FLiP responds to Proposal for Standard Reporting Orders in Financial Remedy Proceedings

Family Law in Partnership has responded to the Proposal for Standard Reporting Orders in Financial Remedy Proceedings issued on 29^th October 2021 by Mr Justice Mostyn and His Honour Judge Hess. The proposal, if implemented, will significantly change the information that is available to the press when reporting on financial remedy cases conducted in the family courts. As a firm Family Law in Partnership is extremely concerned about the negative impact the proposal will have on our clients if it is introduced.

Director James Pirrie comments: “We face a potential change as seismic as any that has shaken the practice of (and the confidence in) family law over the last few decades. We see this proposal as a devastating blow to the courts’ attempts to help parties move forward with their lives and, surprisingly, it is a change being promoted by the judges of the very courts involved.”

Currently, although the press can attend hearings in the family courts and report on the proceedings, they are not allowed to see any of the documents filed by the parties without the express permission of the Court. The financial information that the parties provide to the family court is also protected by a ‘cloak of confidentiality’. To date the approach of most family judges has been in favour of protecting the privacy of the family life of the couple involved.

The new proposal published on 29^th October 2021 is part of a review of the transparency of the family courts, with a stated aim of improving public confidence in the family justice system by lifting that cloak of confidentiality. Whilst the underlying rules concerning what the press can publish are not going to change, the journalists and legal bloggers will be able to request copies of confidential documents (which they can keep throughout the proceedings and until six months after proceedings have finished).

The framework of the new proposal includes the introduction of a Standard Reporting Order (SRO) which will be issued by the family court at the start of the proceedings, on receipt of an application for financial remedy.  The terms of the SRO as currently drafted mean that the press would be entitled to contact the parties’ legal representatives to request copies of the ‘protected’ financial information that is ‘necessary’ to enable them to understand the case. Legal representatives will only be able to refuse to provide information that is ‘exorbitant, unfocused or otherwise disproportionate’. When the courts look at the financial issues relating to a case, any amount of historical or current, financial or personal information may come into the reckoning, so the scale of this exposure of information will be beyond anything previously imagined. What this means in practice we have yet to see but the risk is that it will see the press and media being able to require production of a wide range of formerly private information.

Quoting from the proposal:  the arrangement then “allows the journalist/ blogger to publish a broad description of … the types and amounts of the assets, liabilities, income … armed with this information [they] can say how much the case is worth and what the parties are arguing about.” They are not allowed to publish the detailed confidential ‘protected’ information which has been produced under compulsion as part of the proceedings (the confidentiality cloak mentioned above). The SRO however makes it clear that a ‘broad description of the types and amounts of the assets, liabilities, income and other financial resources of the parties, without identifying the actual items, or where they are sited or by whom they are held and a broad description of the open proposals of the parties giving only the monetary value and without identifying actual items’, would be allowed.

The idea of lifting the lid on ‘what the family courts are up to’, may sound positive until you consider it applying to your own personal information and your own divorce. In effect, the price of separating and of being unable to agree how to resolve matters outside the court process, is that your name, your income and your resources are laid out for public consideration. So, what was previously private now risks becoming very public indeed.

If introduced, this new approach may also involve a careful strategic assessment for the parties involved: clearly if you are more private than your former partner and could be more damaged by public reporting online and in the press, this puts your former partner in a position of strength: ie.  “agree to my terms or else the case continues in the glare of publicity”. Even if you agree terms but need the family court’s confirmation of your arrangement (for example, so that pensions can be shared which is not otherwise possible) it looks as though your information may reach the public arena – although the opportunity to control what then leaks out into the public domain is much higher.

This move towards increased transparency in the family courts is being done in the name of building public confidence in what the family courts are doing. But surely you could report the principles applied by the court without exposing the private financial details of those involved. That is the system that has long been in place. What is proposed is the spicing of the stories with private and personal information … perhaps this is intended to bring media attention to the family courts as never before; perhaps it is intended to force people to stay away from court because the courts are overburdened. But surely confidence is built because a system is seen as operating in a logical and sensible way (hence the need to clarify the principles) and because we could envisage using the system and achieving a fair outcome. And that surely mandates privacy?

If this proposal is adopted in its entirety, we might expect to see:

• Local press to run columns on “this week in the divorce court” – names and pictures.
• With sufficient information for quite detailed profiles to be jig sawed together in many cases.
• Wealth can be identified and therefore targeted: security will be breached and we know that in consequence of this change – if it happens – scams can be perpetrated.
• Indeed, if you were in the business of online scams, isn’t your first step now to masquerade as a legal blogger and start gathering the data of assets to target.
• Those of us working in the best interests of our client now have a whole new chapter of work that we must try to manage for our clients and that they will be paying for.

It is not clear how this proposal, if introduced, would affect existing proceedings in the family courts. However, even if there is no direct application, the spirit of the new approach towards transparency is likely to impact on the Court’s response to existing applications by the Press for copies of information on the court file.

In our view, private matters should be resolved in private – if there is a crisis in confidence in our family courts, this is not the way to restore it.

The brief public consultation on the proposal is now closed and we await a decision on what happens next.