A Family's Right To Privacy Or Open Justice: What's The Priority? UK Family Courts Are Set To Change Their Approach

• Published date: 21 December 2021
• Subject Matter: Family and Matrimonial, Family Law
• Law Firm: Withers LLP
• Author: Mr Oliver Guest and Jemma Thomas

The idea that justice doesn't just need to be done but needs to be seen to be done is a fundamental part of open justice. In order for our courts to be accountable, it makes sense that the public need to know what is going on. There are notable and important exceptions, for example children proceedings are generally private and children involved in proceedings should not be named to preserve their privacy and allow them to move forwards without concern that it will become public knowledge.

Financial remedy proceedings have also always been in a slightly different category - parties are compelled to provide full financial disclosure and, in the absence of issues of credibility, it is generally accepted that the information provided should remain confidential. Although accredited members of the media and more recently legal bloggers are able to attend court, and can report on decisions, the hearings themselves are generally held in private so that members of the public cannot attend. Reporters have not had access to documents or been able to report the names of those involved and published judgments were generally anonymised. However, there has been an increased push towards more transparency.

Since 2014, when the then President of the Family Division issued Guidance on transparency, there has been a shift in approach from the judiciary with more cases heard in public and reported without anonymity. Mr Justice Mostyn (who had previously anonymised his judgments in financial cases) recently said that he 'no longer held 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 in the court's judgment' and that his '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.' From this point on, those involved in financial remedy court proceedings should be warned that the judgment may be reported including their names.

In addition, there has been a consultation on the extent to which accredited journalist and legal bloggers should have access to the documents in family law cases. The justification is that otherwise it is hard for reporters to follow, understand and therefore report effectively. Reporters will be able publish a broad description of the financial resources of the parties (without identifying the actual items) and a broad description of the open...