The Transparency Debate Rages On

There are two distinct schools of thought driving the transparency debate in the family courts: the approach propounded by Sir James Munby (the President of the Family Division) and Mr Justice Holman, and that endorsed by Mr Justice Mostyn.

On the one hand, Sir James Munby - very much the figurehead of the transparency movement - states in his President's Guidance in February 2014 'I am determined to take steps to improve access to and reporting of family proceedings'. Later that year, in his August 2014 Consultation Paper, he summarised the principles driving his transparency agenda: firstly, the need for greater transparency in order to improve public understanding of the court process and confidence in the court system and secondly, the public's legitimate interest in being able to read what is being done by the judges in its name.

Mr Justice Holman supports greater openness in financial remedy cases - often lifting the reporting restrictions placed on the media and routinely hearing cases in public (open court). In his case of Luckwell v Limata [2014] EWHC 502 (Fam) - held in public - he quotes Jeremy Bentham 'publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial'. In that case, he felt that hearing the case in public was in the public interest as it involved the impact that a pre-nuptial agreement had on a husband's financial claims following divorce. Given the Law Commission's recommendations to change the law in relation to pre-nuptial agreements, Holman J's view was that the public should have an understanding of the current law, so that they can form an opinion on whether or not it needs reform.

Mr Justice Mostyn, by contrast, as evidenced in his judgment of DL v SL [2015] EWHC 2621 (and again in Appleton & Gallagher v News Group Newspapers and PA [2015] EWHC 2689 (Fam)) argues the case for preserving privacy in financial remedy cases. Reporting how the case is conducted is one thing (to ensure it is done so fairly and to educate the public in a general way about family law processes), but reporting the intimate details of the parties' private lives is another, he says.

Mostyn J, in Appleton & Gallagher, does not regard the rules granting media access to the family courts as giving them free rein to report everything they see and hear, but rather to perform the role of watchdog. Circumstances in which the cloak...