daily, as well as the need for scrutiny and accountability. The Court of Appeal allowed an appeal by journalists and media organisations to name the judges involved in previous hearings in relation to the child – reinforcing the need for reporting and transparency.

Sir Andrew McFarlane, president of the Family Division of the High Court, set in motion the drive towards openness in 2021. He recognised that the system of allowing journalists to attend hearings, but not report, was ‘not sustainable’.

Concluding that there needed to be a ‘shift in culture and process’ to increase transparency, the judge embarked on landmark changes to enable limited reporting in some cases. He cited the ‘twin goals’ of enhancing public confidence in the family justice system and maintaining the anonymity of families and children who turn to it for protection.

In January 2023 a reporting pilot began in three courts – Leeds, Carlisle and Cardiff. Journalists and legal bloggers were allowed to report on what they saw and heard in family courts if a transparency order was granted.

The scheme, which encompassed public law cases, then private law cases and finally magistrates, was progressively rolled out over the next two years. The provisions were then applied to all family courts in England and Wales from 27 January 2025, following the same stepped arrangements.

There is a presumption that a transparency order protecting the anonymity of the children and their families will be granted, unless there is a legitimate reason not to do so.

Extending the reporting provisions, McFarlane said the move marked a ‘watershed moment for family justice’.

Media reporting, he added, included coverage of issues affecting some of the most vulnerable in our society, such as: children subject to deprivation of liberty orders; the need to limit parental rights for convicted paedophiles; and cases of child neglect or abandonment.

‘There have been no known breaches of anonymity of children, and the aims of the pilot, to increase public understanding and awareness of the Family Court, are being realised,’ he maintained.

While journalists and some judges welcome the change, many lawyers have voiced reservations. They fear the initiative will drive some parties away from court to deal with disputes privately. William Rollin, a partner at Boodle Hatfield, says: ‘Our clients are overwhelmingly anxious about their day in court – the stressful finale of traumatic relationship breakdown.’

The family court process, Rollin explains, ‘inevitably revolves around confidential personal information, whether dealing with complex (private) financials or, even more agonisingly, sensitive issues like marital rape or child sexual abuse. It is hard to conceive that any party in family proceedings will welcome the presence of a journalist’.

Only time and experience, he suggests, will show whether the transparency project is ‘safe’ for parties in family court proceedings. In the meantime, the presence of journalists ‘will inevitably cause stress and anxiety to vulnerable parties’.

The increase in transparency and the risk of unwanted publicity, says Michael Gouriet, a family law arbitrator and collaborative lawyer at Withers, ‘underscores the advantages in trying to resolve disputes in a more cost-efficient manner outside the court system’. It is, he says, likely to lead to more parties in private law matters turning to mediation, collaborative law or private dispute resolution hearings.

‘There is also likely to be an uptick in the use of arbitration as a confidential and more efficient alternative to court,’ he adds.

Gouriet stresses, nevertheless, the critical role of judges as ‘gatekeepers’. They will make decisions in each case about the extent to which reporting should be permitted.

His firm’s experience of contested cases before the recent media reporting extension is that judges have been receptive to concerns raised about ‘jigsaw identification’, which he predicts will continue to be a valid argument run by litigants seeking to preserve privacy.

But, he warns, ‘not all participants in family law disputes are aligned on the objective of preserving confidentiality’. Some parties ‘may regard the uncertainty of exposure as a tactical lever in negotiations’.  

Although the starting point will be that families’ anonymity and confidentiality should be protected, John Davies, a partner at Farrer & Co, says many couples will remain concerned about the presence of a reporter able to listen to proceedings: ‘It is hard to reconcile the situation where there are claims being brought against the press for intrusion against people’s private lives in one part of the High Court, yet in another, the same newspapers are allowed to listen to the most intimate details of their lives.’

One consequence, he notes, is that ‘the starting point for most high-net-worth couples is now to look towards non-court dispute resolution, including arbitration, which is entirely cloaked in confidentiality’. This, he warns, will create a ‘two-tier justice system’.

In a ‘legal first’ last week, however, one mother in a family case bucked the trend. Described by her barrister as the victim of a ‘miscarriage of justice’, she has sought court permission to ‘tell her story’ by writing and speaking about her experiences in the family justice system.

That story involves a court dismissing allegations she made about being raped by her ex-partner, who accused her of ‘parental alienation’; before another judge reversed that ruling and ordered the ex-partner to be stripped of parental responsibility.

The case was one of the first in which the court made a transparency order to allow limited media reporting. But, while the transparency order allowed the press to report and obtain quotes from the mother, it did not allow her to write or speak about the case herself.

The High Court has been asked to make an order allowing the woman to speak out using a pseudonym without being in contempt of court.

The transparency rules are not the only significant family law change. Chris Longbottom, a partner at Clarke Willmott, alludes to a ‘pivotal time’ for family lawyers, as the Law Commission reviews financial remedy orders after divorce. These typically deal with: the sale and transfer of property; maintenance for spouses, civil partners and children; and the division of pensions.

