Since January the transparency order is ‘a thing’, in that courts will usually make one in every case where a reporter attends a hearing. Such orders allow the anonymised reporting of a hearing or a case by the media.
But what about the parents? Does it allow them to tell the story? Well, yes and no.
A transparency order allows a parent to be interviewed by a reporter and for the contents of that interview to be contained in a report, appropriately anonymised. It doesn’t give them control over their story and there is no guarantee a reporter will be able to attend – we are sometimes asked how a parent can apply for a transparency order as if that somehow entitles a parent to a reporter attending court. Sadly there are not enough reporters (either journalists or legal bloggers) to make that a reality.
Whilst a transparency order gives permission to reporters to publish information about the case, it simply doesn’t change the rules for parents. These apply automatically to all parents involved in a case about children and a transparency order doesn’t affect that – parents are unable to tell their story directly without risking being found in contempt of court (not good). They also cannot link to a report on social media and say ‘this is about my family’, because to do so would identify the child and again put them at risk of a contempt of court. In fact, when a transparency order is in place it specifically says that the relaxation of the rules doesn’t allow the parent to publish.
But that is not to say that a parent can never tell their story. Before transparency orders were a twinkle in anyone’s eye the Family Courts have, occasionally, allowed parents to tell their story – sometimes under a pseudonym and sometimes using their own name. That doesn’t happen often, but it does happen. And it still can.
The Open Reporting provisions don’t change the court’s ability to permit parental story telling if appropriate. The only thing that might change, if there is already permission to report anonymously, with information in the public domain or likely to be in the public domain, is that there might be a greater risk of ‘jigsaw identification’ if a parent’s own voice was added to the mix – so the way in which a parent is permitted to tell their story might have to be managed a bit differently.
In the recent case of M v F Harris J was asked to consider an application by a mother who the court had found to be a victim of abuse by the father, and whose case had previously been reported under a transparency order. She now wanted to tell her own story under a pseudonym and asked the court for permission.
The court allowed her application. It didn’t allow the father’s request to be able to tell his story too (his story being that the family court has got it wrong and he has been a miscarriage of justice).
The judgment deals with the judge’s concern that judges were no longer able to make this sort of order, because the new rules about transparency orders didn’t mention this sort of scenario and are all about anonymised reporting. Although she concluded she was able to make the order and went on to do so, she also seems to conclude that it is only judges of the High Court (not the family court) which can do so. We don’t think that is right, and we think the Court of Appeal are with us on that.
We have published two posts on this topic, one from our Chair Lucy Reed KC, and one from Sir James Munby, former President of the Family Division. You can read them here: Transparency Orders – Tool or Straightjacket? (Lucy) and here Section 12 – Yet More Confusion (Sir James).
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