A new approach to anonymity in the family courts

“At the heart of the concept of the rule of law is the principle that laws should be publicly made and publicly administered in the courts” – Lord Bingham.

Over recent years there has been a robust debate between the judiciary, the press and practitioners regarding the extent to which family cases can or should be reported by the press. The law regarding openness of financial remedy hearings is regrettably unclear and contradictory. Members of the public cannot physically watch a case but it is already the case that authorised press representatives and legal bloggers can sit in on court cases with the permission of the Judge. Anonymised court judgments can be reported and in some cases the parties can be named with the permission of the judge.

However, Mr Justice Mostyn sitting in the High Court has now ruled that the current practice of anonymising Family Court Judgments is unlawful and only an Act of Parliament can change that.

He decided that, unless the court directs otherwise, parties to the proceedings can talk to whomever they like, (including the press), about a financial remedy hearing but cannot show documents to a journalist unless that journalist was covering the case and an anonymity order will be made only exceptionally.

Mr Justice Holman has decided that in future his cases will be heard in public in all cases save for a few obvious exceptions. Mr Justice Mostyn however does not agree with Holman J’s view that a journalist attending is “tightly restricted” in what they can report. He said they can only be restricted if an order is made and any derogation from the principle of open justice must be considered with great care. It was however common ground that save in exceptional circumstances minor children should not be identified.

Mostyn J held that members of the press may report anything contained in the written arguments or heard by them in court. Members of the press may report the main judgment fully. Both parties can talk to whomever they please about the case. Both parties may show any documents produced by their opponent under compulsion to a journalist covering the case. Neither party can show those documents to anyone else.

Further guidance from the appeal courts and/or Parliament is awaited. In the meantime divorcing couples and those involved in family cases need therefore to be aware that in future it is entirely possible that a member of the press could attend a court hearing in which they are involved and report fully on the outcome of the hearing including naming all parties involved. It is likely that exceptional reasons would have to be shown for the court to agree to anonymise the Judgment although it is likely still to be the case that the identification of children will be restricted.

It is fair to say that the general view of family lawyers is against the publication of Family Court Judgments and a Judicial Committee is considering the matter further. For the time being however this is something of which those involved in court proceedings need to be aware.

It should be remembered that there are alternatives to court proceedings such as Private Financial Dispute Resolution hearings, Family Mediation or Family Arbitration which are confidential.

For further information or guidance please contact Fiona Apthorpe at Geldards below.

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