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20th December 2023

Financial Remedy Reporting Pilot: FAQ

Financial Remedy Reporting Pilot: FAQ
Anna Roiser
Anna Roiser
Senior Knowledge Lawyer

A Transparency Reporting Pilot for Financial Remedy Proceedings is being launched in the Central Family Court in London, and the Family Court in Birmingham and Leeds. It will operate for one year from 29 January 2024.

Given how private and sensitive cases relating to financial arrangements following a relationship breakdown can be, this will be worrying to many people involved in financial remedy proceedings. This post answers some questions about the pilot and how it will operate.

Why has this pilot been launched?

The pilot aims to increase public awareness of how the Family Court operates. Concern has been expressed about a lack of public confidence in the Family Court arising from the fact that hearings happen in private. Whilst this is appropriate given their sensitive nature, it has meant that there has been limited opportunity for public scrutiny of how the Family Court works. The pilot – which if successful will likely be extended to all Family Courts – aims to protect the anonymity of those involved in cases whilst enabling greater public understanding of how the Family Court operates.

Which cases and hearings does the pilot apply to?

The pilot applies to three types of ‘financial remedy’ case:

  • Applications for financial provision on divorce under the Matrimonial Causes Act 1973; 
  • Applications for financial provision following an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984; 
  • Applications for financial provision for a child under Schedule 1 of the Children Act 1989.

It applies to all hearings apart from “FDR”s – Financial Dispute Resolution hearings at which the judge assists the parties in seeking to negotiate a settlement.

Who will be able to attend Family Court hearings under the pilot?

Two types of ‘reporter’ will be able to attend hearings: accredited members of the press, and qualified lawyers attending for journalistic, research or public legal educational purposes. They are required to provide their credentials. They do not need to give notice to the court or the parties if they wish to attend a hearing although they are encouraged to do so where possible.

Reporters have in fact been able to attend hearings in the Family Court since 2009 - what is changing is the documents to which they will have access and what they can report.

How will reporters decide which hearings to attend?

The courts publish lists of which hearings are to take place each day. At the moment in financial remedy cases, the lists contain only the case number. As part of the pilot program, this will be changed to list the parties’ names, enabling reporters to identify hearings involving those in the public eye. However, hearings may come to reporters’ attention in other ways, and reporters do not have to answer enquiries about how they came to know about a hearing or why they decided to attend.

Is it possible to prevent reporters attending?

A judge can exclude reporters from a hearing, but only in limited circumstances. The judge would have to be satisfied that doing so was ‘necessary’ in the interests of any child connected with the proceedings, for the safety or protection or 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. This is a high bar. However, even if a reporter attends, it may be possible to obtain restrictions on what they are permitted to report.

What documents will reporters be able to see?

A reporter attending a hearing will be entitled to see:

  • Each party’s position statement for that hearing. A position statement is a document prepared for a hearing setting out a party’s perspective on the case and what orders they consider should be made at the hearing and why. 
  • The Form ES1. This is the ‘composite case summary form’, completed jointly by the parties, which sets out key information about the case including the nature of the issues and the parties’ costs.

The parties are not permitted to provide the reporter with any other documents unless the court has permitted it. The court may restrict the documents to be provided to reporters where justified by the circumstances.

Reporters may not share the documents with anyone other than their editorial team or legal advisor. They must hold the documents securely and confidentially, and must securely destroy or delete them once they are no longer needed.

What will reporters be able to publish?

If a reporter attends a hearing then the court will make a Transparency Order setting out what the reporter can and cannot publish about the case.

The standard Transparency Order will allow reporters to publish anything they see or hear at the hearing, as well as quotes from documents provided to them, with the exception of the following details:

  • The names, addresses and any photos of the parties and their children; 
  • Which school any children attend; 
  • The parties’ employers, businesses or place of work; 
  • The address of any property owned by the parties; 
  • The identity of any account or investment held by the parties; 
  • The identity of any private company or partnership in which a party has an interest; 
  • The names and addresses of witnesses (save for expert witnesses).

The parties or the reporter can argue that the Transparency Order made in a particular case should depart from these standard terms – whether to prevent any publication, to add further restrictions on what can be reported, or to allow full publication including the parties’ names. In determining such an application the court will balance all of the relevant circumstances.

Beyond the limitations of the order, neither the judge nor the parties is entitled to any kind of editorial control over what is published about the case.

Might the reporters disrupt the proceedings? Will they try to talk to me?

Reporters are required to minimise any disruption to the proceedings and to be sensitive to the parties’ feelings and vulnerabilities.

A reporter attending a hearing can request interviews with the parties, and the parties can ask to speak to the reporter – this is to happen through the parties’ lawyers. It is entirely up to the party whether they want to do so. Many people may prefer not to, though others may see it as an opportunity to have their perspective heard. You cannot stop the other party from talking to the reporter if they choose to do so. However, the reporter must still preserve the parties’ anonymity.

Does this mean I can talk to the press or other people about my case more generally?

No. Financial remedy proceedings are considered to be subject to an implied undertaking (promise) of confidentiality. This means that it is not permitted to disclose information about, or documents from, the proceedings with anyone outside of the case. The pilot program does not change this save in respect of a reporter attending the hearing.

Is it possible to avoid any risk of press attendance at hearings?

If privacy is of utmost importance to you, then consider a form of non-court dispute resolution (NCDR). Some NCDR processes, such as mediation, require negotiations, which may not be suitable in all cases, or which you may have already tried. In those cases, you could consider arbitration, which is essentially a privatised version of the court process, with the parties appointed a qualified arbitrator (usually an experienced barrister or retired judge) to determine their dispute. Note, however, that all NCDR processes require that both parties agree to engage in them.

We would be happy to discuss all NCDR options with you.