Let there be light

When it comes to transparency in the family courts, Sir James Munby made his position clear in guidance on transparency published earlier this year: “I am determined to take steps to improve access to and reporting of family proceedings.”

In Rapisarda v Colladon [2014] EWFC 1406, the Judicial Proceedings (Regulation of Reports) Act 1926 (the 1926 Act) did not thwart his mission to improve and develop transparency in the family courts. The 1926 Act prohibits, in section 1(b), the press from reporting anything in divorce, nullity and judicial separation proceedings other than:

• the names, addresses and occupations of the parties and witnesses;
• a concise statement of the charges, defences and countercharges;
• submissions on any point of law; and
• the summing-up of the judge and the finding of the jury.

However, the president made clear his view that the purpose of section 1(b) was and is the protection of public morality and decency,
and not the protection of privacy. He called
for reform of the statute and, in the meantime,
found that section 1(4) of the Act provided a legitimate means of avoiding the impact of section 1(b) in certain circumstances.

In order to explain section 1(4) of the 1926 Act, he emphasised the general wording: “Nothing
in this section shall apply… to the printing or publishing of any notice or report in pursuance
of the directions of the court” to demonstrate
that the court can use its discretion to ensure
the press can report the proceedings.

Publicity is the soul of justice

In Luckwell v Limata [2014] EWHC 502 (Fam), Justice Holman said that simply reporting
the judgment means the public only hear the information the judge wants them to hear.
He quoted philosopher and jurist Jeremy Bentham: “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 Family Procedure Rules (FPR) do not contain any presumption that financial remedy proceedings should be heard in private and that the question
of whether or not they should be is entirely at the court’s discretion.

When exercising this discretion, presumably the starting point will be the principle of open justice: nothing should be done to discourage fair and accurate reports of court proceedings. Sir James Munby said: “The principle that anyone should be able to enter, watch and report the proceedings in the courts…is so clear that it requires neither proof nor elaboration.”

This common law principle was emphasised in Clibbery v Allan [2002] 1 FLR 565 at paragraph 16
by the then president, Dame Elizabeth Butler-Sloss.
“It applies,” she said, “to all courts and in principle the family courts are not excluded from it.”
This principle is enshrined in the FPR 10.28 which allows media attendance at family proceedings, subject to limited exceptions.

The court may direct that persons within paragraph (3)(f) shall not attend the proceedings or any part of them, where satisfied that:

(a) this is necessary –

(i) in the interests of any child concerned in, or connected with, the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party
or witness; or

(iii) for the orderly conduct of the proceedings; or

(b) justice will otherwise be impeded
or prejudiced.

Protection of confidentiality

However, Dame Butler-Sloss went on to explain that in family proceedings there are often implied undertakings of confidentiality to protect those parties who are compelled to provide full and frank financial disclosure. In order to encourage parties to participate fully in the proceedings, and enable the judge to make decisions on the basis of all the facts, the court will often offer the protection of confidentiality.

In Luckwell, Holman J felt that the case was in
the public’s interest because it involved the impact that a pre-nuptial agreement had on a husband’s financial claims. Holman J’s view was that the public should have an understanding of the current law regarding pre-nups, so that they
can form an opinion on the Law Commission’s recommendations for reform. He gave the parties three hours’ notice of his view, which he felt was sufficient for them to argue against it (which they chose not to do).

The court must consider any rights arising under any relevant provision of the European Convention on Human Rights (ECHR), 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
on any current or potential criminal
proceedings.

In A v A [2012] EWHC 4226, District Judge Bradley found the balance between the competing ECHR rights fell firmly in favour of privacy being maintained. The fact that the information disclosed in this case related to
third parties, that the husband was compelled
to provide it, and it had been given in private proceedings, were factors in her decision.
District Judge Bradley made it clear that media presence at the hearing does not mean that confidential information will be brought into
the public domain.

However, in the Court of Appeal decision of Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, Lord Justice Stanley Burton held that a litigant who provides false information and documents has no entitlement to confidentiality in respect
of that information or those documents. It was agreed that the judgment should be redacted to protect the privacy of the family and to remove commercially sensitive information.

