‘I’m part of the process, not an unwelcome guest’: reporting from inside the family courts

When the doors to the “secret” family courts were opened to journalists in 2009, it was hailed as a historic moment for the legal system and an important step for transparency.

For the first time, reporters could attend private hearings that were closed to the public, though no details of what transpired could be published unless a judge gave permission.

As one Guardian reporter wrote at the time, this brave new world came as something of a shock to those within the justice system. “Any journalist trying to take advantage of the new rules was not exactly welcomed with open arms,” she observed.

When I attended my first family case held in private some 12 years later, I got the impression little had changed.

After emailing the court to request a link to a remote hearing, it took numerous calls to connect with someone. Then came the response: could I provide details of my interest in the case so the judge could consider my request?

It was not a request to attend – I was entitled to do so – and journalists should not have to provide such information or be asked for it.

I was permitted to join but, despite making oral and written submissions, my initial application to report on proceedings was refused. It took eight months and numerous hearings before I was finally able to publish.

Of course, there can be good reasons for a judge to delay or refuse a journalist permission to publish, even with the provision that reporters must observe strict rules around anonymity. Family courts often see incredibly vulnerable children and families facing some of the most sensitive and complex issues.

But as my foray into the family courts deepened, it became evident that, despite the rule change more than a decade earlier, many judges appeared to have limited or no experience of having a reporter before them in court.

How much was this unfamiliarity playing into their reluctance or caution around allowing journalists to report?

Occasionally I would attend a hearing where the judge would acknowledge from the outset the clear public interest and were supportive of press coverage.

More often than not there would be an initial resistance and I’d find myself treated with suspicion or even hostility – usually from barristers who wanted to know how I’d found out about a case, including whether I’d been tipped off by the other party. This has happened on numerous occasions.

In one hearing, a barrister was so persistent with their repeated queries about how I had learned about the case that another advocate had to step in and reprimand them.

Another time, a lawyer interrogated a witness on the stand as to whether they had shared confidential details with me. [They hadn’t, but I was horrified].

Tensions can run high in the family courts where relationships are inevitably acrimonious, and children’s futures hang in the balance. But using the attendance of the press to intimidate one party is a low blow. Like lawyers, journalists have their own codes of practice, not least around the protection of sources.

Mrs Justice Lieven noted in a judgment last year that it will rarely (but not never) be appropriate for the court to inquire as to why the journalist is seeking to report or how they became aware of a hearing. They would not be expected to reveal their “sources”. I would never do so.

We should not be working in a climate where on one hand the president of the family division is urging reporters to attend court to improve openness and public scrutiny and, on the other, reporters are being badgered about their motivations for being there.

I’ve had instances where barristers have challenged my application to report because, they tell the court, they have a sense of the “direction of travel” my reporting may take, or they anticipate bias.

One barrister told the president of the family division during one hearing that his client didn’t like my activity on social media – although the specifics were never shared.

On another occasion, I was blasted by a Court of Appeal judge saying I hadn’t given enough notice when asking for copies of documents, despite writing to the court in advance.

I’m well aware this attitude to journalists could be seen as part and parcel of the courtroom drama, or lawyers trying to protect their clients. But it is not something I have experienced while reporting on the criminal courts.

Such treatment can be intimidating, even for the most experienced journalists, and it is certainly not conducive to openness and transparency.

I’m pleased to report, however, that the above examples do not reflect my experience of attending the courts brought under new rules being piloted in some areas of England and Wales.

The reporting pilot launched in Cardiff, Carlisle and Leeds in January 2023 and has been extended to a further 16 courts this year. The starting position is that journalists can report what they observe as long as the parties remain anonymous. The judge can still ban or restrict aspects of reporting at their discretion.

Since spring 2023, I’ve followed two cases over many months within the three original pilot locations. The biggest differences for me have been better access to documents, improved communication and, perhaps most importantly, I felt like part of the process instead of an unwelcome guest.

Even the simple act of a judge checking in with you to see if you have any questions as the hearing draws to a close can be extremely helpful.

After attending a four-day trial in Carlisle I had to wait nearly six months before being able to publish due to a parallel criminal investigation.

When the time did come, there were constructive discussions in court about how to include the level of detail I wanted to report without compromising the anonymity of the parties. The judge was engaged with the process and open to me contacting him directly on email with any queries.

He also permitted disclosure of some of the documents I’d requested that fell outside the permissions of the standard transparency order, which lays out the terms of publication.

Unlike on so many past occasions, I was crystal clear where I stood on publication. It seems the much-urged and much-needed shift in culture is finally happening. But how long before transparency and openness are the norm across the family justice system? Because not everyone is on message.

Thanks to the efforts of journalists and lawyers we now know the strongly held opinions of one family court judge - not only on transparency but on the professionalism and motivations of the reporters driving it. A successful application was made to the court to publish the remarks made by HHJ Mark Haigh after he excluded a journalist from court.

During a hearing at which the journalist was not present, Haigh had told Manchester Family Court he was “not supportive” of transparency and believes “we are failing children by putting this stuff on the internet”.

He questioned the motivations of journalists who “sell copy” and “have careers to pursue”. “Do not forget what they do,” he warned.

In some cases, the existence of the reporting pilot has been misused to maintain the culture of closed hearings elsewhere. There have been times when a barrister challenging an application I’ve made to report has said, “We are not part of the pilot.” Once I was even blocked from attending a hearing with an email informing me “this is not a pilot court”.

That the reporting pilot exists, however, makes no difference to journalists entitled to attend private family hearings elsewhere, nor does it change the fact that they can make applications to report what they observe.

While acknowledging this unintended downside, it is clear to me that the pilot has had a positive knock-on effect in securing permission to report in many other courts.

After asking judges to consider making transparency orders, I’ve successfully had at least seven issued from courts outside the pilot areas in the last year.

It is striking that the approach by judges has varied greatly. Some have given reporters access to the whole court bundle, which contains all of the documents considered relevant to a case. Others have played to the letter of the transparency template. And on one occasion, a stipulation added to the transparency order was so restrictive I felt unable to report anything at all.

There are still barriers to reporting that don’t have easy solutions such as the opaque nature of court listings, which make it hard for journalists to find the cases that might interest them.

On the other hand, the new rules mean individuals going through family court are now able to inform reporters of their cases and be interviewed anonymously without being in contempt of court.

This means – as when I interviewed a mother whose allegation of rape had been dismissed in error – we are able to give an extra human dimension to our coverage that wouldn’t have been previously possible.

With the extension of the pilot comes better access to a huge variety of important public interest stories waiting to be told. We hope to take full advantage of this over the next two years as part of TBIJ’s extended Family Court Files project.

And we need more newsrooms and editors to commit resources to this vital reporting so we can bring much needed scrutiny and awareness to an area of the justice system that has for too long been shrouded in secrecy.

If you are a journalist interested in covering family courts, or an editor open to assigning reporters to do so, please contact [email protected].