Although the introduction of no-fault divorce in April 2022 has reduced levels of acrimony around the dissolution of a marriage, the potential remains for separating couples to dispute finances.

Commissioners said that the law, which dates from the Matrimonial Causes Act 1973, ‘lacks certainty and accessibility’ and does not ‘provide a cohesive framework’ to give parties ‘fair and sufficiently certain outcomes’. Nor does it ‘reflect the significant developments to financial remedies law arising out of judicial decisions’.

The commission has suggested four models for reform. These range from codifying the existing law to creating a European-style ‘matrimonial property regime’ that provides strict rules for dividing up property.

A key topic for debate is whether domestic abuse, including coercive control, should be more explicitly recognised in financial awards on divorce to ensure fair outcomes for survivors, says Davies. At present, he explains, it is rare for conduct to be taken into account in this way. Judges have resisted attempts to change that, in part because they are concerned about adding further pressure to the court system.  

‘But when the ultimate goal of the family court is to achieve a fair outcome, can we really achieve that when we don’t take into account fully the impact that domestic abuse has on survivors?’ asks Davies.

Another issue, hardly unique to family, is delays. Thousands of children – in both public and private law cases – are in limbo.

Almost 4,000 public law cases were started between January and March 2024, involving more than 6,500 children. While the number of cases has fallen gradually in recent years, cases take an average of 43 weeks to resolve, far beyond the 26-week statutory maximum.

Two years ago, McFarlane reported that it had been ‘six or seven years since the courts have been able to meet the 26-week deadline and there is no current expectation of doing so.

‘Like dough sitting on a baker’s proving shelf, a family case that is waiting to be heard expands in size. Delay breeds more delay,’ lamented the Family Division chief.

This year he has reported ‘slow’ progress in tackling the ‘unacceptable’ backlogs. In the first three months of 2024, parents made 14,155 new private law applications, affecting 20,935 children, in disputes over living arrangements and contact. While the number of cases fell by 1% on the previous year, the proportion that concluded dropped by 10%, with matters taking an average of 44 weeks to conclude.

Ministers have adopted several methods of moving more cases out of court. In doing so, says Suzanne Todd, a mediator and collaborative lawyer at Withers, they have deployed ‘a combination of carrot and stick-based incentives’.

One ‘carrot’ includes extending until March 2026 the Mediation Voucher Scheme, which gives a couple up to £500 of vouchers to help cover the cost of mediation.

‘In terms of the stick, the courts are increasingly encouraging those making court applications to try to find solutions elsewhere,’ says Todd. Courts will ask both sides to explain what they have done to try to resolve their dispute.

‘Where those answers are not sufficient the court can pause the process to give people an opportunity to explore alternatives and make costs orders against those who have not without good reason been prepared to engage in alternative dispute resolution processes,’ explains Todd.

Where parties look to resolve matters less formally outside court, says Katharine Landells, a partner at the same firm, it is important to ensure that the voice of the child is heard. She hopes that the government’s Pathfinder pilot, which has recently been expanded, may help to facilitate this.

The scheme, launched in March 2022 in courts in Dorset and north Wales, aims to improve the court’s response to those who have been affected by domestic abuse by improving information-sharing between services and to centre the voice of the child in proceedings.

Ministry of Justice figures suggest that the approach is working, with cases being resolved 11 weeks earlier, and the backlog of cases reducing by 50% across Dorset and north Wales.

Despite the scheme’s success in speeding up resolution, Jo-Anna Jellings, legal director in the family team at Brabners Personal, is concerned that it risks compromising the delivery of justice.

With the dramatic reduction in processing time, she questions how thorough the case evaluation is, and suggests it places too much trust in the hands of the social worker or Cafcass officer, whose reports to the court may not always be accurate or complete.

Jellings is also uneasy about the fact that decisions are made by judges on paper without hearings. ‘While addressing court backlogs is, without a doubt, important, it shouldn’t override an individual’s right to a fair and thorough hearing,’ she says. Each case ‘deserves careful consideration rather than rushing the process to come to a resolution’.

According to Kingsley Napley, wealthy couples are increasingly bypassing the slow and chronically underfunded public family court system to resolve disputes over finances with the help of a private judge, especially in London. Last year 88% of the firm’s financial dispute resolution cases involved a settlement assisted by a private judge, compared with 8% in 2018 and 67% in 2023.

‘At a time when the family courts are under severe pressure, it absolutely makes sense for couples who can afford it to pursue other ways of resolving their differences, especially over financial matters,’ says Sital Fontenelle, partner and head of the firm’s family team.

The removal of legal aid for most family law cases is widely regarded as contributing significantly to backlogs. Cases where parties are not represented by lawyers simply take longer.

Family lawyers’ group Resolution, along with the Law Society, have called for legal aid funding for access to early legal advice. This would help parties resolve problems sooner, diverting more cases away from court and reducing delays.

Resolution is also campaigning for cohabiting couples to have at least basic rights on relationship breakdown or death of a partner. But in that regard, says Davies, there is ‘no clear consensus’ about what such reforms would look like; or indeed much evidence of public appetite for reform.

Catherine Baksi is a freelance journalist