The family courts have long practiced in private in order to protect the personal and financial information of separating families. This has served the families well when they do not want to “wash their dirty laundry” in public but the President of the Family Division Andrew McFarlane has initiated a long-awaited pilot to address transparency in family proceedings.
This pilot means that in three locations in England and Wales reporters may attend private family proceedings and publish details of what they observe if the judge agrees for them to do so. These hearings will continue to be private from the general public but this pilot is a step along the way to more open reporting of private family proceedings
The court always has to have in mind that the best interests of any children involved in proceedings is paramount and that their anonymity should be protected. However, this does not necessarily apply to financial proceedings which may cause concern to parties in proceedings if transparency regarding their personal financial information is allowed.
It has long been an underlying principle of the legal justice system that not only must justice be done but justice must be seen to be done and this appears to be at the forefront of the thinking of the President of the Family Division.
In today’s society where minute detail regarding individuals’ lives is posted online in social media and various outlets the courts have faced criticism in having family cases held in secret. The general public takes the view that secrecy is a bad thing whereas the court has to balance the needs of the parties and any children against the need to demonstrate that justice is being done.
When cases involve children the judge will have to give clear directions as to any level of transparency particularly where there are allegations of any type of abuse. It could never be right where children are identified as being victims of abuse to have their details and those disclosures made in the public eye. However, the court wishes to ensure that the decision-making process is clear and that they are open to public scrutiny.
However, one can quite easily see how, when children are not involved, a husband or wife would not wish for all the details of their finances including assets and liabilities and business transactions to be available to the general public and to their competitors in business.
The court wishes to encourage transparency in order to encourage public confidence in the judicial system but this will need to be balanced carefully against the needs of the parties in coping with the fallout from any disclosures relating to their personal life or finances. The effect of transparency could be more emotional trauma or financial loss.
“It is always a balancing act when the public interest conflicts with the right to private life and this presents an additional concern to parties at an already difficult period of their lives. We shall have to keep a close eye upon the transparency pilot to consider the impact upon our clients. The threat of disclosure or transparency in the courts may have such a significant impact upon a client that it leads them to settling their case upon less favourable terms early rather than face public scrutiny. It may also result in the increased use of alternative dispute resolution which remains private. There has never been a more appropriate time for us to use the phrase “watch this space”.”Jeanette Birch, Solicitor.
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