Greater Transparency in the Family Courts
There has been much discussion of late regarding greater transparency and openness in the family courts, and particularly in financial remedy proceedings. The current practice is that family court hearings are not open to the public and judgments should be anonymised but this is at the discretion of the Judge hearing the case.
Last October the President of the Family Division, Sir Andrew McFarlane, published a report titled “Confidence and Confidentiality: Transparency in the Family Courts”. The report followed a review by a panel of Judges, experts and journalists and the report recommended increased transparency as a top priority. It was said that there should be a major shift in culture and process to increase transparency. Family Judges were told they should publish anonymised versions of at least 10% of their Judgments each year and journalists were to be allowed to attend family court hearings and have access to certain court documents. Restrictions were, however, to remain regarding the anonymity of children and families. The report also established the transparency implementation group to take forward the changes proposed.
Mr Justice Mostyn and His Honour Judge Hess have been responsible for leading a consultation in respect of financial remedy proceedings and their consultation report recommends the introduction of a standard reporting permission order which will be issued as a standard step immediately following the issue of Form A and can be reviewed at the First Appointment. This order allows journalists to have sight of some documents filed within the proceedings so that they can understand the factual, legal and evidential issues and the journalists will be allowed to retain those documents for a period of six months. This order also allows journalists to publish information about a case with broad descriptions of the types and amounts of assets, liabilities and income and the value of the open proposals made by the parties.
Last November Mostyn J gave judgment in two reported cases. In both of them he agreed to anonymise the Judgments but he gave warnings that from now on he is minded to publish Judgments in full without any anonymization. In BT v CU [2021] EWFC 87 he said: “my default position will now be to publish financial remedy Judgments in full without anonymization, save any children will continue to be granted anonymity”.
This gives rise to concerns amongst family law practitioners about their clients’ privacy being invaded. Many of our clients are very keen, for obvious reasons, to keep their financial matters and personal information protected from public view. There has been some debate by barristers and solicitors specialising in financial remedy work about whether this will now lead to a two tier family law system such that those clients who can afford to use private ADR methods (such as arbitration) will be able to keep their cases confidential.