This post isn’t going to try and answer the question we’ve posed in the title (sorry) – but it is intended to try and briefly summarise some of what has been happening lately around the topic of family court transparency in financial remedies cases, and it accompanies a blog post from Sir James Munby which does offer one possible answer (we will happily host alternative viewpoints).
Much of what we publish and talk about at The Transparency Project is about cases relating to children, but financial remedy work makes up a good portion of the work of the Family Court (operating here under it’s ‘trading name’ of the Financial Remedies Court or ‘FRC’), and it is important that the public are able to understand how the law in these cases works, and how such cases are dealt with.
We have published a few posts recently about developments in financial remedies, because there have been some big changes – or at least some big pronouncements, from one judge in particular : Sir Nicholas Mostyn, the High Court Judge who has, until recently, been in charge of the FRC. In summary, Mostyn has published a series of 3 judgments since last autumn (hot on the heels of a consultation about family court transparency) – and together they put a massive hole in the rationale for the current established practice of anonymising the divorcing couple in any published judgment, and in the common belief that journalists and bloggers who attend private hearings in financial remedies cases cannot publish what they hear – assuming of course that they are right.
We published a summary of the most recent judgment here :
Mostyn is very frank that he has not always been right about this, but is clearly confident that, after a lot of thought (which is set out in his judgments):
- he was completely wrong before, along with all his colleagues
- he has now worked it out and got it right.
In legal circles this has clearly caused a bit of a stir. Whilst Mostyn judgments often cause a bit of a stir – they are always clever, often controversial and occasionally wrong, according to the Court of Appeal – these judgments have really set the cat amongst the pigeons.
Prominent lawyers representing mainly wealthy and often celebrity clients are rightly anticipating that their clients are going to be most displeased at this turn of events. There is lots of spluttering and general dismay on the internet. It’s clear they think that the whatever Mostyn says this is not how the FRC should operate, spilling all their client’s confidential beans in published judgments, leaving them to be plated up the next morning as part of a full English of morning reading.
But there are two big questions currently floating around :
- Can anyone come up with a convincing argument why Mostyn has got the law wrong? And
- What will now happen in practice? Will judges follow the Mostyn line? Will lawyers argue against it?
Together the 3 recent Mostyn judgments explain why the family courts, family lawyers and family judges (including Mostyn himself) have been getting the law about anonymisation and privacy / publication in financial remedy cases completely wrong for many years – operating under a sort of collective delusion that the established practice was underpinned by the law is revealed to be false once you start to do a bit of historical legal analysis.
Today we are publishing a lengthy and detailed post from Sir James Munby which explains why he thinks Mostyn has got the law right (he too holds his hands up to contributing to the errors which Mostyn has uncovered). For lawyers it is a lengthy but very interesting read. For non-lawyers we think it will be pretty hard going – like Mostyn, Munby writes very long and clever judgments – and since retirement he writes very long and clever blog posts. This post is intended to try and summarise what this is all about for mere mortals (and for busy lawyers too!).
Key points :
- Family Courts are subject to the same law as any other court. There isn’t some magical wand that family court judges can wave to justify secrecy – the Open Justice Principle applies.
- The judgments of Mostyn and the blog post by Munby set out in detail the history of all the relevant cases from the Court of Appeal and House of Lords (cases which are binding on lower courts) about these issues, demonstrating that they apply across the board.
- They also go through the history of the rules and practices applicable to financial remedies cases, tracking back when the practice seems to have arisen and identifying that it doesn’t seem to have been consistent with the law at the time or since.
- Special rules that apply to cases about children don’t apply to financial remedy cases (S12 Administration of Justice and the rules that relate to this piece of law). NB: The rest of what we say doesn’t apply to children cases – nothing has changed there.
- Ironically, any of the cases that Mostyn and Munby look at are cases which are often referred to as supporting the current ‘special’ practice in the family courts. However, when properly looked at they don’t support this ‘special’ approach at all.
- Just because a hearing is ‘private’ doesn’t mean that there is a ban on reporting what was said or done in that hearing. Where reporters or bloggers are present they can publish what they’ve heard or read UNLESS there is a specific order preventing that (we must admit we are pleasantly surprised to hear that – it will make life a lot easier).
- Before a court can make a specific order (injunction) preventing naming of the parties or publication of certain information there must be specific justification – the court has to weigh up the competing human rights of the parties and the press (rights to fair trial, to private and family life, to freedom of expression etc), evaluating the comparative importance of those factors in the case, and deciding how to balance them so that any interference with a right is proportionate.
- The standard ‘rubric’ that usually appears at the top of a published judgment saying it’s a contempt of court to identify the parties is probably not legally valid – because on a proper analysis of the law the court has no power to impose a blanket/automatic ban on identification / publication.
- Mostyn makes the point that the Family Procedure Rules Committee have the power to make rules that are in line with the law but they don’t have the power to change the law – and in particular they can’t make rules that give judges powers that they don’t already have. What this means in practice (if Mostyn is right) is that if people don’t like the law as it is, they are going to need to find a way to change it – through Parliament rather than a rule change.
We have five concluding comments or queries. The first two are specific, the second two are ‘big picture’ questions :
- We are left a bit unclear about the legal basis for the continuing anonymisation of children in their parents’ financial remedy cases. Nobody seems to suggest that children shouldn’t be anonymised, but if the rubric that is usually relied upon to give children anonymity is not effective, how will the anonymisation of children work? In almost all cases no doubt the parties will agree that the children should be anonymised but presumably the court will at least have to seek the views of the parties before deciding?
- The balancing exercise that the court is required to carry out means that there is scope in some cases for a reporting restriction to be imposed to protect someone who is particularly vulnerable or whose private commercial interests might be prejudiced – but rather than this protection being offered as standard, they would need to apply, at their own risk. That risk is twofold – applications cost money, and they draw attention to the case. The process of applying can sometimes trigger more press interest than might otherwise have occurred, because the press have to be told when an application is made, so this is not going to provide much comfort to celebrities who want to pursue privacy.
- There is a lively debate about how these changes might affect litigation behaviour, and might benefit one party over the other, particularly where one party can use potential or actual publicity as leverage to secure a favourable settlement. Might some parties settle, or go to arbitration, or walk away? Who knows. What we do know is that all these issues apply and have always applied in civil litigation where, on occasion equally intimate matters are often dealt with (though more often in a commercial rather than personal context) – but see this blog post about a civil litigant who was not afforded anonymity, for comparison.
- How is this going to play out on the ground? How will divorcing spouses be advised and how will they behave until this is all worked through?
- What will the Transparency Implementation Group (TIG) do about this? One of the things they will need to tackle is anonymisation. On the face of it Mostyn has told us what the law IS, and the TIG will either need to work with that OR (presumably) it will need to try and influence the powers that be (i.e. Parliament) to change the law to bring it in line with whatever it “should” be*.
*disclosure, 3 members of TP are on the TIG. Details of the TIG terms of reference and minutes can be found on the judiciary website.