Four years ago this week the President of the Family Division Sir James Munby issued his practice guidance Transparency in the Family Courts, requiring an increased number of family court judgments to be published, in order to counter the charge that the family courts operate a system of secret and unaccountable justice. And so the age of transparency was ushered in: no longer would family cases be decided behind closed doors, the public would be given full access to the details of cases, so that they could see why the courts make the decisions that they do.
Except that it’s not quite like that.
As I’m sure I’ve pointed out here before, one of the problems with greater transparency is that the media aren’t interested in the vast majority of cases that go through the family courts. The public never gets to hear about those cases, and why they were decided in the way that they were. The primary focus of the media’s interest in the business of the family courts is cases involving celebrities.
There never seems to be a time when at least one celebrity divorce is not making the headlines. In just the last couple of weeks there have been two high-profile celebrity divorces that the media have voraciously lapped-up, in order to fill goodness knows how many column-inches. And of course the media happily churns out all the gory details of the cases, because it is just those details that the public wants to read about. What did the parties get up to that led to their marriage breakdown? How much money is involved, and who is going to get what? This is the sort of vital information that sells newspapers.
Quite rightly, a number of family lawyers have responded to these stories on social media and elsewhere with some righteous indignation. It is none of our business, they say, why these marriages broke down, or what the financial settlement was. These are private matters that the public has no entitlement to know.
Hold on a minute, I hear you say, aren’t these the same lawyers who, over the last four years, have supported the President’s transparency drive? Well, yes, many of them are.
So, how can they say on one hand that there should be more openness in the family courts, and on the other hand that there should still be privacy? Isn’t there a contradiction here?
I’m quite sure that the lawyers would say that there isn’t any contradiction. The two things are separate. On the one hand, transparency is about letting the public know how the courts operate, so that any discussion about the rights and wrongs of the system can be informed by the realities, rather than ignorant misconceptions of what happens behind closed doors. On the other hand, surely those who are unfortunate enough to find themselves embroiled within that system are entitled to be spared the indignity of their private affairs being used for public titillation? After all, we are all entitled to privacy – why should it be any different just because we are involved in court proceedings? As I have explained before, there is a big difference between secrecy and privacy – it is quite possible for secrecy to be ousted whilst privacy is kept.
Will that explanation be sufficient to satisfy those who may say that these lawyers are being two-faced? After all, if the law requires proof of ‘unreasonable behaviour’ before granting a divorce, aren’t the public entitled to know what that behaviour was? And how can the public understand that a financial settlement was fair, without knowing all of its details? Each time the law says that some detail or details of a case must not be made public there are those who cry: ‘secret courts!’
Personally, I don’t suffer from any schizophrenia, at least when it comes to the transparency/privacy debate. I have always favoured the side of privacy. I have no interest in the personal affairs of others, and don’t mistrust decisions simply because they are made behind closed doors. But then, I am of course an ‘insider’, who knows just how the system operates, without having to rely upon what I read or hear in the media.