18 September 2019 - Article
This month, the President has confirmed that he will be issuing, for discussion and comment, a consultation paper inviting comments on the impact of the current Practice Guidance on Transparency, how the media can be better informed about cases, whether certain categories of document should be disclosed to the media and whether certain types of family case should be held in public. This is excellent time for the Withers' Family team which has arranged for an expert panel to debate the rights, wrongs, challenges and consequences of greater transparency in the family courts on 30th June. The panel event take place at 16 Old Bailey and, in advance of the event, here we look at what the ruling in Rapisarda v Colladon adds to the issue, alongside other important judgments which have pushed the envelope on public and media access to the family courts. The Judicial Proceedings (Regulation of Reports) Act 1926: upholding open justice or preventing sensationalist details of people's divorce trials being splashed across tomorrow's newspaper? Striking the right balance between two such contradictory objectives is certainly not easy; yet is this not, as Lord Justice Thorpe once suggested, exactly what the 1926 Act sets out to achieve? Drafted as an act to “prevent injury to public morals”, the 1926 Act prohibits the press from reporting anything in divorce, nullity and judicial separation proceedings other than (a) the names, addresses and occupations of the parties and witnesses; (b) a concise statement of the charges, defences and countercharges; © submissions on any point of law; and (d) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment. So what's changed? A recent ruling in the case of Rapisarda v Colladon  EWFC 1406 has brought to light a further example of the move towards transparency in the family courts. The President of the Family Division, Sir James Munby, made clear his view that the 1926 Act can be applied to financial remedy proceedings and that it can be interpreted in such a way as to reduce the impact of the reporting restrictions set out above. The case itself dealt with applications by the Queen's Proctor to dismiss divorce petitions and set aside decrees of divorce on the grounds of conspiracy to pervert the course of justice “on an almost industrial scale”. For this reason, together with the fact that the proceedings were held in open court, Munby P ordered that the media should be at liberty to publish whatever report of the proceedings they thought fit. Despite ruling that the 1926 Act applied in this specific scenario, Munby P's judgment also came with a health warning: he said that there is still ambiguity as to whether the 1926 Act applies to financial remedy proceedings and called for Parliament to resolve this as a matter of urgency. With regards to the interpretation of the statute, Munby P urged family judges to consider exercising their judicial discretion to allow the media to report financial remedy proceedings as a whole, as opposed to the public only hearing the information that the judge wants them to hear, as Holman J suggested was the reality in Luckwell v Limata  EWHC 502 (Fam). Interestingly in Luckwell, HHJ Holman's view was that the Family Procedure Rules do not contain any presumption that financial remedy proceedings should be heard in private and that the question of whether or not they should be is entirely at the court's discretion. What does this mean then for financial remedy proceedings going forward? Whether the hearing is held in public or in private, whether the proceedings are reported in part or in full, it is up to the court to decide. In doing so, judges will have to take into account relevant factors, such as whether or not there is a public interest element (as there was in Rapisarda, due to the conspiracy to pervert the course of justice). Is the balance gradually shifting in favour of open justice as opposed to the protection of public morals? Will greater transparency in the family courts encourage parties to settle through fear of public exposure? It would appear that there are worrying times ahead as tensions rise between the protection of people's privacy and their access to justice.