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Why can’t we be clear about transparency in the Family Court?

Family judges disagree about approach to reporting of cases involving financial disputes after divorce.

It is the job of a judge to form and express views on the most difficult and delicate of topics, and this is never more so than in the Family Court. As decision maker for couples who cannot agree an outcome, a judge’s decision and reasons are most often going to be contrary to the view of somebody or other. Mr Justice Mostyn is a High Court judge with a particular reputation for saying what he thinks, even if this puts him on a collision course with his fellow judges, including on occasion the more senior Court of Appeal.

This week Mostyn published a judgment dealing with the vexed topic of transparency, which brings to a head a rumbling difference of opinion on the correct approach to privacy and the publication of information about family proceedings. This has been expressed through quite starkly different approaches being adopted by different High Court Judges dealing with cases involving financial disputes after divorce.

Family courts are scarcely ever reported on without the label “secret” being attached, but many such stories focus upon decisions that the courts make about children rather than money and property. Family lawyers prefer to talk of privacy rather than secrecy, but the experience described by many families is of a culture of secretiveness and perceived unaccountability.

The clamour for greater openness in our family courts has primarily been in connection with cases about children, both by campaigners for equal rights as between mothers and fathers who say that courts are (variously) biased against ordinary fathers or biased against protective mothers, and by those concerned with our approach in this country to the removal, and particularly adoption, of children who have suffered or are at risk of harm. This led in 2009 to new court rules which entitled the media to sit in on most sorts of Family Court hearings, a right which can only be curtailed in quite exceptional circumstances. Those rules apply equally to disputes about children and those about finances when couples divorce or end a civil partnership. The general public is still not entitled to attend these private hearings.

But critics rightly point out that the 2009 rules weren’t accompanied by any relaxation on what journalists were allowed to report of family cases. Little wonder then that journalists rarely bother to attend in cases about children (this no doubt contributes to the very variable quality of reporting of such cases which tend to be a highly selective take on a published judgment or based upon the account of one party only). 

Since 2009 the debate about transparency has continued, and it remains controversial. The last time Parliament attempted to reform matters through statute in 2010, it enacted a hastily drafted and unworkable piece of legislation which never came into force and had to be repealed. Since that disaster ministers have steered clear.

Throughout his time in office as the President of the Family Division from last year, Lord Justice Munby (a well known proponent of greater openness) has been endeavouring to move towards greater transparency as far as is possible without statutory reform. He has been criticised in some quarters for taking on a task that ought to be reserved for Parliament. He has set out his pro-transparency stall in a number of speeches, judgments (most notably the “Italian C-Section case”), and in guidance to judges and lawyers. But Munby’s guidelines urging family judges to publish more judgments remain inconsistently interpreted and applied (with some judges publishing vast numbers of judgments whilst others publish none), and his autumn 2014 consultation on further reform remains hanging. It is known that the consultation attracted responses expressing divergent and strongly expressed views about transparency, with a particularly vocal and emotive response from those anxious about potential harm to children – but a year later the President has not yet announced what steps (if any) he intends to take as a result. While headlines last year proclaimed Munby as the champion to bring about the end of “secret family courts” some are wondering if further transparency reform has been shelved.

In financial cases involving celebrities or big money, there is perhaps a greater incentive to report, particularly since such cases are often heard in London, which is accessible for reporters from major media outlets. Big money spats about mansions and yachts, with eye watering amounts being spent on fancy lawyers make easy headlines. Sometimes the parties in such cases wish to remain anonymous, but in others it is very much in their personal or commercial interests for their identity and financial details to remain under wraps.

But in recent years one High Court judge in particular, Mr Justice Holman, has taken to sitting in open court rather than in private, with the result that the parties’ anonymity is lost. In Luckwell v Limata a very bitter divorce battle was conducted entirely in public with no restriction on what could be reported. In Fields v Fields in June this year Holman repeated his view that there is a “pressing need for more openness” in financial cases, while bemoaning the failure of the parties to resolve their dispute without spending a million pounds on fighting in court.  Holman said that “To permit the presence of accredited journalists, but then tightly to restrict what they can report, creates a mere illusion of transparency,” and went on to sit in open court so they could report the lot.

Holman takes the view that couples who wish to resolve their disputes in private have many opportunities to do so, either earlier in the court process (where a dispute resolution hearing is held at which the press may not attend) or through arbitration or mediation. The effect if not intention of this approach is to provide a massive disincentive to “newsworthy” couples to engage in and continue frivolous and extremely expensive litigation that takes up the court’s time when it could be dealing with other cases (this ignores cases where one party is forced to continue due to the other’s unreasonable position).

In his recent judgment, heard a month or so after the Fields case, in a case involving another divorcing couple in dispute over financial arrangements, Mr Justice Mostyn directly disagrees with the Holman open court approach, saying

“the law concerning the presence of the media in these private proceedings…is to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them.”

