Behind the veil of secrecy: the move towards transparency in Family Courts

For many years, Family Court cases have been shielded by stringent rules on confidentiality. Consequently, press reports have been rare, and in instances where high profile cases have seen a degree of press intrusion, reporting has usually been limited to a broad overview of the case.

Despite this, the issue of transparency in the Family Court has become an increasing source of debate. There are now two distinct and competing motives. The first is to protect litigants’ privacy as they deal with a court process that delves into deeply personal matters, whilst the second is to increase public confidence in the Family Court by demonstrating the judicial decisions which are made.

The current position

At present, a number of legal provisions set out the arrangements for privacy in the Family Courts.

Section 12 of the Administration of Justice Act 1960 provides that where proceedings are held in private and relate “wholly or mainly to the maintenance or upbringing” of a child, it is a contempt of court to publish information relating to the proceedings. Rule 12.75(1) and Practice Direction 12G of the Family Procedure Rules (‘FPR’) permit information about child proceedings to be communicated to certain categories of people, but media representatives are conspicuously absent from the list. The overall effect of this is that in cases relating to children, there are strict reporting restrictions.

On the face of it, the position in relation to financial remedy proceedings is less clear. Rule 27.10 of the FPR provides that unless the rules or the court state otherwise, all hearings will be held in private, but rule 27.11 permits members of news-gathering and reporting organisations to attend private hearings. Notwithstanding this, caselaw has established that the parties in financial remedy proceedings are bound by an undertaking not to use information disclosed in the proceedings for any other purpose. This undertaking extends to media representatives who attend hearings, and consequently publishing information from the proceedings is a breach of that undertaking.

The overall outcome is that whilst reporters can attend hearings, it is difficult for them to publish any details of what they hear. In practice, this means that the media rarely attend private family hearings.

Sir Andrew McFarlane’s report

In October 2021, the President of the Family Division, Sir Andrew McFarlane, published a report entitled Confidence and Confidentiality: Transparency in the Family Courts. In the report, Sir Andrew expressed concerns that “a largely closed system…leads to accusations that this is ‘secret’ justice and that the approach of the court is unsound, unfair or downright wrong”. To combat these concerns, Sir Andrew recommended the following key changes:-

• Parliament should consider repealing Section 12 of the Administration of Justice Act 1960.
• Judges should aim to publish anonymised versions of at least 10% of their judgments each year.
• In addition to being entitled to attend hearings, media representatives should be provided with access to certain family court documents, such as witness statements, and permitted to publicly report on cases.  This would however remain subject to the judge’s discretion, and to the requirement for the parties’ names to be anonymised. In particular, the report emphasised that the anonymity of children must be preserved.
• Subject to the above, accredited media representatives and legal bloggers should be added to the limited list of people to whom information relating to children proceedings can be communicated.
• A Transparency Implementation Group should be set up to help implement the proposed changes.

Shortly after the report, a consultation was launched by Mr Justice Mostyn and His Honour Judge Hess, with the intention of increasing transparency in financial remedy proceedings. The consultation recommends the use of a standard “reporting permission order” (‘RPO’), which would provide media representatives with access to key documents. The suggested RPO also permits the publication of details relating to a case, including the parties’ names, photographs and a summary of the issues involved, as well as any settlement proposals made.

Recent caselaw

Although the outcome of the consultation is still awaited, there have already been several Family Court cases in which the issue of transparency has been further considered.

In BT v CU [2021] EWFC 87, the Court initially published a judgment in financial remedy proceedings with only the names of the children anonymised. Subsequently, the court went on to allow the husband and wife’s names to be anonymised too. However, this was only on the basis that naming the wife would identify the children, because she worked at their school, and that the husband and wife had a reasonable expectation that their anonymity would be preserved.

Perhaps in an effort to dispel that expectation, Mostyn J stated that the anonymisation of judgments in financial proceedings should be brought to an end, stating, “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…My default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity”. Notably, these comments seemed to go beyond the recommendations made in Sir Andrew's report, which suggested that anonymity would remain in place.

This theme continued in A v M [2021] EWFC 89, where Mostyn J noted the surprise with which his comments in BT v CU had been met by family law professionals. Responding to this, he said, “views have been expressed that I have snatched away an established right to anonymity…I do not believe that there is any such right”.

Most recently, Mostyn J returned to the theme of transparency in Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52. The case concerned the husband’s application for anonymisation of the parties involved in the financial remedy proceedings, or alternatively for a reporting restriction order (‘RRO’) to be made. The latter option would prevent any report which identified the parties, their children or the companies of which the husband is a director

Mostyn J concluded that it was only appropriate to provide a limited RRO, in order to ensure that the names of the children, the school and where they lived could not be published. He also restricted the permitted reporting in relation to legal advice the husband had received about contemporaneous legal proceedings in Ireland.

Notably, Mostyn J’s judgment continued to endorse increased transparency in the family courts and concluded that the practice of anonymising financial remedy judgments is “completely at odds with the correct interpretation” of the FPR. He went on to say that in his view, the rules are not intended to keep the facts of a case confidential and that in fact, they “do no more than to provide for partial privacy at the hearing”. Consequently, he concluded that the practice of anonymising judgments is unlawful and “a derogation from the principle of open justice”.

What does this mean for the future?

The focus on transparency in Family Courts may result in increased popularity for alternative dispute resolution options, such as mediation and arbitration. These will remain outside the scope of the press and may therefore appeal to discerning litigants who are keen to keep prying eyes away from the courtroom. This is likely to be particularly true in big-money cases, or those involving household names. Whilst a shift away from court litigation is to be welcomed, there are concerns that this could draw a sharp divide between those who are limited to the court system, and those who are able to afford private dispute resolution options.

Within the court system, it still remains to be seen which way the balance between confidentiality and transparency will swing. However, the ongoing consultation and the comments made in caselaw suggest that this is an issue which will remain in the spotlight for some time to come.

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