Harsh light of day

Refusing to protect parties from media exposure can also work as a deterrent to providing false information. In W v M (ToLATA Proceedings: Anonymity) [2012] EWHC 1679 (Fam), Justice Mostyn was in favour of the ‘daylight is disinfectant’ argument; he explained that
cases where there is concern that one party is lying are well suited to being heard in public.

In this case, Mostyn J also had to consider
the Convention rights of the children involved. However, Mostyn J made it clear that the children’s interests were not a trump card,
and in this case found that their interests were
not outweighed by the public interest (which involved a trust claim following long term cohabitation). The fact that they did not share
a surname with their father was a factor.

In K v L [2012] 1 WLR 306, recently referred
to the Chancery Division decision of V v T and another [2014] EWHC 3432, the Court of Appeal took the unusual decision to allow the parties to retain anonymity on appeal. In K v L, the mother was “abnormally wealthy”, but had assiduously sought to create a “normal life for the children” who were unaware of the scale of her wealth. >>
>> The court did not want that normality to be forfeited as it could be “substantially damaging, perhaps even grossly damaging, to them.”

What should the press report?

The issue of transparency raises two distinct questions: should the press be allowed into the court and what should they be able to report?
The simplest solution for striking a balance between allaying concerns about ‘secret justice’ but also preserving privacy, is to say that the
press can have access to the court but reporting restrictions are put in place.

When deciding against anonymising the judgment, Mostyn J referred to Lord Rodger’s remarks in Re Guardian News and Media Ltd [2010] UKSC 1: “What’s in a name? ‘A lot’, the press would answer. This is because stories about particular individuals are much more attractive to readers than stories about unidentified people. It is just human nature.”

However, it is interesting that following Mostyn’s decision to refuse anonymity in W v M, the parties reached an agreement containing
a confidentiality clause. This surely brings
into question the parties’ access to justice.
The respondent in this case had argued that media attention would likely result in a deterioration of his wife’s health; this level of pressure must have put him at a disadvantage
in negotiating a settlement.

In Spencer v Spencer [2009] EWHC 1529 (Fam), where Munby J as he then was declined the invitation to give advice as to the ambit of the 1926 Act, the parties decided not to pursue their claim for financial relief through the courts once
it became clear that their privacy would not
be protected.

In that case, Munby J said the fact that the parties were high profile was a factor but not
a determinative one, and although both parties wanted the media to be excluded, Munby J said that could be an argument in favour of media attendance. He referred to the observation of
Sir Christopher Staughton in Ex p P [1998] Court
of Appeal (Civil Division) Transcript No 431 of 1998, “When both sides agreed that information should be kept from the public that was when
the court had to be most vigilant.”

Arbitration alternative

These are challenging times for those involved
in litigation who wish to protect their privacy
but want access to justice. The level of discretion afforded to judges makes it difficult to advise on transparency issues. By way of example, a financial remedy application involving a pre-nuptial agreement (Mostyn J in PA v SA [2014] EWHC 392) was heard in private and the judgment reported in anonymised form. The press was presumably not as interested in SA v PA as Luckwell v Limata, heard in the same month, but the extent of the press interest in a case is not a justification for a difference in the court’s approach.

In W v M, Mostyn J said: “Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign
an arbitration agreement.” Unfortunately, however, this solution only works for those who can afford
it. From a practitioner’s perspective, family law is dependent on case law in order to bring clarity and for it to develop. To discourage parties from using the court where they cannot reach agreement could prove short sighted – certainly a reported decision in W v M could have provided much needed clarity on cohabitants’ claims.

Transparency has been on the president’s agenda for a long time, and it is clear that he
wants practitioners, and indeed parliament, to focus on what needs to be done to promote it.
He has published a consultation paper to canvas
opinion and has made plain that reform will
be incremental and informed by the views of those affected.

Sir James is keen to establish the views of children and young people who have been through, or know of those who have been through, the family justice system. One question he has asked is whether steps should be taken to make the information in court lists more ‘media friendly’. Furthermore, he is interested in what categories of document, subject to appropriate restrictions and safeguards, could be disclosed
to the media, and whether certain types of family cases should be heard in public. The implications of this are vast. It will
be interesting to see the outcome of the consultation, and whether the president finds support for his campaign. SJ

Kate Landells (pictured) is a family law partner and Jemma Thomas a professional support lawyer at Withers