A pilot scheme that allows for “legal bloggers” to attend and report on private hearings in the family court has been approved by the Family Procedure Rules Committee. Toby Atkinson, a partner in the Divorce and Family team, and Callum Neill consider the scheme and its possible impact on family proceedings.

Parties to family cases involving anything from intimate financial details to child abduction may be faced with lawyers not connected to the proceedings attending their hearing so that they can report on them to the public.

This is as a result of a new scheme that came into effect under Practice Direction 36J on 1 October 2018 and will run until 30 June 2019. The scheme has been implemented “to assess the use of new practices and procedures to allow for attendance at hearings in private by certain lawyers with a view to their being able to report on proceedings (as “legal bloggers”) in addition to duly accredited representatives of news gathering and reporting organisations”.

Under the scheme, “legal bloggers” must respect the rules currently in place to protect the privacy of families and children. The Transparency Project, the educational charity that has been the driving force behind the scheme, says it “has potential to help make clearer how the family courts work, and to tell the public about the sorts of decisions family courts are making every day up and down the country, rather than just those cases involving a celebrity, a scandal or titillating fact”.

The charity believes the scheme will provide the public with a “greater technical understanding” as to what happens in private hearings, as the reports will come from family lawyers rather than journalists. One of the key reasons underpinning its optimism is the belief that legal bloggers will not be under the same “commercial considerations” as journalists to make sure their content sells. Bloggers will also not be bound by the strict word counts imposed on journalists.

The scheme is the latest chapter in the now long-running and well-publicised saga of privacy rules in the family courts, which has led to a strong diversion of opinions from judges in recent years. Mr Justice Holman, for example, stated in Fields v Fields [2015] EWHC 1670: “The people must be allowed, so far as possible, to see their courts at work. There is considerable current, legitimate public interest in the way the family courts daily operate, and that cannot be shut out simply on an argument that the affairs of the parties are private or personal.”

Mr Justice Mostyn expressed a contrary opinion in DL v SL [2015] EWHC 2621. He made it clear that financial remedy proceedings were “quintessentially private business”. He stressed that the starting point is that they are to be heard in private unless there are compelling reasons to have the more intimate financial details publicised.

Stewarts recently acted for Prince Louis of Luxembourg in his high-profile matrimonial litigation. During the case, we obtained a reporting restriction order preventing the media from making public details of his wife’s financial offer and certain information about the family home. In granting judgment, Mr Justice Macdonald performed a number of balancing exercises, which are explained in Stewarts’ recent article on the case.

Clearly, judges are struggling when asked to strike a balance between promoting what Mr Justice Holman calls “a very long tradition in the country of open justice” and limiting the invasion of what Mr Justice Mostyn believes is “quintessentially private business”.

Toby Atkinson, a partner in Stewarts’ Divorce and Family team, commented:

“We are increasingly acting for parties who are electing to ‘go private’ and arbitrate, so as to ensure that details of their private family disputes do not attract unwanted media attention.

“The introduction of legal blogging is likely to make arbitration an even more attractive route for separating couples.”