Is greater transparency inevitable?

Family Law|March 1st 2016

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.

Photo by niclas via Flickr

Author: Stowe Family Law

Comments(6)

  1. Clay Serenbetz says:

    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. Clay Serenbetz

  2. JamesB says:

    the ship of transparency has sailed, it’s just that no one saw it leaving ;-). Had to be said :).

  3. JamesB says:

    With re to your actual point, you are wrong again, no change there, at least you are consistent. Not only has justice to be done, but it should be seen to be done and I agree with Harriet Harmon (glad I was struggling to remember her name) on this (not very much else) that its hard to defend these places when they are behind closed doors. These places get away with well dodgy approaches to law and find things factual when they are obviously not and are a bit slapdash and needs to be seen to be improved.

  4. JamesB says:

    John, John, consistently wrong, Bolch.

  5. JamesB says:

    Every now and then I am surprised I agree with you. About once a year perhaps, not on this. I can’t remember last time. Perhaps one percent of time. When you say things like people should listen to each other more I tend to agree with you I think was the last thing I agreed with you on.

  6. JamesB says:

    R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is a leading English case on the impartiality and recusal of judges. It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. It also brought into common parlance the oft-quoted aphorism “Not only must Justice be done; it must also be seen to be done.”
    Also Gordon Hewart, 1st Viscount Hewart. Except that Judges just make things up as they go which is the problem, they should be implementing law set by politicians who are representative of the people and should like the police be serving the people. Problem is that they are often not, example restricting contact unnecessarily with fathers, they should be more fair and transparently fair.

    Establishment say with re to ID cards and national ID database etc that if you haven’t anything to hide then you shouldn’t have an issue with it. The same applies to these courts.

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