Henry and Anna’s article was published in eprivateclient, 9 February 2024, and can be seen here.
Press given right to report on financial proceedings on divorce
A “transparency reporting pilot” launched on 29 January 2024 marks a significant step towards transforming press reporting of divorce settlement cases.
Back in October 2021 the President of the Family Division, Sir Andrew McFarlane, called for a “major cultural shift” on transparency in the Family Court. Whilst family cases have long been heard in private due to the sensitivity of the issues addressed, these “secret courts” have contributed to a lack of public confidence in the family justice system.
The pilot, which covers financial hearings in London’s Central Family Court and the Family Courts in Birmingham and Leeds, aims to increase public understanding of the Family Court whilst protecting families’ privacy.
It therefore permits reporters (accredited media representatives and lawyers attending for journalistic, research, or public legal educational purposes) access to hearings, but their reporting must anonymise the parties.
Although reporters have been able to attend family hearings for some years, they have rarely done so as they were not permitted to see court documents or report much of what they saw.
Under the pilot, they will be entitled to see the parties’ “position statements” setting out their case, and the “composite case summary form” containing key information including the nature of the disputed issues and how much the parties have spent on legal fees.
Reporters will be able to publish anything they see or hear at the hearing save for certain information which could identify the parties, including their and their children’s names, addresses, the parties’ employers or businesses, the identity of their accounts or investments. No photos of the parties or their children can be published.
These restrictions should prevent the general public from identifying the family, but people who know the family well – friends, relatives, advisors – may recognise those involved, and thereby learn a great deal about their affairs.
In reality journalists are likely to attend few cases – few outlets have the budget to send reporters to court in the hope of chancing upon a particularly interesting hearing. However, press attendance is a real risk for those in the public eye: under the pilot, court lists will include the parties’ names as well as the case number.
If a reporter does attend, a party can seek to persuade the judge that they should impose additional restrictions on what can be reported (or that there should be no reporting at all). Whilst the judge will balance all the relevant circumstances, the parties are likely to need good reasons to justify a departure from the standard approach.
Excluding a reporter from the hearing entirely would be even tougher: the judge would have to be satisfied that it was “necessary” in the interests of any child connected with the proceedings, for the safety of a party or witness or someone connected with them, or for the orderly conduct of the proceedings, or be satisfied that justice would be impeded or prejudiced if a reporter attended.
Some people going through these court proceedings may welcome press attendance, particularly, perhaps, if they feel let down by the process and want to tell the world of their concerns. They would be free to speak to the reporter and would remain anonymous.
Other people may find the presence of a reporter at their hearing acutely uncomfortable. The matters explored at court will include the scale and nature of their wealth, their earning capacities, how much each says they need to buy a home and cover their annual outgoings. Some cases will also involve allegations of poor behaviour.
For all this to be aired in front of a reporter, and published, even anonymously, may make an already difficult experience even more challenging. The result may be a shift towards non-court dispute resolution processes such as arbitration or mediation – but they can only be used where both spouses agree.
Concern has been expressed that journalists may focus on prurient details rather than rigorous analysis of the family justice system. However, public awareness of how the courts approach financial settlements on divorce is important, and one must hope that we see serious reporting enabling the public to understand matters such as how judges decide what amounts to a fair division of assets, the delays being caused by under-funding, and what the court process feels like for those experiencing it.