The Family Court system is currently experiencing a sea change with respect to transparency and openness, having long been a secretive and largely misunderstood area of law. We are starting to see strides towards change with the publication of Confidence and Confidentiality: Transparency in the Family Courts. Alongside this, Mostyn J and HHJ Hess, as the lead judges of the Financial Remedies Court, have opened a consultation on their proposals for a standard reporting permission order (RPO) in financial remedy proceedings.
The aim of the proposal is not to change our current legal standards, but to find a better balance between the parties’ right to privacy, whilst also giving journalists an opportunity to produce meaningful reports on what is happening in the Financial Remedies Court.
The Current Rules
There is no proposal that the default position under the FPR is altered. FPR 27.10 dictates that hearings will be held in private. FPR 27.11 caveats this by granting permission for certain members of the press to attend.
The proposal points out that there are currently three restrictions on the right to report on financial remedy cases:
- The parties’ children are not to be named and their schools are not to be identified;
- Financial information obtained from the parties under compulsion is protected and may not be referred to in a published report without permission from the Court; and
- The journalist/legal blogger is not allowed to have sight of any of the documents in the case, without permission from the Court.
It is identified within the proposal that given the sheer volume of documents usually involved in financial remedy proceedings, without having sight of these, the journalist/legal blogger is seriously hampered in being able to produce a meaningful report on the case. This cannot be said to represent transparency and these rules act as a deterrent to those members of the press who would otherwise seek to provide the public with informative reporting. FPR 27.11 is somewhat of a red-herring in this regard as although journalists/legal bloggers are allowed to attend, there is currently no scope for them to follow this up with anything useful and so they may as well not have been there in the first instance.
Given this, the RPO is intended to ‘relax’ the current rules.
The Proposed Changes
The proposed RPO would allow for members of the press to have sight of key documents which contain protected financial information. This would, however, be subject to conditions. This would allow the journalist/legal blogger to have a real understanding of the issues in the case and thus, provide the opportunity for meaningful reporting.
They will then be allowed to publish a broad description of the types of assets and income etc in order to state how much the case is worth, without including specific details, unless they are already in the public domain.
It is suggested that this will redress the balance between the competing Article 8 rights of the parties and the Article 10 rights of the press and the public. There is a caveat, however, in that a request for documents by the press, which is considered to be exorbitant, unfocused or otherwise disproportionate may be rejected. The RPO will be made at the beginning of each case and reviewed, if necessary, at the first appointment.
Conclusion
As Sir James Munby points out in his comments on the Transparency Project website, it is significant that the proposed order is a reporting permission order, as opposed to a reporting restriction order, as is the conventional title. (https://www.transparencyproject.org.uk/reporting-financial-remedies-cases-an-important-initiative/) This perhaps signifies a real change in the Court’s attitude towards transparency and openness.
Issues may arise of course, for example we may experience an increase in satellite litigation with regards to whether requests for documents are ‘exorbitant, unfocused or otherwise disproportionate,’ which may eat away at valuable Court time. Similarly, we may face new arguments about whether financial information is already in the public domain. As with any new way of doing things, the new system is unlikely to be without problems. But as the old saying goes, you’ve got to crack a few eggs to make an omelette…
The proposed RPO is annexed to the consultation paper attached: https://www.judiciary.uk/wp-content/uploads/2021/10/Financial-Remedy-Proceedings-Consultation.pdf
Written by Isabel Hawkins, Pupil Barrister, Unit Chambers