A family's right to privacy or open justice: what's the priority? UK Family courts are set to change their approach

Article 17 December 2021 Experience: Divorce and family lawyers

The idea that justice doesn’t just need to be done but needs to be seen to be done is a fundamental part of open justice. In order for our courts to be accountable, it makes sense that the public need to know what is going on. There are notable and important exceptions, for example children proceedings are generally private and children involved in proceedings should not be named to preserve their privacy and allow them to move forwards without concern that it will become public knowledge.

Financial remedy proceedings have also always been in a slightly different category – parties are compelled to provide full financial disclosure and, in the absence of issues of credibility, it is generally accepted that the information provided should remain confidential. Although accredited members of the media and more recently legal bloggers are able to attend court, and can report on decisions, the hearings themselves are generally held in private so that members of the public cannot attend. Reporters have not had access to documents or been able to report the names of those involved and published judgments were generally anonymised. However, there has been an increased push towards more transparency.

Since 2014, when the then President of the Family Division issued Guidance on transparency, there has been a shift in approach from the judiciary with more cases heard in public and reported without anonymity. Mr Justice Mostyn (who had previously anonymised his judgments in financial cases) recently said that he ‘no longer held the view that financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over the details of the case in the court’s judgment’ and that his ‘default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity.’ From this point on, those involved in financial remedy court proceedings should be warned that the judgment may be reported including their names.

In addition, there has been a consultation on the extent to which accredited journalist and legal bloggers should have access to the documents in family law cases. The justification is that otherwise it is hard for reporters to follow, understand and therefore report effectively. Reporters will be able publish a broad description of the financial resources of the parties (without identifying the actual items) and a broad description of the open offers the parties have proposed to settle their case. They will be able to publish anything heard or said concerning the proceedings, including parties’ names and photographs and the relevant issues in the case.

The aim is an admirable one: on average, there are around 4,300 cases a week heard in the family courts of England and Wales but little is known about how justice actually works. The current President of the Family Division, Sir Andrew McFarlane, has proposed caveats to his suggestion of greater openness, notably protecting the privacy of children. Plus, as we have commented on before, more information about how decisions are being made should allow a clearer understanding of the process and make it easier for lawyers to advise and clients to anticipate the way a court may view a particular case.

But, set against this, there is a very real concern as to what speaking to reporters may mean in practice. One of the reasons that family financial proceedings were generally heard in private is the sensitivity of the information which must be disclosed in order for the court to determine a fair settlement. On a near daily basis our clients are, rightly, concerned that when revealing their most delicate of financial and personal details this information will be treated with the upmost confidentiality. We pride ourselves on such discretion. The idea that an aggrieved family member may speak ill of another party or reveal a particular detail to a journalist – potentially unrelated to the principle on which a legal judgment is made – is unsettling.

A side effect of Sir Andrew’s proposal could be that parties seek to resolve more issues in alternative ways. This could be arbitration, where the entire process, including the binding judgment, is private. Or more resolutions at private Financial Dispute Resolution hearings. Or that parties look to mediate or avoid courts in other ways. Our innovative new service, Uncouple, combines practices from mediation, neutral evaluations and arbitrations to ensure that the clients can use the most appropriate parts of all available dispute resolution formats to achieve a resolution.

Perhaps the judiciary would not be too perturbed if more people found alternatives to court – the courts are utterly overrun. But ironically the result of Sir Andrew’s transparency review may mean less publicly available data – at least for those who can afford private justice. Even the publication of anonymised judgments poses questions in practice, such as how an already buckling system can be expected to process these at a sufficient speed to ensure they offer the guidance it is hoped they will provide in other ongoing cases.

The transparency review is noble in its aims. What it means in practice only time will tell but as a firm we are well prepared for whatever that may be given our vast experience not just in the family sphere but also with our leading media and reputation team.

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