Family law and open justice

Family Law|August 31st 2014

Family lawyers and judges are in a muddle over how much privacy there should be in family proceedings. In the recent case of Mrs Cooper-Hohn and Mr Hohn, the judge gave a 177 paragraph judgement at an interim stage of the proceedings to explain why she would not permit the press – who were allowed into court – to report the parties’ financial information (personal or business). Mrs Justice Roberts, described her job as ‘to find a way through somewhat rocky terrain where, as everybody appears to agree, there is no clear roadmap’. The way though this terrain is not difficult to find. It is just that family lawyers have often found it hard to read the maps.

The starting point is open justice: Lord Neuberger, President of the Supreme Court, recently wrote about this very topic. The late judge Lord Bingham took it as a given – that laws should be ‘publicly administered in the courts’ – in his 2006 lecture on the ‘Rule of Law. It is guaranteed by the Human Rights Convention 1950, Artice 6(1). The common law, as expressed, confirms it: ‘The general rule is that a hearing is to be in public’; or as Lord Justice Toulson (now Lord Toulson) recently explained:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

This area of law, therefore, is defined by judges, not (save in the case of children’s law) by Parliament.

Family proceedings hearings ‘in private’

Family proceedings are bound by these rules, as are all other civil (ie non-criminal) proceedings save (eg in children proceedings) where Parliament has said something different. Other exceptions can be made at common law – Lord Toulson’s ‘unwritten text’ – and it is of these unwritten rules that family judges have made such heavy weather, partly, it must be said, since it is not always easy to define what the common law says.

There are three categories of privacy for family – indeed any civil – proceedings:

(1)   Children proceedings (including care proceedings and adoption).

(2)   Family money proceedings (like the Hohn case).

(3)   Other family proceedings: eg divorce, domestic abuse, parentage etc.

Let’s take a look at the exceptions to Lord Toulson’s common law ‘open justice principle’. It should also be stressed that, though we speak of ‘privacy’, the criterion is not that the hearing is private; but mostly that nothing, or only parts of it, can be published. Thus, even of proceedings ‘in private’, it is not illegal to publish ‘information relating to proceedings’ unless they are in respect of children or their upbringing. That leaves open season on all other family proceedings, save as dictated by the common law and ordered by the court.

The law is best approached as it is summarised by the Civil Procedure Rules 1998[r 39.2(3)]. This sets out a simple list of those types of proceedings where the judge may restrict publicity. This includes:

  • A hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (eg enable someone to get rid of assets which the applicant was trying to freeze).
  • The case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (this would apply in many matrimonial financial proceedings, such as Cooper-Hohn) and
  • When ‘the court considers [restriction] to be necessary, in the interests of justice’.

If the family court considers these provisions and then balances them against the right of the press – generally – to publish, then the map over the ‘rocky terrain’ then becomes much clearer.

‘Use’ of documents following the court proceedings

Finally, a question remains as to the ‘use’ of court documents outside the proceedings. Here the law distinguishes between three categories:

(1)   The document disclosed under compulsion: ie because the law says the document must be produced (ie most documents produced in civil proceedings).

(2)   Documents ‘referred’ to in court.

(3)   Documents where publicity is restricted which a party wants to release, or a third party wants to see.

It has long been the law that documents in the first category are immune from being released to third parties (ie published in the broadest sense of the word, which may include to the press) – whether produced in public or private proceedings. This would cover many financial documents in family proceedings.

In the second category there may be an issue as to whether the document has been ‘referred’ to in court, and this includes merely bing read by the judge as part of his/her preparation for the case. If it is in this category, the document may be published unless the court says otherwise (and it actually was in this type of proceeding that the Lord Toulson quote above arose). A party, or a third party to whom the document belongs, can ask the family court to restrict publication.

A particular line of family cases has arisen where the court is asked by one party or a third party (eg the tax authorities) for release of documents. On this point the law is still unsettled. Some judges think wrong-doing (eg tax evasion) should be exposed, whatever the risk to future disclosure, whilst others – perhaps the majority – feel that possible dishonesty should be kept private, even from state authorities.

Conclusion

It is to be hoped that if the common law is followed, as outlined above, then the road to fair balance on privacy will not be as ‘rocky’ as Mrs Justice Roberts paints it. The questions for anyone to ask are:

(1)   Is it a children case? If so publicity will generally be denied, subject to an order of the court.

(2)   If the case falls within any other category of family law, is there any positive reason (such as those referred to above) why the case should be in private (eg private financial information)? And if documents have been ‘referred’ to, should their publication be restricted?

(3)   If a third party or government body want to see documents, how is privacy protection to be balanced against the need for the court not to condone dishonesty?

Photo of the Royal Courts of Justice by Tony Hadnutt via Flickr under a Creative Commons licence

Author: David Burrows

David is a solicitor advocate (higher courts, civil) who specialises in family law. He is a founder contributor to Family Court Practice (Jordans, the ‘Red Book’), and chaired SFLA (Resolution) National Committee in 2003. He writes extensively in for various publications, including Family Law and New Law Journal.

Comment(1)

  1. The Children and Families Act 2014 (Transitional and Saving Provisions) (No. 2 … says:

    […] Family law and open justice by David Burrows Family lawyers and judges are in a muddle over how much privacy there should be in family proceedings. In the recent case of Mrs Cooper-Hohn and Mr Hohn, the judge gave a 177 paragraph judgement at an interim stage of the proceedings to explain why … Read more on Marilyn Stowe Blog […]

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