03 February 2016

The transparency debate rages on

Laura Winterbottom
Special counsel | UK

There are two distinct schools of thought driving the transparency debate in the family courts: the approach propounded by Sir James Munby (the President of the Family Division) and Mr Justice Holman, and that endorsed by Mr Justice Mostyn.

On the one hand, Sir James Munby – very much the figurehead of the transparency movement – states in his President's Guidance in February 2014 'I am determined to take steps to improve access to and reporting of family proceedings'. Later that year, in his August 2014 Consultation Paper, he summarised the principles driving his transparency agenda: firstly, the need for greater transparency in order to improve public understanding of the court process and confidence in the court system and secondly, the public's legitimate interest in being able to read what is being done by the judges in its name.

Mr Justice Holman supports greater openness in financial remedy cases – often lifting the reporting restrictions placed on the media and routinely hearing cases in public (open court). In his case of Luckwell v Limata [2014] EWHC 502 (Fam) – held in public – he quotes Jeremy Bentham 'publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial'. In that case, he felt that hearing the case in public was in the public interest as it involved the impact that a pre-nuptial agreement had on a husband's financial claims following divorce. Given the Law Commission's recommendations to change the law in relation to pre-nuptial agreements, Holman J's view was that the public should have an understanding of the current law, so that they can form an opinion on whether or not it needs reform.

Mr Justice Mostyn, by contrast, as evidenced in his judgment of DL v SL [2015] EWHC 2621 (and again in Appleton & Gallagher v News Group Newspapers and PA [2015] EWHC 2689 (Fam)) argues the case for preserving privacy in financial remedy cases. Reporting how the case is conducted is one thing (to ensure it is done so fairly and to educate the public in a general way about family law processes), but reporting the intimate details of the parties' private lives is another, he says.

Mostyn J, in Appleton & Gallagher, does not regard the rules granting media access to the family courts as giving them free rein to report everything they see and hear, but rather to perform the role of watchdog. Circumstances in which the cloak of privacy may be lifted are where there is proof of iniquity or in unusual cases such as McCartney v McCartney where a full judgment was required to correct false and speculative commentaries in the press, he says. He could also conceive of a case where parties had effectively waived their rights to privacy by living the minutiae of their lives in the public eye and courting round the clock press attention.

In contrast, in the case of Cooper-Hohn v Hohn [2014] EWHC 2314, in which media representatives sought permission to publish details of the proceedings, Robert J balanced the competing rights under the European Convention on Human Rights, of privacy on the one hand and freedom of expression on the other, in deciding to prohibit the publication of any details of the parties' financial information, save to the extent that such information was not already in the public domain.

In Holman J's view, there is no presumption that financial remedy proceedings should be heard in private and so the question of whether or not they should be is entirely at the court's discretion. Mostyn J, on the other hand, regards there to be a presumption of privacy unless there are compelling reasons to the contrary.

Holman J's preference for hearing cases in public may have been at the forefront of the husband's mind (and those of his advisors) in Mackay v Mackay [2015] EWCA 2860 (Fam) when his barrister brought to the judge's attention a somewhat tenuous social connection which led to the judge recusing himself to avoid professional embarrassment, and the case being dealt with by another judge.

This divergence of approach in relation to transparency can offer no comfort to parties to a divorce – there is no certainty as to which approach will be adopted in their case, and often the identity of the judge is only revealed the afternoon before the hearing starts. In some circumstances, no doubt, the threat of publicity will lead to deals being concluded on unfair terms.

What are the issues?

The topic of transparency is multi-faceted. The questions it raises include:

  • Should the press be allowed into court in family proceedings and if so, what should they be able to report? Should proceedings be distinguished where personal and private information are provided under compulsion (e.g. financial remedy proceedings)? Should the media be allowed to see court documents e.g. summary documents prepared by the barristers or expert reports, to facilitate their understanding of the case? Should these documents be confidential or should the press be free to copy/disseminate their contents?
  • Should the judgment be published? If so, should it be anonymised? Does anonymisation provide adequate protection for the children involved (when by virtue of so-called jigsaw identification, the identity of the family can be deduced by using a combination of information that has been published plus information that is already available online)?
  • When should family proceedings be heard in open court (i.e. in public)?

A brief history of transparency

On 27 April 2009 legislation introduced new rules on media attendance in the family courts. Rule 27.11 of the Family Procedure Rules 2010 allows for the attendance of accredited media representatives in family proceedings (save for some limited exceptions e.g. adoption proceedings). The rules prohibited the media from identifying children involved in the proceedings. The intention behind the new rules was to 'open the door' on family proceedings to ensure they were being properly and fairly conducted.

The President's guidance of February 2014 brought with it new rules on the publication of judgments which effectively provided that judgments should be published unless there were compelling reasons not to. This was on the basis that personal information should be anonymised. In each case, the judge should have regard to the competing rights of privacy and freedom of expression enshrined in the Human Rights Act 1988.

In the President's Consultation Paper of August 2014, he invites opinion on the new developments and, in addition, on a proposed pilot scheme whereby the media are provided with copies of certain documents to assist their understanding of the case. The initial proposal is for such documents to remain confidential so that their contents could not be reported – the implication being that as part of an incremental increase in transparency, this would change, and in any event is at the discretion of the judge.

The President also sought views on what cases should be heard in public.

The House of Commons published a briefing paper on 23 September 2015. Rather than voicing a specific view, the Government's stated position is decidedly 'on the fence': 'The Government supports steps to increase openness whilst remaining mindful of the rights to privacy of those involved in such personal proceedings'.

The future

With the judiciary at odds on the correct approach, clarification is much needed.

This may in part come from the Court of Appeal, as Mostyn J granted News Group Newspapers permission to appeal his decision in Appleton & Gallagher.

Otherwise, it will mean awaiting the outcome of the President's Consultation, which is what the House of Commons paper indicates the Government is doing before deciding on what course of action to take, if any, to clarify transparency in the family courts.

Laura Winterbottom Special counsel | London

Category: Article