Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email editor@familylaw.co.uk.
A day in the life Of...
Read on

Judicially approved voyeurism

Date:20 AUG 2014
Once upon a time, we were able to say to our clients - with a degree of confidence - that their laundry, dirty or otherwise, would be safe with us.

We listed the exceptions of course. We explained that, in the highly unlikely event that they ended up with a defended divorce, they would be going through some pretty awful stuff in front of their husband or wife, the judge, their respective legal teams, and members of the press if it was a quiet news day. And if they happened to be Cheryl, or Simon or Rebekah, then even if it wasn't.

We said that the divorce petition itself might be open to scrutiny if they happened to be famous, or at least notorious, and Glen Mulcaire, or similar, had shown the presence of mind to bribe a badly paid court official. (Sometimes you don't even have to pay. I once went to the court office at the Registry to ask for some information and the person behind the counter wrote it down on a scrap of paper. On the back was part of the Duke and Duchess of York' s divorce petition.) 

Then there were injunctions. If our client hit their wife, we might say that there was a chance the subsequent proceedings to make them, or stop them, from doing something - or to send them to prison because they'd refused to take any notice of the Judge's stern words - could be heard in front of a reporter from the Daily Mail or, more likely, the Surrey Advertiser.

But that was about it. How much they were worth, or how much their husband hated them, would be canvassed in front of a pretty select audience.

No more. I think it all started when journalists began opining forcefully that the judges didn't know what they were doing. Why had this innocent woman been dragged back from France with her children, or that man put in prison for waving at his seven year old? Legitimate concerns, definitely, and a clear distinction needs to be made between public and private law cases.

But the judges' need for public approbation has started a trend that leaves many of us wondering how this 'transparency' can possibly be in anyone's interests.

If the State chooses to wrest a baby from its mother in the delivery suite on the say so of an overworked social worker - in our name - then there should be public scrutiny as long as the reporting is suitably anonymised. But that's a million miles from knowing how much the wife of a grey banker has spent at the gym ...
Article continues below...
Why should the rest of us know what your clients earn? This is a court procedure and, contrary to what Chris Grayling appears to believe, it is not voluntary and it has nothing to do with criminality. It does involve giving evidence in court, but it's evidence that's both personal and often very poignant.

The only way families can guarantee that they keep their private affairs out of the public domain these days is not to get divorced, not to bother with the court process at all or to settle their cases before getting to the stage of a hearing in open court whether by negotiation or mediation.

The government's obsession with mediation is predicated on the idea that everyone's reasonable and fair if left to their own devices without interference from self serving lawyers. If only. Contrary to the media's perception, the greedy conspiring lawyers are responsible for a tiny number of these cases.

We all know that the financial cases that go to trial fall into one of the following categories:

  1. One or both sides is acting in person.
  2. One or both sides is represented by one of those lawyers (you know who you are) whose business model relies on discouraging settlement to increase revenue.
  3. There's so much money involved, together with a genuine point of law or method of valuation to be resolved, that it does make commercial sense to spend a small percentage on legal costs.
  4. One or both parties are so blinded by rage, or blind to reason, or both, that they cannot be helped to help themselves.
Keeping away from court, when they have neither the tools nor the inclination to settle, leaves families vulnerable. Either the ex wife or husband can make financial claims many years down the line, or people are left with no financial support at all because their ex partner simply refuses to offer anything unless compelled to do so.

So the reality is that the only way our clients can avoid disinterested nosey people from knowing what money they have, what they spend it on, and what they think of their husband and wife, is if they decide not to avail themselves of the justice system at all. And that isn't justice.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.