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The move to increased transparency in the family courts

There is an increased emphasis on, and move towards, transparency and openness in the family courts, and particularly within financial remedy proceedings. The aim of this is to enhance the public’s trust and confidence in the family courts and the approach and decisions of the judiciary. It is hoped that there will also be benefits of enhancing the ability of the system and giving those who work within it more opportunity to learn and improve.

Currently, the general practice seems to be that family court hearings are not open to the public and that judgments should be anonymised (meaning that the parties and children’s names and any other details that would identify them are removed) but these practices are at the discretion of the judge hearing the case.

In the move towards transparency in the family courts the key suggested changes include the following;

  1. Accredited media representatives being permitted to attend hearings, have access to document filed by the litigants and to report upon the outcome; and
  2. Judgments being publicised without anonymisation (other than the names of children or any information that identifies them).

This step towards increased transparency is seen by many legal practitioners as a controversial step as it has the ability to compromise confidentiality in circumstances where litigant’s disputes are often of a personal and distressing nature. The President of the Family Division is clear that confidentiality does not need to be compromised in the interests of transparency and that the court system can maintain both principles.

The law on privacy and transparency in the family courts

Section 12 of Administration of Justice Act 1960 prevents information being published when proceedings are held in private and in applications made under the Children Act 1989.

Family Procedure Rule 2010 Rule 27.10 provides that all family proceedings will be held in private except where the rules provide otherwise or the court directs otherwise.

Family Procedure Rule 2010 Rule 27.11 permits various categories of people to be present during private hearings including accredited representatives of news gathering and reporting organisations.

Various case law established that the publication of confidential financial information disclosed in financial remedy proceedings is restricted.

The combined effect is that whilst accredited media representatives can attend private hearings, they are prevented from publishing information relating to them which renders this attendance effectively meaningless and so private hearings are rarely attended by the media.

Report of President of the Family Division

The President of the Family Division, Sir Andrew McFarlane, published a report on 29 October 2021 titled “Confidence and Confidentiality: Transparency in the Family Courts”.

This report provides the views and recommendations of the President following a review by a panel and evidence provided by various participants such as the judiciary, experts and journalists. His views and recommendations included within the report can be summarised as follows:

  • Increased transparency is a top priority and should be the ‘new norm’ to enhance public confidence in the family courts and open up the accountability of the judiciary;
  • There needs to be a major shift in culture and process to increase transparency;
  • The principles of confidence and confidentiality are not mutually exclusive and it is possible to achieve both;
  • Family judges should publish anonymised versions of at least 10% of their judgments each year;
  • Media representatives are to be allowed to attend family court hearings, have access to certain court documents (such as position statements and witness statements) and be able to report publicly on what they see and hear subject to clear rules and the judge’s discretion in each case;
  • Restrictions are to remain regarding the anonymity of children and families; and
  • The establishment of a Transparency Implementation Group (TIG) to take forward the changes proposed.

Consultation for a standard reporting permission order in financial remedy proceedings

A Consultation was launched by Mr Justice Mostyn and His Honour Judge Hess on 28 October 2021 in respect of financial remedy proceedings only which suggests the following:

  • The introduction of a standard Reporting Permission Order (RPO) which will be issued as a standard step immediately following the issuing of form A and can be reviewed at the First Appointment;
  • The order would allow a journalists to have sight of specific documents filed by the litigants within proceedings to allow them to understand the factual, evidential or legal issues, and to retain these for a period of up to 6 months; and
  • The order also allows journalists to publish information about a case such as a broad description of the types and amounts of assets, liabilities and income and by whom they are held as well as the value of the open proposals made by the parties.

Recent case law

Mr Justice Mostyn made comments in respect of transparency in two recent financial remedy case judgments reported in November 2021, BT v CU and A v M.

In both of these cases Mostyn agreed to anonymise the judgments as the parties had a reasonable expectation that the hearing would preserve their anonymity and he didn’t feel it was fair to spring a change of practice on them without forewarning. He made several comments within both judgments though, that his default position in the future would be to publish judgments in full without any anonymisation. The relevant extracts from the judgments are as follow:

BT v CU [2021] EWFC 87

I no longer hold the view that financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over the details of the case in the court’s judgment”

 “My default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations” 

A v M [2021] EWFC 89

“In step with the modern recognition of the vital public importance of transparency, my default position for the future will be to publish my financial remedy judgments in full without anonymisation, save as to the identity of children. Derogations from that default position will have to be distinctly justified.

 There seems to have been a certain amount of surprise caused by my decision in BT v CU to abandon anonymisation of my future financial remedy judgments. Views have been expressed that I have snatched away an established right to anonymity in such judgments. This is not so. I do not believe that there is any such right”.

Private Alternative Dispute Resolution

 Alternative forms of ADR such as Mediation, Arbitration, Collaborative Law and Private FDRs will remain private and it may be that the move towards transparency in court proceedings encourages those with family law disputes to use private ADR so that their details and documents remain private. One concern with this is that a two-tier family law system will be created with only those who can afford to use private ADR methods being able to keep their cases confidential. A consequence of this is the quality and variety of reported judgments which will be limited to those who cannot afford to pay for private FDR.

Conclusion

 The family court is advocating a change in the current practice of private hearings (without media representatives present) and the anonymisation of judgments, although this remains subject to strict rules to protect litigants’ confidentiality.

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