Transparency in the Family Courts

Secrecy and family law exceptionalism

For decades, it has been reasonable for those individuals going through financial remedy proceedings to feel that they can rely on the adopted practice of judges anonymising any judgments that are published and the knowledge that any press who attend open hearings will be restricted in their ability to meaningfully report anything. Whilst this has run contrary to the general principle in other courts which has the publicity of the administration of justice at their core, the family courts have, in many ways, developed what can be considered to be exceptional powers due to the nature of the issues being dealt with.

However, a series of judgments from Mostyn J have not only questioned this approach, they have laid down the gauntlet to those presuming secrecy in no uncertain terms, asserting that not only has the agreed practice been incorrectly founded, the starting presumption in fundamentally flawed. As Mostyn J poses: “the correct question is not: “Why is it in the public interest that the parties should be named?” but rather: “Why is it in the public interest that the parties should be anonymous?”. He makes clear that the law does not support an inherent right to secrecy. Indeed, he argues that parties subject to proceedings that are held in private cannot assume this provides anything beyond partial privacy, i.e. a limit to most members of the general public from physically watching the case.

These judgments come at a time in which both Sir Andrew McFarlane, the President of the Family Division, and Sir James Munby have thrown their weight behind efforts to open up the family court and relax the restrictions that have prevented meaningful reporting on proceedings from journalists and legal bloggers. Sir James Munby in particular has responded to Mostyn J’s assertions by challenging those who contest them as a matter of law to provide an alternative position that is as formidable and persuasive.

It remains to be seen whether Mostyn J’s position becomes a matter of agreed law, however if it were to stand true, it will lead to a fundamental change in the approach to anonymity, with the default position becoming that anonymity will not apply, unless the parties can persuade the judge that it should be granted on the basis of the facts of that relevant case.

The Reporting Pilot

The Reporting Pilot does not address the questions around the principles of secrecy, but instead seeks to deal with the perceived vacuum of information available to the public as to the workings of the family court. As many recognise, and Sir Andrew McFarlane observes, there is a great risk to public confidence in proceedings where there is a perception that those proceedings are deliberately held in secret without the oversight that is in inherent in open court.

The Pilot has two key guiding principles (the “transparency principle” and the “anonymity principle”) and it assists to set these out in full:

• ‘8 The aim of the [Pilot] is that in the designated courts, accredited journalists and “legal bloggers” (i.e. “duly authorised lawyers” for the purposes of Family Procedure Rules 2010, r.27.11) will be allowed to report on what they see and hear in court (“the transparency principle”).
• 9 All reporting will be subject to the principles of protection of the anonymity of any children involved unless the Judge orders otherwise (“the anonymity principle”).’

The issuing of the transparency order to accredited journalists and legal bloggers will enable them to attend hearings and report on the same, subject to restrictions around reporting the identities of the family involved (particularly the children). Importantly, those reporting will have access to relevant court documentation where possible, as previous restrictions on such access made substantive and contextual reporting extremely difficult. The Pilot will be broadly restricted to matters under the Children Act 1989, as opposed to financial remedy proceedings.

It can be anticipated, provided the Pilot proves successful, that such an approach will begin to be applied across courts in England and Wales in the coming years for applications under the Children Act.

What comes next

A committee led by Lord Farquhar is tasked with reporting and providing recommendations on issues of transparency in financial remedy proceedings, however the recent interventions by Mostyn J, Sir Munby and the President of the Family Division, together with the Reporting Pilot, show a fairly clear direction of travel. Questions remain about what form the recommendations will take, given the need to balance the general principle of privacy against the commentary of Mostyn J, and it is notable that there have not yet been any indications amongst Mostyn J’s fellow High Court judges that they are in agreement with his approach at this time.

As practitioners, it is clear that at a minimum, clients will need to be informed moving forward that their perceptions about their anonymity, and the court’s previous approach to such matters, may be misplaced in the future. This could well be extremely important to those clients who live in the public eye and have, to date, been able to expect a level of privacy that may soon cease to exist.