Privacy has been an issue in the family court since Victorian times and judicial opinion is veering towards more openness than ever. Here’s why HNWs should settle their financial claims before proceedings, writes Philippa Dolan
Sir Andrew McFarlane, our current most senior family judge, is the latest to wrestle with the tension between open justice and respect for family life.
For centuries, the general view has been that courts must be open to the public for their decisions to be accepted and respected. But the family court is treated differently.
The story begins back in the 1850s when divorce jurisdiction was transferred from the ecclesiastical courts to the civil courts which opened up the details of divorce – usually squalid and sordid, especially by Victorian standards – for the edification of the public. Ironically, this coincided with the passing of the Obscene Publications Act which was an attempt by the establishment to limit the dissemination of obscene material. So while police constables were busy destroying obscene material, the press was printing all sorts of juicy details provided by witnesses in the new combined court of Probate, Divorce & Admiralty (informally referred to as Wills, Wives and Wrecks). Apparently even Queen Victoria was thoroughly unamused.
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Despite the disapproval, the situation continued until 1926 when public access ended and there was no significant change to this position until relatively recently. Even now, although accredited journalists and legal bloggers can attend trials in the Family Court, their ability to report decisions is limited, especially where children are involved. And it is also generally acknowledged that money cases should be subject to reporting restrictions as well. These are private matters, after all, and why should the media be allowed to shine an uninvited spotlight on the lifestyles and financial arrangements of the rich and famous? This argument is reinforced by the fact that participants are compelled by the court to provide full disclosure of their financial affairs including their financial documents.
So how do you protect your privacy if you’re engaged in finance proceedings in the Family Court and your family may be of interest to the media simply because of your wealth or status?
The simple way is to settle your financial claims before you reach court, either through solicitor negotiations, or family mediation, or a combination of the two. And bear in mind that the judge-led mediation stage of the court process (called the Financial Dispute Resolution hearing) is always closed to the media anyway.
Or there’s the Family Arbitration process which is effectively a trial conducted by a private judge chosen by the participants that takes place away from the court process so none of the arguments about secret and unaccountable justice are relevant.
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And if you’re forced to go before a trial judge because neither of the above options is open to you then you will need to oppose an application by the media to attend the trial and report on the outcome. Be aware that the trial judge has a considerable discretion (and you can’t choose him or her, or usually even know their identity until the afternoon before the trial starts) and judicial opinion is moving towards greater openness.
Sir Andrew Mcfarlane has produced draft guidance as to how reporting in the family court is to be made easier and consultation on his proposals is open until 30 June and may be extended. This is not a straightforward issue. While judges may have their own reasons for wanting some evidence in the public domain supporting their more controversial decisions, they are not blind to the reality that journalists are more likely to want to share a high profile individual’s idiosyncratic budget with their readers than follow a dry argument about the division of pre-existing assets.
Photo credit: Kurt Bauschardt @Wikimedia Commons
Philippa Dolan is a partner at Collyer Bristow
