18 September 2019 - Article
Divorce continues to make headline news all over the world, with the McCartney divorce as the most prominent recent example. It is a timely coincidence therefore that as their divorce was unfolding, the Department of Constitutional Affairs (DCA) was inviting responses to its consultation paper “Confidence and Confidentiality: Improving Transparency and Privacy in Family Courts”.
The DCA considers that as our society diversifies, the family courts must develop to ensure they represent and protect the public. The difficulty it faces is in how a system can be flexible to protect the rights of privacy as against those rights to access to information to maintain those systems.
The paper consists of a series of proposals to make changes to attendance and reporting restrictions to create consistency across all family proceedings. At present, different rules apply to different tiers of the judicial system. The proposals include allowing the media greater access to proceedings. The courts will retain the power to restrict reporting to provide for the anonymity of those involved in family proceedings but the restrictions could be increased (or relaxed), as the case requires. This would permit the media to publish legal arguments and decisions but in a format that would not identify the individuals concerned. A new criminal offence of breaches of reporting restrictions would be introduced, but the courts would also retain their existing powers to deal with any contempt of court. Members of the public would be able to attend court hearings, either on application to the court or on the courts' own motion.
One of the considerations relates to how adults, who have been involved in family proceedings as children, should obtain objective information about those proceedings. The paper puts forward the suggestion that they should be given a transcript or a short summary of the judgment and/or copies of the orders made, or recordings of hearings. The difficulty is to balance the interests of those who do not want access to the information with those who do want access to the information.
The consultation paper has created both excitement and disquiet amongst practitioners. Openness will highlight the delays which frequently occur, the lack of judicial continuity and the variance of court opinion. A database of anonymised judgments in all family cases could be the future, although the danger still remains that “suitably anonymised judgments” may not be anonymous enough, so that confidentiality and privacy become compromised. For example, media coverage of the knowledge that shares in a public company may be sold to fund a settlement could adversely affect the value of the shares to the detriment of the parties and the company's profile, despite recent judicial indications to the contrary.
There are legitimate concerns that the presence of third parties and/or the media may intimidate or hinder the way evidence is given, or stand in the way of potential settlements. Additionally, selective media coverage could provide a skewed picture of family proceedings generally. Valuable court time may be spent determining objections to the presence of members of the public / media. Experts may be unwilling to express their opinions for fear of adverse press publicity and witnesses may be reticent to give evidence.
A delicate balancing act is called for by the DCA, and it remains to be decided whether the washing of family laundry in the public eye will create confidence in the family courts whilst still providing the required level of protection.