The family court and open justice: evolution, reform, and wider implications for the Health, Education and Social Care (HESC) Chamber
FamilyFamily CourtHealth, Education and Social Care Chamber (First-tier Tribunal)TribunalsPresident of the Family DivisionSir Andrew McFarlaneNews
From Judge Mark Sutherland Williams, HESC Chamber President
Introduction
The principle of open justice—that justice must not only be done but be seen to be done—stands as a cornerstone of the common law tradition. Yet, within the family courts, this ideal was long tempered by the need to protect privacy and the welfare of children and vulnerable individuals. In recent years, the tension between confidentiality and transparency has become something of a defining issue. The evolution of open justice in this context not only reveals changing social attitudes but also raises important parallels in other sensitive and confidential jurisdictions such as mental health and special educational needs.
Privacy as protection
Historically, family courts operated behind closed doors, reflecting a belief that privacy was essential to protect children and families from the harm of public exposure.
Proceedings concerning divorce, adoption, and child protection were typically heard in private under provisions such as the Family Procedure Rules 2010, r.27.10 and the Administration of Justice Act 1960, s.12.
The rationale was twofold: to protect the welfare of the child—a paramount consideration in family law—and to encourage frankness from parties when discussing deeply personal matters.
This approach, however, fostered criticism. In more recent years, journalists, campaigners, and academics began to argue that excessive secrecy fosters mistrust and a misunderstanding of the family justice system. Cases involving child removal or care proceedings were particularly scrutinised, with concerns about so-called “secret courts” and a lack of public accountability.
The push for transparency
From the early 2000s onward, senior judges in the family jurisdiction have sought to redress some of the balance between privacy and openness. Reforms in 2009 allowed accredited journalists limited access to some family hearings, though their ability to report remained constrained by judicial discretion and statutory prohibitions on identifying children.
A significant milestone came in 2014, when the then-President of the Family Division, Sir James Munby, issued Practice Guidance on the Publication of Judgments. The guidance encouraged judges to publish more decisions—especially in serious private law and public law cases—on publicly accessible databases such as BAILII. This represented a cultural shift: while the judge retained discretion not to publish or redact, the presumption leaned more towards transparency unless strong welfare or privacy grounds justified restriction.
The balancing of rights
Judicial interpretation has reinforced this nuanced approach. The Human Rights Act 1998 requires courts to balance Article 8 (right to privacy) with Article 10 (freedom of expression) under the European Convention on Human Rights. In Re S (A Child) [2004] UKHL 47, the House of Lords established the framework for this balancing exercise, holding that neither right has automatic precedence. Subsequent cases—such as Re J (A Child) [2013]—have applied this reasoning, emphasising the need for proportionality and context in decisions on publication and reporting.
The result in family courts has been a gradual move away from blanket confidentiality towards a model of controlled openness, where the public interest in understanding what takes place in hearings coexists with the imperative to safeguard children and vulnerable people.
The modern era
Under current President of the Family Division Sir Andrew McFarlane’s 2021 Transparency Review, the family justice system acknowledged that public confidence required a shift from “secrecy to transparency.”
His report concluded that openness is not inconsistent with the welfare of families, provided it is managed sensitively. Recommendations included:
- Greater media access and simplified reporting frameworks
- Routine publication of anonymised judgments
- A national “Transparency Implementation Group” to coordinate cultural and procedural change
These recommendations led to pilot schemes (from 2022 onwards) in cities such as Cardiff, Carlisle, and Leeds, allowing some reporting of family cases by accredited journalists and legal bloggers. Reporting is subject to “Transparency Orders”—directions ensuring anonymity and protection of sensitive information. The pilots have since expanded nationwide, signifying a tangible redefinition of the family court’s relationship with open justice.
Broader applications: open justice in mental health and SEN Tribunals
The debate over openness in the family courts resonates strongly in closed tribunals where sensitive personal information is central—particularly in mental health cases and special educational needs (SEN) appeals involving children.
In mental health, the Tribunal Procedure Rules already contain an option for hearings to be held in public at the patient’s request, with appropriate safeguards. This marks a limited but meaningful recognition of the open justice principle—acknowledging that individuals subject to compulsory powers have an interest not only in fairness but in transparency of process. Yet, the presumption under the rules remains one of privacy, given in part the stigma and vulnerability often associated with mental illness. Notwithstanding this, some first-instance decisions have been published in anonymised form, promoting accountability and public understanding of how legal principles are applied.
Last year, following Maher v FtT (Mental Health) and Ors [2023] EWHC 34 (Admin), Presidential Guidance was issued within the mental health jurisdiction to safeguard the rights of victims, ensuring they were entitled to receive the reasons underpinning tribunal decisions. This year, those protections have been further strengthened through the introduction of victim impact statements under section 21 of the Victims and Prisoners Act 2024.
Similarly, in SEN tribunals, the rules provide for a default position of private hearings. However, as in family justice, there is an emerging approach towards measured openness, carefully balancing transparency with the child or young person’s right to confidentiality. For example, since September 2025, SEN hearing lists have been published online, and earlier this year Presidential Practice Guidance was issued on preparing for hearings in SEN and Disability Discrimination cases.
Across the HESC Chamber, significant work has been undertaken to ensure that our processes, practice, and procedure are more clearly understood. We have introduced new publicly accessible webpages on this site (judiciary.uk) and a ‘what to expect’ video to assist those appearing before us, and those advising them, in understanding what a hearing in our jurisdictions is likely to entail.
This gradual reform across the HESC jurisdictions reflects a broader judicial methodology: open justice as a qualified, not absolute, principle. The modern approach recognises that transparency promotes accountability, consistency, and public confidence, but that unrestricted openness could cause real harm to vulnerable individuals, including children. As Sir Andrew McFarlane observed, the challenge lies in “achieving transparency without cruelty”—ensuring that the justice system is seen to be fair without exposing families, patients, or children to unnecessary intrusion.
Conclusion
The evolution of open justice in the family courts mirrors society’s growing desire for accountability within closed environments. From near-total privacy to a culture of controlled transparency, steps are now being taken in HESC to help reconcile the public interest with the personal interests of those subject to proceedings. The question is no longer whether the principle of open justice should prevail; rather, it concerns the manner, mechanisms and derogations by which it is to be given practical effect.
While tensions within the rules persist and privacy in many cases remains vital, selective publication and access by some can reflect a recognition that justice cannot thrive unseen. Ultimately, the principle of open justice in these contexts demands a more balanced and measured equilibrium—one that protects dignity and welfare while ensuring that the administration of justice remains visible, comprehensible, and, ultimately, worthy of public trust.
Mark Sutherland Williams, President of the First-tier Tribunal (Health, Education and Social Care)
Judge Sutherland Williams sits on the Transparency and Open Justice Board, the key objectives of which include that Courts and Tribunals should promote open justice to enable the public to understand and scrutinise the administration of justice by Courts and Tribunals; and thereby seek to (a) uphold public confidence in the administration of justice; and (b) support improved public understanding of the constitutional role discharged by Courts and Tribunals in the administration of justice and the rule of law.