Transparency and the Family Courts

The debate centres on the legal conflict between the right to privacy and family life; and the principle that “justice must be seen to be done”. 

For many years we have advised our clients that the information which they gave to us was confidential other than to their former partner and their advisors. Whilst they were going through a painful experience they could do so comfortable in the knowledge that their ‘dirty laundry’ was not being washed in public. Even for cases in the High Court, the details, when judgements were published, were suitably anonymised. 

For some time the family justice system has faced criticism and ‘attack’ in the media for its so-called secrecy. This is particularly true of cases involving children, where the state (social services) are seen to be taking children from their natural parents and placing them for adoption on the grounds that they are not safe with those parents – so-called care proceedings. Journalists have faced allegations of contempt of court if they referred to anything which took place within those proceedings.

The same focus is now coming to the fore in private cases dealing with children and, more particularly financial cases or divorce. Elements of the press – particularly but not exclusively of the red top variety – will always want to report celebrity divorces and disputes; the current interest in the ‘Wagatha Christie’ proceedings (though not family law) and the ongoing fall out of the ending of the marriage between Johnny Depp and Amber Heard is a low point in the salacious nature of their reporting.

The debate centres on the legal conflict between the right to privacy and family life; and the principle that “justice must be seen to be done”. A recent case, (Xanthopoulos v Rakshina) has brought this debate into the open as the presiding Judge, His Honour Judge Mostyn, concluded that the information contained in financial remedy proceedings is readily reportable; and further, that to depart from this default position requires a judicial balancing exercise under Articles 8 and 10 of the European Convention on Human Rights, with the result that such cases will need to be transferred to the High Court. Any departure from the default will need to be based on the specific facts of the case rather than any then general propositions.

The argument is made that all civil litigation requires candid and truthful disclosure, even if this is given under compulsion and that family cases are now different. In the family finance arena that compulsion is manifested in the requirement to file a Form E financial disclosure which clearly states on the front sheet: “you have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances”, accompanied by the warning: “if you are found to have been deliberately untruthful, criminal proceedings may be brought against you for fraud under the Fraud Act 2006” although we have never heard any of anyone being prosecuted for an inadequate Form E. Omitting to include assets in the Form E could be argued to be the client being deliberately untruthful. We have always had to tell our clients that if they tell us about an asset which they do not want to have included in their disclosure that we can no longer act for them, as we, as solicitors, have a duty to not knowingly mislead the court.

Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms – which formed the basis for The Human Rights Act 1998 – provides that: “everyone has the right to respect for his private and family life, his home and his correspondence. There should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

This legal argument between these two conflicting positions has some distance still to run. At the moment the cases are being considered by Judges at High Court level. It will no doubt require an appeal to the Court of Appeal and then the Supreme Court, before we can give definitive advice.

However, there is now a real prospect that “what goes on in court does not stay in court”. To mitigate this risk we will be urging our clients (and their spouses and advisors) to consider non-court options. Even if a case is not suitable for mediation, financial cases are now being referred with encouragement and approval from the judiciary to private Financial Dispute Resolution hearings or Arbitration. At the outcome a court will still be asked to make an order, but the requirement is only to provide an outline summary of finances without any drill down to details, and that information is not produced in open court so journalists and others will not have access to the information provided, and confidentiality can be preserved.