Just under a year ago, Comedian David Walliams and his ex-wife Lara Stone, reached a financial settlement after what was reported to be only 30 minutes of private talks during their second day in the family law court.
With the press reporting court-based divorce battles so regularly, it can be easy to conclude that most financial settlements end up in the family law courts (and therefore under greater public scrutiny). However, this couldn’t be further from the truth, with the majority of financial settlements actually resolved between the couples and their solicitors, far away from a family law court room, or through other methods, such as mediation.
The divorce between Walliams and Stone brought the issue of transparency in the family law courts back into the spotlight, when High Court judge Mr Justice MacDonald said that although the media could name the two parties involved, the details of the financial settlement could not be made public.
The financial settlement aspect of a divorce is actually quite separate from the divorce itself.
As well as dealing with the divorce, the family law courts can also deal with the financial side of things, if a couple are unable to come to an agreement between themselves (and their solicitors).
The Family Law Court is a single entity but has a number of different bases throughout England and Wales.
Various issues, including protection of children and privacy matters, have meant that family law courts have always been much less “open” than criminal proceedings.
The starting point for family law courts in financial remedy cases is to not allow the press to report – but the press can apply to be able to report the case and this stance may alter.
Some argue that, with regards to financial settlements due to divorce, as the parties involved aren’t in the family law court because they have committed a crime, it is unfair for their private financial details to be splashed across the press.
Others argue that this needs to be balanced against the need for transparency, so that the public are able to scrutinise and fully understand the workings of the courts.
The question of transparency in the family law courts is an issue that divides those both inside and outside of the legal profession.
Although the press are allowed to attend most of the hearings that take place within the family law courts, they are subject to certain restrictions.
For example, the media are not able to attend any financial dispute resolution appointments.
The media can also be excluded from other types of cases in some circumstances, such as if it is necessary in the interests of any children connected with the case.
If the media are present, there are also certain restrictions with regards to what they can actually report about a case.
If a family law court is being asked to decide a financial settlement upon divorce for a couple, for example, the media can report things such as names and addresses of the parties involved, but would be unable to report on any evidence that was disclosed as part of the proceedings, unless they have gained express permission from the family law court.
Judges have the ability to place more or less restrictions on what the press are able to report in a particular case.
In early 2017, the press reported on a case where the judge told the media that they could not reveal the outcome of a financial settlement between a wealthy businessman and his wife, despite the fact that there had already been reports regarding the couple’s separation and the hearing.
The businessman involved reportedly said that he was strongly opposed to the outcome being reported.
Members of the press reportedly argued that it made no sense that they were able to report a hearing had taken place but then weren’t allowed to reveal the outcome, resulting in the case looking like it had fallen into a black hole.
In this case, the children involved had reportedly been upset by previous media coverage and had gone through an “exceptionally difficult” time.
Within the legal profession, there is some disagreement about how open these types of hearings should be.
One judge reportedly talked about the “pressing need” for more openness, while another said that these types of disputes were a “quintessentially private business”.
Earlier that same year, another case resulted in the opposite outcome, with a judge deciding not to bar journalists from revealing Tina Norman’s identity with regards to a dispute with her ex-husband Robert Norman.
A barrister representing various members of the press reportedly said that open justice was a fundamental principle of the British judicial system and that what happened in the family law courts should be communicated to people. Additionally, he felt that judges should be “vigilant” when it comes to making any orders which were exceptions to the principle of open justice.
President of the Family Division of the Hight Court of England and Wales, Sir James Munby, has been a vocal supporter of improving transparency within the family law court system.
Back in 2013, Sir James Munby reportedly said that the public have a right to know “what is being done in their name” and that having the press publicly reporting on cases was necessary, so that miscarriages of justice could be avoided.
Although in this instance he was speaking mainly about cases that dealt with care and adoption, his stance on the need for family courts to be more transparent has been a common theme throughout his presidency.
In 2014, Sir James Munby asked the family law courts (and the court of protection) to routinely publish fully anonymised versions of their judgements, unless there were compelling reasons not to do so. He published guidance for the courts to this effect.
This was, in part, a response to the allegations from various different parties about the secrecy of family law courts and how much happened behind closed doors, where the media and the public were unable to see what decisions were being made and why.
He said:
“In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The guidance will have the effect of increasing the number of judgments available for publication.”
The guidance stated that:
“Permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media.”
The guidance was intended to bring about “immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection.”
According to research published by Cardiff University in Spring 2017, just over 3 years after Sir James Munby published this guidance, although the cases that had been made publicly available were “potentially a valuable resource for public legal education”, the “patchy understanding of and adherence to the 2014 guidance over the country means that the aim of presenting a holistic picture of the system is not being achieved.”
The study revealed that the rate of publication was actually falling and that because of the demands of the publication process (such as the need to publish it in anonymised form), it may make it unsustainable.
The research also found that some judgements had not been properly anonymised and that there was possible “jigsaw identification” because of how many factual details were present in the judgements.
If judgements are not properly redacted and then published for the public to see, there could be a risk of harm to those (especially children) involved in what are, in family law courts, often very sensitive cases.
According to the research findings, only 27 judges published more than 10 judgements in a two-year period.
The BBC reported that the guidance had had a “piecemeal impact”, with some family law courts rarely publishing judgements (some not at all) and other family law courts regularly doing so.
As with all proceedings that take place in family law courts, there is a need to balance transparency, so that the public can understand how decisions are reached in family law court and the decisions can be scrutinised, with a need for privacy, especially if children are involved.
Many argue that, especially when it comes to information about financial settlements with regards to divorce, these are inherently private issues and there is no public interest in making it freely available to the press and the public.
Indeed, divorce is a civil matter and these people have not committed a crime, so, some would say that it is not fair for those involved to have their finances spread across tomorrow’s front page.
The issue of transparency in financial cases divides judges, with some believing that they should remain private and some regularly ordering that these types of cases be heard in open court, without giving additional restrictions to the press on what they can report.
Some believe that the “threat” of the financial settlement being heard in open court could actually work to encourage more people to settle outside of court.
Although the media have been able to attend family cases heard in magistrates’ courts for many years, it is only since 2009 that the press have been able to attend these types of cases in the High Court and county courts.
Sir James Munby is due to retire in 2018. Who will replace him and whether the drive towards more transparency in family law courts continues, remains to be seen.
As well as the “public nature” of the court system, going to court is renowned for being expensive and time-consuming.
Many couples are able to reach a decision about their financial settlement in private. In fact, the details of most financial settlements are agreed outside of the family law court, well away from the press.
There are a variety of different ways that divorcing couples reach agreements outside of the family law court.
Collaborative law, where four-way meetings take place between you, your spouse and your respective solicitors, is a popular option, as is mediation, a process involving an impartial individual who is there to aide your discussions with your spouse.
Alternatively, if you feel unable to talk to your spouse directly, your solicitor should be able to negotiate on your behalf.
For those concerned about the public court system, there is also the option of arbitration , a kind of private court where someone can decide what your financial settlement will look like.
Obtaining advice from a solicitor as early on as possible in the process, could help to inform you of how best to start negotiations with your spouse.
For some, going to the family law court is, in the end, unavoidable. However, any good solicitor should help you to try to reach an agreement outside of court but equally, should be willing and ready to go to the family law court if the negotiations are going nowhere.
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