11th May 2023

Privacy in Family Proceedings

By David Allison

Privacy in Family Proceedings

 

FLiP’s family lawyers at the cutting edge

Transparency of proceedings in the Family Court has been a hot topic over the last few years.  In 2019, the President of the Family Division, Sir Andrew McFarlane, appointed a panel to investigate greater transparency, which reported in October 2021.

The President’s foreword to the report reads:

“The present system in the Family Court whereby a journalist may attend any hearing but may not always report what they observe, is not sustainable. I have reached the conclusion that there needs to be a major shift in culture and process to increase the transparency in a number of respects”.

The President then moved forward with a pilot scheme that presently operates in Leeds, Carlisle and Cardiff.  It began in January this year for particular public law cases and next week, on 15 May, it is being extended to private law hearings concerning children, i.e. disputes concerning child arrangements.  At the start of the pilot the President said:

“Following the publication of the Transparency Review in October 2021, and over a year of discussions with practitioners, journalists, legal bloggers and other stakeholders, accredited media representatives and legal bloggers in the pilot areas will be able, not only to attend and observe family court hearings, but also to report publicly on what they see and hear. Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect of intimate details of their private lives.”

The pilot is ongoing and in due course there will be a report and recommendations for reform.  In the meantime, the law on transparency is developing across other areas of family law. This is particularly the case in relation to financial remedy cases where parties have historically enjoyed the protection of the implied undertaking to prevent publication of the deeply personal financial information that is required under compulsion in order to meet the court’s demand for ‘full and frank disclosure’.  From a statutory perspective, the issue of transparency in financial remedy cases is being looked at by a sub-group of the Transparency Implementation Group.  Alongside this, the case law is developing at pace.  The most recent, and arguably controversial, judgment was from Mostyn J in Xanthopoulos v Rakshina [2022] EWFC 30, a case on which FLiP director, David Allison with Senior Associate Hannah Greene and Associate Rebecca Alexander represented the respondent wife.  That case has recently concluded with another ground-breaking judgment from Sir Jonathan Cohen reported as Xanthopoulos v Rakshina [2023] EWFC 50. You can find a summary of the judgment in our blog here. In addition, Rebecca Alexander has written about the lessons that can be taken from the case here.

FLiP was also there at the start of this road with the decision in Clibbery v Allan [2002] EWCA Civ 45 in which FLiP Director Elizabeth Hicks represented Ivan Allan.  The case dealt with the question of whether the practice of hearing the majority of family cases “in chambers” as opposed to in open court, has the consequence of imposing privacy on the case and meaning that information about the proceedings could not be reported.  This case concerned an unsuccessful application by Glory Anne Clibbery under Part IV of the Family Law Act 1996 seeking a non-molestation order against Mr Allan.  Unhappy with the outcome, Miss Clibbery took her story to the Daily Mail and gave direct quotes from the evidence filed.  In response Mr Allan took injunction proceedings to prevent further publication.  That injunction was granted, and Miss Clibbery appealed.

The Court of Appeal determined that, the fact proceedings were held in chambers did not mean that the proceedings and the evidence presented were secret.  The Family Procedure Rules gave the court power to exclude the public, but whether or not proceedings were confidential was dependent on statute.  It referred to S.12 Administration of Justice Act 1960, which sets out the circumstances in which it shall be contempt to publish information given in private proceedings.  S.12 deals mainly with proceedings concerning children.

The court concluded that proceedings under Part IV Family Law Act 1996 were not confidential (and hence the injunction preventing further publication was dismissed).  However crucially, the Court of Appeal upheld the previous High Court decision in Medway v Doublelock Ltd [1978] 1 WLR 710 in which it was held that there was an implied undertaking to keep confidential information provided under compulsion.  The court referred specifically to financial disclosure required in matrimonial proceedings, which it said was protected by the implied undertaking.

Since then, the implied undertaking has been a key feature of financial remedy proceedings, relied upon by practitioners and parties who have until now been given comfort by knowing that their most private, detailed financial disclosure will remain private and protected from publication.

The judgment of Mostyn J in Rakshina v Xanthopoulos [2022] has driven a coach and horses through this.  This judgment was at High Court level and cannot overrule the Court of Appeal decision in Clibbery v Allan [2002].  However, Mostyn J determined that since then the law had moved on.  He referred to the Family Proceedings (Amendment) (No 2) Rules 2009, which permitted journalists and legal bloggers to be present during family court hearings. He said:

“In my judgment, the privacy of proceedings, which is a key factor relied on in Clibbery v Allan, is extinguished by the permitted presence of journalists or bloggers.  The permitted presence means that the proceedings are to be treated as if in open court…….In my opinion, in the absence of a specific reporting restriction order, a journalist or blogger who receives information by virtue of being present during the proceedings is fully entitled to publish that information”.

The result was widescale reporting of the case.  The judgment remains controversial and untested by appeal.  It is not followed by many other judges in the High Court with the unsatisfactory result that, whether your private financial information disclosed in court is confidential will depend on which judge your hearing happens to be listed before.

This uncertainty means for many that court is not the right option and it can only encourage more people to avoid court.

At Family Law in Partnership we have pioneered many out of court dispute resolution models and have developed robust processes for parties wanting to protect their privacy whilst at the same time, securing the right result for their family.  A result that is binding and enforceable.  We are ideally placed to help clients find solutions in this way.  All out of court dispute resolution processes require the commitment of both parties and where one is determined to go to court, that remains the default.  But at FLiP we offer cogent alternatives and extensive expertise in a landscape where the current uncertainty of the law surrounding privacy is unhelpful and in need of reform.

To find out more about the expert family law services offered by our top London divorce lawyers, contact our team at E: hello@flip.co.uk or T: 020 7420 5000.