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  1. Law
July 5, 2024

How increased transparency in the courts is changing family law

From the magazine: Transparency is gradually increasing in the family courts, eliciting a mixed reaction from those at the sharp end of the profession

By Suzanne Elliott

Until 2009, journalists were not allowed into family courts at all – a convention that was enshrined in law back in 1960 by the Administration of Justice Act, which sought to protect the privacy of families and any vulnerable children involved in proceedings.

When the rules were updated 15 years ago, the press still faced strict limitations on what they could report, unless the order was lifted by the judge or parties stepped out of the family courts and were no longer shielded by reporting restrictions. This allowed blockbuster cases to hit the headlines, such as Russian billionaire Vladimir Potanin’s successful bid last year to block his wife Natalia bringing a multi-billion claim for financial relief. 

Still, however, there were those who believed the default setting of the family courts in England and Wales had been excessively opaque, preventing ‘open justice’ through a lack of scrutiny and accountability.

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Now a pilot scheme is allowing the media into certain courtrooms in England and Wales for a trial period. Earlier this year the Transparency Implementation Group Reporting Pilot scheme, originally launched in Cardiff, Carlisle and Leeds in January 2023, was expanded to include half the family courts in England and Wales.

[See also: Potanina v Potanin judgment ‘narrows the window for divorce tourists’ in London]

Time for transparency

The pilot scheme has now gone some way to relaxing reporting restriction guidance in financial proceedings in 16 other courts, allowing journalists and legal bloggers to report on family law cases, although certain strict anonymity rules remain in place. The extension of the scheme and a potentially greater shift toward more transparency in general could have consequences for HNW families concerned about their privacy.

The pilot comes after years of campaigning by the press, notably by freelance journalist Louise Tickle, who won an appeal in 2018 to lift restrictions to report on a case. The Transparency Project, a charity, is also involved, and support has come too from senior judges who have acknowledged that change was needed. 

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Perhaps the biggest proponent of reform is former High Court judge Sir Nicholas Mostyn. Once an advocate for privacy, he became a champion of transparency when, in a series of judgments, he unpicked previous family court judgments and ruled that the practice of holding proceedings in secret was unlawful.

Announcing the pilot in 2021, Sir Andrew McFarlane, president of the Family Division (which consists of 19 High Court judges), said a major shift in culture was needed to increase transparency and enhance public confidence, warning: ‘The family justice system is suffering from serious reputational damage because it is, or is perceived to be, happening behind closed doors.’ 

[See also: The best divorce lawyers in London]

As of January 2024, journalists and legal bloggers have been allowed to report what they see in 16 courts, but they must adhere to strict requirements to protect the privacy and welfare of the parties involved. A journalist can be excluded from a family court hearing if it is in the interests of any child concerned in, or connected with, the proceedings and they must not report, without permission of the court, names of parties involved and any information that could lead to ‘jigsaw identification’. 

Family members can now speak to reporters, and documents vital to understanding the complex nature of the finance proceedings will be disclosed to members of the press. Judges, legal representatives, court experts and local authorities can be named, but individual social workers and team managers cannot, unless ordered by the court. This move represents a significant shift towards greater openness and raises real concerns for HNWs seeking a financial settlement.

Balancing transparency with privacy

The transparency orders have elicited support, criticism and anxiety from the legal profession. Many judges, barristers and solicitors who acknowledge arguments for transparency in the family courts say there is a tension between this and their clients’ need for privacy, particularly when it comes to big-money divorces.

‘There are very few people who want to be a headline for their divorce,’ Emma Palmer, head of family law for MSB Solicitors, tells Spear’s. ‘I think it kind of takes away a bit of mystery, which I think is really important. Generally, everybody understands that on one level and the profession agrees. However, it’s a big change.’ 

[See also: Landmark divorce ruling puts the ‘sharing principle’ in the spotlight]

David Greer, a partner at Katz Partners, agrees with the spirit of the campaign for increased transparency but says his ‘starting point is that these divorce and related financial proceedings are inherently personal, private, family matters. I feel instinctively very uncomfortable with those matters being played out before the media and being reported in an unanonymised fashion.’

Seeking an advantage

As well as improving public understanding and accountability in the family courts, increased transparency could also, campaigners say, ease the pressure on courts facing unprecedented backlogs, and may change the way HNWs settle financial proceedings.

‘I don’t think it will put everybody off [going to court],’ says Palmer. But, she adds, it may increase demand for methods of alternative dispute resolution that enable people to keep their affairs out of the courtroom.

Michael Gouriet, a senior partner at Withers, says: ‘I think it does make people focus earlier on. Are there alternative dispute resolution methods? Do we really have to go through the court process?’

[See also: Ex-wife of former UBS banker has divorce settlement cut by £20 million in landmark ruling]

Several of the family lawyers Spear’s has spoken to acknowledge that the threat of a press presence may also be useful as leverage for one party.

‘I know that there is some concern that one party will try to use these rules to leverage matters in their favour,’ says Palmer. ‘It will sometimes be more beneficial for one party to invite a journalist, and that’s a worry that there will be a strategy in inviting a journalist.’

The tide of transparency

Despite the concerns, Greer believes, if anything the possible extension of the pilot to London would make the UK capital even more attractive to those seeking settlements.

‘If London is the divorce capital of the world because it’s an attractive forum for claimants, I think if you follow the logic through, then it’s probably going to make this country even more attractive for people who are seeking the most generous possible outcome on their divorce,’ he says.

‘It’s probably good for business. So I should probably be wholeheartedly supporting this.’

Gouriet says there has been no significant change as yet, and he believes the pilot ‘strikes the right balance’. ‘I think that if there are good reasons for maintaining privacy, the court will do that.’

This feature first appeared in Issue 92 of Spear’s Magazine. Click here to subscribe.

This feature originally appeared in Spear’s Issue 92 / Illustration: Diego Abreu

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