24 October 2014

Family law news: what’s right to write?

Jennifer Dickson
Senior associate | UK

Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) and the implications on media reporting.

This case considered the vexed issue of media reporting of family cases in England.

Practitioners in jurisdictions where proceedings are open to the public (and the press) may wonder what all the fuss is about. However, whilst open justice is an important cornerstone of the English legal system, most family law proceedings in this country have long been recognised as an exception to the rules.

Family law represents a ‘special category' of cases: heard in private, with disclosure provided under compulsion and with the court adopting a quasi-inquisitorial role.

Accredited representatives of the media are permitted to attend financial remedy hearings, but what should they be allowed to report?

  • Should a couple's finances be ‘fair game' because they are high profile individuals, or because of the size of their wealth?
  • Should the veil of confidentiality which enshrines such proceedings suddenly be lifted at the court's doors?
  • Does the media have to apply for permission to report, or is it up to the parties to apply for an injunction or restrictions preventing reporting?

These were questions Mrs Justice Roberts found herself grappling with during Mr Hohn and Mrs Cooper-Hohn's 10-day final hearing to determine how the parties' wealth should be divided upon their divorce.

How a familiar problem came to a head

Two days in, and just before the husband was to start giving evidence, the Judge was taken off piste to hear arguments from Counsel for the media, and for both parties about what the press should be allowed to publish.

It was accepted by all that the law was unclear. The only certainty was the law's uncertainty, or the ‘turbid waters' Mostyn J had referred to in W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam).

The Family Procedure Rules 2010 allow accredited members of the media to attend court, but those rules are silent on what they may report about what they hear.

There is no binding decision about whether the ‘1926 Act' (a one page statute restricting publication of certain proceedings) applies to financial remedy cases. There is also no clear law about whether the ‘implied undertaking of confidentiality', which the parties owe to each other and to the court, should extend to the press.

The question of whether information heard in private proceedings, with the press present has ‘entered the public domain' remains unanswered.

The case itself

The husband maintained that the very nature of financial remedy proceedings was confidential. If members of the press wished to report something, the onus was on them to apply to do so.

The wife disagreed, arguing that if he wanted any reporting restrictions, the husband was the one who had to apply to court. Both parties disagreed fundamentally over what Mrs Justice Roberts termed ‘the default position'.

In an attempt to bring the impasse to an end, the media stepped in to invite the Judge either:

  1. to hold the remainder of the hearing in open court (allowing any member of the public to attend); or
  2. to make a ruling under the 1926 Act (whilst making clear their primary position was that the 1926 Act did not apply).

Mrs Justice Roberts declined the first invitation (to hold the hearing in public) but accepted the second, which allowed her a route (most recently taken by the President of the Family Division in Rapisarda v Colladon [2014] EWFC 1406) to define what the media is allowed to report.

Setting out the guidelines

The effect on the evidence of reporting concerned her: ‘I have no difficulty in accepting the proposition that a party may well feel constrained in answering questions or providing transparent answers during the course of cross-examination, if he or she believes what is said will be on the nation's breakfast tables the following morning.'

Mrs Justice Roberts accepted and wholly endorsed the following points made by Counsel for the husband:

  • The court needs the parties to give full and frank disclosure.
  • This is quintessentially private information.
  • There is a very strong public interest in ensuring that parties properly discharge their obligation to give full and frank disclosure.*
  • This is supported by the implied undertaking that information disclosed for the purpose of financial remedy proceedings will not be used for other purposes.
  • Parties disclose documents in financial remedy proceedings in the expectation that the relevant documents will not enter the public domain.
  • This expectation of confidentiality incentivises parties to give full and frank disclosure. The prospect of publicity is likely to deter them from doing so.

Acknowledging that the principle of open justice remained relevant, the Judge pointed out that as financial remedy cases concern real and legitimate expectations of privacy and confidentiality for the family, courts have consistently recognised they fall into a special category.

Notwithstanding journalists now have rights of access to these private hearings, here was a need, the Judge said, to protect the confidential nature of the financial information disclosed within such hearings.

Balancing the right to privacy with freedom of expression

It was a matter of balancing the couple's rights to privacy (under Article 8 of the European Convention on Human Rights), against the media's Article 10 rights to freedom of expression on the other. Here it was not only the size of the wealth, but also the legal arguments (about the husband's ‘special contribution') that engaged the public interest.

Mrs Justice Roberts concluded that a ‘blanket' restriction on reporting was too wide, but decided to impose far-reaching restrictions in terms proposed by the husband's legal team.

These terms prohibited reporting about anything of the parties' financial information, save to the extent that such information was already in the public domain (for example, in public records or by virtue of the parties' hearing in the Court of Appeal three weeks earlier).

The issue of media reporting of family law cases will continue to be a focus of debate following the President of the Family Division's recently announced consultation on transparency issues in the Family Courts.

This article forms part of our October issue of Family Law News. Click below to access a PDF of the complete newsletter:

Family Law News | October 2014

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Jennifer Dickson Senior associate | London

Category: Article