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Should family proceedings be behind closed doors?

Date:12 OCT 2015
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Assistant solicitor

The issue of privacy in the family courts has once against raised its head in Mostyn J’s recent case of Appleton and Gallagher v News Group Newspapers Ltd and The Press Association

In Appleton and Gallagher v News Group Newspapers Ltd and The Press Association [2015] EWHC 2689 (Fam), Mostyn J stated that 'To say that the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess would be a serious understatement.' But what is the supposed position of the law?

The rules

Rule 27.10 of the Family Procedure Rules 2010 states that cases are held in private. It used to be the position that only parties and their representatives could attend hearings in the family court . However, since April 2009, the press are able to attend family hearings under rule 27.11. That said, rule 29.12 of the rules prohibits reporters from looking at any documents produced at hearings.

The president’s guidance

In January 2014, the president, Munby J, clearly perceived there to be a lack of clarity in this area as he issued Practice Guidance (Transparency in the Family Courts: Publication of Judgments). In this he stated that there should be greater transparency in order to achieve a more consistent approach, improve the management of cases and raise a greater public awareness of how the family courts work.

However, he expressly stated that the guidance does not override the court's discretion in deciding to regulate the publication of a judgment. Paragraph 19 of the guidance states:

'In deciding whether and if so when to publish a judgment, the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.'
This allowance for flexibility, as is common in family law, has led to a divergence in approaches in the High Court.

The approach in recent case law

Pro privacy

In Appleton and Gallagher v News Group Newspapers Ltd and The Press Association, Mostyn J clarified his understanding of what a journalist is and is not able to report. He ordered that journalists are not allowed to publish anything that
'identifies by name or location any person other than the advocates or the solicitors instructing them…refers to or concerns any of the parties' financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors' correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.'

Prior to this, Mostyn J made similar arguments in DL v SL [2015] EWHC 2621 (Fam. He stated that 'ancillary relief (or financial remedy) proceedings are quintessentially private business, and are therefore protected by the anonymity principle'.

Mostyn J has identified a number of reasons why he considers that this is the position:

(a) Parliament in FPR 27.10 specifically legislated that these proceedings should be held in private. This was not amended with the 27.11 press rule chance in 2009. If Parliament had intended for the press to be able to report on anything, then rule 27.10 would have been amended. Mostyn considers that the rule change was intended to allow the world to understand children cases, and especially public cases, rather than financial remedy proceedings. He states that this is clear from the White Paper Family Justice in View (Cm 7502). In passing, this seems still to be a concern as Bristol University has recently published research that looks at how feedback on the work of judges could improve the way they handle cases about children’s care;
(b) Publishing any information heard in private financial remedy proceedings would be a breach of the implied undertaking as to confidentiality, and would be contempt of court;
(c) Financial remedy proceedings involve "highly personal and private information under compulsion". This can be contrasted to civil cases, where the disclosure obligations are more specific and are arguably less personally invasive;
(d) Article 14 of the1996 International Covenant on Civil and Political Rights (ratified by the UK in 1976) sets out that the press can be excluded from all or part of the trial when the interest of the private lives of the parties requires, and provides that judgment need not be in public in cases involving matrimonial disputes;
(e) The Judicial Proceedings (Regulation of Reports) Act 1926 prevents publication of certain proceedings, and Mostyn  argues this covers financial remedy proceedings and remains good law.

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Mostyn J considered that these factors 'point powerfully to the categorisation of ancillary relief proceedings as private business entitling the parties to anonymity as well as to preservation of the confidentiality of their financial affairs'. Mostyn J, however, concedes that press involvement can be justified in certain circumstances. His examples include proof of iniquity, where the information is already in the public domain and the McCartney situation (where published material is wholly inaccurate and needs to be corrected).

In the recent big money case of Jamie Anne Cooper-Hohn v Christopher Anthony Hohn [2014] EWHC 2314, Roberts J also looked at the issue. Although she came down on the same side as Mostyn J, her reasons are different. Roberts J felt that the Article 6 rights of the litigants would be endangered if the rule of confidentiality were abandoned in financial remedy proceedings. Roberts J was concerned that highly sensitive and confidential information would be available for public consumption and that might be a disincentive to providing full and frank disclosure.

Pro freedom of expression

Holman J however has taken a different approach. In Luckwell v Limata [2014] EWHC 502 (Fam) and Fields v Fields [2015] EWHC 1670 (Fam), Holman J took the approach that the starting point should be that journalists should have full reporting rights in financial remedy cases (appearing before him at least) on anything heard at the hearing, unless a specific application is made to prevent this. Holman J considers that:

(a) there has been a recent and strong shift towards greater transparency in the family courts, and judges must respect that;
(b) transparency in the family court is incredibly important, as the public must be able to see how their court system works;
(c) the publication of judgments does not go all the way to a fully transparent family court, as it only allows the public to hear from the judge, rather than the parties, and therefore press involvement is important;.
(d) the fear of their having financial affairs in the public domain might encourage parties to reach a private settlement, which would also reduce their costs (and, reading between the lines, perhaps he is also trying to reduce the burden on the court system); and
(e) quoting Bentham, that 'publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial'.

The future of the family court’s approach to transparency

So the only thing that is clear is that it is not clear what the position is or indeed should be, and that further guidance is needed. Mostyn J is certainly correct when he states that the law in this area is a ‘mess’.

Mostyn J has granted permission to appeal in Appleton and Gallagher v News Group Newspapers Ltd and The Press Association and so hopefully the Court of Appeal will help to provide some much needed clarity in this area. However, given the three ECHR rights at play and the potential impact of this issue on the public, it is submitted that this is an area where we need legislation to shed some light on the approach that Parliament intended. In this regard, the House of Commons Library has recently published a briefing paper addressing confidentiality and openness in the family court, which is hopefully a step in the right direction.

One option to provide parties with clarity in the interim is for parties to enter into arbitration, which provides an indisputably private process for the parties. See Charlotte Sanders’ article on Arbitration in family cases – the way forward? for further advantages of the arbitration process.

Watch this space to see how this area progresses.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.