He goes on to say that the promotion of understanding and debate about the legal process is merely a “subsidiary” reason for publicity, and his judgment sets out the court’s task as a “highly fact specific balancing exercise between the right to privacy and the right to freedom of expression”.

Mostyn says that there are “some categories of court business, which are so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression”. And it follows, says Mostyn, that an anonymity order will most often be made in divorce battle type cases.

And so, in Mostyn’s court these sorts of disputes are “private business” where couples can be relatively confident of anonymity, whilst in Holman’s court they are disputes where the parties are likely to be publicly named and all their sad, petty and bitter disputes published in a judgment and quite possibly the press.

Mostyn identifies this uncertainty as highly unsatisfactory, echoing what I have heard other family finance lawyers complain of in recent months:

“The present divergence of approach … is very unhelpful and makes the task of advising litigants very difficult. A party may well have a very good case but is simply unprepared to have it litigated in open court. The risk of having it heard in open court may force him or her to settle on unfair terms. In my opinion the matter needs to be considered by the Court of Appeal and a common approach devised and promulgated.”

If neither Munby nor Parliament feel able to tackle this issue, Mostyn’s hope that the Court of Appeal will do so may be rather forlorn.

In the case in question Mostyn made an order prohibiting the identification of the parties and the details of their finances as disclosed in the court papers. The parties settled their case when the judge refused the husband’s application to adjourn on medical grounds. The full judgment can be read on the BAILII website.

Lucy Reed is a family law barrister who blogs at pinktape.co.uk and tweets as @familoo.

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The EU’s willingness to take on Google shows just how stupid Brexit is

Outside the union the UK will be in a far weaker position to stand up for its citizens.

Google’s record €2.4bn (£2.12bn) fine for breaching European competition rules is an eye-catching example of the EU taking on the Silicon Valley giants. It is also just one part of a larger battle to get to grips with the influence of US-based web firms.

From fake news to tax, the European Commission has taken the lead in investigating and, in this instance, sanctioning, the likes of Google, Facebook, Apple and Amazon for practices it believes are either anti-competitive for European business or detrimental to the lives of its citizens.

Only in May the commission fined Facebook €110m for providing misleading information about its takeover of WhatsApp. In January, it issued a warning to Facebook over its role in spreading fake news. Last summer, it ordered Apple to pay an extra €13bn in tax it claims should have been paid in Ireland (the Irish government had offered a tax break). Now Google has been hit for favouring its own price comparison services in its search results. In other words, consumers who used Google to find the best price for a product across the internet were in fact being gently nudged towards the search engine giant's own comparison website.

As European Competition Commissioner Margrethe Vestager put it:

"Google has come up with many innovative products and services that have made a difference to our lives. That's a good thing. But Google's strategy for its comparison shopping service wasn't just about attracting customers by making its product better than those of its rivals. Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors.

"What Google has done is illegal under EU antitrust rules. It denied other companies the chance to compete on the merits and to innovate. And most importantly, it denied European consumers a genuine choice of services and the full benefits of innovation."

The border-busting power of these mostly US-based digital companies is increasingly defining how people across Europe and the rest of the world live their lives. It is for the most part hugely beneficial for the people who use their services, but the EU understandably wants to make sure it has some control over them.

This isn't about beating up on the tech companies. They are profit-maximising entities that have their own goals and agendas, and that's perfectly fine. But it's vital to to have a democratic entity that can represent the needs of its citizens. So far the EU has proved the only organisation with both the will and strength to do so.

The US Federal Communications Commission could also do more to provide a check on their power, but has rarely shown the determination to do so. And this is unlikely to change under Donald Trump - the US Congress recently voted to block proposed FCC rules on telecoms companies selling user data.

Other countries such as China have resisted the influence of the internet giants, but primarily by simply cutting off their access and relying on home-grown alternatives it can control better.  

And so it has fallen to the EU to fight to ensure that its citizens get the benefits of the digital revolution without handing complete control over our online lives to companies based far away.

It's a battle that the UK has never seemed especially keen on, and one it will be effectively retreat from when it leaves the EU.

Of course the UK government is likely to continue ramping up rhetoric on issues such as encryption, fake news and the dissemination of extremist views.

But after Brexit, its bargaining power will be weak, especially if the priority becomes bringing in foreign investment to counteract the impact Brexit will have on our finances. Unlike Ireland, we will not be told that offering huge tax breaks broke state aid rules. But if so much economic activity relies on their presence will our MPs and own regulatory bodies decide to stand up for the privacy rights of UK citizens?

As with trade, when it comes to dealing with large transnational challenges posed by the web, it is far better to be part of a large bloc speaking as one than a lone voice.

Companies such as Google and Facebook owe much of their success and power to their ability to easily transcend borders. It is unsurprising that the only democratic institution prepared and equipped to moderate that power is also built across borders.

After Brexit, Europe will most likely continue to defend the interests of its citizens against the worst excesses of the global web firms. But outside the EU, the UK will have very little power to resist them.

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