The issue of transparency within the family justice system is, as I believe I’ve commented before, the subject of almost constant debate amongst family lawyers these days. Hardly a week seems to go by without the issue being raised. However, over the weekend it went beyond the confines of the profession, making headlines in at least two national newspapers.
This is not, of course, the first time that the national media has taken an interest in transparency. After all, they are one of the primary beneficiaries of greater openness in the courts, enabling them to publish more about the arcane goings-on in the family courts than was previously the case. However, this time the media are not just reporting the issue as a matter of general importance to the public, or upon their own efforts to report a case they believe to be of particular interest.
On this occasion the media is reporting upon what appears to be a growing tension amongst the senior family judiciary, between those who support more openness and those who support the status quo. Specifically, the difference of opinion is between those like Mr Justice Holman, who consider that family proceedings (at least of the financial remedies variety) should generally take place in public with no reporting restrictions and those like Mr Justice Mostyn and others who consider that family disputes are essentially private matters that should not be made public, save as necessary to ensure fairness and to educate the public about the operation of the court in very general terms.
I have, of course, already discussed the difference of opinion between Mr Justice Holman and Mr Justice Mostyn here, in this post. There, I gave my views on the subject, falling essentially on the side of Mr Justice Mostyn, albeit with reservations. I will not repeat myself here, instead looking at two points that the latest media stories raise, one specific and one general.
The media stories relate to certain comments made by Mr Justice Moor (who I understand is in the ‘Mostyn camp’) in a private hearing of a financial remedy dispute in the High Court last Friday. I only have the newspaper reports to go on, but it appears that Mr Justice Moor was concerned that the difference of opinion between the two camps is leading to uncertainty as to how judges are to approach the issue of publicity in financial remedy proceedings. He therefore suggested that it was time for the Court of Appeal to examine the issue, and provide some guidance. I suspect that it may not be long before that happens, although I wonder whether it might actually be more appropriate for parliament to consider the issue? The question of whether the affairs of a family, which are normally considered to be private, should be made public matters simply because the family is in dispute is surely something that should be open to public debate?
The other, more general, point that struck me whilst reading the media stories is that they seemed to suggest to me that the media (and perhaps, therefore, the public) consider that there is an inevitability about the transition from privacy to publicity. Perhaps I am reading too much into it, but it reminds me of other reform campaigns in the past, such as the campaign for equal marriage, that just seemed as if it was only a matter of time before it happened.
What concerns me here, however, is that whilst it was always quite clear that ‘progress’ (and equality) dictated that equal marriage should come to pass, it is not so clear that the same can be said for holding family hearings in public. In fact, it almost seems like the opposite is true: washing dirty linen in public for the titillation of the general populace seems to me to be more like a return to the bad old days, when divorces were acted out in full public view.
But then, perhaps I am the dinosaur here: the ship of transparency has sailed, and it certainly seems to have the wind behind it. Perhaps, in the near future, the rule will be that financial remedy proceedings should usually be held in public, the rule will be accepted, and we will all wonder what the fuss was about.