Divorce & Separation: Will Your Private Information Be Published?

The ongoing debate about whether we need more transparency in reporting cases heard in the family courts had a further outing at the end of March at Winckworth Sherwood. It hinted that perhaps this heated debate exists because:

• On the one hand, the public law children lawyers and those dealing with domestic abuse rightly see the advantages of greater openness in the family courts (because that may promote greater accountability in our public services and lead to improvements); whilst
• The family lawyers dealing with cases concerning the finances of a family rightly fear the increased access by the media will be abused and that private lives – including children’s lives – will be laid out for inappropriate public scrutiny, comment and invasion.

Two legal principles seem to be moving in polar opposite directions:

• Southwards comes article 8 of the Human Rights Act: Everyone has the right to respect for his private and family life, his home and his correspondence and interference by public authorities is prohibited save in line with the law and as is necessary in a democratic society; whilst
• Northwards moves article 6 of the HRA: In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial … where the interests of juveniles or the protection of the private life of the parties so require … Perhaps backed by the article 10 freedom of expression rights.

The press insists that benefits would follow from increased transparency. I am an enthusiast for the protection offered by the best parts of our media but I can’t support its endeavour when it comes to the resolution of financial claims between family members. The debate is wide-ranging, but my three reasons for resisting increased transparency would be:

1. Damage and intrusion: We can be educated in the principles applied by the family finance courts and form views as to where improvements could be made without knowing private details about those who are before the court. And yet it is always those private details that seem to end up being the focus of the press reports. I have never seen families recover after being laid out for public inspection.
2. Fraud: It is not beyond the realms of possibility that the significant financial detail of disclosures made in the family court proceedings which are then made public may be used for criminal activity.
3. Misrepresentation: In my view, the cases at court are our system’s failures: cases settle not least because of the threat of the high cost of court cases (in terms of preparation, effort, spend on legal costs and the enormous passage of time before the cases finish). The result of this is that the reported case hopelessly misrepresents the sampled population. If all that anyone knows about is the reported case (the remaining 98% were settled behind closed doors) we are not just failing to educate the population as to their likely experience of separation, we are providing a thoroughly misleading picture.

And what happens when you receive your reported judgment? Well, there is a risk that it will contain some pretty upsetting personal commentary. And do we not then have to wonder whether judicial support for greater openness is about adding to the judge’s armoury to persuade clients to settle (which is positively what all judges would prefer for litigants). If so, I would argue that this is a tool that our judiciary should not use. Indeed, I would go further and question whether the judicial voice should be loud in the reform of this system given that their experience of it is limited to the exceptional case.

Arriving at court in a financial case is often a result of an unfortunate place where decent people found themselves in their relationships, the lawyers that they (or one of them anyway) instructed and just occasionally about a novel situation that will extend, refine, or improve our law. Generally, such people have been through enough and adding to the misery with a public display of private matters truly isn’t needed to help our judicial system to perform.

All that is likely to happen as open sharing of private information becomes the norm is that the party who has less to lose from publicity (or has a higher aptitude for risk) uses the threat of publicity as a negotiation weapon to pursue an inappropriate settlement. Paradoxically, the strategy aimed at reducing the take up of court time in the resolution of private finance disputes might help to generate the longer court queue.

The debate continues. At FLiP our efforts are focused on helping our clients to settle their cases amicably and constructively away from the court. We hope that the family courts will not sacrifice people’s private information in the pursuit of open justice and that we will have the careful and calibrated family law system which separating families deserve which balances the needs of openness and privacy.