Transparency In The Family Court

FLiP director Elizabeth Hicks offers her personal view on the recent report by The President, Sir Andrew McFarlane, on transparency in the family court.

In 2020 there were 224,902 cases in the family courts in England and Wales. Many of the decisions made are based on judges or magistrates exercising their discretion, and representing the social and other value judgements of society.

The President of the Family Division, Sir Andrew McFarlane, was clear that it is in the public interest to know about these decisions to create a basis for trust in what is being decided. Without it, there are accusations of a secret court and that the court’s approach is unfair unsound or wrong.

On 29 October 2021 the President published his Report on Transparency in the Family Court. His conclusion was that it is possible to enhance public confidence in the Family Justice system while protecting the anonymity of the families and children who turn to it for protection. The two principles of public confidence and confidentiality are not mutually exclusive when it comes to transparency of the family courts. Representatives of the media should be allowed, not only to attend hearings, but also to report on what they see and hear.

The main goal of the Report was to ensure that confidence could be enhanced while maintaining confidentiality. It provided for authorised media representatives to be able to attend court and report publicly on what they see and hear – they should also have access to the position statements and witness statements filed at court (with further Guidance to follow on exactly what documents the press will be entitled to have in children cases). There are, of course, restrictions about not naming or identifying children and their family members in cases concerning the welfare of a child.

At the same time, a consultation paper was published by Mr Justice Mostyn and HHJ Hess which dealt with cases involving the financial aspects of a divorce. There is a very small window for consultation – until 26 November 2021. Under the terms of the consultation, as soon as proceedings to deal with the financial aspects of a divorce are started at court, a standard Order will be made which essentially allows members of the press to ask for private financial documents filed at court. The only reasons allowed for refusing a request are because the request made is exorbitant, unfocussed or disproportionate. Surely this will result in expensive and time consuming satellite litigation about whether the request is exorbitant, unfocussed or disproportionate?

Financial remedy proceedings are held in private. While in recent years it has been possible for the press to attend, they rarely do so as most of the detail they would want to publish (ie. about an individual’s finances) are in the documents which to date they have not been allowed to see. The key case dealing with privacy of court filed documents is Clibbery-v- Allen in which I acted for Mr Allen and where the original injunction preventing publication of the court filed documents was obtained in less than 20 minutes!

This new proposal will mean that the press will be entitled to receive the financial documents filed at court in the financial remedy proceedings to include the proposals which each party has to lodge before a final hearing. The press would only be allowed to publish broad details of the extent of an individual’s wealth without identifying the actual assets and where they are situated. But even so, it means that the days of explaining to a client that the information they provide in the court papers will not be given to any third party will be over! Not only will that information be given to a third party, but it will also be given to the press!

How can it possibly be in a client’s interests to know that their personal financial details will be given to the press when they are getting divorced? While the consultation paper states that the press will not be allowed to name minor children or their schools, or publish the details of the financial information provided, and they can only share the information with their editor and it has to be destroyed after 6 months, it still means that in every case which is started at court, an individual’s right to keep their personal financial information private will no longer exist.

The result of this move will be that more separating couples will do anything to keep away from the courts. Collaborative law, mediation and arbitration are all excellent alternatives to court. And at FLiP we have more collaboratively trained lawyers, mediators and arbitrators than any other law firm.

Sometimes it is necessary to issue court proceedings. But this proposal could result in people who need the protection of the family courts being worried about their personal information being made available to the press. How can that be right?

A version of this blog was also published by Integrated Dispute Resolution on 11.11.2021 and can be found here.