The launch of a transparency pilot in three family courts last week is to be welcomed. The impact of the scheme on the families involved remains to be seen, but it only relates to children cases and different considerations apply to financial cases.
In the meantime, the law on public access to the family courts and what can be reported remains a mess, made worse by conflicting judicial pronouncements.
In 2015 Mr Justice Mostyn ruled in the family division of the High Court in the case of Appleton v Gallagher, saying that “a mess would be a serious understatement” with respect to the law on the ability for the press to report on financial cases. This confusion not only affects the approach of the judiciary but also a lack of willingness on the part of the press to report on financial cases.
Prior to another decision from the same judge in the case of BT v CU in 2021, it was generally accepted that financial cases on divorce were held in private with tight limits on what could be reported, even at trial. However, the judge effectively said in his 2021 ruling that he had been wrong in 2015. He said in BT v CU: “I no longer hold the view that financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over the details of the case in the court’s judgment.”
The decision in that case changed everything and led to a practice note from Mr Justice Peel and Judge Hess that agreed with Mr Justice Mostyn’s new-found views.
But surely the Court of Appeal decisions in the 2002 case of Clibbery v Allan and Lykiardopulo v Lykiardopulo in 2011 remain binding. The first found that while the 1991 family proceeding rules had not gone too far in dictating that cases should be heard in private, there was no prohibition on the reporting of some of the evidence. In the second, the appeal judges ruled that in normal circumstances, financial information in family litigation would remain confidential.
I accept that it is possible that those decisions and others were wrongly decided or not directly on point. But if so, only the appeal court should be left to overturn its own decisions.
It is unfair to litigants with cases continuing at the time to change the basis on which their cases will be dealt with and in effect suddenly to announce that details of their finances will be published if an agreement cannot be reached with their spouse and the case goes to a contested hearing.
For the time being, the practical effect of the existing transparency rules in financial cases on divorce is unclear. Some judges remain hostile to transparency and give indications to the media that there is little they can report, especially from interim hearings. There is no clear guidance or agreement as to what entitlement the press has to see documents before the court. This is a recipe for dispute and unnecessary litigation.
What is needed is greater clarity and certainty as to what the rules are, and the benefits — or lack of them — in greater public access to the family courts. That needs considered thought and research, and comparisons with relevant foreign jurisdictions as to their practices.
It is hoped that the financial remedy court transparency group chaired by the circuit judge Stuart Farquhar can provide that certainty and clarity.
This article was originally published in The Times. Read Mark’s article here.